The High Court of Justiciary has upheld the decision of a preliminary judge in respect of an application made by a man charged with three counts of rape, to reject the introduction of evidence related to events following the sexual encounter as libelled in the third charge. This included legal proceedings related to a child born as a result.
The appellant argued that the evidence was admissible under common law. Also, that the evidence would have permitted the jury to understand the complainer’s state of mind.
In relation to the third charge of rape a special defence of consent was lodged on behalf of the appellant. A section 275 application was submitted as the appellant wanted to introduce evidence related to the behaviour of the complainer afterwards. This included the fact that she had laughed when he was unable to find his socks following the sexual intercourse.
As a result of the intercourse a child was born, and this led to litigation regarding contact and maintenance. A sist in the contact action occurred in January 2019 and at this point the complainer made an allegation of rape. The appellant sought to lead evidence concerning the litigation on the basis that it would allow the jury to consider whether they found the complainer to be credible and reliable due to the time that had passed between the conduct and the allegation.
The preliminary hearing judge considered that the details of what took place after the incident were irrelevant to the charge. Also, the judge rejected aspects of the application which detailed the events after the child was born on the basis that it was collateral. Counsel for the appellant argued that the evidence would allow the jury to infer her state of mind during the preceding sexual intercourse. The court was invited to permit the evidence to be led.
The Crown submitted that the appeal was not one ‘against a decision at a preliminary hearing’, as the appellant did not seek to reverse the decision but sought to adjust its reasoning.
Lady Dorrian in delivering the opinion of the court, described the basis of the appeal as ‘bizarre’. She stated:  “There is no link between the two separate facts referred to in this submission – the making of the allegation and the family history – save in the imagination of counsel. There is no evidential basis for suggesting that the history in relation to the child has anything to do with the making of the allegation. There is no evidence to demonstrate a link, and the whole purpose of including this material is to enable counsel to go on a fishing expedition at trial.”
She concluded: “The issue of consent requires to be examined at the time of the act in question, not subsequent to it. Moreover, as the Advocate Depute submitted it is well understood that individuals may react to trauma in various and different ways. The preliminary judge was correct to refuse this paragraph as an example of detail of something said to have happened which would not assist the jury in their task, and thus irrelevant.”
As a result, the appeal was refused.