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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 16
HCA/2019/000708/XC
HCA/2019/000727/XC
Lord Justice Clerk
Lord Turnbull
Lord Pentland
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
AW
and
APPEAL AGAINST CONVICTION
by
HB
Appellants
against
HER MAJESTY'S ADVOCATE
Respondent
First Appellant: K Johnston, sol adv; More & Co
Second Appellant: L Glancy; Beaumont & Co
Respondent: A Edwards, QC, AD
;
Crown Agent
2
28 January 2021
Introduction
[1]
The appellants were each found guilty of raping the complainer during the same
incident at the flat of the second appellant in Edinburgh. Prior to repairing to the flat the
three had spent time in each other's company at a nightclub in the city. The complainer was
intoxicated. The first appellant and the complainer had previously had a relationship over a
period of about 6 months. Charge one, a charge against the first appellant of having
unlawful intercourse with the complainer when she was 14, during 2011, was withdrawn at
the conclusion of the Crown case.
Background
[2]
It had been agreed by joint minute that scientific evidence in relation to the finding of
DNA could be explained by the second appellant having vaginal intercourse with t he
complainer and by the first appellant having vaginal and/or anal intercourse and/or oral sex
with the complainer, all as alleged in the charge. Medical examination of the internal part of
the complainer's genitalia revealed numerous small healing abrasions, and the area was
noted to be tender. The latter could have been sustained as a result of blunt force,
penetrative trauma within the timeframe given for the alleged incident, although the
findings did not shed light on whether that had been as a result of a consensual act.
[3]
At the commencement of the trial consent was a live issue, each appellant having
lodged a special defence. Neither appellant gave evidence nor were any prior statements by
them led in evidence. The special defences were not withdrawn, nor did the trial judge ex
proprio motu direct the jury to disregard them.
3
[4]
The primary issue as the case developed related to the complainer's credibility and
reliability. The contents of various text messages between the complainer and her boyfriend
in the aftermath of the incident were agreed by joint minute. He also gave evidence about
retrieving certain voice mail messages on the morning after the incident which had been left
on his mobile phone during the course of the night. The text messages included one at 0436,
when she would have been at the locus, referring to her being with "Alan's friend" and
being "scared"; at 08.43 stating "Andy, something really really, really, really bad happened
and I'm really scared and I can't stop crying."; and at 09.26 stating ""He held me up against
the wall and his friend shoved like half a pill down my throat, I don't know what it was.
Then I barely remember anything apart from being in a taxi." She admitted to having lied
about some of the contents of the text messages sent to her boyfriend, and in particular in
relation to the one sent at 0926. She had no recollection of leaving the voicemails and only
knew about them when her boyfriend told her later.
[5]
To corroborate the complainer's evidence as to lack of consent the Crown relied
upon:
(i)
Extreme distress exhibited by the complainer to her boyfriend in a phone call after
she left the locus in the morning, some time after 0915 hrs. She was described as incredibly
distressed, distraught, and incoherent. He had to ask her to calm down multiple times
because he couldn't understand what she was saying, she was in hysterics.
(ii)
The evidence of her boyfriend as to the contents of voicemails from her, including
one at a time when it could be inferred she was at the locus with the appellants, wherein she
sounded in distress, saying "No", "Please don't" and "leave me alone", audible to him over
a background of male laughter. The actual recordings were not led in evidence. [Although
it was arguable that what he heard during this call was res gestae the Crown did not present
4
the matter on this basis. We note that in the course of his earlier police statements the
witness had made no reference to these voicemails, which were not available in court, the
witness stating that they had been recorded on an old phone he no longer had, and that he
had not preserved them].
(iii)
Evidence of a medical examination of the complainer about 60 hours after the alleged
incident, which revealed bruising to the complainer's arms, on the inner aspect of the left
thigh, close to the groin, and which were in keeping with pressure from fingertips/hands
applied to these areas within the timeframe of the alleged incident.
[6]
The Advocate Depute submitted to the jury that they could accept the distress as
genuine and directly attributable to the incident. The text messages and other voicemails
were addressed by the Advocate Depute in the context of the credibility and reliability of the
complainer. She submitted that there was in fact no evidence that the complainer consented,
and that there could have been no basis for a reasonable belief in consent.
