Evidence, Sexual Offences, Defendant Statements
Evidence of Sexual Experience: Disposition and Reputation
Low Bar Rule:
Rape shield provisions generally do not apply in cases of murder with sexual elements, but which are not themselves sexual offenses. Illustrated by the Grace Malara case, where the admissibility of evidence hinged on its direct relevance to the facts at issue, overriding general rape shield protections.
Evidence must be of such relevance to the direct facts in issue that it would be contrary to the interests of justice to exclude it. This ensures critical, directly relevant evidence is not barred, balancing the need to protect complainants with the defendant's right to a fair trial.
Complete bar on evidence of sexual reputation, such as "I heard she was up for anything." This aims to prevent character assassination based on hearsay and irrelevant personal opinions.
Dangers of Unfair Prejudice:
Social norms can lead to women being seen as less credible, which could raise unfair prejudice against the prosecution. The legal framework seeks to counteract these biases to ensure fair judgment.
The provisions are designed to shield a complainant's previous sexual history but not to prevent a complainant from giving relevant evidence that goes directly to the facts in issue. The focus is on preventing irrelevant or prejudicial information from overshadowing pertinent facts.
Guards Against Twin Myths:
That a sexually active person is more likely to consent to sex with the defendant. This counters the misconception that past sexual activity implies future consent.
That a sexually active person is less credible as a witness. Aims to prevent the devaluation of a witness's testimony based on their sexual history.
Reputation (a man's opinion) is still reputation as the jury would be invited to make an inference that the complainant had a reputation. Prevents the back door introduction of reputation evidence, maintaining the shield against irrelevant character assessments.
Pre-2021 vs. Post-2021 Law
Pre-2021 Law:
Allowed questioning and evidence about previous sexual experience with the defendant. This was based on the idea that such evidence could be relevant to consent or reasonable belief in consent.
Seen as relevant to a defendant's defense of consent or a reasonable belief in consent. It provided a basis for defendants to argue that past interactions informed their understanding of consent.
Applied to sections 7, 40, and 8 only. These sections specifically govern the admissibility and relevance of evidence in sexual offense cases.
Post-2021 Law:
Now presumptively excludes previous sexual experience with the defendant. Reflects a shift towards protecting complainants from re-traumatization and preventing irrelevant character attacks.
Rationale for Amending Section 44 (Law Commission Second Review of the Evidence Act 2006, at 57):
Aims to protect complainants from unnecessarily intrusive and embarrassing questioning about their previous sexual experience and to prevent the use of erroneous assumptions based on their sexual history. The amendment targets the harm caused by irrelevant and potentially damaging questioning.
The assumption that consent on a previous occasion makes consent more likely on a future occasion devalues the importance of consent in relationships. Highlights that consent is specific to each instance and cannot be assumed based on past behavior.
Consent is given to a particular person on a particular occasion, not for all time. Reinforces the principle that consent must be actively and freely given each time.
The risk of illogical reasoning about the complainant's behavior based on their previous sexual experience with the defendant justifies greater legislative control over the admissibility of this evidence. Addresses the concern that jurors may draw incorrect and prejudicial conclusions from past sexual history.
Heightened Relevance Test – Section 44(2):
To be admitted, the evidence of previous sexual experience or disposition of the complainant must be 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. This sets a high bar for admissibility, ensuring the evidence is crucial and directly pertinent to the case.
The Starting Point:
The defendant's right to a fair trial. Recognizes the fundamental right of the accused to present a full defense.
R v Clode [2007] NZCA 447:- Section 44 of the Evidence Act (and its predecessors) were enacted to prevent the entirely reprehensible and inappropriate blackening of the characters of particularly women complainants by directly or indirectly "tarring" them in the eyes of the jury.
It was not intended to preclude or somehow truncate the advancement of a full defense which is otherwise open to an accused. This reinforces the principle that while the law aims to protect complainants, it should not unduly restrict the defendant's ability to present a viable defense.
Rape Shield and Consent
Aligns shield with consent – in the moment, not forever. This emphasizes that consent is a dynamic, ongoing process, not a one-time event.
Judges consider the defendant's right to a fair trial and the complainant's side. Reflects the court's duty to balance the rights of both parties to ensure justice.
Example Case:- D charged with sexual violation by unlawful connection; D charged with rape.
GD was an Ola driver.
Significant risk evidence to the home party.
Intimate conversation that involved sexual experience would force the jury to make an inference she has loose morals due to sexual experience. Illustrates how specific evidence can lead to prejudicial assumptions.
Sent text messages asking her to come over or she will have sex / someone else. Demonstrates the kind of evidence that might be presented to suggest consent.
The way the complainant confided with the driver is more likely to have sex / someone else relates to facts in issue being consent. Shows how the complainant's behavior was argued to be relevant to the issue of consent.
