Collateral Evidence

Question 1

What is Collateral Evidence?

Answer 1

Collateral evidence is a fact that doesn’t have a reasonably direct bearing upon a fact in issue and doesn’t make the fact in issue more or less probable.

There is a general rule that collateral evidence is irrelevant and inadmissible. However there are a number of important exceptions.

Question 2

Who decides that evidence is collateral or admissible?

Answer 2

The judge

Question 3

What is similar fact evidence (SFE)?

Answer 3

“Similar fact evidence” (SFE) is a way of describing certain types of collateral evidence (nb its not an ‘official’ term in Scots law). Generally SFE is excluded in cases but there are some exceptions.

Example: If trying to establish whether X did act A, it is generally not relevant (and by extension generally not admissible) to show that he did something similar on a previous occasion.

Question 4

Oswald v Fairs 1911 at 265

Answer 4

“The question being whether A said a certain thing to B, I do not think that it is relevant evidence upon that question – where there is controversy between A and B – to shew that A said something of the same sort upon another occasion to C. The question is what did A say to B, not what did he say to C, and the fact that he said the same sort of thing to C does not seem to me to prove that he said it to B”

Question 5

What is the rule concerning SFE in civil cases?

Answer 5

The general rule is that SFE in civil cases in excluded.

Question 6

A v B (1895)

Answer 6

action for damages for an alleged rape that had been perpetrated by the pursuer. In evidence the defender stated that the pursuer was of a brutal and licentious disposition and had on two occasions attempted to ravish two other women. The court held that these averments were irrelevant and had to be deleted from the record. [So this case just demonstrates that SFE is generally excluded].

Question 7

Inglis v National Bank of Scotland 1909

Answer 7

civil action about the recovery of a sum of money which the pursuer claimed he had been defrauded into paying. He sought to put forward evidence of similar behaviour by the defender. The court held that these averments were irrelevant and their admission was refused. [Again this case demonstrates that SFE is generally excluded].

Question 8

What are the exceptions to the rule that SFE in civil cases is excluded?

Answer 8

1) If the civil case involves the proof of adultery or
⁃ 2) proof of parenthood; similar fact evidence can be admitted if it supports the probability of acts (look up)
⁃ Also, previous facts which have a bearing on facts in issue are not collateral and are admissible (Knutzen v Mauritzen 1918)

Question 9

Knutzen v Mauritzen 1918

Answer 9

Anonymous letters being sent to a husband and wife including a defamatory statement - the couple sued for defamation. The pursuers (the husband and wife) were allowed to lead evidence about similar letter that the defenders had sent to other people. The court held that this was not an exception to the rule against similar fact evidence because these fact actually have a bearing on this case since the earlier letters were relevant to determine if it was the same handwriting

Question 10

Makin v AG for NSW [1894]

Answer 10

Makin involved in adverts to take care of unwanted children. 13 bodies of children were found on Makin’s property. Makin was charged with the murder of one of these infants. The court held that the general rule is that evidence tending to show that the accused has been involved in behaviour other than those in the particular indictment are inadmissible, however such evidence about previous criminal behaviour or convictions is admissible if it is relevant: it will be seen to be relevant if it has a bearing upon the issue as to whether the acts the accused is charged with are designed or accidental or if it is necessary to rebut a defence the accused is relying upon.
⁃ The Makin rule was by the Privy Council in an Australian case but it was accepted into Scots law in HMA v Joseph 1929.

Question 11

HMA v Joseph 1929

Answer 11

Joseph charged with fraudulently obtaining money by means of counterfeit bank drafts. The indictment laid out all of these details but also charged Joseph with fraudulent activity in Belgium. The court held the incident in Belgium could not be the substance of a charge in Scotland but nonetheless the crime with which he was charged in Scotland and the incident in Belgium were sufficiently closely connected to admit of evidence relevant to that incident for the purpose of supporting the Scottish charges.

