Sexual Offences Evidence and Practical

Question 1

What are the ‘relevant’ case laws with regard to sexual offences evidence?

Answer 1

R v Felisse
R v Gandy
R v McClintock
R v McNamara
R v McCready
R v Moana
R v Tawhara
R v Walesby
R v Wilbourne

Question 2

What does S44 of the Evidence Act state in relation to protecting the victim’s character?

Answer 2

It limits the comments and evidence presented in court to what is relevant to the case and is not unfairly prejudicial. It outlines that no question can be put to a complainant about the sexual experience of the complainant with any person except the Defendant, or about the reputation of that complainant.

Question 3

What is ‘direct relevance’ in terms of S44 of the Evidence Act?

Answer 3

When the accused is charged as a party and cannot be convicted unless it is shown that another person committed the offence against the complainant, the judge’s leave is not required to ask questions that would normally be limited by subsection 1.

Question 4

What was held in R v McCready regarding cross-examination?

Answer 4

That the trial judge had wrongly disallowed questions to be put to the complainant in cross examination, regarding events a fortnight after the alleged offence where the complainant had voluntarily participated in a further act of intercourse with the defendant.

Question 5

What does R v McClintock state regarding other incidents of intercourse being cross-examined?

Answer 5

The test… is a strong one but the categorising of cases can only be a matter of degree. an earlier incident of sexual intercourse may be of marginal relevance, but where it has neither proximity in time nor sufficient similarity to the circumstances of the alleged rape, cross-examination on the matter is not warranted.

Question 6

What does S87 of the Evidence Act state regarding privacy as to a witness’s precise address?

Answer 6

S87 protects witnesses from having to state their address. This includes not only the street number and name, but the name of the town or community they lived.

Question 7

What does S88 of the Evidence Act state regarding restriction on disclosure of complainants occupation in sexual cases?

Answer 7

S88 is a specific section for sexual offences where the occupation of the victim must not be disclosed unless by permission of the court.

Question 8

Under what circumstances would a judge allow disclosure of a witness’s address under S87 or a complainant’s occupation under S88?

Answer 8

In both sections the judge cannot grant leave for disclosure of the complainants address or occupation to be made unless they are satisfied the evidence or question to be put is of such direct relevance to the facts in issue that exclusion would be contrary to the interests of justice.

Question 9

What does S121 of the Evidence Act state regarding corroboration?

Answer 9

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 victim’s account.

Question 10

What is the meaning of ‘corroboration’?

Answer 10

Corroborative evidence is any independent evidence connecting or tending to connect the defendant with the crime. It confirms in some material particular not only that the crime has been committed, but that the defendant committed it.

Question 11

What does R v Felisse state regarding corroboration?

Answer 11

Although corroborating evidence undoubtedly strengthens the case for the prosecution, its absence does not make a conviction impossible. It can also help to establish certain key points. A bruise is capable of confirming evidence that intercourse was non-consensual where the issue is not one of identity but whether non-consensual intercourse took place.

Question 12

Can the defendant’s silence be accepted as corroboration?

Answer 12

If an accusation is made against the defendant and the accuser and the defendant are on equal footing, the defendant’s silence may be construed as an admission and thereby corroboration.

Question 13

Can the victim’s distressed condition be accepted as corroboration?

Answer 13

The test is on the genuineness of the condition - if it can be said to be involuntary and uncontrived it can amount to independent evidence of the allegation.

Question 14

What does R v Moana state regarding the victim’s distressed condition as corroboration?

Answer 14

The time element between the alleged attack and the observation (of the complainant) by the witness is all-important.

Question 15

Can the victim’s ability to describe the scene be accepted as corroboration?

Answer 15

If the victim had not been in the room in which the offence is alleged to have been committed and has no subsequent occasion to enter it, their evidence of the interior of the room and the layout of it’s contents may be seen as corroboration.

Question 16

Can statements made by the defendant out of court or during oral evidence as a witness be accepted as corroboration?

Answer 16

An admission or confession made by the defendant out of court or during oral evidence may be seen as corroboration.

Question 17

Can the defendant’s lies be accepted as corroboration?

Answer 17

It is the judge’s decision in light of all the circumstances whether lies told by the defendant constitute corroborative evidence.

Question 18

What do S90 and S93 of the CPA state regarding oral evidence?