The Charge
[7]
The trial judge gave a basic direction on the need for corroboration in the form of
evidence from "a separate source which confirms or supports the principal source of
evidence". That other source could be direct, such as an eye witness or a document, or
indirect in the form of supporting facts and circumstances.
[8]
The purpose of the special defence was to give notice to the Crown, did not alter the
burden of proof, so the defence did not need to lead evidence in support of it, and any
evidence relating to it should simply be considered along with the rest of the evidence. He
then said this:
"In this case, the accused are both saying that the sexual behaviour between them
and FS was consensual, hence they should be acquitted of the charge against them."
5
[9]
Having defined the crime of rape he went on to say:
"Now, these three things, the intentional or reckless penile penetration, lack of
consent by the person and the absence of reasonable belief by the accused that she
consented all have to be proved by corroborated evidence."
He gave an appropriate definition of consent, then addressed the issue of reasonable belief,
in the course of which he stated:
"Here obviously the issue is that there was belief that she was consenting."
[10]
He explained that any belief had to be reasonable, not simply honest, adding:
".... you look objectively at what the facts tell you about the interaction between the
person and the accused and their shared understanding of what was happening. To
decide if the accused's belief that the person was consenting was reasonable you
have to have regard to, for example, whether he took any steps to find out if she was
consenting, and what those steps were."
[11]
In the course of his charge the trial judge made no reference to the issue of distress,
or its evidential significance, nor to the medical evidence, or its evidential significance. He
did not direct the jury as to the use to which the text messages or voicemail messages could
be put, and gave no directions on hearsay, save to the extent that he had previously given
directions on the use of police statements.
Other matters
[12]
Two matters were raised by the administrative judge during the single judge
procedural hearing in this case. The first was that the court required to see the section 275
applications which had been lodged and granted in the case. The second was that the court
wished to be addressed on the appropriateness of the directions given by the trial judge in
relation to reasonable belief in consent, as noted above.
6
Section 275
[13]
Each appellant had lodged an application under section 275 of the Criminal
Procedure (Scotland) Act 1995, which were allowed at separate preliminary hearings.
Paragraphs (a) (c) and (f) of the first appellant's application were granted unopposed. The
application for the second appellant was granted unopposed. On the morning of the trial a
second application was granted, unopposed, in favour of the first appellant.
First appellant
[14]
The first application granted for the first appellant was in the following terms:
(a)
That between 1 April 2011 and 30th June 2011 the accused and the complainer were
in a sexual relationship with each other. During that period, the accused and the said
complainer experimented with rough, forceful sex. The complainer at that time told the
accused that she liked him to use force, and that she liked being spanked. The complainer
was aware that the accused enjoyed sadomasochistic sex
(b)
That in 2015 and 2016, the complainer ... and the accused contacted each other using
social media and met up with each other in person.
(c)
That between January 2016 and the date libelled, the complainer ... and the accused
maintained contact through the dating app Tinder as well as by text message. During those
communications, the complainer and the accused discussed meeting up with each other for
the purpose of engaging in sexual activity. They also frequently discussed the sexual
activities in which they liked to engage. The complainer in one message suggested that she
liked to engage in sexual intercourse with two men.
(f)
That the complainer had reported a phobia of doctors.
7
[15]
Paragraphs (a) (c) were said to be relevant to the issue of consent, and in the case of
(a) and (c) to the issue of reasonable belief in consent; (f) was said to be relevant to distress,
and to offer an alternative explanation of the apparent fact that the complainer was
distressed during the medical examination. In relation to paragraph (c) it was suggested
that the evidence referred to therein would allow the inference that the complainer wanted
to engage in sexual activity with the accused on the date libelled. The same inference was to
be drawn from paragraph (a), which related to activity which was said to have occurred
5 years before the libel, and when the complainer was only 14.
Second application for first appellant
[16]
This contained one paragraph, namely that between 02.10 am and 02.46 am on the
4th May 2016 the complainer behaved in a sexual way towards the appellant outside the
nightclub they had been in prior to the alleged incident, and had put her arm around the
appellant, cuddled him, kissed him, held his hand, and put her hand on his waist. This was
said to be relevant to consent and reasonable belief in consent because the behaviour
suggested she was interested in him sexually, and the inference to be drawn was that she
consented to the acts libelled.
