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Cite as: 2022 JC 164, 2022 SCCR 109, [2022] ScotHC HCJAC_16, [2022] HCJAC 16, 2022 SLT 753, 2022 GWD 12-186

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2022] HCJAC 16

HCA/2019/000708/XC

HCA/2019/000727/XC

Lord Justice Clerk

Lord Turnbull

Lord Pentland

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

APPEAL AGAINST CONVICTION

and

APPEAL AGAINST CONVICTION

Appellants

against

HER MAJESTY'S ADVOCATE

Respondent

First Appellant: K Johnston, sol adv; More & Co

Second Appellant: L Glancy; Beaumont & Co

Respondent: A Edwards, QC, AD

;

Crown Agent

28 January 2021

Introduction

[1]

The appellants were each found guilty of raping the complainer during the same

incident at the flat of the second appellant in Edinburgh. Prior to repairing to the flat the

three had spent time in each other's company at a nightclub in the city. The complainer was

intoxicated. The first appellant and the complainer had previously had a relationship over a

period of about 6 months. Charge one, a charge against the first appellant of having

unlawful intercourse with the complainer when she was 14, during 2011, was withdrawn at

the conclusion of the Crown case.

Background

[2]

It had been agreed by joint minute that scientific evidence in relation to the finding of

DNA could be explained by the second appellant having vaginal intercourse with t he

complainer and by the first appellant having vaginal and/or anal intercourse and/or oral sex

with the complainer, all as alleged in the charge. Medical examination of the internal part of

the complainer's genitalia revealed numerous small healing abrasions, and the area was

noted to be tender. The latter could have been sustained as a result of blunt force,

penetrative trauma within the timeframe given for the alleged incident, although the

findings did not shed light on whether that had been as a result of a consensual act.

[3]

At the commencement of the trial consent was a live issue, each appellant having

lodged a special defence. Neither appellant gave evidence nor were any prior statements by

them led in evidence. The special defences were not withdrawn, nor did the trial judge ex

proprio motu direct the jury to disregard them.

[4]

The primary issue as the case developed related to the complainer's credibility and

reliability. The contents of various text messages between the complainer and her boyfriend

in the aftermath of the incident were agreed by joint minute. He also gave evidence about

retrieving certain voice mail messages on the morning after the incident which had been left

on his mobile phone during the course of the night. The text messages included one at 0436,

when she would have been at the locus, referring to her being with "Alan's friend" and

being "scared"; at 08.43 stating "Andy, something really really, really, really bad happened

and I'm really scared and I can't stop crying."; and at 09.26 stating ""He held me up against

the wall and his friend shoved like half a pill down my throat, I don't know what it was.

Then I barely remember anything apart from being in a taxi." She admitted to having lied

about some of the contents of the text messages sent to her boyfriend, and in particular in

relation to the one sent at 0926. She had no recollection of leaving the voicemails and only

knew about them when her boyfriend told her later.

[5]

To corroborate the complainer's evidence as to lack of consent the Crown relied

upon:

(i)

Extreme distress exhibited by the complainer to her boyfriend in a phone call after

she left the locus in the morning, some time after 0915 hrs. She was described as incredibly

distressed, distraught, and incoherent. He had to ask her to calm down multiple times

because he couldn't understand what she was saying, she was in hysterics.

(ii)

The evidence of her boyfriend as to the contents of voicemails from her, including

one at a time when it could be inferred she was at the locus with the appellants, wherein she

sounded in distress, saying "No", "Please don't" and "leave me alone", audible to him over

a background of male laughter. The actual recordings were not led in evidence. [Although

it was arguable that what he heard during this call was res gestae the Crown did not present

the matter on this basis. We note that in the course of his earlier police statements the

witness had made no reference to these voicemails, which were not available in court, the

witness stating that they had been recorded on an old phone he no longer had, and that he

had not preserved them].

(iii)

Evidence of a medical examination of the complainer about 60 hours after the alleged

incident, which revealed bruising to the complainer's arms, on the inner aspect of the left

thigh, close to the groin, and which were in keeping with pressure from fingertips/hands

applied to these areas within the timeframe of the alleged incident.

[6]

The Advocate Depute submitted to the jury that they could accept the distress as

genuine and directly attributable to the incident. The text messages and other voicemails

were addressed by the Advocate Depute in the context of the credibility and reliability of the

complainer. She submitted that there was in fact no evidence that the complainer consented,

and that there could have been no basis for a reasonable belief in consent.

