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Evidence in Sexualt Assault Cases

An alleged victim of a rape cannot be asked questions about his or her sexual reputation [s 34L Evidence Act 1929 (SA) s34L(1)(a)]. There is an exception in that cross examination of the alleged victim regarding recent sexual activities with the accused is permitted.

In certain circumstances, the trial judge may give permission for cross-examination concerning the alleged victim's sexual activities with people other than the accused. In deciding whether to give permission for such a questioning, the trial judge must bear in mind that alleged victims should not be subjected to unnecessary humiliation, distress or embarrassment, the admission of such evidence also has to be in the interests of justice. The trial judge must also consider whether the evidence that might be elicited in such cross examination is relevant to the issues at trial and also whether it might have the effect of impairing the credibility of the alleged victim. [see further s 34L(2) Evidence Act 1929 (SA)].

Corroboration is confirmation (or backing up) of an aspect of a witness's evidence by other independent evidence. In a trial for sexual assault it could be the findings of a doctor who examines the victim, torn or stained clothes worn by the victim, or the evidence of an eye-witness. In the past a judge had to tell a jury that it was unsafe to convict a person based on the uncorroborated evidence of the victim (Kelleher v The Queen(1974) 41 CLR 534). A judge is no longer required to issue this warning [s 34L(5) Evidence Act 1929 (SA) ] but in appropriate cases judges still do.

Broadly speaking, the law of evidence does not permit a witness to describe statements made by other people if that evidence is meant to show that what that other person said was true (known as hearsay). An exception to this rule is that a witness is able, in certain circumstances, to give evidence of what an alleged victim said very soon after an alleged sexual attack. This is known as evidence of 'recent complaint' [see Evidence Act 1929 (SA) s 34M(3)]. However, a jury can only ever use it as proof of the fact that a complaint had been made and evidence of consistency with the alleged victim and not as truth of what the words of complaint actually described [s 34M(4)].

See further section 34N Evidence Act 1929 (SA) on the directions a judge can make about consent in certain cases.

Young children and some people with disabilities

Some out of court statements made by alleged victims of sexual offences are admissible and may be used to prove the truth of the facts asserted in that statement. This is where the alleged victim is a child 14 years old, or younger or a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions. Further considerations apply before this evidence is admitted - see further s 34LA Evidence Act 1929 (SA). For more information about these issues, see Evidence of children, young people and vulnerable adults.

Medical examination  :  Last Revised: Tue Dec 20th 2016
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