Second appellant
[17]
The application for the second appellant was in these terms:
(a)
That between January and April 2016 the complainer and the first appellant were in
social media contact with one another, sent messages of a sexual nature to each other,
including one in which the complainer said that she liked "being double teamed" i.e. to have
sexual activity with two males at the same time;
8
(b)
That shortly before the alleged incident, whilst they were standing waiting for a taxi,
the complainer grabbed this appellant's penis and stated "Are you going to be my daddy?".
(c)
That in addition to consenting to the sexual activity libelled, on the occasion in
question the complainer also performed consensual oral sex upon the second appellant,
handled his penis and masturbated him.
[18]
The nature of the questioning to be anticipated included:
(a)
That she sent the message because she wanted to have sexual activity with two men
at one time, and on the occasion libelled, acted on that desire.
(b)
That she initiated sexual contact with the second appellant, having recently met him
for the first time.
(c)
That the activity in question took place during the alleged incident.
The issues to which these paragraphs were said to be relevant were the credibility and
reliability of the complainer, in that the evidence that she sent messages or demonstrated
behaviour of a sexual nature had a bearing on consent.
Submissions
Appellants
[19]
The appeal for each appellant was advanced on similar grounds, maintaining that a
miscarriage of justice has resulted from a failure by the trial judge to direct the jury on a
number of essential matters, namely:
(i)
The sources of evidence available to corroborate the charge.
(ii)
How to treat the evidence of distress and its evidential value.
(iii)
Exceptions to the hearsay rule and in particular the evidential value of the voicemail
messages spoken to by the complainer's boyfriend, and texts messages; and
9
(iv)
How to treat the medical evidence and to what extent it could provide corroboration.
[20]
The nub of the argument in each case was that the trial judge failed or omitted to
assist the jury to distinguish between evidence which was capable of corroborating the
complainer's account and that which was not. It was imperative to provide guidance on the
available sources of corroboration; and to identify evidence which was incapable of falling
into this category. There was evidence which was capable of providing corroboration of the
complainer's evidence distress de recenti, and the medical evidence. There was other
evidence, in the form of de recenti statements which were relevant only to credibility and
reliability. There was even evidence which might have been construed as part of the res
gestae. The trial judge had an obligation to guide the jury on these different categories of
evidential significance attributable to different pieces of evidence. His failure to do so
constituted material misdirections by omission and resulted in a miscarriage of justice.
Consent, reasonable belief and section 275
[21]
In her written case and argument, the solicitor advocate for the first appellant
submitted that there was evidence to justify the directions given, particularly in relation to
the behaviour outside the nightclub, and the evidence that the appellant had acted
"normally" after the alleged incident. In supplementary oral argument she referred to there
being "very little basis if any" for the directions, but sought to maintain that the material
elicited in consequence of the section 275 applications had provided such a foundation. She
acknowledged that it had been a misdirection to tell the jury that the Crown required to
corroborate an absence of reasonable belief.
10
[22]
As to the section 275 applications, she recognised with hindsight that there were
problems with these, but maintained that the paragraphs relating to the CCTV evidence and
the complainer's alleged behaviour to the first appellant remained relevant.
[23]
Counsel for the second appellant frankly acknowledged that the section 275
application could not be supported, save for the third paragraph. She accepted that there
was no evidential basis for a reasonable belief in consent, and although she had not
withdrawn the special defence she had not presented the case to the jury as one of consent
or reasonable belief. The trial judge had misdirected the jury on the issue of reasonable
The Advocate Depute
[24]
The Advocate Depute acknowledged that the trial judge did not specifically direct
the jury on the matters raised in the grounds of appeal, but submitted that in the context of
the case their absence did not constitute material misdirection or miscarriage of justice. The
charge was short, but adequate, and in some instances was unduly advantageous to the
appellants. The charge had to be looked at as a whole and in the context of what were the
issues at trial, which essentially related to the credibility and reliability of the complainer.
[25]
The trial judge referred to the parties' speeches, from which the jury had sufficient
information regarding the sources of evidence available to them in support of the
complainer's evidence. The Advocate Depute had addressed at some length the evidence
available to corroborate the act of penetration, which was not in dispute; and had then
concentrated on addressing the evidence available to corroborate lack of consent. She did
not rely on any evidence which was not properly available for that purpose. She had
referred to any text messages only in the context of credibility and reliability, and had not
11
suggested, as she might have done, that the text at 0436 was part of the res gestae (Cinci v
HM Advocate 2004 JC 103). The position was clearly put before the jury who could not have
been confused or misled.
