Evidence

Question 1

Proving Circumstantial Evidence

Answer 1

The offenders actions and words before, during and after the event
The surrounding circumstances
The nature of the act itself.

Question 2

Indecent Assault Consent

Answer 2

If the issue of consent is raised on the evidence the prosecution must prove beyond reasonable doubt a further two elements:

• the complainant did not consent to the assault; and
• the defendant did not honestly believe the complainant was consenting

Question 3

Section 44 of the Evidence Act 2006

Answer 3

44 Evidence of Sexual experience of complainants in sexual cases:
“Generally , no evidence or questions can be put to the complainant about their sexual experience with any person other than the defendant”

(1) In sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the judge.
(2) In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.
(3) In an application for permission under subsection (1), the judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.
(4) The permission of the judge is not required to rebut or contradict evidence given under subsection (1).
(5) In a sexual case in which the defendant is charged as a party and cannot be convicted unless it is shown that another person committed a sexual offence against the complainant, subsection (1) does not apply to any evidence given, or any question put, that relates directly or indirectly to the sexual experience of the complainant with that other person.
(6) This section does not authorise evidence to be given or any question to be put that could not be given or put apart from this section.

Question 4

Section 87 of the Evidence Act 2006

Answer 4

“Protects a witness from having to state their address and having questions put to them about that information. This includes no only the name and number of the street, but also the name of the town or community the witness lives in.

However these details may be disclosed where the judge determines that they are directly relevant to the facts in issue and that to exclude them would be contrary to the interest of justice. “

Question 5

Section 88 Evidence Act 2006

Answer 5

“Protects a complainant from having questions put to them or to a witness about the complainants’s occupation or having evidence given, or statements/ remarks made about the complainant’s occupation.

However an application can be made to the judge to disclose this information in court.”

Question 6

Section 121 of the Evidence Act 2006

Answer 6

In Any criminal Proceeding, the complainant’s evidence does not have to be corroborated. This is especially important in cases of a sexual nature, where the offence is often committed with no independent evidence to corroborate the complainant’s account.

Question 7

Section 35 Evidence Act 2006

Answer 7

Governs all exceptions to the previous consistent statements rule. Previous exceptions under the common law, including evidence of recent complaint, no longer apply.

Section 35(1) outlines the previous consistent statements rule, which states that previous consistent statements of a witness are inadmissible unless they come within the exceptions in 35(2) or (3).

Section 35(2) Effectively applies to statements that would have come under the common law rule of recent complaint.

Section 35(2) makes a previous consistent statement admissible to the extent that is it is necessary to respond to a challenge to the witness’s veracity or accuracy, the challenge must be based on:
a previous inconsistent statement of the witness, or
a claim that the witness recently invented evidence.

For example, if a rape complainant’s veracity is challenged, then a previous statement from another witness is admissible to respond to the challenge.
Once admitted, a previous consistent statement is admissible to prove “anything that is of consequence” and therefore unlike the previous law will be admissible as evidence of its truth as well as of the fact that is was made.

Previous consistent statements will really only be admissible as rebuttal evidence.