Her Majesty's Advocate v. Ronald [2007] ScotHC HCJ

[10] Thirdly, section 275(1) of the 1995 Act sets out three tests which are cumulative. See MM v HM Advocate 2004 SCCR 658, Lord MacFadyen at paragraphs [39] and [40]; Moir v HM Advocate [2007] HCJAC 20, Lord Johnston at paragraph [23]. The first test is that the evidence must relate only to a specific occurrence or occurrences of behaviour (sexual or otherwise) or to specific facts which demonstrate the complainer's character or any condition or predisposition to which the complainer is or has been subject. I consider below the meaning of predisposition in this context. The second test to be met is that the occurrence or occurrences are relevant to establishing whether the accused person is guilty of the offence with which he is charged. If those two tests are met the court must then consider the third test which is that the probative value of the evidence is significant and is likely to outweigh any risk of prejudice to the proper administration of justice from its being led.

[11] Section 275(2)(b) provides that in this context the proper administration of justice includes two considerations, namely (a) appropriate protection of a complainer's dignity and privacy and (b) ensuring that facts and circumstances of which a jury is made aware are relevant to the issue which is to be put before the jury and commensurate to the importance of that issue to the jury's verdict.

The first issue: the common law

[12] I turn first to the common law and the question whether the evidence is to be excluded as relating to a collateral issue. In relation to the two prior allegations of sexual abuse, at the school in the early 1990s and in Edinburgh in September 2002, I consider that it would be inexpedient for the parties to take up court time in dealing with, and for the jury to have to consider, detailed evidence and questioning as to whether or not on those prior occasions the complainer was or was not raped. Not only would the examination of that issue, which is not central to the defence, greatly expand the length of the trial but also it might distract the jury from the principal issues in the case. However, that does not mean that the incidents are irrelevant for all purposes and that all evidence relating to them should properly be excluded.

[13] It appears that the complainer's allegations of an incident or incidents at the school played a role in the diagnosis by Dr Hameed of borderline personality disorder in June 2005. I was referred to medical records which revealed that the complainer gave doctors an account of the alleged sexual abuse and the recent police investigation which had contributed to her anxiety in 2005. Mr Burns wished to adduce evidence of the accounts which the complainer gave to the police and to the doctors within a few days of each other in June 2005. He submitted that they amounted to radically different versions of the same incident and called into question her credibility. He explained that the defence had written to the alleged assailant from the school to see if he would give a statement but conceded that his instructing solicitors had not yet received a response.

[14] The sexual incident in Edinburgh in September 2002 did not feature in the diagnoses by Dr Ryan or Dr Hameed and there was no information that suggested that the complainer had informed them of it. But Dr Alan Wylie, whom the defence seek to call as an expert witness, refers in his report to that incident which occurred when she absented herself from hospital during an in-patient assessment which had come about after a passer-by had brought her to hospital in a distressed state and with suicidal ideation. The incident was recorded in her medical records in 2002. Dr Wylie's opinion that the complainer suffers from a borderline personality disorder is based on his examination of the medical records. He explains that an emotionally unstable personality disorder includes a marked tendency to act impulsively without consideration of the consequences, a lack of self-control and outbursts of anger which are easily precipitated when impulsive acts are criticised or thwarted by others. Among examples of such impulsive behaviour Dr Wylie cites the complainer's absenting herself from hospital in September 2002, alleging rape and involving the police before being returned to hospital.

[15] Dr Wylie opines in his report that suffering from alcohol dependency syndrome and meeting the criteria for a diagnosis of emotionally unstable personality disorder "do not independently or in combination necessarily render an individual incapable of being truthful in all matters and it would not, from the information available to [him] at the present time, in [his] opinion, render statements made by [the complainer] clearly untrue" (my emphasis). However he goes on to consider a variety of factors outwith the diagnostic labels of the syndrome and the disorder and concludes:

"Taking into account the nature of the allegations and the psychiatric issues in this case namely her suffering from an Alcohol Dependency Syndrome and a Borderline Personality Disorder, her previous impulsive behaviours, history of entering into abusive relationships, reported previous history of abuse and allegations of previously being the victim of such assaults, records of her "being evasive" and providing false information, together with her level of intoxication, whether or not this was compounded with regard to the degree of disinhibition experienced by her taking Diazepam or not, I am of opinion that while the allegations made by [the complainer] cannot be completely disregarded, a degree of caution should be exercised in accepting at face value the allegations made by [the complainer], the veracity of which could potentially be called into question."

