If the case proceeds to trial the cross examination of Carla will be governed by section 41 (s41) of the Youth Justice and Criminal Evidence Act 1999 (YJCEA1999). This act deals with general exclusionary rules cross examination of complainants in sexual offence cases and also the circumstances in which evidence and cross examination on a complainants sexual behaviour will be permitted. Section 41 (1) provides that no questions may be adduced and asked in cross examination by, or on behalf of the accused to the complainant about their sexual behaviour unless requested and granted leave by the court to do so. The counsel for Dunstan has requested leave to present matters in cross-examination of Carla, and to call evidence in support of said evidence. It s therefore necessary to ascertain whether the specific matters counsel wishes to present are permitted. Under s 41(2), a judge can permit the use of such evidence only if satisfied both s41 (3) or (5) and s41 (5) (b) that a refusal might make the verdict unsafe.
The pieces of evidence counsel wished to raise was that of Dunstan's and Carla's past consensual sex (evidential matter 1) and Carla flirtatious behaviour with another man prior to the alleged rape (matter 2). S42 YJCEA 1999 governs the interpretation and application of S41 YJCEA. S42 (1) (c) specifically defines sexual behaviour for the purposes of s41 as 'any sexual behaviour or sexual experience' with the accused or not with the exception of anything considered to be part of the offence itself. This is tested objectively. Clearly prior consensual sex falls within the sexual behaviour parameters. Carla's flirtatious behaviour, kissing and other encouraging behaviour to the unnamed man may also be encompassed by the definition as it covers 'demands for sexual behaviour' (R v Martin [2006] EWCA Crim 916) and invitations to engage in such behaviour; R v A (no. 2 [2001] 2 WLR 1546.
All the applications of leave on evidential matters 1 and 2 under the provisions of Section 41 (3) are subject to scrutiny by s41 (4) and s41 (6). s41 (4) excludes relevant evidence if it 'appears to the court to be reasonable to assume that the purpose or main purpose' of proffering it is to impugn the integrity of the complainant. s41 (6) requires that the 'evidence must relate to a specific instance or instances of sexual behavior' of the complainant.
41 (3) b
The circumstances in which the court could grant Dunstan's counsel leave under s41 3 (a) is very narrow as it states that it does not apply unless 'the issue is not an issue of consent. Issue of consent for the purposes of s41 3 (a) however does not include eliciting evidence of sexual behavior to argue a reasonable belief of consent. Dunstan's defence is that Carla consented. Leave can therefore under s41 (3) (a) if the defence is stating that due to evidential matter 1 there is a mistaken belief of consent. The court of Appeal in R v A [2001] accepted that a prior consensual relationship might be logically relevant to the issue of consent yet not covered by the literal reading of s41 (b) and (c). Therefore applying those considerations to evidential matter 1 there may be that limited scope to cross examine Carla under S41 (3) (a) if there is a reasonable belief of consent and as stated in s41 (2) (b) 'that a refusal of leave' may render an unsafe verdict. As stated these are however subject to further considerations.
Leave may also be granted using s41 (3) (a) for evidential matter 2 if the purpose of presenting that evidence was not to make assertions of the claimant Carla's consent but was to allow for an alternative explanation of the 'physical conditions' of the alleged offence. Therefore when considering evidential matter 2 the defence could be permitted leave if it's cross examination on those matters was to show that the complainant's account of events could have come from sex with the other person. Or alternatively the behaviour in evidential matter 2 had a bearing on Dunstan's reasonable belief she consented.
S41 (3) (b) does concern relevant issues of consent and particularly 'sexual behaviour of the complainant' and whether it 'relates to' and is alleged to have happened 'at or about the same time as' the alleged rape. Guidance on what constitutes 'about the same time' is given in the explanatory notes of the bill and in R v A and is considered to be no more than days before or after the alleged offence. Evidential matter 1 occurred approximately 2 months prior to the alleged offence. Due to the aforementioned limits on what is considered 'about the same time' such evidence would not be permitted as an exception under s41 (3) (b) and as such any leave request would be refused. Evidential matter 2 however occurred earlier on in the evening of the alleged offence and therefore it is within the aforementioned time constraints and subject to other considerations leave can be permitted.
41 (3) c (i)
The alternative permitted exceptions are under s41 (3) (c) (i) and (ii) which are also very narrow. s41 (3) (c) (i) provides the 'sexual behaviour of the complainant to which the evidence or question relates' is so similar to accused version of the alleged offence that it cannot be reasonable explained as a coincidence. Sexual behaviour for the purposes of s41 (3) c (i) includes behaviour which is alleged to have transpired as part of the offence itself. Therefore leave can be granted to use evidential matter 1 if in April of that year when the episodes occurred one or more of the occurrences happened in similar circumstances as the alleged offence; R v Tahed (2004) or to merely support his defence that the alleged rape was in fact consensual; R v R [2003] EWCA 2754.
41 (3) c (ii) is similar but it deals with 'other sexual behavior of the complainant which' occurred again 'at or about' the same time' as the alleged offence and not reasonably considered coincidental. Leave can be granted on evidential matter 2 if the sexual behavior towards the other man is allegedly similar to the sexual behavior towards Dunstan.