The Charge

[7]

The trial judge gave a basic direction on the need for corroboration in the form of

evidence from "a separate source which confirms or supports the principal source of

evidence". That other source could be direct, such as an eye witness or a document, or

indirect in the form of supporting facts and circumstances.

[8]

The purpose of the special defence was to give notice to the Crown, did not alter the

burden of proof, so the defence did not need to lead evidence in support of it, and any

evidence relating to it should simply be considered along with the rest of the evidence. He

then said this:

"In this case, the accused are both saying that the sexual behaviour between them

and FS was consensual, hence they should be acquitted of the charge against them."

[9]

Having defined the crime of rape he went on to say:

"Now, these three things, the intentional or reckless penile penetration, lack of

consent by the person and the absence of reasonable belief by the accused that she

consented all have to be proved by corroborated evidence."

He gave an appropriate definition of consent, then addressed the issue of reasonable belief,

in the course of which he stated:

"Here obviously the issue is that there was belief that she was consenting."

[10]

He explained that any belief had to be reasonable, not simply honest, adding:

".... you look objectively at what the facts tell you about the interaction between the

person and the accused and their shared understanding of what was happening. To

decide if the accused's belief that the person was consenting was reasonable you

have to have regard to, for example, whether he took any steps to find out if she was

consenting, and what those steps were."

[11]

In the course of his charge the trial judge made no reference to the issue of distress,

or its evidential significance, nor to the medical evidence, or its evidential significance. He

did not direct the jury as to the use to which the text messages or voicemail messages could

be put, and gave no directions on hearsay, save to the extent that he had previously given

directions on the use of police statements.

Other matters

[12]

Two matters were raised by the administrative judge during the single judge

procedural hearing in this case. The first was that the court required to see the section 275

applications which had been lodged and granted in the case. The second was that the court

wished to be addressed on the appropriateness of the directions given by the trial judge in

relation to reasonable belief in consent, as noted above.

Section 275

[13]

Each appellant had lodged an application under section 275 of the Criminal

Procedure (Scotland) Act 1995, which were allowed at separate preliminary hearings.

Paragraphs (a) (c) and (f) of the first appellant's application were granted unopposed. The

application for the second appellant was granted unopposed. On the morning of the trial a

second application was granted, unopposed, in favour of the first appellant.

First appellant

[14]

The first application granted for the first appellant was in the following terms:

(a)

That between 1 April 2011 and 30th June 2011 the accused and the complainer were

in a sexual relationship with each other. During that period, the accused and the said

complainer experimented with rough, forceful sex. The complainer at that time told the

accused that she liked him to use force, and that she liked being spanked. The complainer

was aware that the accused enjoyed sadomasochistic sex

(b)

That in 2015 and 2016, the complainer ... and the accused contacted each other using

social media and met up with each other in person.

(c)

That between January 2016 and the date libelled, the complainer ... and the accused

maintained contact through the dating app Tinder as well as by text message. During those

communications, the complainer and the accused discussed meeting up with each other for

the purpose of engaging in sexual activity. They also frequently discussed the sexual

activities in which they liked to engage. The complainer in one message suggested that she

liked to engage in sexual intercourse with two men.

(f)

That the complainer had reported a phobia of doctors.

[15]

Paragraphs (a) (c) were said to be relevant to the issue of consent, and in the case of

(a) and (c) to the issue of reasonable belief in consent; (f) was said to be relevant to distress,

and to offer an alternative explanation of the apparent fact that the complainer was

distressed during the medical examination. In relation to paragraph (c) it was suggested

that the evidence referred to therein would allow the inference that the complainer wanted

to engage in sexual activity with the accused on the date libelled. The same inference was to

be drawn from paragraph (a), which related to activity which was said to have occurred

5 years before the libel, and when the complainer was only 14.

Second application for first appellant

[16]

This contained one paragraph, namely that between 02.10 am and 02.46 am on the

4th May 2016 the complainer behaved in a sexual way towards the appellant outside the

nightclub they had been in prior to the alleged incident, and had put her arm around the

appellant, cuddled him, kissed him, held his hand, and put her hand on his waist. This was

said to be relevant to consent and reasonable belief in consent because the behaviour

suggested she was interested in him sexually, and the inference to be drawn was that she

consented to the acts libelled.