Question 12

HMA v Flanders 1961

Answer 12

woman charged with murder by shooting her husband. Nothing in the indictment charging her with murder that made any reference to malice or ill-will. At the trial the Crown sought to examine a witness with regard to certain remarks made by the woman to her husband that showed ill-will 6 months prior to the shooting. The defence counsel objected on the ground that it would be prejudicial. Court held that the Crown could tender such evidence to show previous ill-will, however fair notice must be given to the accused and specific reference must be made in the indictment to the demonstration of previous ill-will. So the objection by the defence was sustained.

Question 13

*Moorov v HMA 1930

Answer 13

Moorov charged with a series of assaults and sexual assaults alleged to have been committed in his business premises against various female employees. In the vast majority of these assaults and sexual assaults the only direct evidence was the evidence of that particular woman against whom the particular offence was alleged to have been committed (there was no independent corroboration.) Most of the alleged behaviour took place in a three year time-frame. The Court held that evidence about the other alleged behaviours could be admitted (i.e. deemed to be relevant as opposed to collateral) if there was a sufficient interrelation in time, place and circumstances[ All three dimensions must be satisfied.]. In relation to the indecent assaults the court held these three dimensions were satisfied so that the indecent assault evidence was admitted and was sufficient to corroborate one another.

Question 14

Is evidence of character collateral?

Answer 14

The general rule in both civil and criminal cases is that evidence of character is collateral and thus inadmissible.

Question 15

What are the exceptions to character evidence being inadmissible in civil cases?

Answer 15

While character evidence is normally inadmissible, there are a few exceptions:
⁃i) Character evidence is admissible when the character is necessarily an issue in those particular proceedings
(C v M 1923)
- Ii) Sometime character of pursuer is a fact in issue or is directly relevant to such a fact - if so then it is admissible. (Wallace v Mooney (1885))

Question 16

C v M 1923

Answer 16

the pursuer was suing the defender for defamation claiming that he had falsely stated that she had given birth to an illegitimate child a decade earlier. The defender then sought to put forth evidence about acts of her adulterous character (character evidence). The court held that the averments relating to the acts of adultery were irrelevant but given that fair notice had been given to the pursuer of these specific acts, they could be put to her in cross-examination.

Question 17

Wallace v Mooney (1885)

Answer 17

action of damages for assault and defamation. Evidence pertaining to the character of the pursuer, that he was a ‘resetter[ I.e. involved in the handling of stolen goods.]’. This evidence was held to be relevant and admissible - LOOK UP.

Question 18

Whose character may be questioned in criminal cases?

Answer 18

This could be the accused, the complainer, witnesses.

Question 19

When is evidence relating to the character of the complainer (victim) admissible?

Answer 19

⁃ Evidence relating to his character is admissible if it is relevant to the defence.
⁃ So the accused can attack the character of the complainer if notice has been given. e.g. an injured party in an assault: evidence could be led that he was of a quarrelsome disposition.

Question 20

HM v Kay 1970

Answer 20

indictment which libelled that Kay murdered husband. She had previously evinced malice and ill-will against him (brandishing a knife against him threatening to kill him). She pleaded a special defence of self-defence on the basis she reasonably believed their was imminent danger to her own life due to an assault on her by her husband. In the course of the trial she sought to lead evidence of specific assaults on her by him (i.e. character evidence of the victim). The court held that normally it would undesirable to admit evidence on collateral matters in a criminal trial [The general rule.]. However, in the circumstances of this case the court held that evidence concerning these previous assaults should be admitted. The reason was that the Crown had put forth evidence that the wife had show ill-will and malice towards the husband and her defence was one of self defence due to malice by the husband; thus it would be unfair to allow detailed evidence from the Crown saying she evinced ill-will and malice without then allowing her the opportunity of proving by detailed evidence that she had reason to apprehend danger from the deceased.

