Rape Trials: Special Provisions in South Australia

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Socio-political movements over recent years have resulted in the introduction of various special evidentiary provisions that apply only in rape trials. The rationale for these provisions are ostensibly to prevent cross-examination attacking the moral rectitude or sexual promiscuity of a complainant in rape trial in order to secure an acquittal; in effect, to prevent “slut-shaming” and deny any inference being drawn by a jury that because a particular person is, or reputed to be, sexually promiscuous they are less likely to be raped. The legislative and common law positions both seek to balance the protection of complainants in sexual trials against the fundamental importance of an accused person being able to test the evidence against him.

Can counsel ask about former sexual partners?

A complainant purporting to be a rape victim may not be questioned about their sexual relationship (Section 34L Evidence Act 1929), however questions may be put in cross-examination that relate to the alleged victims recent sexual activities with the person accused.  The trial judge, in particular other circumstances, is reposed with a discretion to allow questions to be put to the witness with respect to sexual activities with persons other than the accused; the exercise of this discretion requires consideration of the principle of averting having complainants subject to humiliation or embarrassment against the interests of justice. This will inevitably require a decision as to the likely probative value of the questioning; whether the answers would go toward proving or disproving a relevant matter at issue.

Can I be convicted on the word of the complainant alone?

In many instances of an alleged rape, the only evidence is that of the victim. These are often called trials that are “oath on oath” as it will require the jury to determine whether to believe the victim or the accused without any corroborating evidence. Formerly, the trial judge would ‘warn’ the jury in directions that it was unsafe to convict an accused person on the uncorroborated evidence of the victim. Due to the nature of many rapes occurring ‘behind closed doors’ and complaints not being made for some time, the legislature determined to remove the direction in Kelleher v The Queen; Section 34L(5) of the Evidence Act still allows for the trial judge to issue the direction where appropriate but it is now no longer required.

Is hearsay evidence admissible in rape trials?

Hearsay evidence is, generally, inadmissible; a witness is not permitted to relay statements made by other persons in circumstances where the evidence is adduced to prove the truth of that statement; commonly this could be a witness saying that he heard his wife say that she saw the accused person commit the crime in question. While there are a number of exceptions to the rule against hearsay, rape offences include a further exception. The rule, pursuant to Section 34M(3) of the evidence act allows the Crown to adduce hearsay evidence of the complainant making a complaint or having said some material thing following a sexual assault- known as “recent complaint evidence”. The use of “recent complaint evidence” by a jury is quite limited; it cannot be used to directly prove the truth of the statement made by the witness but rather only as evidence that a complaint was made and relevant to the consistency of the complainant. It can be used to rebut suggestions of “recent invention” of a complaint by the defence.

The special evidentiary provisions for rape matters, while the subject of some contention and producing a significant amount of work in the Criminal Court of Appeal, have been relatively uncontroversial in their application. The significant discretion reposed in the trial judge operates to ensure that any chilling effect on probative material being adduced before a jury is moderated. It is important that the crown brief is assessed and accused persons properly advised on the basis of the special evidentiary provisions at an early stage in order to determine the strength of that case; particularly prior to the committal proceedings.

If you have been accused of rape, it is important to seek legal advice at the earliest opportunity. For a free, no-obligation review of your situation, make an appointment here. For 24 hour, urgent legal advice or representation you can contact Tom Cuthbertson on 040 021 9889 or by e-mail at tom.cuthbertson@culshawmiller.com.au