Answer 18

S90 covers all applications for oral evidence applications, but when the complaint is of a sexual nature, S93 specifies that the court must consider the particular vulnerability of the complainant and the impact on the complainant of giving oral evidence, when the court is considering whether to make an oral evidence order.

Question 19

Under S97 of the CPA, who may be present in court if oral evidence is being given by the complainant in a sexual matter?

Answer 19

Judge, prosecutor, defendant (+ custodian), engaged lawyers, officers of the court, Police OC case, media specified under S918(2), any person who’s presence is requested by the complainant, any person permitted by the judge.

Question 20

What does R v Tawhara state regarding those allowed in court while a sexual complainant gives evidence?

Answer 20

There is no necessary limit to the number of people the complainant or defendant may request to remain in the room. In this case the complainant requested and was allowed five persons to remain in the courtroom. These persons were friends she wanted for support.

Question 21

What are the legal requirements of the judge under S97(2) of the CPA?

Answer 21

Before the complainant in a sexual case begins to give their oral evidence, the judge will ensure:

• No one remains in the courtroom who is not permitted to be there
• That the complainant has been advised of their right to request any person be present

Question 22

What are the provisions of S35 of the Evidence Act with regard to previous consistent statements?

Answer 22

S35(1) renders previous consistent statements of a witness inadmissible unless they are admissible within the exceptions in S35(2) or (3).

Question 23

What are the two circumstances under which previous consistent statements are admissible under S35 of the Evidence Act?

Answer 23

A previous consistent statement of a witness will be admissible when the statement is necessary to respond to a challenge to the witness’s veracity or accuracy based on:

1. A previous inconsistent statement of the witness or
2. On a claim of recent invention on a part of the witness

Question 24

What is the definition of veracity and where is it found?

Answer 24

S37(5) of the Evidence Act 2006 -

The disposition of a person to refrain from lying, whether generally or in the proceeding.

Question 25

What are the provisions of S103-S105 of the Evidence Act 2006?

Answer 25

These sections provide for a witness’s evidence to be given by alternative means, i.e. playing an electronically recorded interview to the court or giving oral evidence from a safe location via CCTV. The Crown must apply to the court for this, and then the judge decides whether to allow it based on the merits of the individual application -there are no guarantees that the application will be authorised.

Question 26

What are the seven main provisions of the Victim’s Rights Act 2002?

Answer 26

1. Police must provide victims with information about the programmes and services available to help them.
2. Police must provide information to victims about the progress of the investigation and proceedings.
3. If a victim cannot receive or is not capable of understanding information about services, investigations or proceedings, then it should be given to a support person.
4. Restrictions are placed on giving information that may identify the victim’s address in evidence or in information provided to the court.
5. The procedures relating to VIS’s have changed.
6. In certain circumstances, victim’s views on matters such as an offender’s release on bail must be obtained.
7. S51 VRA requires that property held as evidence must be returned ASAPracticable when it is no longer needed.

Question 27

What is the definition of a ‘victim’ and where is it found?

Answer 27

S4 VRA 2002
‘victim’ means:
- A person against whom an offence is committed by another person
- A person who through or by means of an offence committed by another person suffers physical injury or loss of property or damage to property
- Parent or legal guardian of a child or young person who falls within either of the first two points above, unless that parent or guardian is the person charged or convicted
- Member of the immediate family or a person who, as a result of an offence committed by another person, dies or is incapable, unless that family member is the person charged or convicted.

Question 28

What is the meaning of ‘immediate family’?

Answer 28

A member of the victim’s family, whanau or other culturally recognised family group who is in a close relationship with the victim at the time of the offence, including people whose relationship to the victim at the time is close (e.g. spouse, de facto partner, child or step-child, brother or step-brother, sister or step-sister, parent or step-parent, and grandparent).

Question 29

Is there a definition for ‘culturally recognised family group’?

Answer 29

No, but the VRA allows for the views of different cultures to be acknowledged, and allows the court to make directions about who may or may not be treated as a member of the victim’s family.

Question 30

Who is a victim only for the purposes of S7 and S8 of the VRA?

Answer 30

A person who through or by means of an offence committed by another person, suffers any form of emotional harm, and a parent or legal guardian of a child or young person who falls within that category unless that parent or guardian is the person charged or convicted.