Hearsay
Verity evidence may be considered a hearsay statement if she is called as a second witness. The rules on hearsay are governed by section 114 Criminal Justice Act 2003 (CJA). s114 (1) provides that 'a statement not made in oral evidence in those proceedings is nevertheless admissible as evidence of any matter stated'. The common law definition was given in Sharp [1988] was that hearsay was 'an assertion other than one made by a person while testifying in the proceedings is generally inadmissible as evidence of any fact asserted'. This is however subject to the exceptions recognised by the statutory provisions in S.114 CJA 2003, that it is admissible under a common law rule that has been expressly preserved under s118, all parties to the proceedings agree to it being admissible, or judge in the interests of justice uses their discretion under s114(1) (d) to make it admissible.
It is therefore necessary to ascertain whether Verity's overheard conversation is considered to be original evidence or hearsay evidence and if it is the latter whether it falls under one of the exceptions and is therefore admissible.
S.115 explains what a statement is for the purpose of s114. It includes 'any representations of fact or opinion. To be hearsay the statement to be made outside of court and it must be evidence of the 'matter stated' (s114). Verity proposed testimony was that of a statement made outside of court so it is capable of being a hearsay statement. If the proposed statement was being proffered to prove something other than the 'matter stated' then it is not a hearsay statement; Subramaniam v Public Prosecutor [1956]1 WLR 965. However the prosecution and Verity are seemingly tendering it to prove the truth of the contents of the statement and asking the court to rely on the said statement, it is therefore a hearsay statement.
Once it has been established that the statement is hearsay for the purposes of s114 it is then necessary to ascertain what the purpose was of the statement being made as this can determine its hearsay status. s115 (3) of the criminal CJA 2003 states that a statement is inadmissible if 'the purpose of the person making the statement appears to have been to cause' another to believe the statement; West Midlands Probation Board v French [2008] EWHC 2631. A key factor is therefore whether either party was aware that they were being overheard by Verity as this may determine its hearsay status. If Carla was not aware of Verity's presence and she made the statement without any intention of making anyone believe her statement then it would be admissible. If however Carla was aware of verity's presence then it would not be unless it was allowed by another statutory exception. It would seem that the purpose of the statement was not to make Verity believe that it was true due to none of them being aware of her presence. It is therefore likely that the statement would be admissible on those grounds. It would also be admissible with agreement by Dunstan's counsel under s114 (1) (c) however that would be unlikely due to it probative value that agreement would be granted. A further exception if s115 (3) did not apply would be in the 'interests of justice if the court felt that the evidence should be admitted. The court must however consider many factors such as other available evidence, probative value, original evidence, unfairness and whether the evidence can be challenged. It is clearly relevant and of high probative value. Nevertheless, both parties involved in the conversation are available for cross examination. Carla or Dunstan could be called as a witness to give original evidence; it would then not be subject to the hearsay provisions. Section 116 deals with witness availability and stipulates the reasons hearsay evidence is automatically admissible if the statement maker is not available. Both Carla and Dustan are identified and available to the court therefore that exception is not satisfied. However, hearsay evidence could be admissible from Verity under s116 (2) (e) if Carla 'through fear' does not want to give evidence in the proceedings. The level of fear required is stipulated in 116(3) and includes' fear of death or injury' s116 (4) allows for the statement to be admitted in the 'interests of justice' however this fear must be proven and it more likely that there would be a special measures direction under YJCEA. If fear was proven however regard needs to be taken of the contents of the statement., the risk of unfairness to any party within the proceedings and the difficulty of challenging the statement. Being that both Carla and Dunstan are present if Carla does satisfy any of the conditions under 116 (2) it would be relatively straight forward to challenge the contents of Verity's evidence. But Carla's oral evidence must have been admissible if she had given testimony.
The statement may be also admissible under as118 the preserved common law exceptions to hearsay as part of the res gestae because they are so closely linked with the event that they have some relevance. S118 (4) (a) qualifies admission by the res gestae that the original statement must have been 'made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded' (R v Andrews)
Dunstan's gesture and failure to deny Carla assertions was also seen by Verity. The common law position of inferences from silence was considered in Hall (1971) 55 Cr App R 108 where Lord Diplock opined that 'a person is entitled to refrain from answering a question put to him for the purpose of discovering whether he has committed a criminal offence'. In Parkes v R however a failure to deny an accusation was found to infer guilt as it was considered that an innocent man would deny the accusation. Dunstan's failure therefore could infer guilt, but it would still be dependent on Verity's hearsay being admissible under s115 (3), s116 or s118 or Carla's original evidence.
Reference section
Emson, Raymond (4th Edition) Evidence, Palgrave Macmillan
Stockdale and McAlhone (5th Edition) Nutshells, Sweet and Maxwell
Dennis, Ian (4th Edition) Law of evidence, Sweet and Maxwell
Huxley (10th Edition) Blackstone Statutes on Evidence, Oxford University Press
