Rape accused loses 5-judge appeal against refusal to allow character evidence 

The appellant, CH, was accused of raping the complainer after a night out with her and one of her friends. His account was that the events libelled did not take place, and that he repelled the advances of the complainer at the time.

The appeal was heard in the Appeal Court of the High Court of Justiciary by a bench of five judges. Both the Lord Justice General, Lord Carloway, and the Lord Justice Clerk, Lady Dorrian, heard the appeal, sitting with Lord Menzies, Lord Glennie, and Lord Turnbull. All five judges gave opinions.

Prior consensual intercourse

The appellant sought to lead evidence that he and the complainer had sexual intercourse at the locus prior to them going out with the appellant’s friend. He denied that he had removed the complainer’s clothes, tied her up, and then penetrated her vagina as libelled in the charge, but said he did have intercourse with her on the following day.

The evidence the appellant sought to admit was that he had been introduced to the complainer by her friend “A” in July 2017, that they had had consensual intercourse on two occasions before meeting up with A that night, and that the complainer had “come onto him” in a disinhibited manner while under the influence of alcohol but he refused to engage with her to her frustration. This version of events was to be put to the complainer during cross-examination.

It was asserted that this evidence was relevant because the account was contrary to the anticipated evidence of the complainer and served to rebut the allegations she had made, and that it was intended to allow a jury to draw the inference that the appellant was a credible and reliable witness.

The preliminary hearing judge granted the application but only insofar as it related to establishing that the appellant and the complainer went on a night out. She did not accept that any evidence of previous sexual activity was relevant.

A note of appeal was lodged, which did not contain any specific grounds of appeal but simply asserted that the appellant should be allowed to give his version of events in full. Otherwise, his evidence would appear disjointed and adversely impact on his credibility, coming close to denial of his right to give evidence.

Classic case of deflection

In the leading opinion, with which Lords Carloway, Menzies, and Turnbull agreed, Lady Dorrian said of the application: ”Incidents of sober, consensual sex on other occasions would not be capable of ‘rebutting’ the complainer’s evidence as to the charge libelled. Evidence of consensual sober sex on other occasions is prima facie irrelevant to the question of whether non consensual sex occurred on another occasion when the complainer was drunk and incapable of giving consent.”

She continued: “Assuming for the moment the disputed assertion that consensual sex did take place on these other occasions, this would shed no light on the question of whether at the time of the libel, the appellant acted in the way alleged. It is not therefore evidence ‘relevant to establishing whether the accused was guilty of the offence with which he is charged’.”

Lord Carloway, who fully agreed with Lady Dorrian, added: “This is a classic case of an accused person attempting to deflect the jury’s attention away from the real issues for trial by introducing irrelevant and collateral matters. Whether a complainer consented to have intercourse with an accused on different occasions is not normally relevant to the whether she consented to intercourse at the material time.”

He continued, citing CJM v HM Advocate (2013): “It is regrettable that, despite several clear opinions of the court over the years since then, some judges and sheriffs have continued to fail to apply what ought to be well known rules of evidence in favour of determining what they consider to be fair, looking primarily, if not exclusively, at the interests of the accused rather than, in addition to his Article 6 right to a fair trial, the wider interests of justice, including the rights of the complainer.”

Res gestae 

In a dissenting opinion, Lord Glennie held that the evidence sought to be adduced was relevant. He explained: “Except to the extent excluded by statute, the jury should have before it all the evidence directly relating to the events of the libel, and that includes all evidence showing how the complainer and the accused came to be in the situation in which the offence is said to have been committed and the events immediately following upon that alleged offence. It is arguable that such evidence forms part of the res gestae; but, whether or not that is formally correct, it is evidence which at least places the alleged incident in its proper context, and should not be excluded as collateral.” 

Lord Turnbull, who agreed with Lady Dorrian, added the following in respect of res gestae in light of Lord Glennie’s opinion: “The res gestae cannot, in my opinion, include events which occurred many hours before or many hours afterwards. I do not read in Lord Glennie’s opinion any explanation as to how his approach to res gestae sits with the law as explained in the relevant textbooks and relatively recent decisions of the court. I think it would be unfortunate if practitioners and judges were to be introduced to a parallel and ungoverned concept of res gestae which sits alongside, but in competition with, the traditionally understood aspect of this part of the law of evidence.” 

For these reasons, the appeal was refused by a 4-1 majority.