[16] The Advocate Depute submitted that this conclusion did no more than tell the jury to do what any jury must do, namely consider a complainer's evidence with care. It did not, he submitted, make relevant evidence of earlier incidents which were properly to be treated as collateral issues. Nor did it meet the test for admission under section 275, a point which I will consider below. While I do not interpret Dr Wylie's conclusion as being as lame as the interpretation suggested by the Crown, the defence proposal to lead his evidence raises a question of the admissibility of such expert evidence on credibility and reliability at common law.

[17] It is not easy to identify in the authorities the boundaries of what is admissible and what is properly regarded as a collateral issue. This is in part because issues of expediency are involved as well as principles. I can express only a view that is sufficient for deciding this case as I have not been addressed on all of the relevant authorities. In my opinion it is competent at common law to lead the evidence which the defence seek to lead from Dr Wylie in relation to the complainer's psychiatric condition and its effect on her credibility and reliability generally. But it is not admissible to lead his evidence on the credibility and reliability of the particular allegations which she has made in this case.

[18] I interpret Dr Wylie as saying that the syndrome and the disorder are relevant matters in assessing credibility and reliability but that they are not of themselves determinative. He emphasises not so much the meeting of the criteria for those diagnoses but the particular manifestations of the complainer's mental problems, some of which fell within the criteria and others did not. In particular I note that he lists as criteria for the disorder, among other things, a tendency to act impulsively and a liability to become involved in intense and unstable relationships which may cause repeated emotional crisis. These manifestations of disorder as well as the other factors which he lists in his conclusion inform his judgement. He appears to me to be drawing on his professional experience of dealing with disordered patients to call into question the credibility and reliability of allegations of a sexual nature which the complainer might make. I am not satisfied however that it would be admissible to lead his views as to the credibility or reliability of the particular allegations which the complainer made in this case as distinct from questioning him on the manifestations of disorder and factors which would cause him as a professional psychiatrist to be reluctant to accept sexual allegations that she might make (see paragraphs 20 to 22 below).

[19] In reaching the view that (subject to the qualification that I have just expressed) Dr Wylie's evidence is competent at common law, I have had regard to the following authorities. Starting at a general level, Dickson on Evidence (3^rd ed) at paragraph 397 speaks of the competency of opinion evidence where the issue involves scientific or other knowledge such as the rules of a trade with which people of ordinary intelligence are not likely to be familiar. Walkers on Evidence (2^nd ed) at paragraphs 1.6.2 and 16.3.1 state a general rule that evidence of facts affecting the credibility of a witness himself or herself is generally inadmissible unless the facts are also relevant to the questions at issue. But expert evidence may be permitted where a matter of personality has been identified which is particularly relevant to proof or defence of an issue in the case and which is outwith the normal experience of the court.

[20] Thus in AJE v HM Advocate 2002 JC 215 the court accepted that expert evidence would have been admissible on the reliability of answers which children complainers gave at interview in the light of the allegedly flawed interviewing techniques which were employed. In Campbell v HM Advocate 2004 SCCR 220 the court held that it was competent to lead expert evidence of scientific tests to demonstrate the likelihood that several people would be able to recall a specific statement verbatim and in identical terms as this could have had a significant bearing on the credibility of police witnesses in that case. But in that case the court also held that it was not competent to ask questions on the reliability of the police officers' evidence about alleged statements by the accused as that was not a matter for expert opinion. See paragraphs [51] and [54].

