Judges reject rape accused’s appeal to lead evidence of previous consensual sexual encounter with complainer

The Appeal Court of the High Court of Justiciary upheld the decision of a preliminary hearing judge to refuse the application after ruling that the fact that they previously had consensual sex was irrelevant to the issue of whether there was free agreement or reasonable belief of consent on the subsequent occasion.

‘Special defence’

The Lord Justice Clerk, Lady Dorrian, sitting with Lady Paton and Lord Brodie, heard that the appellant “LL” had been indicted to strand trial in the High Court in respect of two charges contrary to section 1 of the Sexual Offences (Scotland) Act 2009, namely rape and sexual assault of the complainer at his home on a date in July 2016.

At the preliminary hearing on 28 March 2018 the appellant pleaded not guilty to both charges and his counsel confirmed that a defence statement and a special defence of consent had been lodged.

Counsel also made an application under section 275 of the Criminal Procedure (Scotland) Act 1995, which was not opposed by the Crown, in order that evidence might be admitted at trial that the accused and the complainer knew each other because they had been “friends” before the incident, and that following a night out in October 2015 they engaged in “consensual sexual intercourse” at the address the accused was living in at the time.

The reasons why the evidence was considered relevant were stated in the application as being that the accused maintained that the complainer “willingly came back to his flat after a night out” and that “any sexual contact that took place within his flat was with her consent”.

The fact that the accused and the complainer were friends who previously engaged in consensual sexual activity of a similar nature within the accused’s address was said to “lend support to the accused’s defence” and would allow the “jury to properly consider the full extent of their relationship”.

Application refused

The preliminary hearing judge had asked the appellant’s counsel why consent given on a date in October 2015 to sexual intercourse at that time was relevant to whether or not consent was given in July 2016 or to whether there was a reasonable belief that consent had been given in July 2016, but counsel was unable to explain beyond arguing that if evidence of what occurred in October 2015 was admitted the jury would have the “full picture”.

The preliminary hearing judge considered that no justification had been put forward for leading the evidence specified in the written application and accordingly concluded that the requirements of section 275(1)(a) had not been met, adding that, should she be wrong about that she did not find the evidence to be likely to outweigh any risk to the proper administration of justice arising from it being admitted as its probative value was “weak” at best and did not outweigh the need to give appropriate protection to the complainer’s dignity and privacy.

The appellant appealed against the decision to refused the application, arguing that the preliminary hearing judge had “erred” as the evidence bore on the central issue of the appellant’s reasonable belief, why he believed that “consent was in place” on the occasion which was the subject of the charge, and it also bore on the complainer’s consent.

It was submitted that leading evidence of the previous sexual encounter was prohibited by the terms of section 274(1)(b) but it should be admitted in that it “met the criteria” of section 275(1): it related to a specific occurrence of sexual behaviour (section 275(1)(a)); it was relevant to whether the appellant was guilty of the offence with which he had been charged (section 275(1) (b)); and its probative value, which was significant, outweighed the extremely limited risk of prejudice to the proper administration of justice (section 275(1)(c)).

It was also noted that the complainer had, during her police interviews, “volunteered” the information that she and the appellant had had a previous sexual encounter, and accordingly, leading the evidence would amount to only a “limited infringement of her privacy”.

Refusing the appeal, the judges said they “completely agreed” with the decision for the preliminary hearing judge.

Evidence ‘irrelevant’

Delivering the opinion of the court, Lord Brodie said: “In applying logic and experience to the circumstances of the particular case a court which is determining the admissibility of an item of evidence will have regard to the particular circumstances of the case, as they are alleged to be, and its own world-view, in other words its understanding about the usual connections between things; what is often referred to as common sense.

“Turning to the present case and applying logic and experience we cannot accept that the fact that the complainer had consensual sexual intercourse with the appellant in October 2015 is relevant, in the sense discussed, to the facts in issue: whether the complainer consented to having sexual intercourse with him in July 2016 or whether the appellant reasonably believed that she was consenting.

“On this we completely agree with the preliminary hearing judge. We simply do not see why the fact that there was free agreement and reasonable belief as to that agreement on one occasion, makes it more or less likely, as a matter of generality, that there was free agreement and reasonable belief as to that agreement on another occasion many months later.

“That is not to say that there may never be cases where a previous act of intercourse might not be relevant to the issue as to whether the complainer consented on a subsequent occasion or to the issue of whether an accused reasonably believed that the complainer was consenting. However, in such a case particular circumstances would have to be averred to demonstrate what was said to be the connection between what we would see as, prima facie, unrelated events. Here there are no such averments.”

The court observed that the written application which had been lodged was “entirely uninformative” as to the particulars of the appellant’s position.

Lord Brodie added: “The position taken in the appellant’s written application, in the note of appeal, and in submissions on the appellant’s behalf, is that, irrespective of the particular circumstances, it must always be the case that evidence of a previous consensual sexual encounter is relevant to resolution of the issues that will arise in a trial on an indictment libelling a charge of rape. We do not accept that position.”