Second appellant

[17]

The application for the second appellant was in these terms:

(a)

That between January and April 2016 the complainer and the first appellant were in

social media contact with one another, sent messages of a sexual nature to each other,

including one in which the complainer said that she liked "being double teamed" i.e. to have

sexual activity with two males at the same time;

(b)

That shortly before the alleged incident, whilst they were standing waiting for a taxi,

the complainer grabbed this appellant's penis and stated "Are you going to be my daddy?".

(c)

That in addition to consenting to the sexual activity libelled, on the occasion in

question the complainer also performed consensual oral sex upon the second appellant,

handled his penis and masturbated him.

[18]

The nature of the questioning to be anticipated included:

(a)

That she sent the message because she wanted to have sexual activity with two men

at one time, and on the occasion libelled, acted on that desire.

(b)

That she initiated sexual contact with the second appellant, having recently met him

for the first time.

(c)

That the activity in question took place during the alleged incident.

The issues to which these paragraphs were said to be relevant were the credibility and

reliability of the complainer, in that the evidence that she sent messages or demonstrated

behaviour of a sexual nature had a bearing on consent.

Submissions

Appellants

[19]

The appeal for each appellant was advanced on similar grounds, maintaining that a

miscarriage of justice has resulted from a failure by the trial judge to direct the jury on a

number of essential matters, namely:

(i)

The sources of evidence available to corroborate the charge.

(ii)

How to treat the evidence of distress and its evidential value.

(iii)

Exceptions to the hearsay rule and in particular the evidential value of the voicemail

messages spoken to by the complainer's boyfriend, and texts messages; and

(iv)

How to treat the medical evidence and to what extent it could provide corroboration.

[20]

The nub of the argument in each case was that the trial judge failed or omitted to

assist the jury to distinguish between evidence which was capable of corroborating the

complainer's account and that which was not. It was imperative to provide guidance on the

available sources of corroboration; and to identify evidence which was incapable of falling

into this category. There was evidence which was capable of providing corroboration of the

complainer's evidence distress de recenti, and the medical evidence. There was other

evidence, in the form of de recenti statements which were relevant only to credibility and

reliability. There was even evidence which might have been construed as part of the res

gestae. The trial judge had an obligation to guide the jury on these different categories of

evidential significance attributable to different pieces of evidence. His failure to do so

constituted material misdirections by omission and resulted in a miscarriage of justice.

Consent, reasonable belief and section 275

[21]

In her written case and argument, the solicitor advocate for the first appellant

submitted that there was evidence to justify the directions given, particularly in relation to

the behaviour outside the nightclub, and the evidence that the appellant had acted

"normally" after the alleged incident. In supplementary oral argument she referred to there

being "very little basis if any" for the directions, but sought to maintain that the material

elicited in consequence of the section 275 applications had provided such a foundation. She

acknowledged that it had been a misdirection to tell the jury that the Crown required to

corroborate an absence of reasonable belief.

[22]

As to the section 275 applications, she recognised with hindsight that there were

problems with these, but maintained that the paragraphs relating to the CCTV evidence and

the complainer's alleged behaviour to the first appellant remained relevant.

[23]

Counsel for the second appellant frankly acknowledged that the section 275

application could not be supported, save for the third paragraph. She accepted that there

was no evidential basis for a reasonable belief in consent, and although she had not

withdrawn the special defence she had not presented the case to the jury as one of consent

or reasonable belief. The trial judge had misdirected the jury on the issue of reasonable

belief (Graham v HM Advocate 2017 SCCR 497).

The Advocate Depute

[24]

The Advocate Depute acknowledged that the trial judge did not specifically direct

the jury on the matters raised in the grounds of appeal, but submitted that in the context of

the case their absence did not constitute material misdirection or miscarriage of justice. The

charge was short, but adequate, and in some instances was unduly advantageous to the

appellants. The charge had to be looked at as a whole and in the context of what were the

issues at trial, which essentially related to the credibility and reliability of the complainer.