Said yes to intercourse. This is direct evidence of consent, which the court needs to evaluate in context.
CA allowed this evidence (heightened relevance test). The Court of Appeal deemed the evidence admissible based on its direct relevance.
Would someone talk like that after being sexually assaulted? Poses a question that the jury must consider when evaluating the credibility and behavior of the complainant.
Court are not saying it's truthful or untrue but handing it to the jury to decide. Clarifies that the court's role is not to determine truth but to present the evidence for the jury’s assessment.
Silence of events – telling her of but handing it for jury to decide. Highlights the importance of the jury's role in interpreting the complainant's actions and statements.
She meant it: Court allowed as evidence for the jury to consider. Conveys that the court found the evidence sufficiently relevant for the jury's consideration.
Previous False Allegations
Raises confusion, accusing them of being a liar – attacking their veracity. This underscores the potential impact of introducing evidence of prior false allegations on the complainant's credibility.
Do you apply rape shield? Poses the question of whether rape shield provisions should extend to cases involving prior false allegations.
Flags S37 case law decided. Indicates the relevance of Section 37 case law in addressing veracity in such situations.
In "clean" cases where there is no evidence that the previous allegations are false (ambiguous exclarkevR). This refers to cases where it's unclear whether the previous allegations were actually false.
Lots of sexual allegations – where is the line between clean vs. unclean? Questions the criteria for distinguishing between cases with clearly false allegations and those that are ambiguous.
False complaints = var S37 should apply to veracity say. Suggests that Section 37 should apply to cases involving false complaints to address the veracity of the complainant.
Should apply to propensity. Proposes that evidence of false allegations should be considered in assessing the complainant's propensity for truthfulness.
Does this event prove to be substantially useful? Raises the standard for admissibility, asking whether the evidence of prior allegations is substantially useful in determining the case.
Section 44A
An application must be made to either put the question or offer the evidence. Emphasizes the procedural requirement for seeking permission before introducing such evidence.
This cannot be done "off the cuff"; an application must be made. Clarifies that a formal application is necessary, preventing spontaneous or unprepared presentation of sensitive evidence.
Party must also provide questions to the judge ahead of time. Underscores the need for transparency and judicial oversight in handling sensitive evidence.
Judicial Directions about Misconceptions Arising in Sexual Cases – s 126A
Judge to give jury directions regarding any relevant misconceptions (rape myths), for example: Addresses the role of the judge in dispelling myths that could bias the jury's understanding of the case.
The prevalence of false complaints (allegations are hard to prove, easy to fake). Counters the misconception that false complaints are common.
That sexual offending is committed by strangers or less serious when committed by a family member, partner, former partner, or acquaintance (stranger rape is uncommon). Corrects the misconception that sexual offenses are primarily committed by strangers.
That sexual offending includes force or infliction of physical injuries (absence of marks does not mean it didn't happen). Addresses the myth that physical injury is a necessary element of sexual offending.
That a complainant is less credible due to what they wore at the time, whether they were drinking at the time, were in a relationship with the defendant at the time, or where they maintained contact with the defendant after the alleged sexual offending. Prevents the devaluation of a complainant's credibility based on irrelevant factors.
Defendant Statements and Improperly Obtained Evidence: Sections 27, 28, 129
Any statement the defendant has made to anyone is admissible. States the broad admissibility of defendant statements.
Unreliable statement threatened to make state entity. Highlights the potential for challenging statements on the grounds of unreliability.
Can challenge admissibility. Reinforces the right to challenge the admissibility of statements.
Defense will argue they didn't tell them the right to silence/lawyer, etc. Common defense arguments against the admissibility of statements.
Examples: statement to anyone. Clarifies the scope of admissible statements.
Inculpatory and exculpatory.
Criminal act justification: "I hit him, but he hit me first." Illustrates the inclusion of both types of statements.
All parts of the defendant's statement – both inculpatory & exculpatory – will be entered. Ensures that the full context of the statement is presented.
Sexual crime: This example can't be taken too far.
Responding to allegations = Statement. Clarifies that responding to allegations constitutes a statement.
The Reliability Rule: S28
Danger – statements made against interests are usually seen or accepted as being true. Highlights the inherent risk in relying on such statements.
Confessions & statements often probative value confession evidence can pose dangers. Recognizes the potential dangers associated with confession evidence.
Adversely impacted the reliability of the statement.- Does the 'D' understand their rights?
Have they been coerced into a statement? Key factors in assessing the reliability of a statement.
Medical exam found semen – no match to any suspect. Example of evidence that raises doubts about the reliability of a statement.
Unreliable/red flags up. Indicates the presence of factors that undermine reliability.
Meaning he wasn't suggestable.
He was read his rights.