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 possible
- Any witness can give evidence of the complaint
- Specifically, 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 J
- inadmissible ‘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 complains
- consistent 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 consistency
- thus, the fact that consent is not in dispute does not mean it cannot be admitted as
evidence of consistency
CRITERIA FOR ADMISSIBILITY:
1. Sex offence
2. 1st reasonable opportunity
3. Complaint was voluntary
4. 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 J
- Either 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
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 possible
- Any witness can give evidence of the complaint
- Specifically, 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 J
- inadmissible ‘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 complains
- consistent 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 consistency
- thus, the fact that consent is not in dispute does not mean it cannot be admitted as
evidence of consistency
CRITERIA FOR ADMISSIBILITY:
1. Sex offence
2. 1st reasonable opportunity
3. Complaint was voluntary
4. 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 J
- Either 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
