Different Aspects of Evidence Law - Case Study Example

Evidence Law In law, rape is the most serious kind of assault and is punishable with life imprisonment. The offence is defined in part section of the Sexual Offence Act, 2003, and is defined as follows: 1. A person (A) commits an offence if- (a) He intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents. 2. Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (4), on conviction on indictment, to imprisonment for life. On a charge of rape absence of consent1 is very important and the prosecution has to prove that the accused, Phil had carnal knowledge of Jill despite her age without her consent. It is not an excuse that the complainant is a common prostitute; that she has consented to intercourse with the accused on other occasions; or that she is the accused person's concubine. But these facts may make the court reluctant to the complainant's denial or consent in the instant case.2 Consent has to be freely obtained not by force or by means of threat or intimidation or fear of harm. Consent given because of exhaustion after persistent struggle and resistance would appear to be no consent. Usually evidence of some struggle or resistance by the complainant maybe the best proof of lack of consent but this is not always necessary. It will be recalled in the case D.P.P. v Morgan3 the House of Lords held that if an accused person believed that the woman was consenting he should not be guilty of rape even though he had no reasonable grounds for his belief. The mental element of rape is intention to have sexual intercourse without the woman's consent or not. The sexual offences (Amendment) Act 1976 amended the law relating to rape in England by providing that a man commits rape if he has sexual intercourse with a woman who does not consent to it; and at the time he knows that she does not consent to it or he is reckless as to whether she consents to it. The amendment in effect confirmss the decision in D.P.P. v Morgan. A similar case was reported in Jamieson v HMA4 This Scottish criminal case decided by the High Court of Justiciary on appeal held that a man does not commit rape where he honestly, albeit unreasonably, believes his victim is consenting. For the facts of the case: Phil raped Jill in a lane close to the house that Jill shares with her mother, Bunty, and her two sisters, Joleen and Shula. Bunty was still up when Jill returned home on the night of the alleged rape, but Jill said nothing about it. She did not mention it to her mother or sisters the next morning, but told Joleen about it two days after the alleged incident. Whatever reason made her to report an incidence, as rape 2 days after it occurred is very suspicious. Rape, as stated earlier is a criminal offence punishable by life imprisonment. Not telling of the incident the moment it happened could mean that she was not raped on that night. It could be that she finds Phil as the most culpable person to put a rape charge on when she was raped two days after having sex with Phil. The doctrine of break in chain of causation could be applied here. Lord Hoffman in Environment Agency v. Empress Car Company Ltd5 had spelt out the test of causation: whether the intervening act was an "ordinary" occurrence, which would not be a novus actus, or something "extraordinary". In this case Jill is claiming to have been raped by Phil and did not report the rape to her mother on the night neither did she scream for help from passersby. The delay in reporting the issue of rape can cause for the doctrine of break in chain of causation to be applied. The period between when she alleged the offence to have been committed and the period of reporting it is so long that any thing could have happened within that period. This makes her claim of being raped by Phil very questionable. Phil and Jill have a one-year history6 of sexual relationship. He and Jill have been secretly meeting and having a sexual relationship throughout the last year. Usually, they would watch pornographic films before having sexual intercourse. On the occasion in question, he and Jill had been watching pornographic films, after which he walked her home. They had sexual intercourse in the lane near her house. That she was with him on the night of the alleged crime is not in doubt, and it is habitual for them to have sex after watching pornographic films together. On this day, he and Jill had the sex on a lane instead of their usual meeting point. Their reason for watching pornographic films before sex is probably to practice during their sexual intercourse, what they had seen in the pornographic film. The contents of the film they watched would decide how their sex that period was going to look like. Using the principle of Res Gestae7, we could say that the injuries sustained were as a result of the sex they had whose pattern was determined by the pornographic film they watched. Sections 41-43 of the YJCEA were considered in the House of Lords case of R v A (17 May 2001). The House held that a prior consensual relationship between the complainant and the defendant might in some circumstances be relevant to the issue of consent. However, all the Law Lords accepted that the complainant must not be treated unfairly. The judgment emphasizes "the presumption of exclusion" under the YJCEA.8 The same sections of the YJCEA were also considered by the House of Lords in R v A [2002] 1 A.C. 45, which held that a prior consensual relationship between the complainant and the defendant might in some circumstances be relevant to the issue of consent. This may, in appropriate cases, apply to the test of reasonableness in non-consensual offences under the Act. The doctrine of Res gestae, which means events that happened, can be applied in this case. Where a transaction is an issue all those facts which comprise the transaction, accompanied or explain it are known as Res gestae and are generally admissible. In other words Res gestae therefore comprise all relevant facts of event which are either in issue or which though not themselves in issue yet accompanied some fact which are in issue so as to constitute circumstantial evidence which goes to explain or establish that fact. Rape being a criminal case, all acts done by victim of the rape, Jill, and the accused, Phil, at the time of committing the alleged crime or before or after it will be relevant as they are connected with the crime of rape for which the accused is charged. In R v F [2005] 1 WLR 2848, the court looking at s41 of Y.J.&C.E. Act ruled that part of the sexual history of the complainant was relevant and admissible as evidence. The following conditions must be valid for the principle of Res gestae to hold: 1. The statement must be substantially contemporaneous with the fact in issue. This is to exclude the possibility of its however been conducted to the statement maker's advantage 2. The statement must explain the fact in issue, or it must be directly connected with it and not prior or subsequently disconnected facts. 