[21] Turning more specifically to expert psychiatric or psychological evidence which has a bearing on the credibility or reliability of a witness, in HM Advocate v Grimmond 2001 SCCR 708 Lord Osborne upheld an objection taken by the defence against the Crown's seeking to lead the evidence of a clinical psychologist who had experience of child abuse and whose report concluded that the complainers' statements were credible and reliable. He founded on Walkers on Evidence (above) paragraph 1.6.2 on the basis that the evidence concerned a collateral issue, but he suggested that psychiatric evidence might be admissible if it were established that a witness suffered some form of mental illness which might affect the quality of his evidence. In Green v HM Advocate 1983 SCCR 42, in an appeal on the basis of fresh evidence, the court accepted that psychiatric evidence, that a complainer had a tendency to fantasise, had an inordinate interest in sex and was prone to make unwarranted accusations of rape, was relevant to the complainer's credibility and the central issue of consent.

[22] In McBrearty v HM Advocate 2004 SCCR 337 the court upheld the principle that the assessment of the truthfulness of a witness's evidence was a matter for the jury and not for expert evidence, but, significantly for present purposes, stated (at paragraph 49) that expert evidence of an objective medical condition that affected a complainer's ability to give truthful and reliable evidence was admissible. See also HM Advocate v A 1995 SLT 975.

[23] I conclude therefore that it would not be expedient or in the interests of justice to exclude all of the evidence of the earlier two incidents and the evidence of Dr Wylie on the ground that they concerned collateral issues. The extent to which evidence relating to those matters may be adduced or elicited will however be determined by applying the tests laid down in section 275 of the 1995 Act.

The second issue: section 275

[24] I turn then to the three cumulative tests that have to be met under section 275 for the evidence to be admitted.

[25] In relation to the first test, the issue in this case is not whether there is evidence of specific occurrences or facts in contrast to general and inspecific allegations. The issue is whether the evidence which the defence seek to lead demonstrates a predisposition within the meaning of section 275(1)(a). The Advocate Depute submitted that Dr Wylie's report did not vouch a predisposition in that sense. He referred me to Moir v HM Advocate [2007] HCJA 20 in which Lord Johnston (at paragraph 24) spoke of "predisposition" in the section as being "a recognised medical condition identified by relevant medical evidence, and not some vague notion of tendency or similar leanings in the conduct or actions of the complainer however based". Lord Johnston referred in this context to Mackay v HM Advocate 2004 SCCR 478. In that case the court held that evidence from schoolteachers that a complainer had a tendency to tell elaborate lies and could not be relied on did not fall within section 275(1)(a) as it was not concerned with specific occurrences or facts. But the court recognised the competency of expert evidence that a witness had a medical, psychiatric or psychological condition which could account for the witness giving an untrue account.

[26] In my opinion Lord Johnston is not to be understood as saying that psychiatric evidence of a medical condition is to be confined to evidence of a condition which meets the criteria of a disorder or syndrome and nothing else. A psychiatrist may be able to point to a personality disorder from which a person suffers and which has a bearing on his or her credibility and reliability and also to other aspects of his or her personality which are relevant to credibility and reliability but which do not satisfy enough of the relevant criteria to vouch a separate disorder. In my view, where as here Dr Wylie and other psychiatrists have diagnosed a person as having a borderline personality disorder and an alcohol dependency syndrome, evidence about not only the disorder and the syndrome but also other aspects of a person's behaviour would be relevant to the existence of a predisposition in the sense in which the word is used in section 275(1)(a). That is in my view because a mental health specialist in making a clinical judgement would look at all of the behaviour of a disordered person and not merely those manifestations that were recognised criteria of his or her disorder. By contrast, however, evidence of a false sexual allegation on one prior occasion is not sufficient to demonstrate a predisposition (Cassels v HM Advocate 2006 SCCR 327).

