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Appendix Four: Contents Of s.275 Applications
A) THE EVIDENCE SOUGHT TO BE ADMITTED OR ELICITED
Past sexual history with the accused
- Past remarks by, or behaviour of, complainer to, the accused said to be indicative of a romantic or sexual interest;
- A previous sexual relationship or incidents of sexual intercourse with accused;
- Other previous forms of sexual behaviour short of intercourse (kissing, cuddling, fondling) between the complainer and the accused;
- Details of the practice of (past) sexual behaviour between the complainer and the accused (e.g. frequency of intercourse, locations of intercourse, nature of sexual behaviour, circumstances in terms of alcohol consumption, clothes worn, things said etc.).
Sexual behaviour with accused on or around same occasion as alleged offence
- Complainer's willingness to go with (or to) accused (e.g. to accused's home, get in taxi with accused, accompany accused to another location);
- Sexually explicit remarks made by complainer to accused;
- Complainer giving accused her address; phone number, etc.;
- Complainer's behaviour in presence of accused said to be indicative of readiness to engage in sexual foreplay (e.g. provocative dancing, sensual posturing, kissing, cuddling, showing breasts, unzipping accused's trousers).
Non-sexual behaviour with accused on or around same occasion as alleged offence
- Physical confrontation involving complainer slapping, kicking and scratching accused;
- Verbal argument between complainer and accused.
Sexual behaviour with (or in presence of) third party/ies on or around same occasion
- Provocative dancing in public, in club, bar, or someone's private home;
- Sexually explicit remarks made by complainer (e.g. 'I feel like sex tonight');
- Sexual intercourse or sexual activity with a third party prior or around time of offence.
Non-sexual past history with the accused
- Previous incidents indicative of 'bad feeling' between complainer and accused or possible anger or vindictiveness on part of the complainer towards accused (e.g. suggesting motive for false allegation);
- Volatile 'on-off' relationship (relationship characterised by aggressive arguments, break-ups and make-ups).
Complainer's current relationship status
- Whether complainer has partner at or around time of alleged offence;
- Possessive, jealous and/or violent partner;
- Recent argument/break-up with partner.
Sexual history of complainer
- Working as prostitute at or around time of alleged offence;
- Past history of working as a prostitute;
- Extent of previous sexual activity (e.g. past sexual relationships; number of previous sexual partners);
- Nature of previous sexual activity (e.g. 'kinky' sex; more than one partner at a time);
- Past sexual behaviour demonstrating complainer's sexual practices and proclivities (e.g. keeping condoms by her bed, use of sex aids, indulging in sexual fantasies; pierced clitoris, [false] history of abortion);
- Past allegations of sexual assault or abuse;
- Complainer's virginity or lack of sexual experience;
- Complainer's contraceptive history.
Sexual character of complainer
- Sexually bullying or blackmailing by complainer (e.g. threatening false accusation of rape if he refused to sleep with her; threatening to tell accused's wife of their sexual relationship);
- Homosexuality;
- Sexual maturity (e.g. early menstruation; developed breasts)
- Sexual reputation of complainer (e.g. references to being known as 'easy'; sexual boasting' to others by complainer, e.g. number of past partners; sexual prowess).
General character of complainer
Mental instability of complainer
- Complainer's past mental health (e.g. history of depression, self-harm, antidepressant medication, personality problems);
- Complainer's mental state at or around time of alleged offence (e.g. depressed, anxious, volatile, mood swings, irrational).
Violence, unpredictability, disorderliness
- Complainer's physically violent or verbally abusive conduct;
- Disorderly conduct by complainer (e.g. playing loud music, hosting wild parties, having disreputable friends);
Alcohol or drug use
- Complainer's history or practices of drug or alcohol use;
- Complainer's consumption of alcohol or drugs at or around time of offence (e.g. under influence).
False allegation
- Past instances in which the complainer has allegedly lied or made unproven allegations of sexual assault or abuse;
- Motive for false allegation by complainer (e.g. in order to keep other people's 'good opinion'; out of embarrassment or shame; inability to take responsibility for actions; at risk of losing room at homeless hostel if stayed out all night).
Dishonesty
- Complainer's previous convictions or arrests;
- Complainer dishonesty (e.g. working and claiming unemployment benefit; benefit fraud; CICB claims; lying to get a party invitation);
- Complainer lying about age;
- Complainer known for making up stories (e.g. 'lying to an unusual degree'; 'cannot be relied upon to tell truth');
- Lack of medical or forensic evidence to support complainer's account.
Rootlessness
- Complainer's homelessness or lack of fixed abode;
- Complainer sacked from job.
Relationships
- Complainer's relationships with others of questionable character (e.g. relationships with alcoholics, drug users, prostitutes, known offenders).