Question 21

Brady v HMA 1986

Answer 21

emphasises that if evidence about the general character of the complainer or victim is to be admitted, notice is required. Brady convicted in the High Court of attempted murder. Counsel for Brady sought to lead evidence perpetrated by the victim on third parties and on property prior to the instance (so Brady was arguing that the complainer had been involved in specific acts of violence in the past. The court recognised that the general rule was that specific acts committed by the complainer are not to be admitted and that although in special circumstances (like in Kay) the interests of justice will require departing from this rule, there was nothing in the circumstances of Brady that would require a departure from the standard rule.

Question 22

What are the rules about admissibility of evidence when questioning a complainer in relation to sexual offences?

Answer 22

There are statutory provisions in the CP(S)A 1995 s 274-275 concerning the questioning of complainers in relation to sexual offences. This is an attempt to protect the complainer from being interrogated about their own sexual history etc by introducing ‘rape shield laws.’
⁃ s 274 places restrictions on the types of evidence that the complaining witness can be questioned about
⁃ s 275 provides exceptions to the rule in s 274.
⁃ s 275A …

⁃ s 274 (1):
⁃ Any sexual offences (Nb doesn’t include domestic abuse). The court shall not admit or allow questioning designed to elicit evidence which shows that the complainer: (a) is not of good character, (b) has at any time engaged in sexual behaviour not forming part of the subject matter of the charge, (c) has engaged in such behaviour that might found the inference that the complainer might have consented to those acts, or is not a credible or reliable witness[ In other words, excluding evidence that would say she is ‘the type of woman’ who would have consented to this or the type of woman who would lie.], (d) has at any time been subject to such condition or predisposition as might found the inference referred to in sub-paragraph (c) above.

⁃ s 275 (exception to restrictions under s 274):
⁃ This provision (s 275(1)) allows the court to admit such evidence as is referred to in s 274(1) if the court is satisfied:
⁃ (a) the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating: (i) the complainer’s character; or (ii) any condition or predisposition to which the complainer is or has been subject.
⁃ (b) that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged; and
⁃ (c) the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited.
⁃ s 275(2): “the proper administration of justice” includes: (i) appropriate protection of a complainer’s dignity and privacy[ This is a recognition that this type of questioning can be very personal etc.];
⁃ s 275(3): an application for the purposes of s 274(1) must be in writing (i.e. for sexual history / character evidence to be admitted there must be a written application.)

⁃ [There has been a study which found that almost all applications under s 275 to admit such evidence were successful- so the combination of s 274 and 275 don’t appear to be placing much of a barrier in terms of what evidence can be admitted.]

Question 23

In which two cases was evidence excluded at trial under s 274 but on appeal was held to have been wrongly excluded?

Answer 23

Cumming and Kinnin

Question 24

*Cumming v HMA 2003

Answer 24

⁃ C had been charged with lewd and libidinous practices against various girls including K and L. Evidence was excluded under s 274 and s 275 was not deemed to have been satisfied.
⁃ On appeal, C sought to have two pieces of evidence admitted. In relation to L, he sought to have evidence admitted about a social function where L had voluntarily sat on his lap following the alleged sexual incidents.
⁃ In relation to K, C sought to have evidence admitted about a situation where C had found K going through his pockets for money and previous instances where K had demanded money from him.
⁃ On appeal the court held that evidence relating to both of these scenario’s was relevant and ought to have been admitted under s 275. The case then got remitted back to the trial court and the evidence was admitted.
⁃ In relation to the evidence about L was relevant and had sufficient probative value and didn’t appear to involve any material prejudice to the proper administration of justice.
⁃ In relation to the evidence about K the court held that this was relevant to her credibility and to the likelihood of his guilty. Refusing the admission of this type of evidence could compromise the right to a fair trial of C, while offering no protection to the dignity of the two girls.

Question 25

Kinnin v HMA 2003

Answer 25

K had been charged with rape. At trial the admission of certain evidence was not permitted under s 274 and s 275 was not satisfied so there was no exception to admit the evidence. ⁃ K appealed, arguing that in the past the complainer had made indications to K's son saying that she wanted to sleep with K's son. The Crown offered no objection to the admission of this evidence since it was potentially relevant and might have a bearing on the issue. Thus the evidence was admitted.