[25]

The trial judge referred to the parties' speeches, from which the jury had sufficient

information regarding the sources of evidence available to them in support of the

complainer's evidence. The Advocate Depute had addressed at some length the evidence

available to corroborate the act of penetration, which was not in dispute; and had then

concentrated on addressing the evidence available to corroborate lack of consent. She did

not rely on any evidence which was not properly available for that purpose. She had

referred to any text messages only in the context of credibility and reliability, and had not

suggested, as she might have done, that the text at 0436 was part of the res gestae (Cinci v

HM Advocate 2004 JC 103). The position was clearly put before the jury who could not have

been confused or misled.

Consent, reasonable belief and section 275

[26]

The situation was similar to that in MacDonald v HM Advocate 2020 JC 244, in that

there was no evidence led in support of the special defence for either appellant. The trial

judge erred in saying that the appellants "were both saying" that the sexual behaviour was

consensual, in his reference to reasonable belief, and in the direction that the latter required

to be corroborated. These were misdirections in favour of the appellants. The special

defences should have been withdrawn, failing which the trial judge should have withdrawn

them from the jury's consideration ex proprio motu.

[27]

Evidence of previous sexual communications or contact between the parties was of

no relevance to consent on the occasion libelled, even if it related to events earlier the same

evening. To that extent the Crown should have opposed these applications. Para (a) of the

application for the first appellant related to events libelled in charge 1, and, given the nature

of that charge, apart from the first sentence which was evidence of the events libelled, the

matters narrated therein were irrelevant to the issue of consent on charge 2.

Analysis and decision

[28]

We are satisfied that these appeals must succeed on account of the manifest

deficiencies in the judge's charge. This is not a case such as DS v HMA [2011] HCJAC 125

where the deficiencies may be tempered by what was said elsewhere in the charge; on the

issues which were the subject matter of the appeal the trial judge said nothing at all in his

charge. In his report he said that he decided not to raise these matters because (a) the

medical evidence was neutral; and (b) in respect of the other matters, for fear of seeming to

influence the jury. These statements are difficult to understand. In the first place, the

medical evidence was not neutral, and had clearly been relied upon by the Advocate Depute

in her speech as providing corroboration of the complainer's evidence as to lack of consent.

As far as the other point is concerned, the directions which were required were directions on

law, not directions on fact. All that was required was to explain to the jury the legitimate

use to which these various pieces of evidence could be put, what they did with them

thereafter would be a matter entirely for them and a direction on law cannot be said to risk

seeming to exert any undue influence on the jury. On the contrary, it was an essential part

of giving the jury the tools they needed to do their job.

[29]

The trial judge correctly told the jury that the complainer's account had to be

corroborated by evidence from another, separate, source. In the present case there were

three pieces of evidence which might have provided corroboration. These were the extreme

distress exhibited during the phone call later in the morning; the distress heard during the

voicemail with male laughter in the background; and the medical evidence.

[30]

The first of these was exhibited at the same time as the complainer made a de recenti

statement, which was also evidence that the jury could take into account, but in that case

only so far as it had a bearing on credibility and reliability. The jury also had to be told that

in order to use distress as corroboration they required to accept it as genuine and to be

causally connected to the incident libelled. There was an obvious need for legal directions

on these different aspects of the evidence.

[31]

The second of these occurred in circumstances where an argument could have been

advanced that it fell into the category of res gestae. The Crown, no doubt for proper reasons,

eschewed such an argument, but again a distinction required to be made between what the

complainer said and what was her objectively perceived demeanour, and the differing

purposes for which these separate aspects of the evidence could be used. Whilst making

reference to res gestae, given the Crown approach, might have added confusion, the trial

judge at least had to tell the jury that the distress could provide corroboration if they were

satisfied it was attributable to the sexual attacks, but, on the Crown approach, the statements

only went to credibility.

[32]

As to the medical evidence, it seems that evidence was led of distress exhibited

during this and another examination, as well as of matters said by the complainer, in

circumstances which could not possibly constitute either de recenti distress or de recenti

statements. Again, this had to be explained to the jury.

[33]

Quite apart from the observations made in Dyer v HMA [2009] HCJAC 7, para 22 and

DS v HMA [2011] HCJAC 125, paras 13, 28 and 37, as to the need to give adequate directions

on the issue of corroboration by distress, it should have been abundantly clear that these

directions required to be given to enable the jury properly to carry out its task. In

McGartland v HMA 2015 SCCR 192, Lord Malcolm noted (para 31) that "Juries are entitled to

a bespoke charge adapted to the evidence and to the particular issues arising in the trial". In

DM v HMA [2017] SCCR 235 the court clearly considered that directions must "...be

sufficient to alert the jury as to how they should go about their decision making in every

case. Effective jury directions must engage with the specifics of the particular trial and the

particular issues that arise for decision." The directions given in this case significantly failed

to meet this test. They were superficial and to a large extent formulaic. They failed to

explain the legal significance of crucial aspects of the evidence.

