Man accused of making sexually offensive comments granted permission to elicit evidence of previous ‘light-hearted sexual discussions’ with complainers



Sheriff James Macdonald
Sheriff James Macdonald
Lawyers for a musician accused of making offensive or “inappropriate sexual comments” towards two women have been granted permission to elicit evidence of certain previous conversations of a sexual nature between the accused and the complainers.
 
A sheriff allowed the application made in terms of section 275(1) of the Criminal Procedure (Scotland) Act 1995 for admission of the proposed evidence after ruling that the exchanges could be construed as “generally consensual and receptive demeanour” on the part of the respective complainers towards the accused, which was capable of supporting the accused’s defence of consent.
 
Sheriff James Macdonald heard that the accused “GM” had been charged on summary complaint inter alia with multiple contraventions of section 7(1) of the Sexual Offences (Scotland) Act 2009, but pled not guilty to all the charges.
 
‘Reasonable belief of consent’
 
Perth Sheriff Court heard that the accused lodged a notice of defence of consent and reasonable belief in consent in relation to charges 1 and 3, which respectively alleged that in March 2014 he intentionally made offensive or inappropriate sexual comments to “AM”, and that on various occasions between December 2010 and November 2014 he also made offensive of inappropriate sexual comments to “MM”, the manager of the band of which he was a member.
 
In support of his defence, the accused submitted an application to elicit certain evidence, to the effect that the attended a bikers’ festival in or about 20 September 2013, where on one occasion the first complainer AM instructed him to kiss her passionately with a view to causing offence to an individual with whom she had previously been involved in a liaison, and where conversations of a “light-hearted” nature including sexual comments passed between the complainer and the accused at the festival. 
 
The accused, a leading performer in the band managed by the third complainer MM, also claimed that from at least 2007 onwards MM had previously made “regular references” to matters of a sexual nature: including references to a three-way sexual encounter, in the presence of the accused and his partner “LG”; reference to using sexual favours to encourage a third party promoter to engage the band; attempted to encourage the accused to become involved in a sexual relationship with the first complainer; and engaged in “light-hearted sexual discussion” with the accused before presenting her bare breast to him and others to show a tattoo. 
 
It was submitted in support of the application that the chapters of evidence were “necessary” in order to fully enable the accused’s instructed line of defence, namely consent, to be put before the court, as the provided “essential context” to the remarks allegedly made by the accused and forming the subject matter of the charges.  
 
It was argued that the proposed evidence – in its entirety – was essential to place the alleged words used by the accused towards the respective complainers in their “appropriate context”, because the accused’s position at trial was to be that both complainers consented to and actively participated in “light-hearted” conversation with the accused of a sexual nature.
 
‘Collateral’
 
But the Crown opposed the application, arguing that the proposed evidence was “collateral” at common law and accordingly could not be permitted to be led at any subsequent trial diet.  
 
It was submitted that, in any event, the test under section 275(1) of the 1995 Act had not met, as none of the proposed evidence was “irrelevant” to proof of guilt, having regard to the “different character” of the evidence and the fact that evidence was not related in time, circumstance or place to those averred in the charges.
 
The procurator fiscal depute also reminded the sheriff that the court should have regard to the protection of the “dignity and privacy” of the complainers as part of the test to be applied under section 275(1).  
 
The sheriff held that the chapter of evidence relating to the bikers’ festival meet the cumulative test under section 275(1) of the 1995 Act.
 
He observed that the words were sought to be construed as “manifestations of a generally consensual and receptive demeanour” on the part of the respective complainers towards the accused.  
 
Evidence ‘relevant to proof of guilt’
 
In a written judgment, Sheriff Macdonald said: “I consider that this chapter meets the cumulative test under section 275(1). It relates to a specific incident which is said to have occurred some six months prior to the commencement of the period on the libel. Further, it is in my judgment relevant to the proof of guilt on charge 1 in that it is related in time and circumstances to the events libelled. 
 
“I consider that this evidence bears upon the attitude and demeanour of the complainer towards the accused during a period close to that libelled. This chapter is capable of supporting the accused’s line of defence, namely consent or his reasonable belief in the consent of the first complainer and so has a substantial probative value.
 
“I do not consider that it is necessary for there to be prolonged questioning of the witness as to the purported motivation of the complainer towards a third party. It would however be contrary to the administration of justice to exclude this last issue from enquiry as it may provide essential context to the matters in the chapter of evidence.”
 
However, the sheriff ruled that the other chapters of proposed evidence were either “collateral” and/or “irrelevant”.
 
He added: “What the accused seeks to introduce is evidence of things said by a witness on an occasion other than the one libelled pertaining to matters wholly unconnected to the facts in issue. This would be hearsay evidence as to the truth of its content and so is inadmissible at common law.”

© Scottish Legal News Ltd 2018



Other judgments by Sheriff James Macdonald