Consent, reasonable belief and section 275
[26]
The situation was similar to that in MacDonald v HM Advocate 2020 JC 244, in that
there was no evidence led in support of the special defence for either appellant. The trial
judge erred in saying that the appellants "were both saying" that the sexual behaviour was
consensual, in his reference to reasonable belief, and in the direction that the latter required
to be corroborated. These were misdirections in favour of the appellants. The special
defences should have been withdrawn, failing which the trial judge should have withdrawn
them from the jury's consideration ex proprio motu.
[27]
Evidence of previous sexual communications or contact between the parties was of
no relevance to consent on the occasion libelled, even if it related to events earlier the same
evening. To that extent the Crown should have opposed these applications. Para (a) of the
application for the first appellant related to events libelled in charge 1, and, given the nature
of that charge, apart from the first sentence which was evidence of the events libelled, the
matters narrated therein were irrelevant to the issue of consent on charge 2.
Analysis and decision
[28]
We are satisfied that these appeals must succeed on account of the manifest
deficiencies in the judge's charge. This is not a case such as DS v HMA [2011] HCJAC 125
where the deficiencies may be tempered by what was said elsewhere in the charge; on the
issues which were the subject matter of the appeal the trial judge said nothing at all in his
charge. In his report he said that he decided not to raise these matters because (a) the
12
medical evidence was neutral; and (b) in respect of the other matters, for fear of seeming to
influence the jury. These statements are difficult to understand. In the first place, the
medical evidence was not neutral, and had clearly been relied upon by the Advocate Depute
in her speech as providing corroboration of the complainer's evidence as to lack of consent.
As far as the other point is concerned, the directions which were required were directions on
law, not directions on fact. All that was required was to explain to the jury the legitimate
use to which these various pieces of evidence could be put, what they did with them
thereafter would be a matter entirely for them and a direction on law cannot be said to risk
seeming to exert any undue influence on the jury. On the contrary, it was an essential part
of giving the jury the tools they needed to do their job.
[29]
The trial judge correctly told the jury that the complainer's account had to be
corroborated by evidence from another, separate, source. In the present case there were
three pieces of evidence which might have provided corroboration. These were the extreme
distress exhibited during the phone call later in the morning; the distress heard during the
voicemail with male laughter in the background; and the medical evidence.
[30]
The first of these was exhibited at the same time as the complainer made a de recenti
statement, which was also evidence that the jury could take into account, but in that case
only so far as it had a bearing on credibility and reliability. The jury also had to be told that
in order to use distress as corroboration they required to accept it as genuine and to be
causally connected to the incident libelled. There was an obvious need for legal directions
on these different aspects of the evidence.
[31]
The second of these occurred in circumstances where an argument could have been
advanced that it fell into the category of res gestae. The Crown, no doubt for proper reasons,
eschewed such an argument, but again a distinction required to be made between what the
13
complainer said and what was her objectively perceived demeanour, and the differing
purposes for which these separate aspects of the evidence could be used. Whilst making
reference to res gestae, given the Crown approach, might have added confusion, the trial
judge at least had to tell the jury that the distress could provide corroboration if they were
satisfied it was attributable to the sexual attacks, but, on the Crown approach, the statements
only went to credibility.
[32]
As to the medical evidence, it seems that evidence was led of distress exhibited
during this and another examination, as well as of matters said by the complainer, in
circumstances which could not possibly constitute either de recenti distress or de recenti
statements. Again, this had to be explained to the jury.
[33]
Quite apart from the observations made in Dyer v HMA [2009] HCJAC 7, para 22 and
DS v HMA [2011] HCJAC 125, paras 13, 28 and 37, as to the need to give adequate directions
on the issue of corroboration by distress, it should have been abundantly clear that these
directions required to be given to enable the jury properly to carry out its task. In
McGartland v HMA 2015 SCCR 192, Lord Malcolm noted (para 31) that "Juries are entitled to
a bespoke charge adapted to the evidence and to the particular issues arising in the trial". In
DM v HMA [2017] SCCR 235 the court clearly considered that directions must "...be
sufficient to alert the jury as to how they should go about their decision making in every
case. Effective jury directions must engage with the specifics of the particular trial and the
particular issues that arise for decision." The directions given in this case significantly failed
to meet this test. They were superficial and to a large extent formulaic. They failed to
explain the legal significance of crucial aspects of the evidence.