[34]

As has repeatedly been observed, the judge's charge is a central part of the

framework in which our solemn criminal trials are decided and which assist our system in

meeting its obligations under article 6 of the European Convention of Human Rights. In

CH v HMA [2016] HCJAC 4, giving the opinion of the court, Lord Bracadale observed

(para 13), that:

"The terms of a trial judge's charge to the jury should be such as to enable the

informed observer, who has heard the proceedings at the trial, to understand the

reasons for the verdict. In other words, there must be a discernible route to the

verdict. This approach meets the requirement for a reasoned verdict."

[35]

In Goldie v HMA 2020 JC 164 the court noted (para 27):

"The verdict of a jury is, of course, not given in isolation, but as part of a framework

which includes the speeches of counsel and the directions of the trial judge (Beggs v

HMA 2010 SCCR 681, para 207). From this framework, including the evidence and

the libel, the basis of any conviction should be discernible (ibid). This may not follow

if the trial judge's directions are incomplete, fail to identify all the matters which the

Crown required to establish for conviction, or are in any way confusing."

[36]

In our view the charge to the jury did not provide the jury with the framework they

needed. The fact that the Advocate Depute in her speech did not rely on any evidence for an

impermissible purpose is beside the point. The obligation of providing the jury with the

framework they need rests squarely on the judge. Although he had explained to the jury, in

general terms, the need for another source of evidence to corroborate the evidence of the

complainer, he gave the jury no assistance at all about where they would or would not be

entitled to find that corroboration.

[37]

The problems arising from the failure to give adequate directions were compounded

by the erroneous directions given regarding consent and reasonable belief. In the first place

the direction that an absence of reasonable belief was something which the Crown required

to corroborate was a misdirection (Graham v HM Advocate 2017 SCCR 497; Maqsood v

HM Advocate 2019 JC 45), as a glance at the jury manual would have shown. Secondly, the

directions that the appellants "are both saying" that there was consent, and that "Here

obviously the issue is that there was belief that she was consenting" were again

misdirections: MacDonald v HMA 2020 JC 244. The situation is on all fours with that case.

[38]

The matter worsens when consideration is given to the defence speeches. Although

counsel for the second appellant had not, as she should have done, withdrawn the special

defence, in her speech she was scrupulous in making clear that she was not advancing any

positive elements of a defence of consent or reasonable belief. Throughout she addressed

the only remaining issue, namely whether the jury was satisfied that the Crown had proved

its case. In support of the contention that it had not, she appropriately addressed issues

regarding the credibility and reliability of the complainer, and highlighted numerous

aspects of the evidence which she argued should cause the jury to pause or hesitate in

reaching a conclusion in favour of the Crown. Her final submission was simply that the

evidence led for the Crown fell far short of the high standard of proof beyond reasonable

doubt.

[39]

If counsel for the second appellant was scrupulous in this regard, the same cannot be

said for the speech of the solicitor-advocate for the first appellant. Her speech was

presented on the footing that there was a basis for the positive defence raised in the special

defence, that the evidence would allow the jury to draw an inference that the complain er

had consented to the acts in question, and in any event, would permit them to conclude that

the appellant had a reasonable belief in consent. Leaving aside the issue of how both

submissions could be presented, there was in fact no evidential basis for either. The

situation was entirely that which arose in MacDonald where the court noted (para 41):

"There was no evidence in support of the special defence of consent. In these

circumstances the appellant's law agent ought, in accordance with the normal and

accepted practice, to have withdrawn the plea in advance of addressing the jury

(Lucas v HM Advocate, Lord Carloway, delivering the opinion of the court, para 12).

The agent should at least have made the position clear in his speech to the jury (ibid).

He did not. On the contrary, he maintained that the incident had involved

consensual sex in the absence of any evidence for that line. He was, of course,

entitled to address the jury on the basis that the Crown had not proved the case

beyond reasonable doubt. He was free to make submissions on credibility and

reliability. He was not entitled to suggest to the jury that a positive case of consent

had been made out in the absence of any evidence to support that case. It was

improper to do so."

