C.J.M. v. Her Majesty's Advocate [2012] HCJAC 83

Criminal Note of Appeal Against Conviction:- Following a trial at the High Court in Inverness the appellant was convicted of four charges of indecency. The appellant was sentenced  to six years' imprisonment on the four charges. Prior to the trial the appellant had made an application under section 275(1) of the Criminal Procedure (Scotland) Act 1995 to admit evidence and allow questioning in relation to a previous sexual allegation made by the complainer in one of the four charges which was subsequently admitted by that complainer as having been fabricated as a result of which she was charged with wasting police time. The Crown opposed the application and at a preliminary hearing on 6 January 2011 the judge refused that aspect of the application "for the reasons outlined by the Advocate depute" expressed as:- "This is a collateral issue and ... inadmissible at common law. In any event it is not relevant to the issue for the jury. The matter is removed in time and character to the charges on the indictment." At trial before a different judge, on 24 January 2011, at the close the close of the complainer's examination-in-chief, counsel for the appellant renewed the application which had been made and refused at the preliminary hearing. The trial judge refused the fresh application on the basis that no special cause had been shown for presenting the fresh application in the course of the trial and he also indicated that he would not  have been inclined to grant the application on its merits in any event. Here it was submitted on behalf of the appellant that the matter in question was not "collateral" as it was relevant to an issue at the trial, namely the complainer's credibility and was admissible at common law. It was submitted on behalf of the Crown that the preliminary hearing judge had exercised a discretion which could not be criticised and had correctly identified the matter sought to be  put by the defence as collateral and thus inadmissible at common law. Here the court considered a number of authorities in relation to what amounted to collateral matters at common law as section 274 of the 1995 Act, together with the exceptions in section 275, was designed to restrict evidence which would otherwise have been admissible in a criminal trial. On the basis of the authorities the issue of whether on a single occasion the complainer made a false complaint to the police that she had been subjected to unwanted sexual demands by a third party would, if disputed by her, be collateral and would be inadmissible at common law. However, the subsequent admission by the complainer that the allegation was fabricated by her may be relevant as would a distinction being made between a single such complaint or an underlying psychological disposition to make such complaints. The court here considered these issues and the appeal was remitted to a bench of 5 judges.