Question 26

*DS v HMA 2007

Answer 26

⁃ The Privy Council made some points of clarification in relation to s 274/275: 1) In relation to s 274(1)(c)[ s 274(1) In the trial of a person charged with an offence to which section 288C applies, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer: (c) has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, not being sexual behaviour, as might found the inference that the complainer-- (i) is likely to have consented to those acts; or (ii) is not a credible or reliable witness; or] the court analysed what "behaviour" and "sexual behaviour" means. ⁃ It was held that "behaviour" doesn't extend to any evidence which is directed simply at words. ⁃ It was also held that the term "sexual behaviour" is broad and has a very wide protection, but it does not encompass previous cohabitation between the accused and the complainer. 2) The Privy Council appear to have tweaked s 275(1)(a)[ s 275(1)(a): the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating-- (i) the complainer's character; or (ii) any condition or predisposition to which the complainer is or has been subject;]. They held that a comma must be placed between 'behaviour' and 'or'. This means that (i) and (ii) will only pertain to specific facts.[ Look this up in Chalmers book on evidence.] 3) Reference was made to s 275A. S 275A is invoked where the accused has opened himself to questioning on his own previous convictions. It was held that this provision is not in breach of Article 6 ECHR.

Question 27

*HMA v Ronald 2007

Answer 27

⁃ Accusation of rape. Evidence excluded under s 274 for rape and the accused applied seeking to lead evidence that it had been consensual. Under s 275 he sought to have certain evidence admitted relating to inconsistent complaints that the complainer had had in the past about suffering sexual abuse in the past and also evidence that she was suffering from a borderline personality disorder and alcohol dependency syndrome. ⁃ According to the accused this would affect the credibility of her evidence and her reliability thus ought to be admitted under s 275. ⁃ The court ultimately held that in relation to her previous allegations of rape, the court held that it would be inadmissible for her to be questioned about the truth or validity of these allegations, but her account of having been raped or evidence that she had made a complaint of rape in the past were relevant to the defence, both as evidence of potential impulsiveness and if there were inconsistent accounts then this could have a bearing on her credibility. ⁃ In relation to her personality issues, the court held this fell into s 275(1)(a) so this evidence was relevant and ought to be admitted. ⁃ It was also held that expert evidence given in this case was relevant and admissible under s 275.

Question 28

Which two cases concern the compatibility of s 274/275 with the ECHR?

Answer 28

1. Moir v HMA 2005 | 2. *Judge v UK 2011

Question 29

Moir v HMA 2005

Answer 29

⁃ Moir raised a devolution issue on the grounds that s 274/275 were inconstant with his right to a fair trial under Article 6. His argument was twofold: ⁃ 1) the prohibition in 274 was too expansive (and the exceptions in 275 were too narrow) contravening Article 6 ⁃ 2) the unfairness of 275 - that if he could admit evidence under s 275 he would expose himself to questioning under s 275A about his own previous convictions, which would contravene Article 6 ⁃ The domestic courts held that s 274 combined with 275 is a reasonable and flexible response to the problem relating to the robust nature of cross examination in sexual offence trials. It was a legitimate means of achieving a legitimate objective and the effect of the legislation was not disproportionate. ⁃ [NB the court also reiterated the definition of 'sexual behaviour' from the DS case. The court reiterated that it doesn't encompass prior cohabitation by the complainant, so may be admitted.]

Question 30

*Judge v UK 2011

Answer 30

⁃ Claim by Judge against the UK that 274/275 breach Article 6. ⁃ The ECtHR held that the Scottish Parliament had introduced these provisions on the view that on criminal trials for sexual offences, evidence about the complainer's sexual history and character was rarely relevant and even if it was relevant its probative value was usually weak when compared with its prejudicial effect, so Parliament was entitled to take action to protect the rights of complainers and generally prohibit the admission of bad character evidence, while still providing for an exception where evidence was probative. ⁃ Like in Moir, the court was satisfied that 274/275 were reasonable, flexible reposes to the issues and there was no prejudice to the fairness of his trial; thus they are not incompatible with Article 6.

