Things to focus on for examination in chief

 S139
 S119
 S120
 S412
 Ss4 and 5 CPA 1865

Cross-examination of complainants in trials for sexual offences

 Relevant provisions of the Sexual Offences (Amendment) Act 1976 were repealed by
sections 41-43 of the YJCEA 1999.
o Now repealed: SO(A) 1976 – Section 2: only applied to rape offences and only
prevented the D to cross examine the witness’ sexual experience with persons
other than the D
 S41-s43 – covers all sexual offences and sexual behaviour – can prevent the D from CE the
witness’ behaviour, much wider
 S 41(1) → a significant restriction on the way the defence can conduct its case where the
defendant is charged with a ‘sexual offence’.
o GR – no evidence can be adduced and no question can be asked by or on behalf
of the accused to the complainant of sexual offences; you need leave of the court
o Also forbids the D’s counsel from adducing evidence or CE-ing the complainant
regarding their sexual behaviour
 ‘Sexual offence’ defined in s 62 – wider range of offences compared to the 1976 Act.
o S62 YJCEA – defines ‘sexual offences’
 S 41(1) → except with the leave of the court, no evidence may be adduced by the defence,
nor any questions asked in cross-examination, about any sexual behavior of the
complainant.
 ‘Sexual behaviour’ defined in s 42(1)(c) – capable of including flirtatious conduct or
conversation. See R v Mukadi (2003) and R v T, R v H (2001)
o S42(1)(c) – defines sexual behaviour; includes flirting
o Determined through a case by case basis
o R v Mukadi (2003) – before the alleged incident, the complainant had got into a
stranger’s car and exchanged phone numbers. The trial judge allowed the D to
bring in evidence of the complainant’s behaviour of getting into car and
exchanging phone numbers cos it concerns consent.
 S 41(2) → the court may give leave to adduce evidence of the complainant’s sexual
behavior, or to allow cross-examination about such behavior if, and only if: - need leave
of the court and need to satisfy 2 conditions: s41(2)(a) and (b); if both conditions are
satisfied, leave must be given to adduce evidence or CE to complainant
o S41(2)(a) - Either subsection (3) or subsection (5) applies; and
 S41(3)
 S41(3)(a) – not commonly used; the issue is not regarding consent;
its not an issue of consent – the evidence that the D wants to
adduce/CE the complainant abt doesn’t relate to consent – if such
is the case then he can adduce evidence/CE the complainant of
their sexual behaviour
o Eg: belief in consent – not an issue of consent, meaning that
the D is saying that he believed that the complainant
consented
o Eg: prosecution has evidence that C had sex at the time, D
allege that its not with him but another individual – not an
issue of consent cos hes saying that its with someone else –
in such a case, any evidence/CE that the C had intercourse
at that material time will be allowed
o Eg: D alleging that the C framed him, issue is not consent
 S41(3)(b) – the issue is consent, where the D agrees that there was
intercourse but there was consent. In such a case, the D is only
allowed to adduce evidence/CE the C if the evidence/questioning
was regarding/relates to the complainant’s sexual behaviour at or
abt the time of the alleged sexual offence – but the timing must be
within 24 hours of the alleged incident
 S41(3)(c) – looking at sexual behaviour of the complainant which is
so similar to her behaviour during the alleged behaviour: the
similarity between the past and the behaviour during the alleged
incident; refers to v unusual sexual behaviour, where the similarity
cant be written off as a coincidence
o S41(3)(c)(i) – an issue of consent, where the D claimed that
the intercourse was consensual. The D is allowed to adduce
evidence of the C’s behaviour which is so similar to her
behaviour on the day in question or to her behaviour at or
about the time the alleged offence happened; or
 Tahed – where C had sexual intercourse with D at a
same unusual place
o S41(3)(c)(ii) – behaviour with any other ppl which took
place at or about the same time as the incident happened
 S41(5) – only allows for rebuttable evidence, where the D is allowed to
bring in evidence to challenge what the C claims
 No concrete answer as to whether to follow strict or wide view;
Only applies when the complainant makes statements during her
 examination in chief, any other statements made previously or in
any other circumstance wouldn’t apply
o Restrictive view: Evidence adduced by the prosecution –
only evidence extracted by the prosecution (statements
made by C when being examined by the prosecution)
o Wider view: Evidence adduced by prosecution witnesses –
covers all statements, covers all evidence which
prosecution adduced including statements made by the PW
 Rooney – C claimed that she was a virgin, sub(5) allowed for the D
to bring in evidence to rebut this claim to show that the C was not
 S41(5)(a)
 S41(5)(b)
o S41(2)(b) - A refusal to grant leave might have the result of rendering unsafe any
conclusion reached on any relevant issue in the case. – the judge has to be
satisfied that refusal to grant the D leave will result in an unsafe conviction
 ‘Any relevant issue’ defined in s 42(1)(a).
 S 41 does not provide for the exercise of judicial discretion – if the evidence is relevant,
then, subject to s 41(4) and assuming one or more statutory criteria for admission have
been satisfied, the court has no discretion to limit or refuse to admit the evidence; R v F
(2005).

