MP AGAINST HER MAJESTY'S ADVOCATE

Factual and Procedural Background

The Appellant was charged with three offences against the Complainer, including a charge of rape allegedly committed on 23 December 2006, resulting in the birth of a child. A special defence of consent was lodged. The appeal concerns a preliminary hearing decision refusing certain paragraphs of the Appellant's section 275 application as irrelevant or collateral, specifically paragraph 1(7) and paragraphs 1(44) to 1(48), while allowing others. The evidence sought related to the circumstances surrounding the sexual encounter and subsequent events, including the delayed allegation of rape made by the Complainer in January 2019, years after the incident and after various interactions concerning the child and contact arrangements between the parties.

Legal Issues Presented

1. Whether the preliminary hearing judge erred in refusing paragraph 1(7) of the section 275 application as irrelevant to the issue of consent.
2. Whether the refusal of paragraphs 1(44) to 1(48) as irrelevant and collateral was appropriate, particularly regarding evidence about the timing and circumstances of the Complainer’s rape allegation.
3. Whether an application under section 275 can be properly used to seek rulings on evidence deemed unnecessary rather than inadmissible.

Arguments of the Parties

Appellant's Arguments

• Paragraph 1(7), describing the Complainer laughing after intercourse, was relevant at common law and indicative of consent, falling within an exception under section 274(1)(c).
• Paragraphs 1(44) to (48), concerning the delayed allegation and related events, did not engage section 274 and were admissible at common law; thus, the section 275 application should have been refused as unnecessary rather than paragraphs being excluded.
• The jury should be allowed to consider the delay in making the allegation and the circumstances surrounding its reporting to assess the credibility and reliability of the Complainer.

Respondent's Arguments

• The appeal was incompetent as it did not challenge the preliminary hearing judge’s substantive decision but only sought to adjust the reasons given.
• The preliminary hearing judge was correct to find the evidence inadmissible at common law and refuse the paragraphs accordingly.
• Evidence about the Complainer’s laughter post-intercourse was irrelevant and could distract the jury from the central issue of consent at the time of the sexual act.
• The history between the parties and the delayed allegation was complex and likely to divert the jury’s attention; only the fact of delay and questioning the Complainer about it would be admissible, not speculative reasons.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analyzed the nature and purpose of the section 275 application, emphasizing that it is designed to address admissibility issues under section 274, not to obtain general rulings on evidential necessity. The court noted a problematic practice whereby applications include paragraphs deemed "unnecessary," which is an improper use of the procedure. The court found the Appellant’s attempt to link family history and the timing of the rape allegation to the credibility of the Complainer was speculative and lacked evidential foundation, making the evidence irrelevant and collateral.

Regarding paragraph 1(7), the court held that consent must be assessed at the time of the sexual act, not based on subsequent behavior such as laughter, which could be misleading given the varied responses to trauma. Thus, the refusal of this paragraph as irrelevant was justified.

The court also clarified that the term "unnecessary" used in some applications is vague and that refusals should reflect whether evidence falls foul of statutory prohibitions rather than general notions of necessity.

Holding and Implications

The court DISMISSED the appeal, affirming the preliminary hearing judge’s refusal of paragraphs 1(7) and 1(44) to 1(48) of the section 275 application.

The decision confirms that section 275 applications must be strictly confined to evidence relevant under section 274 and not be used to seek rulings on evidence considered unnecessary or speculative. The ruling directly affects the parties by excluding the challenged evidence from trial, but it does not establish new legal precedent beyond reinforcing the proper scope and use of section 275 applications.