Question 31

When may evidence relating to the character of the witness likely to be admitted?

Answer 31

⁃ Evidence related to the character of other witnesses may be admitted but if the court is going to allow cross examination of the witness pertaining to issues of credibility, he must allow evidence that would contradict the witness's answers (i.e. a possibility to rebut it) ⁃ Felber v Lockhart 1994

Question 32

When may evidence relating to the character of a person not in court likely to be admitted?

Answer 32

The character of persons not in court but are pertinent to the trial in some respects may well be admitted. ⁃ Gracie v Stuart (1884) - it is competent for a prosecutor to lead evidence as to persons not in court

Question 33

Can the Crown make reference to the previous convictions of the accused?

Answer 33

Generally the Crown cannot make reference to previous convictions of the accused unless and until a verdict of guilty (CP(S)A 1995 s 101[ S 101 relates to previous convictions in solemn proceedings. The general rule under subsection (1) is that previous convictions shall not be laid before the jury. However under subsection (2)(a) the prosecutor can ask the accused questions about previous convictions where the prosecutor is entitled to do so under s 266. ***this will be covered later*** And under subsection (2)(b) the prosecutor can lead evidence of previous convictions where it is competent under s 270.] and 166[ S 166 relates to previous convictions in summary proceedings (the rules are different) Under subsection (1) previous convictions may be laid before the court. However, notice must be served on the accused (they must be told in advance). And under subsection (3) the previous conviction shall not be laid before the judge until he is satisfied that the charge is proved.]).

Question 34

What happens if the character of the accused is revealed to the court? (e.g. what if s 101 or it's prior equivalent are breached?)

Answer 34

Three cases deal with this: Jackson v HMA 1982 - individual being convicted on indictment and in the course of his trial he had made reference to "two guys I know from jail". The judge had not directed the jury to ignore that statement. It was argued that in a circuitous way this was a reference to his previous convictions. The court held that since there was no objection raised at the time of the trial so it couldn't be said that there was any material miscarriage of justice and the appeal was rejected. ⁃ Johnston v Allan 1983 - accidental revelation of the individual's previous convictions (printout over convictions accidentally seen by judge). Held that there was not a breach in that there was not an act of breach by the prosecutor but rather there was an accidental revelation. ⁃ Graham v HMA 1983 - accused had been indicted on various charges and in the course of the criminal trial one of the police officers had made a claim that he'd heard the accused saying, after his wife phoned the police, that 'that cow has got me to jail again'. His argument was that, akin to Jackson, this was a revelation to the jury that he had been in prison before and ought not to have been allowed. The court held that this was a grave breach which the jurors could no be expected to ignore - the damage couldn't be undone so the appeal was allowed.

Question 35

When may the Crown make reference to the previous convictions of the accused?

Answer 35

Despite the general statutory prohibitions, the Crown may make reference to the previous convictions of the accused in certain scenarios: 1) Where this evidence is relevant in support of substantive charge ⁃ Carberry v HMA 1975 - 3 accused charged with conspiracy to rob a bank. In the course of the trial the Crown sought to lead evidence as to the statement made by one of the accused about a discussion he had had with a man he had met a year earlier when they had all been in mail. This reference to the statement was equivalent to a previous conviction (and thus in breach of the general prohibition on leading evidence about previous convictions). However, the court held that in the special circumstances of the case it was both competent and relevant evidence in support of the charge of conspiracy therefore it was legitimately admitted, and thus the appeal failed. ⁃ *Boustead v McLeod 1979 - involved an individual who had been prohibited from driving having been convicted of a road traffic offence. He then later was found to be driving after having been disqualified. Therefore evidence relating to the previous convictions needed to be included in the subsequent case (since this was the only reason he wasn't supposed to be driving in the subsequent case). ⁃ Varey v HMA 1985 - prison escape case, therefore reference to why the accused individual's were in prison had to be admitted. 2) Where evidence for defence tends to establish accuser's good character or attacks character of prosecution witness or victim (CP(S)A s 270). NB: s 270(3)[ "s 270(3) In proceedings on indictment, an application under subsection (2) above shall be made in the course of the trial but in the absence of the jury." This shows that the judge will decide if the application is to be allowed in the absence of the jury.] , s 270(4)[ "s 270(4) In subsection (1) above, references to the complainer include references to a victim who is deceased."]

