APPEALS UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY KEVIN OLIVER AGAINST HER MAJESTY'S ADVOCATE [2019] ScotHC HCJAC

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEALS UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY KEVIN OLIVER AGAINST HER MAJESTY'S ADVOCATE [2019] ScotHC HCJAC_93 (12 July 2019) URL: http://www.bailii.org/scot/cases/ScotHC/2019/2019_HCJAC_93.html Cite as: [2019] ScotHC HCJAC_93, 2020 JC 119, 2020 GWD 3-48, [2019] HCJAC 93

Appellant: K Stewart QC; Paterson Bell (for McLennan Adam Davis, Ayr)

[1] The appellant faces an indictment containing six charges involving two complainers.

Briefly, charge 1 is a contravention of section 2 of the Sexual Offences (Scotland) Act 2009

and sexual assault against the complainer KK on 3 September 2017; charge 2 is a charge of

assault involving the same complainer on 4 September 2017. Charges 3 to 6 each concern the

complainer JC. Charge 3 alleges contravention of section 39(1) of the Criminal Justice and

Licensing (Scotland) Act 2010 between 1 October 2017 and 2 June 2018 and between

4 September 2018 and 27 October 2018 by sending abusive and threatening messages and

indecent images to her via text and social media, posting intimate photographs of her on

Facebook, sending messages to her children, taking her mobile telephone and examining it,

hiding her keys, locking her out of her house, attending at her house uninvited, pressing her

door buzzer, shouting at her, throwing stones at the window of her house and maliciously

damaging her car. Charge 4 is a charge of assault against the same complainer between the

same dates and contains allegations including calling her abusive names, threatening to strip

her naked and put her outside, recording the appellant’s behaviour on a mobile telephone,

pinning her to the floor, seizing her by the neck and pinning her against a wall, kicking her,

pushing her downstairs, slapping her, spitting on her and head-butting her, all to her injury.

Charge 5 is a charge of assault, rape and attempted murder against the same complainer on

28 October 2018. It contains a detailed narrative of violent, demeaning and sexual acts by

the appellant against the complainer. Charge 6 is another charge of contravention of

section 39(1) of the Criminal Justice and Licensing (Scotland) Act 2010 against the same

complainer between 29 October and 4 December 2018 by sending letters to her and

telephoning her. We do not consider that it is appropriate or necessary to set out further in

[2] The appellant’s position with regard to the first complainer KK and to charges 1 and

2 is that these events did not happen. With regard to charges 3 and 5 the appellant has

lodged a special defence of consent. With regard to charges 4 and 5 he has lodged a special

defence of self-defence. In general his position with regard to the allegations involving the

complainer JC is that the complainer and he were engaged throughout the relevant period in

a sexual relationship which involved what might be described as extreme forms of

sadomasochistic behaviour in the course of which they engaged consensually in acts of

violence, abuse and demeaning behaviour towards each other, and that to the extent that the

acts libelled in the indictment occurred, they all occurred with the complainer’s full consent.

[3] The appellant lodged two applications (one in respect of each complainer) in terms of

section 275 of the 1995 Act, seeking that certain evidence be admitted or elicited. These

applications were heard at a preliminary hearing on 11 April 2019, and on 12 April 2019 the

preliminary hearing judge granted parts of each application, refused other parts, and

restricted some parts. Senior counsel sought leave to appeal her decision to refuse and

restrict the applications, and leave to appeal was granted. The appeal was heard by this

court on 28 June 2019. A dedicated floating trial has been appointed for 9 September 2019 at

the High Court of Justiciary at Glasgow as an 8 day diet of trial.

[4] We heard submissions from senior counsel for the appellant and from the advocate

depute for the Crown. Before dealing with the detail of each application, we observe that

before considering the statutory tests in section 275 of the 1995 Act, the court requires to be

satisfied that the evidence sought to be led meets the common law test for relevancy.

Material which is collateral to the issues at trial, which does not have a direct bearing on

those issues and which is not readily ascertainable will not generally be regarded as relevant

or admissible – CJM v HM Advocate 2013 SCCR 215, per the Lord Justice Clerk (Carloway) at

para 28, and Lord Menzies at paras 55/56. If material is held to be irrelevant, it will usually

not be necessary to go on to consider the statutory test in section 275.

