Cross-Examination of Victim
In a trial for a rape offence or a sexual assault offence, [when a person pleads not guilty] evidence is not to be allowed other than with the consent of the judge and no questions will be asked in cross-examination, about the sexual experience of the complainant with any person.
The Judge shall not give leave other than in an application in the absence of a jury and then only if he has satisfied that will be unfair on the accused person to refuse the evidence to be adduced.
He or she must be satisfied that the evidence might reasonably be such as to be critical to acquittal, which would not otherwise occur. Even if leave is given, the judge may direct that a question may not be asked or that it may only be asked with a fresh specific application.
Where an application is made, the complainant/victim is entitled to be heard and may be legally represented. Notice of intention to make the application must be given on behalf of the accused person as soon as practicable after the commencement of the trial.
The prosecution must notify the complainant of his or her right to be legally represented. The case may be adjourned to allow an opportunity for representation.
Exclusion of Public
Generally, the public is excluded from rape and sexual offences proceedings. Officers of the court, persons concerned in the proceedings and bona fide the representatives of the press and such other persons as the court may permit, may be permitted to remain.
Where a person is charged with a sexual assault offence, no matter that may allow members of the public to identify the person as the complainant in relation to the charge may be published in the press or broadcast media other than as authorised.
The accused may apply to the court for a direction that the publication is required to induce persons to come forward who are likely to be needed as witnesses and the conduct of the defence would be likely to be adversely affected otherwise.
The judge, if satisfied that the effect of the above is to impose a substantial and unreasonable restriction on the reporting of proceeding at the trial and that it is in the public interest to remove or relax the same, may direct but the restriction shall not apply in so far as specified.
After a person is charged with rape, no matter likely to leave members of the public to identify him as the person against whom the charge is made shall be published in a written publication, except as authorised by a direction of the Court or after conviction. If the person applies to the judge that this provision should not apply the Judge shall direct otherwise, provided that the complaint is not thereby identified.
Publications in breach of the above provisions are an offence. There is provision by which a company individual or the management and/or directors of a company or business may be convicted.
Corroboration of Evidence
Formerly, it was the case that the uncorroborated evidence of the complainant would not generally be sufficient to convict the accused in a sexual offence case, in the absence of warnings as to the danger of the conviction on uncorroborated evidence. This rule was amended so that it is the matter for the judge having regard to all the circumstances of this case whether or not to give such warning.
A person accused of rape may have if the evidence does not so warrant a conviction for rape, be convicted of sexual assault or certain other alternative offences. Similarly, persons charged with certain categories of sexual offences may be convicted of other categories of offences.
Many sexual offences arise from an incident of which only the accused and the complainant have first time knowledge. At common law, a practice developed of requiring corroboration in respect of sexual offences. Corroboration means independent evidence in respect of the material facts required to be proved.
Judges determined whether the evidence was capable of amounting to corroboration and instructed the jury to determine whether corroboration, in fact, existed in the circumstances.
Corroboration must implicate the accused in a material respect in relation to the commission of the crime and the accused being the person who committed it. It is not sufficient that it merely bolsters evidence. It must link the accused to the crime. If the evidence equally supported the defendant’s position, it would not be deemed capable of being corroborative and the jury should not consider it as such.
A judge/ jury could convict in the absence of corroboration, but the judge was obliged to warn the jury of the danger of so doing. This principle applied to all sexual offences that were not corroborated. The failure to give the requisites of warning could mean the jury’s verdict being satisfied by the Court of Criminal Appeal.
A jury could convict an accused in the absence of corroboration. However, the trial judge had to warn of the dangers of conviction without corroboration.
Under the above-mentioned 1990 Act requirement for corroboration is now discretionary. It is not given only if there is a reason to believe that the complainant’s evidence may not be reliable.