Appeal Under Section 74 Of The Criminal Procedure (scotland) Act 1995 By Mk Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Bracadale,Lady Smith |
| Neutral Citation | [2016] HCJAC 51 |
| Year | 2016 |
| Published date | 07 September 2016 |
| Court | High Court of Justiciary |
| Date | 01 April 2016 |
| Docket Number | HCA/2016 |
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
MK
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...
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