[34]
As has repeatedly been observed, the judge's charge is a central part of the
framework in which our solemn criminal trials are decided and which assist our system in
14
meeting its obligations under article 6 of the European Convention of Human Rights. In
CH v HMA [2016] HCJAC 4, giving the opinion of the court, Lord Bracadale observed
(para 13), that:
"The terms of a trial judge's charge to the jury should be such as to enable the
informed observer, who has heard the proceedings at the trial, to understand the
reasons for the verdict. In other words, there must be a discernible route to the
verdict. This approach meets the requirement for a reasoned verdict."
[35]
"The verdict of a jury is, of course, not given in isolation, but as part of a framework
which includes the speeches of counsel and the directions of the trial judge (Beggs v
HMA 2010 SCCR 681, para 207). From this framework, including the evidence and
the libel, the basis of any conviction should be discernible (ibid). This may not follow
if the trial judge's directions are incomplete, fail to identify all the matters which the
Crown required to establish for conviction, or are in any way confusing."
[36]
In our view the charge to the jury did not provide the jury with the framework they
needed. The fact that the Advocate Depute in her speech did not rely on any evidence for an
impermissible purpose is beside the point. The obligation of providing the jury with the
framework they need rests squarely on the judge. Although he had explained to the jury, in
general terms, the need for another source of evidence to corroborate the evidence of the
complainer, he gave the jury no assistance at all about where they would or would not be
entitled to find that corroboration.
[37]
The problems arising from the failure to give adequate directions were compounded
by the erroneous directions given regarding consent and reasonable belief. In the first place
the direction that an absence of reasonable belief was something which the Crown required
to corroborate was a misdirection (Graham v HM Advocate 2017 SCCR 497; Maqsood v
HM Advocate 2019 JC 45), as a glance at the jury manual would have shown. Secondly, the
directions that the appellants "are both saying" that there was consent, and that "Here
15
obviously the issue is that there was belief that she was consenting" were again
misdirections: MacDonald v HMA 2020 JC 244. The situation is on all fours with that case.
[38]
The matter worsens when consideration is given to the defence speeches. Although
counsel for the second appellant had not, as she should have done, withdrawn the special
defence, in her speech she was scrupulous in making clear that she was not advancing any
positive elements of a defence of consent or reasonable belief. Throughout she addressed
the only remaining issue, namely whether the jury was satisfied that the Crown had proved
its case. In support of the contention that it had not, she appropriately addressed issues
regarding the credibility and reliability of the complainer, and highlighted numerous
aspects of the evidence which she argued should cause the jury to pause or hesitate in
reaching a conclusion in favour of the Crown. Her final submission was simply that the
evidence led for the Crown fell far short of the high standard of proof beyond reasonable
doubt.
[39]
If counsel for the second appellant was scrupulous in this regard, the same cannot be
said for the speech of the solicitor-advocate for the first appellant. Her speech was
presented on the footing that there was a basis for the positive defence raised in the special
defence, that the evidence would allow the jury to draw an inference that the complain er
had consented to the acts in question, and in any event, would permit them to conclude that
the appellant had a reasonable belief in consent. Leaving aside the issue of how both
submissions could be presented, there was in fact no evidential basis for either. The
situation was entirely that which arose in MacDonald where the court noted (para 41):
"There was no evidence in support of the special defence of consent. In these
circumstances the appellant's law agent ought, in accordance with the normal and
accepted practice, to have withdrawn the plea in advance of addressing the jury
(Lucas v HM Advocate, Lord Carloway, delivering the opinion of the court, para 12).
The agent should at least have made the position clear in his speech to the jury (ibid).
16
He did not. On the contrary, he maintained that the incident had involved
consensual sex in the absence of any evidence for that line. He was, of course,
entitled to address the jury on the basis that the Crown had not proved the case
beyond reasonable doubt. He was free to make submissions on credibility and
reliability. He was not entitled to suggest to the jury that a positive case of consent
had been made out in the absence of any evidence to support that case. It was
improper to do so."
