Rape accused’s appeal against refusal to allow evidence of 17-year-old convictions of complainer rejected by High Court

About this case:

• Citation:
  [2024] HCJAC 49
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Appellant DM was indicted on one charge of rape and another of assault of his ex-partner EW and lodged a special defence of consent in addition to seeking to lead evidence of the convictions, for which the complainer was either admonished or fined. His position was that the preliminary hearing judge should not have exercised her power to review ex proprio motu as the test for doing so had not been met.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lady Wise and Lord Beckett. N Shand, advocate, appeared for the appellant and C McKenna, solicitor advocate, for the Crown.

Reason to doubt

As part of the appellant’s defence, two applications were presented under section 275(1) of the 1995 Act. In the second application, which became the subject of the appeal, the appellant sought to lead evidence of the complainer’s four previous convictions for theft and shoplifting, all in the district court between the months of May and July 2005. The issues to which the evidence of the complainer’s previous convictions were said to be relevant were the credibility of the allegations made by the complainer.

Specifically, the appellant maintained that the inferences that could be drawn from that evidence was that the complainer had previously committed several offences of dishonesty. This, in conjunction with other facts and circumstances, meant that she was not a credible and reliable witness or there was a reasonable doubt about the truthfulness of her allegations.

The section 275(1) application was granted at a Preliminary Hearing and the case continued to a further hearing, for the Crown to consider an application to elicit evidence about the nature of the convictions and the complainer’s personal circumstances at the relevant time of the convictions. At the further hearing, which was considered by a different judge, a decision was taken under section 275(9) to review the application, and on review it was concluded that the evidence of the previous convictions on their own was irrelevant.

It was submitted for the appellant that the relevance of previous convictions for offences of dishonest was well established. The evidence had significant probative value, and did not intend to suggest consent, rather that there was a reason to doubt the truthfulness of the allegations made against the accused.

For the Crown it was submitted that the section 275(9) power had been exercised appropriately. The evidence of the complainer’s previous convictions did not have a direct bearing on whether she consented to sex with the appellant and thus was irrelevant at common law. Further, the evidence was so remote from the events giving rise to the indictment that it could not be said to have significant probative value.

Far removed in time

Lady Dorrian, delivering the opinion of the court, said of the test for conducting a review: “The primary submission for the appellant rests on the unqualified proposition that any conviction for an offence of, or implying, dishonesty, is necessarily and always admissible as bearing on the credibility of evidence given by the person convicted, no matter the degree or antiquity of the conviction. We reject the contention that the principle can be stated so baldly.”

She continued: “Whilst it is true that some iterations of the principle concerning the use of prior convictions appear to be stated in such absolute terms, other statements are less dogmatic. Macdonald (5^th edition, 1948) notes that ‘when credibility only is involved, the court will stop examination as to offences not inferring depravity’.”

Examining the circumstances of the complainer’s past convictions, Lady Dorrian said: “The convictions were very minor in nature, and whilst repeated, appeared to have occurred within a short period of each other. They are 17 years old, far removed in time from the offences with which the court is currently concerned, and had not been repeated since. It is difficult to see how they could bear even indirectly, on whether the admitted acts referred to in the charges occurred without the complainer’s consent.”

She concluded: “Returning to section 275(9)(a), it is expressed in the widest terms, providing that the court may ‘as it thinks fit’ limit the extent of evidence to be allowed notwithstanding a prior decision to allow the evidence. The case of JW v HM Advocate (2021) makes it clear that the power may be exercised at any time and a judge would be obliged to do so if they considered the evidence would be inadmissible or inconsistent with proper operation of the statutory regime.”

For these reasons, the appeal was refused.