3. The declaration and the act must be by the same person.9 The judicial committee of privy council (JCPC) stated in the case of Homes v. Newman (91931) 2 CH. 112 at 120 par Lord Tomlin, that, "It is essential that the fact should be so associated with the action or event which it accompanied in time place and circumstance then they are part of the 'thing being done' " If Phil pleads that he believed Jill was consenting he does not thereby, virtue of the act bear the burden of establishing the defence of honest and reasonable mistake of fact under section 25, the burden of proving actus reus (intercourse without the woman's consent) and mens rea (intention to have it without her consent) of the offence of rape falls on prosecution. It must prove as part of its case that the accused intended to have sexual intercourse without the woman's consent. A mistaken belief that she was consenting, even though unreasonable will negative that intention. In the words of Lord Hailsham: "that the prohibited act of rape is non-consensual sexual intercourse, and that the guilty state of mind is an intention to commit it, Either the prosecution proves that the accused had the requisite intent, or it does not. Since honest belief clearly negatives intent, the reasonableness or otherwise of that belief can only be evidence for or against the view that the belief and therefore the intent was actually held"10 Jill did not make any form of protest on the night in question, as nobody heard her shout. A lane is a very public place and definitely there were houses nearby -one of which was her house, where her mother was awake: she did not hear her daughter scream; there could have been passersby or someone in the vicinity yet nobody heard a noise of protest. All these go on to confirm that there was no rape but consensual sexual intercourse between two people. As if she had made any protest to having sex with him in lane there would have been witnesses to testify that he had sexually assaulted her in the lane. The fact that Phil and Jill had a secret sexual relationship going on meant they could always have sex whenever they were alone and have a habitual ritual of watching pornographic films before having sex. On the day of the alleged rape, they performed all the rituals and for some reason delayed their sexual intercourse till they got to the lane near Jill's house. They had concluded all rituals that precede their sexual activities. She might have not consented but he would not know for all rites before sex- as is practiced with them- have been met. In the case of D.P.P. v Morgan11, where a husband brings men to have sex with his wife and told them that they should not mind her scream that the scream only meant she consented. In Jill and Phil's case however, there is no record of her screaming or calling anybody for help the instant the crime was allegedly being committed. Not making enough noise to attract attention to Phil having sex with her on the lane without her consent meant she was indeed consenting. The lane is a public place and any noise of distress she made would have attracted someone to the spot she was allegedly being raped. Also, the delay and subsequent disconnected facts of the case12only go to confirm that she indeed had consented sex with Phil and the allegation of rape against him could only have been made maliciously and as an afterthought. Two days is sufficient time for any other event to have taken place. Estoppel should be considered in dealing with this case. Germane to estoppel by record under the Youth Justice & Criminal Evidence Act, 1999 is estoppel in criminal cases. The doctrine of res judicature operates in another form, autrevos acquit autraovois convict under s. 181-185 of CPA13. The relevant for us is estoppel by conduct- A person who by his declaration, his conduct act or omission intentionally caused or permitted another person to belief the existence of a state of thing and induces him to act on that belief so as to alter his position for the worse is estopped from setting up against the latter a different state of thing as existing at the time in question.14 We have been able to establish a reliance-based estoppel, on Phil by showing both inducement and detrimental reliance, i.e.: There is evidence to show that the Jill actually intended Phil to act on the representation or promise, which is borne in the fact that they have been having secret sexual relationship, and the usual rites that lead to them having sex were met on the day in question, or Phil, who is victim, has satisfied the court that it was reasonable for him to act on the relevant representation or promise made by Jill. The promise being that they both have a sexual relationship and have certain rites they perform, which is meeting in a certain place; watch pornographic film, then have sex, and Phil, who is the victim did what Jill intended15 The bruises sustained by Jill and the scratches on Phil's face, can be attribute to the nature of the place they decided to have sex or the type of pornographic film they watched on the night that might have depicted rough and violent sex. As stated earlier the time it took for Jill to report the rape and the time it was alleged to have occurred are too far apart. Anything could have occurred within two days, so the bruises cannot be tendered as evidence in this case except the prosecution can show with competent and relevant medical evidence that these bruises were sustained exactly two days ago. Jill's mother insisted she reported to the police. This means that it was not Jill's intention to report a rape that never occurred but her mother made her to make the trumped-up rape charge against Phil. The time it took for her to report to police could buttress this point. The rape charge could be seen as an after thought. If witnesses are required to testify on the secret relationship between Phil and Jill, we may have to call Shula as she knows about the secret sexual relatioship that exist between them and if the court will admit her testimony under hypnosis,16 she will be called up. This of course will be if his is not under aged.17 Calling her will be unnecessary since Jill has not denied having secret sexual relationship with Phil. Putting Shula in hypnosis is a way of helping her to kill nervousness and also to recollect what she knows about the existing relationship between Jill and Phil.18 Phil's decision not to talk until his lawyer arrived was an expression of his fundamental human rights and was the best decision to have made at that time. His lawyer, Usha's advise not to answer the question helped in the argument of the case in court. As the scratches were personal body injury on Phil which he could have sustained before or after the alleged rape occurred. On the whole Phil is innocent of the charges and should be acquitted. Prosecution cannot prove that Jill did not consent to having sex with Phil, there is no evidence of non consent; she can also not claim to have only realised Phil raped her after two days of their meeting. Reference 1. Michael Spence, Protecting Reliance: The Emergent Doctrine of Equitable Estoppel, Oxford: 1999, pp60-66) 2. All English Law Reports, 1975 3. Youth Justice & Criminal Evidence Act 1999 4. Oxford Advanced Learner's Dictionary 5. Western Nigeria Law Reports 1, 1960 6. All English Law Reports 2, 2001 7. All English Law Reports 1, 2002 8. www.lawteachers.net 9. www.lawreports.co.uk Read More