Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 51

HCA/2016/000128/XC

Lady Smith

Lady Dorrian

Lord Bracadale

OPINION OF THE COURT

delivered by LADY DORRIAN

in

APPEAL UNDER SECTION 74 OF THE

CRIMINAL PROCEDURE (SCOTLAND) ACT 1995

by

MICHEL KERSEBOOM

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Alonzi;  John Pryce & Co

Respondent:  Erroch, Advocate Depute;  Crown Agent

1 April 2016

Decision
[1]        This is an appeal under section 74 of the CP(S)Act 1995 arising from the refusal at a preliminary hearing of an application under section 275 of that Act.

[2]        The indictment contains one charge of rape, alleged to have been committed on 6 June 2011 at an address in Lybster.  The defence has lodged a special defence of consent.  A section 275 application was presented on behalf of the appellant.  So far as relevant to this appeal, section 275 provides as follows:

“275 Exception to restrictions under section 274

(1)        The court may, on application made to it, admit such evidence or allow such questioning as is referred to in subsection (1) of section 274 of this Act if satisfied that—

(a)        the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating —

(i)         the complainer's character;  or

(ii)        any condition or predisposition to which the complainer is or has been subject;

(b)        that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged;  and

(c)        the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited.

(2)        In subsection (1) above —

(a)        the reference to an occurrence or occurrences of sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature;

(b)        “the proper administration of justice” includes —

(i)         appropriate protection of a complainer's dignity and privacy;  and

(ii)        ensuring that the facts and circumstances of which a jury is made aware are, in cases of offences to which section 288C of this Act applies, relevant to an issue which is to be put before the jury and commensurate to the importance of that issue to the jury's verdict,

and, in that subsection and in sub-paragraph (i) of paragraph (b) above, “complainer” has the same meaning as in section 274 of this Act.”

The application contains reference to the evidence sought to be elicited or admitted as follows:

“(a)      That the complainer menstruated between 1 and 6 June 2011. 

(b)        That from around 24 June 2011 the complainer falsely claimed to work colleagues that she was pregnant with the accused’s child.  In particular, on 24 June 2011 she falsely claimed to defence witness Aileen Grogan that her period was over a week late.  In the course of further text messaging the complainer falsely implied that she was due to be given a pregnancy scan;  and on 6 July 2011 the complainer stated that she had been to the doctor that day and falsely claimed to have had a third positive pregnancy test;  that she was undecided about whether to have a termination, but that her mother was making an appointment for termination.  Later that day she claimed to be having a possible miscarriage and falsely stated that she was due to see a gynaecologist the following morning.  On 7 July she texted that it had not been a miscarriage;  and subsequently she falsely claimed to be having a termination performed on 11 July 2011. 

(c)        That following the alleged rape, the complainer would constantly bring the matter up in conversations at work despite the efforts of her colleagues not to speak about it.  She appeared to enjoy people speaking about the alleged incident and being the centre of attention.”

It was said that the evidence in respect of (a) would demonstrate the falsehood of the complainer’s purported concern regarding her period being overdue.  The false nature of the claims referred to in (b) would be established by comparison of her medical records with the evidence of her work colleagues.  The records would show that a pregnancy scan was never contemplated, that she had two pregnancy blood tests, both negative, with no suggestion of any test being positive.  No issues arose regarding termination, miscarriage or attendance with a gynaecologist.

[3]        The application asserted that the evidence was relevant to the proper assessment of the credibility of the complainer, demonstrating that she persistently told lies about matters directly connected with and flowing from her sexual encounter with the accused.  The evidence also demonstrated that she has persisted in those lies as a form of attention-seeking behaviour.  The appellant’s submissions to the procedural hearing  judge echoed the contents of the application.  Both the accused and the complainer had indicated that there had been no ejaculation during the incident.  At medical examination the complainer had indicated that she had just finished her period, yet 18 days later told others that she was concerned that her period was late.  She told lies about the blood tests.

[4]        The crown opposed the application, submitting that the matter was far from as straightforward as suggested.  By her own admission she had unprotected sexual intercourse with the accused.  The evidential basis for the allegations was slim, coming in the form of a hearsay report from one witness and a vague recollection from another.  Exploration of the issue would require detailed examination of the complainer’s medical records at the expense of her privacy and dignity. 

[5]        The complainer had previously been receiving treatment for an ovarian cyst.  After the incident she had been advised to get the morning after pill because she had had unprotected sex.  She was concerned that her period was late, so her mother, working at the local hospital, spoke to a gynaecologist, and obtained a home pregnancy test.  That had been positive, so she was advised to get a blood test, in respect of which samples were taken on three occasions.  The medical records disclosed that the complainer was worried about pregnancy.  The complainer had a complicated medical history, and it was possible that the bleeding she experienced on 6 July was not menstruation but was connected with an ovarian cyst which was present. 

[6]        The crown submitted that the proposed  line was sensationalist, and would make the complainer’s medical records the focus of the trial.  The probative value of the evidence was insufficient to outweigh the risk of prejudice to the proper administration of justice, which included the protection of the complainer’s dignity and privacy. 

[7]        The preliminary hearing judge proceeded on the basis that the behaviour may be relevant to the credibility of the complainer, in the broadest sense, and thus to whether the accused is guilty of the offence with which he is charged, on which basis he was satisfied that section 275(1)(b) was established.

[8]        However, he considered that:

(a)        Before the jury could consider whether the allegation of rape was part of attention-seeking behaviour on the part of the complainer they would have to weigh and consider much disputed evidence which would not be directly related to the allegations in the indictment;

(b)        Given that the complaint of rape was made very soon after the incident, and when the complainer was intoxicated, the relevance of the alleged subsequent behaviour to the question of consent was very limited;  and

(c)        The medical records of the complainer would require to be examined in detail, despite the assertions to the contrary made on the appellant’s behalf. 

