Sexual Offence Problem Q's

Sexual Offence Problem Q's

1. Issue #1 : Statements made by victim to another person about the attack

   • HEARSAY: is an assertion other than one made by a person while giving oral evidence in proceedings. This is mostly inadmissible in criminal proceedings as it is not best evidence and not made under oath.
     • EXCEPTIONS FOR WHEN HEARSAY IS ALLOWED IN CRIMINAL CASES:
       • RAE GESTAE - is a spontaneous statement made by someone after the event happened. They are admissible as an exception to the rule of hearsay
         • BUT, Cinci v HMA - Accused and complainer were found passed out in a shower and when they were found the woman said “he raped me” this was not res gestae. The statement made was deemed to be a “subsequent statement.”
       • DE RECENTI - which are statements made shortly after an incident. Only admissible to show consistency of witness's story, credibility
         • • Anderson v McFarlane (1899) 1 F(J) 36 - Where a girl of 13 only saw her mother three days after the alleged assault and told her then, the mother's evidence of the girl's statement was held admissible • Morton v HMA – case involving indecent assault, the only incriminating evidence about the assault was the woman identifying the man as her assailant, and then a claim from her brother that on the lunchtime on the day of the assault she came home upset saying that she had been assaulted by a man in a close – this was held to be a statement DR. Wasn’t res gestae because not part of the event. Could be admissible to show her credibility, and to show consistency of her communications.
           • Ahmed - de recenti statement may show credibility but not corroborate (limited purpose)
       • ADDITIONAL GROUNDS IF UNWELL OR DEAD- s 259(2)(A) of Criminal Procedure (S) Act 1995 - on the basis that she is unfit by reason of bodily condition to give evidence
       • Al-Khawaja - the use of hearsay evidence does not itself infringe the rights guaranteed by article 6 of the ECHR ECHR Compliant

2. Issue #2 : Past Convictions

   • GENERAL PROHIBITION ON BAD CHARACTER EVIDENCE: s 266(4)
     • EXCEPTIONS: (a) proof of guilt of offence charged (1995 Act, s 266 (4)(a); Jones v DPP [1962] AC 635). (b) accused sets up his own good character (1995 Act, s 266 (4)(b)). (c) accused attacks character of prosecution witness (1995 Act, s 266 (4)(b). Such an attack may be either direct or implied in the nature and conduct of the defence case. Note this attack includes attack on character of complainer or deceased victim.
       • CONSEQUENCES OF EVIDENCE LED: Where an application under s 275 is granted permitting the leading of sexual history evidence- the prosecutor must disclose to the court any previous convictions of the accused for certain sexual offences or where the offence is not one listed which carries a 'substantial sexual element - s275A
       • ∗Leggate v HM Advocate 1988 SCCR 391 - If the accused makes any imputation of character, it will remove their statutory protection. However, the judge still has discretion as to whether allow cross-examination

3. Issue #3: Illness of Victim

   • s259(1)(c) requires that a person who made the statement to have been at the time the statement was made a competent witness.

4. Issue #4: Defendant wishes to lead evidence

   • s274 - Rape Shield- General prohibition in sexual offence cases on questions which are designed to establish the the complainer is not not of good character evidence/ sexual behaviour not part of charge/ consent issues
     • s 275 - set of general exceptions
       • The court must be satisfied in order to grant application - 1. evidence or questioning will relate to a specific occurrence or facts showing complainer's character or condition to which the complainer is subject; occurrence is relevant ; evidence admitted its probative value is likely to outweigh any risk of prejudice to the proper administration of justice
         • Cohabitation
           • DS v HMA- “sexual behaviour” in s274 did not extend to prior course of cohabitation between the accused and the complainer, so that she could be questioned on this. Co-habiting as partners?
         • Flirtation
           • Kinin 'adulterous relations'- the s275 exception applies in that it’s a specific occurrence demonstrating character, it’s relevant to establishing guilty and it’s significant probative value; and unlikely to risk prejudice.
         • Drugs
           • likely to be admitted if Ronald is followed as it constituted predisposition as referred to in s 275(1)(a).

5. Issue #5 - Is evidence relevant and admissible

   • Relevant - have direct bearing on the fact in issue
   • Admissible - Similar Fact Evidence- it comprises of something outwit the circumstances of the charge before the court; general rule inadmissible but there are exceptions
     • HMA v Joseph: accepted makin into scots law - similar fact evidence is usually inadmissible but can be admissible if the previous convictions show behaviour similar to indictment these will be admitted. indictments were sufficiently close to allow evidence of fraud in Belgium
       • Moorov and Howden

6. Issue #6 is evidence corroborated

   • Rule of Corroboration: sufficiency of evidence that allows court to convict. quesiton of law for the judge
     • De Recenti Statement provides corroboration (morton, anderson, ahmed)