[27] Turning to the second test, I am satisfied that the evidence of Dr Wylie and the occurrences which support his diagnosis and opinion are relevant to establishing whether the accused is guilty of the offence with which he is charged. Having regard to the central importance of a complainer's evidence in a charge of rape where the issue in dispute is consent, psychiatric evidence of a disorder, a dependency syndrome and personality traits which call into question the complainer's credibility or reliability are clearly relevant.

[28] In this case the defence may seek to draw parallels between the earlier allegations and the circumstances which have given rise to the charge against the accused, who has asserted, and proposes to adduce third party evidence to support the view, that the complainer initiated the sexual activity and behaved in a very uninhibited manner. In his police interview and in giving evidence in a trial before a trial, the accused asserted that he had taken the potentially incriminating photographs and video footage which were found on his mobile phone only after he and the complainer had had consensual sexual intercourse on at least two occasions that night, that he had a disagreement with her when she refused to give back his phone when in a taxi on the way to her flat and that she immediately contacted the police to allege that he had raped her. It appears that the defence are seeking to argue that the complainer in this case and on the earlier occasions showed the impulsiveness, the lack of self control and, when crossed, the angry response which are manifestations of her diagnosed disorder. I am satisfied that the second test is met.

[29] In relation to the third test, which requires the court to consider whether the probative value of the evidence is significant and, if so, whether it is likely to outweigh any risk of prejudice to the proper administration of justice, I am satisfied that the probative value of Dr Wylie's evidence is significant. I am concerned however about the extent to which the defence should be authorised to lead evidence of the prior allegations of rape or sexual abuse.

[30] I am not satisfied that it would be appropriate to allow the defence to lead evidence or cross examine the complainer in an attempt to prove that the complainer was not raped or otherwise abused in the early 1990s. I note that the defence do not have the evidence of the person accused of the abuse to contradict the complainer (cf Thomson v HM Advocate 2001 SCCR 162). But her own recorded accounts of the incident or incidents appear to be relevant to the defence both as an example of impulsiveness and lack of self control relevant to her diagnosis and also, if the accounts are describing the same incident, as a means of challenging her credibility.

[31] The incident in September 2002 is clearly relevant to the diagnosis by Dr Wylie and the defence are in a position to lead the evidence of the man alleged to have raped the complainer. Given that diagnosis, evidence that the complainer made a false allegation of rape when irritated by the man's attempts to persuade her to return to the hospital is relevant if it shows a particular manifestation of the disorder which a jury might reasonably view as undermining her credibility (c.f. Green v HM Advocate 1983 SCCR 42). I do not propose to restrict the evidence to be led relating to this incident.

[32] I also consider Dr Wylie's evidence to be relevant and of significant probative value. I do not accept the Crown's argument that Dr Wylie's evidence is speculative because there was no diagnosis in December 2005. There is no suggestion that the mental problems diagnosed in January 2004 and June 2005 had ceased in December 2005. The existence of the disorder and syndrome makes it appropriate in the interests of a fair trial that the defence be allowed to explore the complainer's psychiatric history, including the incidents in the early 1990s and in September 2002, to the extent referred to in the immediately preceding paragraphs. The paramount consideration of ensuring a fair trial means that the complainer's privacy may be compromised to that extent. But it is not appropriate, for the reasons given in paragraphs 18 to 22 above, for Dr Wylie to express views directly on the reliability of the present allegations.

Decision

[33] I am satisfied that it is appropriate to admit the evidence set out in paragraph 1(i) to (vii) without any restriction as those matters relate to events in the hours immediately before the alleged rape and in my view are not caught by the prohibition in section 274. Even if they were caught by that prohibition, they would meet the tests in section 275(1) as they are the immediate background to the alleged incident and are arguably manifestations of the diagnosed disorder, which is a "predisposition", or support the inference that at the time of the incident the complainer was in an intoxicated state, which in my opinion comes within the meaning of the word "condition" in section 275(1)(a)(ii). I do not accept the Crown's submission that it is appropriate to delete the sentence at the end of paragraph 1(vi), which describes what the witness Ms B understood the complainer to be intending when she rolled on top of her on a bed and which explains why Ms B got off the bed. It is necessary to admit this evidence in order to allow the witness to narrate in a comprehensible way the events which occurred shortly before the incident.