Question 36

What are the rules about the cross-examination of the accused?

Answer 36

Under s 266, the accused cannot be asked and need not answer any question relating to bad character or previous convictions or commission of offences other than that charged.

Question 37

What are the exceptions to the rule under s266 whereby the accused can be cross-examined?

Answer 37

a) If it is relevant to proof of guilt of the offence charged (s 266(4)(a))[ This has been covered earlier in relation to the prosecution evidence section.] b) If he has set up his own good character (s 266(4)(b)[ NB under s 266(5) - the prosecutor shall be entitled to ask the accused a question under s 266(4)(b), only if the court permits it do so so (so application must be made to the court for such a question to be asked - this is not necessary in relation to s266(4)(a) or (c).]) ⁃ If the accused sets up his own good character, he is either cross-examining other witnesses or giving evidence himself, then he opens the door to be cross examined in turn. c) If the accused attacks the character of a prosecution witness (s 266(4)(b)) ⁃ This can either be direct or implied. If the accused attacks the character of a prosecution witness, he opens himself up to cross-examination of his own character.[ E.g. attack on Brenda's character in tutorial 3 by Angus.] d) If the accused gives evidence against the co-accused (s 266(4)(c)) ⁃ *McCourtney v HMA 1977 - once the accused has given evidence against a co-accused, there is no discretion on the part of the trial judge to refuse the co-accused the right to cross-examine the accused as to his character (in contrast to s 266(4)(b) (where the court held the court still retains discretion)) ⁃ Sandlan v HMA 1983 - although the court cannot prevent cross examination in such a circumstance, they must carefully supervise it ⁃ Griffith v HMA 2013 - noted that the legislative provisions in s 266(4)(c) have been the source of some expressions of concern on the grounds that they may have been 'productive of injustice'. Nevertheless it was reiterated that the court has no discretion under this provision. e) If the accused is permitted to ask questions about the sexual character of the complainer (s 275A) ⁃ DS v HMA 2007 - the court held that s 274/275/275A complied with Article 6.

Question 38

What was the former approach in the O'Hara v HMA 1948 and Templeton v McLeod 1985 cases in relation to cross examining?

Answer 38

This was to not allow cross examination where the defence attacked the witness's character as a necessary step in establishing his own defence.

Question 39

What changed after **Leggate v HMA 1988 (Read this case in full)?

Answer 39

Since this case there has been a more literal reading of the provision. In this case the appellant had been convicted of assault and robbery and firearms offences. Most of the evidence against him was coming from police witnesses. His response was that the police were trying to fabricate evidence against him. At trial, these allegations were deemed to be a challenge to the character of the prosecution witnesses. Thus the statutory provision was invoked to allow the character of the accused to be challenged under cross examination at trial. The accused appealed to the High Court on the grounds that the claims he was making against the validity of the police witness statements were necessary to establish his defence. The court held that s 266(4)(b) needs to be given its ordinary and natural meaning; thus any imputation on the character of the police witnesses was enough to bring the case within the terms of this subsection even if the attack was necessary as part of establishing the defence. (NB it was stated that this subsection is not invoked simply by the mere assertion that the Crown witness is lying.) (NB2, even if the case falls within the subsection, it is still up to the court to determine whether allowing the cross examination will be fair.]