Oliver v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Brodie,Lord Drummond Young |
| Judgment Date | 12 July 2019 |
| Neutral Citation | [2019] HCJAC 93 |
| Court | High Court of Justiciary |
| Date | 12 July 2019 |
| Docket Number | No 12 |
[2019] HCJAC 93
Lord Menzies, Lord Brodie and Lord Drummond Young
M v HM Advocate (No 2) sub nom CJM v HM Advocate [2013] HCJAC 22; 2013 SLT 380; 2013 SCCR 215; 2013 SCL 361
Justiciary — Evidence — Admissibility — Relevancy — Evidence of sexual and other behaviour by complainers — Whether collateral — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 275
Kevin Oliver was charged at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on an indictment libelling charges of sexual offences against two former partners. Applications under sec 275 of the Criminal Procedure (Scotland) Act 1995 (cap 46) were presented on behalf of the appellant in respect of each complainer. At a preliminary hearing, on 12 April 2019, at the High Court of Justiciary in Glasgow, the procedural judge (Temporary Judge JM Johnston QC) refused parts of both applications. The appellant appealed under sec 74 of the 1995 Act to their Lordships in the High Court of Justiciary.
The Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’), sec 275, provides, inter alia, “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) … (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 … 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.”
The appellant was indicted for trial at the High Court of Justiciary in Glasgow, on an indictment libelling, inter alia, sexual offences against two former partners. The appellant lodged applications with the court in which he sought to lead evidence of sexual and other behaviour by the two complainers, in terms of sec 275 of the 1995 Act. In relation to the first complainer, the appellant sought to lead evidence of the nature of the relationship, including the sexual relationship, which he and the complainer had had before and after the alleged sexual assault. In relation to the second complainer, the appellant sought to lead evidence of the nature of the relationship, including that the complainer had been married to someone else during the course of her relationship with the appellant and that she had consensually engaged in extreme sadomasochistic sexual behaviour with the appellant. The appellant contended that all the evidence sought to be elicited was relevant and was of such probative value that it outweighed any risk of prejudice to the proper administration of justice. The preliminary hearing judge refused parts of the applications, with the parts that were refused either being held to be collateral and, thus, irrelevant, or having such limited probative value that the risk of prejudice to the proper administration of justice was not outweighed.
On appeal, it was argued by the appellant that the preliminary hearing judge had erred in refusing those parts of the applications, with the evidence being relevant and satisfying the statutory tests as set out in sec 275 of the 1995 Act. It was argued that the fact of the first complainer having stayed with, and engaged in consensual sexual behaviour with, the accused after the alleged sexual and physical assaults upon her undermined her credibility. In respect of the second complainer, it was argued that the relevance of her being married to someone else was that it provided her with a place to go should she have been the victim of a sexual assault by the appellant. It was further argued that the extreme sadomasochistic nature of the appellant's sexual relationship with the second complainer provided a possible explanation for injuries and also allowed the jury to understand that she did, on occasion, consent to extreme sexual acts with the appellant.
The Crown submitted that those parts of the applications which had been refused related to matters that were collateral, and thus irrelevant, and which did not, in any event, satisfy the statutory tests as set out in sec 275 of the 1995 Act.
Held that: (1) the fact that a complainer had consented to sexual activity on previous occasions did not make it more or less likely that he or she would consent to sexual activity on a subsequent occasion and, while it would rarely be relevant to lead evidence that a complainer had consented to sexual activity on an occasion some time before the events libelled, the situation could be different in relation to material concerning actions by a complainer in the immediate aftermath of an alleged event. Such questioning, confined to the immediate aftermath, did not amount to collateral material and was relevant. However, questioning regarding events between the first complainer and the appellant some 8 to 16 weeks following the events in the libel was collateral and the judge had been correct to refuse that part of the application (paras 9, 10, 14); (2) while the fact of the second complainer having been married and living with her husband was relevant, evidence relating to marital infidelity was of dubious relevancy and, moreover, was of little probative value and had the capacity to embarrass the complainer and amount to an intrusion of her privacy, and the judge had been correct to restrict the application in respect of those matters (paras 18–21); (3) the preliminary hearing judge had been generally correct to allow questioning as to the appellant and the second complainer having previously engaged in sadomasochism and bondage and to refuse to allow questions which sought to elicit particular details of such sexual activity on prior occasions; while questioning relating to injuries sustained by the complainer in the course of sexual activity on the day preceding the events in the libel was permissible, evidence in relation to specific details of that sexual encounter was not necessary to achieve a fair trial and the probative value of that evidence was not likely to outweigh any risk of prejudice to the proper administration of justice (paras 22–27); (4)...
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