Noting that under section 275(2)(b)(i) the proper administration of justice includes the appropriate protection of the complainer’s dignity and privacy, the preliminary hearing judge concluded that any probative value which the evidence might have did not outweigh any risk to the administration of justice. 

[9]        The submissions before us largely repeated the submissions made to the preliminary hearing judge.

[10]      In our view the preliminary hearing judge was correct to refuse this application.  The preliminary hearing judge, who was unfortunately not given the benefit of reference to authority, was content to proceed on the basis that the requirements of section 275(1)(b) were met.  We do not think that is the case.  It is not every matter which by any conceivable margin may bear on credibility which is relevant for this purpose.  Evidence which is remote or collateral is not relevant to establishing whether the accused was guilty of the offence with which he is charged.  A clear distinction must be made between that which is admissible and material evidence, and that which is collateral.  As was pointed out in CJM v HMA 2013 SLT 380, the reason that collateral evidence is inadmissible is because it requires inquiry into and assessment of evidence which does not have a direct and material bearing on the issue for the jury:  that clearly applies here, where there is considerable dispute about both the nature and extent of the evidence which may be available, and where, as the advocate depute correctly identified to the preliminary hearing judge, proper exploration of the issues would involve detailed examination of the complainer’s medical records on matters which are not germane to the issue of consent.  To allow that would be inexpedient and would distract the jury from the principal issues.  As was noted in CJM there are recognised exceptions to the rule against the admission of collateral evidence in situations where the collateral fact could be demonstrated instantly and could not be challenged – that is so very far removed from the situation here.

[11]      The only significance of the evidence would be to support an argument that having lied about having a positive pregnancy test, and associated matters, the complainer’s credibility in relation to her assertion that intercourse with the appellant was not consensual was suspect, and that she was lying about the course of events.  The background of the matter, as explained to the procedural hearing judge by the crown, is that although the complainer did not have a positive blood test, it is said that she did return a positive test on a home pregnancy kit.  It is also said that she did have several blood tests, which indicate a certain degree of concern about the possible consequences of the incident, a concern which cannot be negated by the fact that ejaculation did not take place.  There are potential complications in the evidence arising from the history of an ovarian cyst.  This is clearly an area of dispute, not a case of facts which could be demonstrated instantly and without challenge.

[12]      The evidence sought to be relied upon appears to be in the same category as the evidence in CJM v HMA.  It is clearly evidence of character, since the defence position is that she wholly fabricated evidence relating to events subsequent to the night in question.  As was said in CJM (para 29 by the Lord Justice Clerk, Lord Carloway:

“What is sought to be admitted here is evidence that, at least on one view, has no direct or indirect connection with the facts in issue, but may conceivably affect the weight to be attached to testimony which does have direct relevance to the facts (see Phipson, Evidence (17^th edn), para 7-04).  There is no doubt that this type of evidence can be admissible in certain situations;  but these situations are strictly regulated.  The Scots law is reasonably clear.  … evidence of either good or bad character is, in general, inadmissible …. because it is collateral to the issues for decision as defined in the libel.”

[13]      In that case, the reason for this rule was noted (para 31, Lord Carloway) “The reason for this rule is that:

“… it is better to sacrifice the aid which might be got from the more or less uncertain solution of collateral issues, than to spend a great amount of time, and confuse the jury with what, in the end, even supposing it to be certain, has only an indirect bearing on the matter in hand” (A v B , Lord President Robertson at p404 cited in Walker and Walker (supra) at para 7.1).

[14]      In Moorov v HM Advocate 1930 JC 68 it was observed that:

“A certain alleged fact may be relevant in so far that, if established, it might help a fair mind to come to a certain conclusion.  Nevertheless, it may fall to be excluded if its ascertainment raises a separate issue from that which is being tried.  The alleged fact if put in cross and admitted may be relevant, but nevertheless it may be of a kind which cannot otherwise be proved, for, if it is disputed, it would require to be tried as carefully as the issue before the Court, and the allowance of such collateral inquiries would make proofs endless” (Lord Sands at, p87).

[15]      More recently, the rule and its justification have been phrased as follows:

“The general rule is that it is not admissible to lead evidence on collateral matters in a criminal trial.  Various justifications have been put forward for this rule.  The existence of a collateral fact does not render more probable the existence of the fact in issue;  at best a collateral matter can only have an indirect bearing on the matter in issue;  a jury may become confused by having to consider collateral matters and may have their attention diverted from the true matter in issue.  Whatever the justification for it, the general rule is clear” (Brady v HM Advocate, the Lord Justice Clerk, Lord Ross at 1986 JC, p73;  1986 SLT, p687 ).“

[16]      We accordingly are not satisfied that the evidence would be admissible at common law.  However, even proceeding, as the procedural hearing judge did, on the basis that it would be admissible, we consider that the procedural hearing judge was correct in deciding that in the circumstances it would be of such little evidential value that it could not be said that the probative value of it would outweigh the risk to the administration of justice from its admission.  There is a great deal of speculation in the matter;  there is a significant dispute as to the nature and extent of the evidence;  a considerable amount of time is likely to be taken up with examining the medical records and other matters which are incidental to the issues in the trial.  All that would be at the expense of the privacy and dignity of the complainer.  Leaving aside the additional question of examination of the police investigation, which was mentioned in passing, there was ample reason to refuse the application.  In deciding as he did the procedural hearing judge was acting within the bounds of his discretion, and as illustrated in Wright v HMA this court should be slow to interfere with such a decision.  We decline to do so, being satisfied that the conclusion which he reached was one within a reasonable exercise of his judgment in the circumstances.