The application in respect of the complainer KK (charges 1 and 2)

[6] There were three paragraphs to this application. The preliminary hearing judge

granted paragraph 1(a) in restricted terms, deleting the words “during which time they

repeatedly engaged in consensual vaginal sexual intercourse”. She granted paragraph 1(b)

[7] Senior counsel for the appellant submitted that the credibility of the complainer KK

was the central issue in relation to charges 1 and 2. At the time specified she was described

as the appellant’s partner. The material which was sought to be admitted or elicited in

paragraph 1(a) was that she chose to stay with the appellant in his flat in the period

immediately following the events libelled, between 3 and 5 September 2017, and that during

this time they engaged in sexual intercourse. He submitted that the complainer’s actions in

staying with the appellant and engaging in consensual sexual intercourse with him in this

period cast serious doubt on her credibility, and that it was unlikely that she would have

agreed to do this in the immediate aftermath of a sexual assault by the appellant on her on

3 September, and a separate assault by him on her on 4 September. This material was

essential to enable the appellant to challenge the complainer’s credibility.

[8] The advocate depute submitted that the fact that the complainer continued to stay

with the appellant and had sexual intercourse with him after these events had to be seen in

the context of the material referred to in the docket. It was the Crown’s position that the

appellant had used violence towards the complainer before, during and after the events

alleged in charge 1, and that the complainer’s actions in the aftermath of charge 1, in the

days following it, did not necessarily reflect adversely on her credibility. The matter was

more nuanced than first appeared, and the probative value of this material was not as

[9] In general terms, the fact that a complainer has consented to sexual activity on

previous occasions does not make it more or less likely that he/she will consent to sexual

activity on a subsequent occasion. It follows, we think, that it will rarely be relevant to lead

evidence that a complainer has consented to sexual activity on an occasion sometime before

the events libelled. However, it appears to us that the situation may be different in relation

to material concerning actions by a complainer in the immediate aftermath of an alleged

event. We emphasise the words “immediate aftermath”; we have in mind a period of hours,

or perhaps a day or two, following an alleged event. It appears to us that there is some force

in the submission for the appellant that a jury may find assistance, when assessing the

credibility of a complainer, from evidence as to his/her behaviour in the immediate

aftermath of events which are alleged to have occurred. They might take the view that, even

in a situation where the appellant and the complainer are partners, the complainer’s decision

to continue to reside in the same house with him and to engage in consensual sexual

relations with him over the following day or two undermine the complainer’s credibility. Of

course, they might not take this view, and there might be circumstances to explain the

complainer’s behaviour. Juries are frequently asked to consider the behaviour of a

complainer in the immediate aftermath of an event – for example, when considering the

[10] We consider that, provided that questioning seeking to elicit this material is confined

to the immediate aftermath, this does not amount to collateral material, and meets the test of

relevancy. We also consider that 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 (as that term is defined in section 275(2)) arising from its being

admitted or elicited. We consider that this material meets the tests contained in

[11] Senior counsel for the appellant accepted that paragraph 1(a) of this application was

concerned only with the period of time after the events libelled in charge 1. The phrasing of

the paragraph might perhaps permit questioning about events that occurred on 3 September

2017 before the events libelled. We would not be prepared to permit this, and in order to

make this clear, in place of the words deleted by the preliminary hearing judge we shall

“and engaged in consensual vaginal sexual intercourse after the events alleged to

[12] The preliminary hearing judge granted paragraph 1(b) in full, and we say no more

[13] The preliminary hearing judge refused paragraph 1(c) in its entirety. Senior counsel

for the appellant submitted that she was in error in doing so. Essentially his submission

amounted to the same as that made in respect of paragraph 1(a), namely that for the

complainer to choose to stay with the appellant at his home address for a number of days

during the course of which they engaged in consensual sexual intercourse and she allowed

him to photograph him in a sexually suggestive pose cast doubt on the credibility of the

complainer regarding the events in charges 1 and 2. The advocate depute submitted that

this material was not relevant, because it had no direct bearing on the facts libelled. It

occurred between 8 and 16 weeks after the events which were libelled in charges 1 and 2,

and any links with those events were too remote. This material was not relevant and the

[14] We agree with the Crown’s position on paragraph 1(c). The material referred to in

this paragraph relates to a period at least 8 weeks after the events libelled, and possibly as

long as 16 weeks after them. This is collateral material. We do not consider that it meets the

test of relevancy. Even if it did, we do not consider that this paragraph meets any of the

tests contained in section 275(1). We consider that the preliminary hearing judge was correct