[34] Paragraph 1(viii) (a) and (b) relate to the two accounts of abuse at the school which the complainer gave respectively to the police and to Dr Hameed and nursing staff. Paragraph 1(ix) concerns the statement which the complainer gave to police in relation to an allegation of rape in September 2002 and also the statement that the man accused of the rape gave to the police contradicting her. Mr Burns informed me that both hospital records and police records vouched that the man had telephoned as he stated in his statement and in particular the police records vouched that it was the man and not the complainer who contacted the police. I consider that it is appropriate that the defence be allowed to put these statements to the complainer and that they be allowed to call the man involved in the September 2002 incident as a witness to speak to his statement. If necessary witnesses from the police and Dr Hameed can be led to speak to the statements if they cannot be agreed.

[35] I also admit the evidence referred to in sub-paragraphs (xi) to (xiii) of paragraph 1, which relates to the diagnosis of the borderline personality disorder and its manifestations and to alcohol dependency syndrome.

[36] I admit the lines of questioning in paragraph 2 (i) to (vi), which relate to events shortly before the incident and are clearly relevant to the issue of consent, to the accused's belief that he had consent and to an explanation of the cause of any subsequent distress on the complainer's part.

[37] In my opinion the line of questioning set out in paragraph 2(vii) goes too far (a) because it goes further than Dr Wylie does in his report and to that extent is not supported by any potential evidence shown to me and (b) because it involves asking Dr Wylie inadmissible questions about the credibility and reliability of the complainer in relation to the present allegation and thereby infringing the principle referred to in McBrearty v HM Advocate 2004 SCCR 337. See paragraph 22 above. In my opinion the line of questioning should concentrate on the diagnosis of a borderline personality disorder and the manifestations of that disorder in (a) the accounts of the school incident or incidents, (b) the September 2002 incident and (c) in the complainer's behaviour on the night of the incident giving rise to the present charge. It is also admissible to ask Dr Wylie as to the extent to which in his opinion the disorder, the alcohol dependence syndrome and other aspects of her behaviour affect the reliance which can be placed on her accounts of events including sexual encounters. But it is not admissible to ask him directly whether in his professional opinion the current allegations are credible or reliable. In leading this evidence reference may be made to the defence productions including the medical (both hospital and GP) and psychiatric records of the complainer and defence expert reports.

[38] My reasons for admitting the evidence and allowing the lines of questioning are set out in the discussion above but in summary they are: (a) because the enquiry into the events on the evening leading up to the incident is not caught by section 274, is in any event necessary to understand the background to the incident and is relevant to the issue of consent and mens rea and (b) as the diagnosis of personality disorder, alcohol dependence syndrome and the evidence of related erratic behaviour which is relevant to the clinical judgement of psychiatrists may have a direct bearing on the extent to which reasonable persons ought to rely on accounts of events including sexual encounters given by the complainer. While psychiatric opinion evidence on whether the particular allegations are credible and reliable is not admissible, expert psychiatric evidence of the effect of diagnosed mental conditions on the general reliability of a witness is admissible. A jury can have regard to such evidence when deciding whether to rely on that witness's evidence in relation to the particular incident.

[39] In an attempt to protect the dignity of the complainer and to minimise the risk of distracting the jury from the principal issues of the case, I direct parties in terms of section 275(6) to discuss whether and if so how far they can agree the terms of the complainer's reports of the school and September 2002 incidents and incorporate their agreement in a Joint Minute.

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. Ronald [2007] ScotHC HCJ_11 (27 April 2007) URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJ_11.html Cite as: 2008 SCL 160, 2007 SCCR 451, 2007 SLT 1170, 2007 GWD 33-561, [2007] ScotHC HCJ_11, [2007] HCJ 11

Scottish High Court of Justiciary Decisons