Her Majesty’s Advocate v. C.J.W. [2016] HCJAC 111

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The respondent was indicted to Dundee Sheriff Court in relation to a number of charges including inter alia a contravention of section 4 of the Sexual Offences (Scotland) Act 2009, namely, coercing his then wife to engage in sexual activity and sexual intercourse with EA. On 27 October 2015 the respondent appeared at a first diet and reference was made by the solicitor acting on his behalf to the complainer having willingly engaged in the sexual activity with EA and a Notice of Intention to attack the complainer’s character was also lodged. The sheriff at the first diet queried with the respondent’s solicitor whether the correct approach was to make an application in terms of section 275 of the Criminal Procedure (Scotland) Act 1995. At a continued first diet a section 275 application was lodged which stated that during the marriage between the respondent and the complainer she had “affairs with a number of other men before beginning an affair with said EA” and it was contended that the evidence was highly relevant to the issue of the credibility of the complainer in that it amounted to a direct contradiction of the charge. In making the application it was submitted on behalf of the respondent that during the course of the 14 year marriage the complainer had had two affairs and it was the intention of the defence to invite the inference that the complainer had a propensity to have extra-marital affairs which, it was submitted, was relevant to the charge. The sheriff granted the application as the evidence “may establish the complainer’s predisposition to having extra-marital affairs…” and considered that the evidence was of significant probative value, that there would be no unjustifiable invasion of the complainer’s privacy or affront to her dignity nor did the sheriff consider that the evidence was collateral. The Crown appealed against the granting of the application on the basis that the evidence of two previous affairs was inadmissible at common law it being collateral to the matters in issue at trial. Here it was submitted on behalf of the Crown that the evidence was collateral at common law. It was further submitted that the application in relation to the extra-marital affairs lacked specification and did not meet the statutory tests. On behalf of the respondent it was submitted that the evidence sought to be elicited established a pattern in the relationship and the complainer’s sexual infidelity played a part and the evidence about the two affairs was competent at common law. Here the court allowed the Crown appeal. The court reiterated that sections 274 and 275 were not intended to permit evidence which was not admissible at common law and at common law the evidence sought to be elicited was collateral as it was evidence of bad character which is, generally, inadmissible because it is collateral to the issues at trial. The court considered that for reasons of convenience, expediency and the administration of justice the rule exists. In relation to the section 275 application the allegation that the complainer had two extra-marital affairs over a period of 14 years had no relevance to the issues at trial and were unrelated to the particular charge. The court considered that the application and the matters contained therein were lacking in specification in relation to who the third party was or any further information in relation to the circumstances of the affairs and, as such, the evidence could not be allowed at common law or under an application in terms of section 275.