Mr Justice Peter Charletonargued in a recent paper that there needs to be greater clarity in the law regarding conduct of trials related to sexual violence
SEX CRIMES are in a category of their own. Defining rational rules for sexual misconduct is a problem, and circumscribing fair rules for the trial of sexual crimes an even more difficult task.
Sexual crimes mostly concern behaviour which is otherwise legal between adults (other than close relatives) because of consent. Consent is often at the heart of the alleged offence. It is this issue that inflames allegations: on the one hand, that the trial process is so grim that no women could ever bring herself to make a false allegation and, on the other, the existence of arguments that make one wonder whether misogyny is still about.
All judicial proceedings should be an attempt to find the truth, and legal rules which have the potential to cut out the truth or undermine it may have to be reconsidered. A number of our existing rules and practices in this area may need to be reconsidered or clarified. High levels of skill and perhaps determination are needed from the trial judge in the trial of sexual offences. We need to be in control.
One of the issues which needs examination is the area of self-serving statements, which requires a comprehensive ruling by the Court of Criminal Appeal for the sake of clarity. Trial judges should perhaps warn as a matter of course that such statements from the accused are not given on oath and they are not subject to cross-examination by the prosecution.
Judges may also have to warn that whereas a person is unlikely to make an untrue admission to a crime against their interests, this does not apply where they are justifying themselves.
The concept of corroboration and the need to give a warning about it gives rise to potential for confusion. The Supreme Court decided the proper approach to corroboration in the Gilligan case five years ago, yet in 2009 it was argued before the Court of Criminal Appeal that the correct approach was, first of all, to decide in the absence of the corroborative evidence whether the witness was credible.
An argument may be made that insufficient discretion is left to a trial judge to warn juries about the trauma of giving evidence in sexual violence cases. It was always the intention of the Oireachtas to remove witnesses complaining of sexual crime from automatic inclusion within the category of suspect witnesses requiring a corroboration warning similar to that given about accomplices in serious crime.
By reason of the large number of authorities, a trial judge may consider giving the corroboration warning in any serious sexual violence case as the safe course. Were that to happen, then discretion would no longer be exercised in this area.
It can be argued that ordering separate trials, in cases where there are a number of complainants making allegations against the same accused, may be a serious error. In Scotland, juries regularly get to hear evidence of other misconduct from other complainants with a view to corroborating the evidence on the main charge.
The exclusion of character evidence, that is, evidence of previous bad behaviour, does not mean that offences cannot be tried together. Any person who sees a series of three or four trials taking place with only one victim giving evidence in each, resulting in one-on-one confrontation and three or four acquittals, might reasonably point to that situation and say: that is unfair.
On the current state of the law, it is at least arguable that a number of charges should be heard together if possible, and should not be separated. There should be no admission of past convictions for rape, but the issues of past convictions on the one hand, and a series of allegations being considered by the jury on the other, ought not to be conflated.
In the area of cross-examination, trial judges need to maintain and assert the control that traditional case-law gives them in accordance with the principles of natural and constitutional justice.
Counsel are not entitled to engage in a cross-examination which suggests that evidence exists where it is not intended to call that evidence. There is no entitlement to claim that evidence is incorrect by reference to instructions as to what a dead person said to the accused.
The abuse of the right to cross-examine is what trial judges are there to minimise, consistent with fairness.
Rights of privacy are infringed by a sexual violence trial. Only those questions that reasonably arise on the prosecution case or which are required by the instructions of the accused should be asked. A general trawl outside instructions is not fair.
Maintaining judicial control of a case may involve knowing what the defence is. It involves ensuring that there are no misstatements of the evidence. It involves requiring that matters are not put to witnesses as if they are the truth, or as if evidence would be called in that regard, without knowing that such evidence will indeed be called.
Nor should it be possible for accused persons to make statements through their counsel in closing the case which have not been tested in evidence.
In the field of the prior sexual experience of the alleged victim, principles have been laid down by the Court of Criminal Appeal. These should be policed very carefully.
Some may regard it as worrying that after a trial, material about prior sexual history can be discovered in a victim impact report which is immediately argued as being very relevant by the defence, without disclosing how or why it might have been allowable at trial.
The Court of Criminal Appeal will no doubt look at such arguments carefully in the future in the context of the statutory protection afforded the alleged victim.
In future cases on specific issues, perhaps among them those debated here, the appellate function of the courts might be used to remove uncertainties in case law and replace them with guidance similar to that given in relation to the issue of “recent complaint”.
This is a synopsis of the conclusions in a recent lengthy paper by Mr Justice Charleton and Stephen Byrne, judicial fellow, which was delivered at the Annual High Court and Supreme Court Conference in Adare, Co Limerick, on June 19th, 2009.
It is published in full in the Irish Journal of Legal Studies, a new peer-reviewed online law journal from UCC, which is available online at www.ijls.ie.