[15] In conclusion in relation to the KK application, we shall adhere to the preliminary

hearing judge’s interlocutor, subject to the allowance of the amended wording of

[16] This application contains seven paragraphs containing very detailed and specific

evidence which the appellant seeks to be admitted or elicited about the sexual relationship

between him and the complainer. The preliminary hearing judge refused paragraph 1(c) in

hoc statu, pending the recovery of the text messages referred to therein. This is a matter

which will require to be considered at a future preliminary hearing. We were not addressed

on it, and we say nothing more about it. The preliminary hearing judge granted

[17] With regard to the other paragraphs, the preliminary hearing judge allowed some

matters to be elicited in evidence, but excluded large parts of the material. Senior counsel

for the appellant submitted that she was in error in doing so, and that all those passages

which had been refused, deleted or amended by the preliminary hearing judge ought to be

allowed, because they were both relevant and met the tests in section 275(1) of the 1995 Act.

The advocate depute opposed this and maintained that the preliminary hearing judge had

[18] The preliminary hearing judge allowed the first sentence of this paragraph (as

amended), to the effect that the complainer and the appellant were involved in a sexual

relationship between September 2017 and 28 June 2018. She also allowed the sentence “that

between March 2018 and 28 October 2018 the complainer visited the applicant at his home

and invited the applicant to stay with her in her home in order to pursue their relationship.”

In her report to this court she stated that she considered that it could be relevant for the jury

to hear evidence of the parties being in a relationship, but that the detail as to how the

complainer conducted a clandestine relationship with the appellant was irrelevant and

would not assist the jury in their determination of the allegations. Moreover, esto there was

any relevance to this line, it could only be very limited and, on balance, did not outweigh the

protection of the dignity and privacy of the complainer. To be questioned on marital

infidelity in such detail would be likely to be embarrassing and possibly upsetting for the

[19] Senior counsel for the appellant maintained that all the material deleted was capable

of undermining the complainer’s account. It was the existence of the complainer

maintaining her marital relationship simultaneously with her clandestine affair with the

appellant which was of significance. His concern was that the Crown might seek to suggest

to the jury that the appellant had groomed the complainer, and “brainwashed” her into

accepting activities which she would not otherwise have accepted. The point was that if the

complainer had suffered assaults, or anything which caused her discomfort, she could have

ended her relationship with the appellant at any time and continued to live with her

husband and family. Had the acts libelled not been consensual, she could have brought her

[20] The advocate depute submitted that many of the sentences in paragraph 1(a) which

were refused by the preliminary hearing judge amounted to an attempt to set up the bad

character of the complainer. Moreover, most of them failed to meet the test of relevancy,

and (eg the complainer’s invitation to the appellant to have Christmas dinner with her and

her children) were entirely collateral to the issues which the jury would have to decide.

[21] We agree with the Crown that many of the matters about which evidence is sought

to be elicited are of dubious relevancy, and are moreover of little probative value. They

have the capacity to embarrass the complainer and amount to an intrusion of her privacy.

We consider that the preliminary hearing judge was correct to restrict this paragraph in the

way she did. However, the point made by senior counsel for the appellant that the

complainer remained married to her husband and if the acts were non-consensual could

have returned to her relationship with him is, we think, a fair one. We shall allow the

“The complainer was married and lived with her husband until the end of March

[22] This paragraph seeks permission to elicit detailed evidence of precisely what sexual

activities the appellant and the complainer engaged in. The preliminary hearing judge

allowed questioning as to the parties having engaged in sadomasochism and bondage, and

the complainer having acquired a number of items for use during her engagement in such

activity with the appellant. She refused a number of matters which covered, in considerable

detail, consensual sexual activities on prior occasions. She took the view that the detail set

out was of limited probative value given that it related to prior occasions; she also sought to

protect the dignity and privacy of the complainer by refusing questioning about very

[23] Senior counsel submitted that the preliminary hearing judge erred in this regard, and

in the absence of questioning about the deleted items there was a risk that the jury would

regard the terms of charge 5 as so shocking or bizarre as to be beyond anything to which the

complainer might consent. It was therefore necessary to supply a context for the events on

[24] We consider that the preliminary hearing judge was generally correct to make the

deletions from this paragraph which she did. The subject-matter of the deleted passages

relates to sexual behaviour on prior occasions. They are of doubtful relevance. No

specification is given as to the specific dates on which they occurred, and they concern very

detailed allegations about personal and intimate acts alleged to have been performed by or

with the complainer. We are unable to hold that the preliminary hearing judge has erred in

the carrying out of the balancing exercise which she required to perform. We consider that

the concerns of senior counsel for the appellant can properly be met by the reinstatement of

the words “which involved whipping, slapping, choking and referring to her in insulting

and demeaning terms”, which were amongst the passages deleted or refused by the

[25] This relates to what the appellant alleges were consensual sexual activities engaged

in by him and the complainer on the day before the events of charge 5, ie 27 October 2018.