The scope of subsection (3)

 Distinguishes between cases where the evidence or question in cross-examination relates
to a relevant issue, but that the issue is not one of consent, and those cases where the
relevant issue is one of consent.
 ‘Issue of consent’ is defined in s 42(1)(b) – does not include any issue as to the belief of
the accused that the complainant so consented.
 Hence, the restrictions imposed by s 41(3)(b) and (c) will not apply where the defendant
puts forward a defence that he believed that the complainant was consenting. However,
the test of relevance is strictly applied where such a defence is put forward.
 Subsection 3(b) is a test based on contemporaneity; subsection 3(c) is a test based on
similarity.
 ‘At or about the same time’ – defined in R v A (2001):
o Cannot be extended to cover a period of several days.
o Would generally be interpreted no more widely than 24 hours before or after the
offence.
o R v A – D wanted to put in evidence but it didn’t fit any of the statutory provisions,
so D used the HRA. D counsel wanted to CE a sexual relationship between her and
the D, trial judge didn’t allow. CoA claimed that the evidence should have been
 admitted to show the D’s belief in consent. Prosecution appealed to HoL and they
applied S3 HRA to S41.
 HoL held: even if the D cant use the exceptions, the court can still allow for
the D to adduce evidence/CE the complainant on her sexual behaviour if
that would give him a fair trial
 R v Mukadi – the incident with the driver clearly took place ‘at or about the same time’
as the event which was the subject matter of the charge against the accused.
 Subsection 3(c) allows the court to look at the sexual behavior of the complainant on
other occasions where that behavior is so similar to the behavior of the complainant on
the occasion under investigation that the similarity cannot be explained away as a
coincidence
o Covers behaviour that occurred either before or after the alleged offence.
o Can have taken place at any time provided they are not so remote in time as to be
irrelevant; R v Tahed (2004).
o Cannot include ‘evidence of a general approach towards consensual sex’.
o Has to be ‘the sort of behavior that is so unusual that it would be wholly
unreasonable to explain it as coincidental’.
o Some weight must be given to the word ‘so’ – mere similarity is not sufficient; R v
Tahed.

Subsection (4)
 R v Martin (Durwayne) - questioning about a complainant’s previous sexual behavior was
not permitted if the main purpose was to impugn her credibility, but it could be permitted
if the main purpose was to strengthen the defence case.
 Cannot bring in evidence under S41(3) if the court feels that the D’s purpose/main
purpose is to damage the credibility of the complainant

Subsection (5)
 This exception applies if the evidence or question relates to any evidence adduced by the
prosecution about any sexual behavior of the complainant.
 Not restricted by any time limit.
 R v Rooney

Subsection (6)
 For the purposes of subsections (3) and (5), the evidence that is permitted to be called
must relate to specific instances of alleged sexual behavior by the complainant.
 Any evidence/CE under s41(3) or (5) must relate to specific incidents, cant be smtg which
is general