[40]

The exact same remarks may validly be made about the speech of the solicitor-

advocate for the first appellant. Furthermore, these improper remarks having been made,

the trial judge should have clarified and corrected the position in his charge. He should

have been alerted to the issue by the speech of the Advocate Depute which twice referred to

the fact that there was no evidence of consent, and that there could be no basis for a

reasonable belief in consent; and to the tenor of the speech by counsel for the second

appellant, but he did nothing to correct the speech for the first appellant. He should have

done so: MacDonald, para 42:

"In these circumstances, it was for the sheriff to make the position clear to the jury; ie

that there was no evidence that the complainer had consented to any sexual activity

but that they still required to consider: whether they accepted the complainer's

testimony as credible and reliable; and whether her account was adequately

corroborated. The sheriff's direction to the jury, that they required to acquit if they

considered that any evidence relating to the defence raised a reasonable doubt, was

misplaced. There was no such evidence. Equally, the sheriff's statement that the

appellant's `position' was that `the complainer was a willing participant in

everything which went on' is a misdirection. The appellant had no `position'

(Bakhjam v HM Advocate, Lord Justice General (Carloway), delivering the opinion of

the court, para 35) beyond the terms of the joint minute, that he had digitally

penetrated the complainer, and the fact of his not guilty plea."

Rather than do this the judge asserted a "position" on behalf of the appellants which the

evidence did not justify. McDonald did not alter the law; that action of the kind subsequently

referred to in that case was necessary in the present case should have been abundantly clear

to the trial judge. It does not assist the Crown that these directions were favourable to the

appellants. Whilst the impression given by a misdirection may be tempered in its

consequences by directions elsewhere which correct that impression, or provide a bare

sufficiency of information to prevent a miscarriage of justice resulting, there can in general

be no "balancing" of favourable versus unfavourable misdirections.

[41]

There is a further aspect of the speech for the first appellant which calls for comment.

We accept that those acting for the appellants were entitled to proceed at trial, in the absence

of any ruling by the trial judge under section 275(9), on the basis that the evidence referred

to in the section 275 applications was admissible (even though it was not see below). As

noted above, counsel for the second appellant used this material to support her argument

that there were good reasons to have doubts about the credibility and reliability of the

complainer, referring, for example, to instances when she had been shown to lie in relation

to matters relevant to the alleged incident. The solicitor-advocate for the first appellant

however, chose to use the material to launch an undiscriminating and degrading attack on

the general character of the complainer, asking the jury "What kind of person do you

consider [the complainer] to be in terms of her honesty? What do you know about her?"

This and other parts of the speech constitute a general attack on the character of the

complainer. It is one thing to refer to lies which the complainer has been shown to have told

on matters relevant to the libel: it is quite another thing to attack her general char acter for

honesty. This was in our view an impermissible attack on character (CJM v HMA 2013

SCCR 215). The trial judge should have made this clear to the jury.

[42]

The result is that the appeals against conviction must succeed.

Postscript: The section 275 applications

[43]

In light of the jurisprudence on this issue over several years, it is mystifying that the

bulk of the applications in this case were granted. There is no part of the first application for

the first appellant which should have been granted. Paragraph (a) related to events around

the time of the first charge, the alleged unlawful intercourse when the complainer was 14,

and 5 years prior to the rape charge. It could have no possible relevance to the latter, and

although the Crown appeared to concede that the first sentence might not have been struck

at as being part of the subject matter of the first charge, we disagree because of the use in the

relevant paragraph of the phrase "sexual relationship". In any event, it was not being

advanced as relevant for the first charge, but as relevant to the question of consent on the

rape charge, 5 years later. Paragraphs (b) and (f) should have been refused as not being

struck at by section 274. Paragraph (c) should have been refused as irrelevant. It would in

any event be impossible for any of these pieces of evidence to bear the inferences which the

appellant sought to draw. The second application for the first appellant falls into the same

category. As to the application for the second appellant, the final paragraph was admissible,

because although struck at by section 274(1)(b) in not forming part of the subject matter of

the charge, it related to the same incident as the subject matter of the charge, and is relevant

thereto. Otherwise, nothing in that application was admissible. The result of the allowance

of impermissible evidence was that the complainer was subjected to the most egregious

intrusion into her personal life.