The preliminary hearing judge made some deletions, refusing to allow some very specific

detailed allegations of the particular activities undertaken on that occasion. However, she

allowed questioning that as a consequence of engaging in consensual sexual activity the

complainer was left with bruising to her buttocks, her neck, legs and shoulders which she

covered up with makeup. She states in her report to this court that she allowed this to

enable the defence to lead evidence of possible alternative explanations for injuries to the

complainer and the finding of her saliva on the boxer shorts of the appellant. She was not

satisfied that the detail of previous sexual activity was of sufficient probative value to be

likely to outweigh protection of the privacy and dignity of the complainer.

[26] Senior counsel submitted that the evidence sought to be led in this paragraph

indicated the extreme character of the behaviour in which the appellant and the complainer

consensually engaged, and that exclusion of this material would prevent the appellant from

advancing this defence. The advocate depute submitted that the preliminary hearing judge

had not erred, and that it was not necessary to investigate the events of the preceding day in

[27] We agree with the preliminary hearing judge. We do not consider that the details

which have been excluded are necessary to achieve a fair trial. They relate to an occasion

prior to that libelled in charge 5. We do not consider that the probative value of the

evidence sought to be admitted or elicited is likely to outweigh any risk of prejudice to the

proper administration of justice. We adhere to the preliminary hearing judge’s decision

[28] This relates to what the complainer is alleged to have said to the appellant in the

course of a train journey on 27 October 2018, ie the day before the events libelled in charge 5.

The preliminary hearing judge refused the first sentence of the paragraph because it would

be collateral to the issue before the jury, not being touched on either by the libel in charge 5

or in the special defence of consent. She refused the application as regards much of what the

complainer is alleged to have said in the course of the train journey on 27 October 2018

because this was collateral, and would have little or no bearing on the issues before the jury.

Had she decided that this material was relevant, she would have taken the view that any

probative value was limited and did not outweigh protection of the complainer’s dignity

and privacy. She did allow some questioning on statements said to have been made by the

complainer to the appellant during the train journey to the effect that she wanted to engage

in sexual activity with the appellant at his own address. In this regard she amended the

second sentence of the paragraph; as framed, this stated that “... the complainer told the

applicant that ... she wanted to engage in anal intercourse with him outside later on that

evening”; the preliminary hearing judge amended this to read “... the complainer told the

applicant that ... she wanted to engage in sexual activity with him at his house on that date.”

[29] Senior counsel for the appellant submitted that the amendments and deletions to this

paragraph would strip out the context of the appellant’s position, and would result in the

jury getting an incomplete account of matters, and hence a misleading picture. The

complainer had told the police that she was embarrassed and upset by the appellant

repeatedly mentioning anal sex and touching her on this train journey; the appellant’s

position was that the complainer had mentioned anal sex repeatedly during the course of

[30] Moreover, senior counsel informed the court that he understood that the allegation

that the complainer indicated to the appellant that she wanted to engage in anal intercourse

with him outside later that evening was supported by text messages which were being

recovered. Not to include this would give a misleading picture to the jury.

[31] The advocate depute submitted that the preliminary hearing judge had made no

error with regard to this paragraph, and that the reasoning set out in paragraph [27] of her

[32] We agree with the reasoning of the preliminary hearing judge. We consider that

those passages which have been excluded or refused were properly refused (a) because they

were collateral and accordingly not relevant and (b) because in any event their probative

value was limited and would not outweigh the protection of the complainer’s dignity and

privacy. However, with regard to the second sentence of the paragraph, which the

preliminary hearing judge allowed subject to amendment, we consider that this is a matter

which may fall to be reconsidered (with a view to allowing the original formulation rather

than the amended formulation) if the text messages which are to be recovered provides

[33] In conclusion, the application in relation to the complainer JC may require further

consideration at another preliminary hearing in respect of paragraph 1(c) and the second

sentence of 1(e), depending on the terms of text messages to be recovered.

Scottish High Court of Justiciary Decisons