[40]
The exact same remarks may validly be made about the speech of the solicitor-
advocate for the first appellant. Furthermore, these improper remarks having been made,
the trial judge should have clarified and corrected the position in his charge. He should
have been alerted to the issue by the speech of the Advocate Depute which twice referred to
the fact that there was no evidence of consent, and that there could be no basis for a
reasonable belief in consent; and to the tenor of the speech by counsel for the second
appellant, but he did nothing to correct the speech for the first appellant. He should have
done so: MacDonald, para 42:
"In these circumstances, it was for the sheriff to make the position clear to the jury; ie
that there was no evidence that the complainer had consented to any sexual activity
but that they still required to consider: whether they accepted the complainer's
testimony as credible and reliable; and whether her account was adequately
corroborated. The sheriff's direction to the jury, that they required to acquit if they
considered that any evidence relating to the defence raised a reasonable doubt, was
misplaced. There was no such evidence. Equally, the sheriff's statement that the
appellant's `position' was that `the complainer was a willing participant in
everything which went on' is a misdirection. The appellant had no `position'
(Bakhjam v HM Advocate, Lord Justice General (Carloway), delivering the opinion of
the court, para 35) beyond the terms of the joint minute, that he had digitally
penetrated the complainer, and the fact of his not guilty plea."
Rather than do this the judge asserted a "position" on behalf of the appellants which the
evidence did not justify. McDonald did not alter the law; that action of the kind subsequently
referred to in that case was necessary in the present case should have been abundantly clear
to the trial judge. It does not assist the Crown that these directions were favourable to the
appellants. Whilst the impression given by a misdirection may be tempered in its
17
consequences by directions elsewhere which correct that impression, or provide a bare
sufficiency of information to prevent a miscarriage of justice resulting, there can in general
be no "balancing" of favourable versus unfavourable misdirections.
[41]
There is a further aspect of the speech for the first appellant which calls for comment.
We accept that those acting for the appellants were entitled to proceed at trial, in the absence
of any ruling by the trial judge under section 275(9), on the basis that the evidence referred
to in the section 275 applications was admissible (even though it was not see below). As
noted above, counsel for the second appellant used this material to support her argument
that there were good reasons to have doubts about the credibility and reliability of the
complainer, referring, for example, to instances when she had been shown to lie in relation
to matters relevant to the alleged incident. The solicitor-advocate for the first appellant
however, chose to use the material to launch an undiscriminating and degrading attack on
the general character of the complainer, asking the jury "What kind of person do you
consider [the complainer] to be in terms of her honesty? What do you know about her?"
This and other parts of the speech constitute a general attack on the character of the
complainer. It is one thing to refer to lies which the complainer has been shown to have told
on matters relevant to the libel: it is quite another thing to attack her general char acter for
honesty. This was in our view an impermissible attack on character (CJM v HMA 2013
SCCR 215). The trial judge should have made this clear to the jury.
[42]
The result is that the appeals against conviction must succeed.
Postscript: The section 275 applications
[43]
In light of the jurisprudence on this issue over several years, it is mystifying that the
bulk of the applications in this case were granted. There is no part of the first application for
18
the first appellant which should have been granted. Paragraph (a) related to events around
the time of the first charge, the alleged unlawful intercourse when the complainer was 14,
and 5 years prior to the rape charge. It could have no possible relevance to the latter, and
although the Crown appeared to concede that the first sentence might not have been struck
at as being part of the subject matter of the first charge, we disagree because of the use in the
relevant paragraph of the phrase "sexual relationship". In any event, it was not being
advanced as relevant for the first charge, but as relevant to the question of consent on the
rape charge, 5 years later. Paragraphs (b) and (f) should have been refused as not being
struck at by section 274. Paragraph (c) should have been refused as irrelevant. It would in
any event be impossible for any of these pieces of evidence to bear the inferences which the
appellant sought to draw. The second application for the first appellant falls into the same
category. As to the application for the second appellant, the final paragraph was admissible,
because although struck at by section 274(1)(b) in not forming part of the subject matter of
the charge, it related to the same incident as the subject matter of the charge, and is relevant
thereto. Otherwise, nothing in that application was admissible. The result of the allowance
of impermissible evidence was that the complainer was subjected to the most egregious
intrusion into her personal life.
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