Behaviour of complainer after alleged offence
- Maintaining contact with accused (e.g. complainer attempts at contacting accused; continuing to live in same house as accused despite having own home; allowing accused to look after children; giving gift to accused);
- Complainer displaying no visible signs of distress;
- Complainer's refusal to report to police;
- Complainer's refusal to undergo medical examination or declining medical attention
- Complainer's acknowledgement of consensual sex with accused/withdrawal of allegation (e.g. to someone else, in diary, in a letter);
- Inconsistency in complainer's account (e.g. difference between statements given in police interview and medical examination);
- Complainer's attempt to blackmail accused;
- Complainers sexual behaviour after the alleged incidents (e.g. masturbation, touching other boys, looking at older men.
B) NATURE OF ANY QUESTIONING PROPOSED
- To elicit evidence (of above) from complainer;
- To elicit evidence from other witnesses in trial (including evidence in form of audio recording of accused police interview);
- To put evidence of false allegation to complainer ;
- Any other appropriate questions arising from examination-in-chief or cross-examination;
- To elicit whether complainer engaged in work as prostitute immediately after being with accused and whether complainer was then robbed by a client;
- To ask complainer whether she was dressed only in underwear when she caused a member of the public to telephone police;
- To ask complainer if she was victim of assault immediately prior to incident and if she stole drugs from her assailant;
- To elicit contents of a letter forming part of Crown production, with intention of contradicting same;
- To question the complainer as to her motive in seeking prescription of contraceptive pill.
C) ISSUES AT TRIAL TO WHICH EVIDENCE IS CONSIDERED RELEVANT
Complainer's character or predisposition
- Complainer not of good character;
- Credibility and reliability of complainer;
- Predisposition of complainer towards sexual behaviour on same occasion;
- Complainer's mental state at or around time of alleged offence (e.g. as alternative explanation for distress);
- Complainer's lifestyle;
- Motivation for false complaints and explanation for delay in reporting.
Consent
- Accused's genuine/honest belief in consent;
- Consent.
Medical or forensic evidence
- Evidential significance of injuries (e.g. medical and forensic evidence);
- Medical evidence (e.g. disrupted hymen).
Accused
- Accused's guilt;
- Credibility of accused;
- Defence of self-defence.
D) REASONS WHY EVIDENCE IS CONSIDERED RELEVANT TO ISSUES
- Consent;
- Credibility of accused;
- Credibility and/or reliability of complainer;
- Past sexual relations between complainer and accused;
- Accused's guilt;
- Sexual activity which is subject of indictment is not an isolated incident;
- To place allegation in context (e.g. no need for complainer to otherwise disclose [to accused] being on pill except in a sexual context).
- Complainer's impaired judgement due to alcohol/drugs.
- Complainer's behaviour 'at odds' with one who has been raped.
- Alternative explanation (e.g. disrupted hymen as evidence of previous sexual activity; injuries consistent with type of sexual activity complainer regularly engages in);
- Explanation/background (e.g. for false allegation);
- Probative value is significant;
- To rebut evidence by Crown (e.g. that complainer unlikely to participate in more than one sexual relationship at a time, or that because of her age she had no prior sexual experience);
- Interests of justice;
- To demonstrate complainer's motivation for false allegation;
- To demonstrate complainer sought to blackmail the accused;
- Relevant to special defence of self-defence;
- Gives rise to reasonable doubt that complainer was victim of rape;
- To allow complainer to give full account.
E) INFERENCES WHICH COURT SHOULD DRAW FROM THE EVIDENCE
- Complainer consented;
- Complainer not credible/reliable;
- Complainer not of good character (e.g. fabricator; spiteful);
- Complainer not of good sexual character (e.g. complainer willing to have sex for money, alcohol and/or drugs);
- Alternative explanation for complainer's demeanour after alleged offence (e.g. distress due to other reasons such as drink, drugs, depression, relationship breakdown);
- Motivation and reasons for false allegation (e.g. complainer sought to conceal true nature of relationship with accused; jealousy; afraid partner would find out; to gain sympathy and centre of attention from others present);
- Complainer has attempted to blackmail applicant to obtain money in past;
- Accused not guilty.
In Crown applications only
- Unlikelihood of accused's version of events / accused's comments not true/inconsistent/false;
- Rebut defence inference (e.g. that complainer was working as prostitute does not necessarily mean consent);
- Employment as a prostitute does not mean that complainer is not credible and reliable;
- Medical evidence consistent with complainer's account;
- Complainer is credible and reliable witness;
- Prior consensual sexual activity involving kissing and cuddling does not necessarily mean complainer consented to sexual intercourse;
- None.
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