#17522 - Evidence Practice And Principles Sexual Offences The Doctrine Of Recent Complaint - Evidence II: Practice and Principles

SEXUAL OFFENCES The main evidentiary doctrines: 1. Doctrine of recent complaint 2. Discretionary corroboration warning 3. Sexual history evidence DOCTRINE OF RECENT COMPLAINT • • Exception to the general rule of evidence that - the rule against narrative:Witnesses are precluded from testifying about statements mad pre-trial to corroborate their evidence Avoids fabrication - witnesses cannot corroborate themselves However, in sexual offence cases: •Credibility of the victim may be bolstered if they have evidence of having complained to a third-party about the incident as soon as was reasonably possibleAny witness can give evidence of the complaintSpecifically, the person to which the complaint made • • Through a plethora of cases the courts recognised, via much psychological evidence, that people do not report sexual offences immediately No probative value The probability that they'll report remains to be one of the doctrine's active assumptions • The effect:The corollary of this assumption and its implication is that those who do not report immediately are less credible and more likely to be untruthful This is especially potent when one considers the absolute paramountcy of the issue of credibility as attached to guilt or innocence in sexual offence cases - the issue of consent is decisive however due to the nature of these cases they often occur behind closed doors and thus there are rarely witnesses who can attest that there was or was not consent. Thus it boils down to believing either the victim or the alleged perpetrator - thus, credibility is everything HISTORICAL BACKGROUND - THE ORIGIN OF RECENT COMPLAINT R v Lillyman 1896 Hawkins Jinadmissible 'as evidence of the facts' admissible as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness box, and as being inconsistent with her consent to that of which she complainsconsistent with her story and shows that she would be unlikely to have consented therefore to admit them as evidence of facts and not credibility would be to infringe the rule against hearsay. R v Osborne 1905 Context was carnal knowledge - consent not in dispute - it is whether they knew the person was underage.purpose is to demonstrate consistencythus, the fact that consent is not in dispute does not mean it cannot be admitted as evidence of consistency CRITERIA FOR ADMISSIBILITY: 1. 2. 3. 4. Sex offence 1st reasonable opportunity Complaint was voluntary Complaint is consistent with D's evidence. DPP v Brophy 1992 CA The judge admitted the mere fact of the complaint but not the details as to the timing. O'Flaherty JEither the full terms of the complaint is admitted or the fact that the complaint was made is not admitted at all Summarised the central tenets 1. Complaints may only be proved in criminal prosecutions for a sexual offence 2. Made as speedily as could reasonably be expected 3. Voluntary and not as a result of ay inducements 4. Once evidence of the complaint being made is deemed admissible, particulars may also be proved 5. Always made clear to the jury that it is ONLY evidence of consistency of the conduct in so complaining with her testimony 6. Using the complaint as corroboration of her credibility does not mean that it amounts to corroboration of her testimony in the legal sense but as point to the consistency of her testimony 7. Corroboration in the strict, legal sense requires independent evidence of another complainant 8. The law on complaints should not be confused with what takes place when police institute inquiries. A complaint made to the police may be admissible or not under these guidelines but just because a complaint isn't made at first opportunity to the police does not inhibit their inquiries. A complaint to the police may be made by someone other than the injured party. TIMING OF THE COMPLAINT • Amongst the principles the central preoccupation of the courts has been the timing of the complaint. Brophy 1992 Accused had a shop and dealt in precious stones and stamps - C was a girl who had asked him to make her two pendulums. When she came to collect them, they weren't ready. Accused was about to leave the shop to go home, and together they both set off to his house. It was alleged that several acts of molestation occurred in the hour they spent there. Between 1.15 and 1.30 - A drove the C back to the shopping centre and she got out of the car, witnessed by security man, who said that she did not show any signs of distress and said to A 'I'll see you tomorrow' She went to her moms house where she stayed for some time w out mentioning it. late that afternoon - a matter of hours after the offences occurred - she made complaints to three companions and to her father.Complaint inadmissible as it had not been made at the first reasonable opportunityCould've said it to her motherNo corroboration of the account of events here and serious inconsistencies in the evidenceBasically, a first possible person test Ignores the reality of the victim - dangerously objective - why are they endorsing an objective test into an area of law that is so emotionally and mentally complicated People v Kiernan 1994 CA Alleged that A brought C to his house, gave her alcohol and had sex w her upstairs while she was intoxicated. After incident: ➢ came downstairs where she met A'S GF. She made a complaint that she'd been raped and the GF discounted the complaint on basis she was drunk and thus had imagined it. - Friday ➢ She returned to parents home that day and didn't tell any members of the family. ➢ TJ accepted that this was because she was too frightened and that she was justified in withholding the complaint until the opportunity arose to speak to her boyfriend as his bro was a social welfare officer and she wished to get advice from him. However, when she did