Search

This article explores, with reference to four recent New Zealand appellate court decisions, the use of evidence of prior non-sexual offending by a defendant against the same complainant offered to prove sexual offence charges. Such 'relationship propensity evidence' can be particularly crucial for explaining the defendant–complainant dynamic in cases involving intimate partner violence. However, in some cases, courts have applied traditional common law 'similar fact' notions of linkage and coincidence to exclude evidence of non-sexual offending in relation to sexual charges. We argue that this is an unsatisfactory outcome that is largely resultant from the governing provision being designed to assess similar fact reasoning. Rather, we submit that in the context of intimate partner violence, seemingly discrete and unrelated forms of violence should be understood as potentially linked by the underpinning dynamic of coercive control. This shift in characterisation of varying forms of violence—from discrete and dissimilar to connected by a dynamic of coercive control—will result in a more flexible approach to the cross-admissibility of relationship propensity evidence in appropriate cases, including when it comes to offering evidence of physical violence as probative of sexual offending. [ABSTRACT FROM AUTHOR]

In response to the use of sexual history in rape trials to characterize the victim as untrustworthy, "rape shield" laws, limiting the use of evidence of the victim's sexual history, have been introduced in India. Through a series of trial court decisions, this paper shows that in child sexual abuse cases, the victim's mother's "character" is scrutinized in a manner similar to the victim's character in (adult) rape trials to argue that the accused has been falsely implicated. This issue has received limited attention in academic literature and has gone unnoticed by appellate courts. An analysis of the reasoning in these trial court judgements shows that the rules of evidence not only sanction this line of defence, but also that traditions of rape trials encourage its use. There is thus a need for a re-look at the existing rape shield provisions and the mindset of the Indian legal community. [ABSTRACT FROM AUTHOR]

Rules 405(a) and 608(a) of the Federal Rules of Evidence allow the use of testimony about a witness's reputation to support or undermine his or her credibility in trial. This paper analyses the evidential weight of such testimony from the point of view of social epistemology and the theory of social networks. Together they provide the necessary elements to analyse how reputation is understood in this case, and to assess the epistemic foundation of a reputational attribution. The result of the analysis will be that reputational testimony is extremely weak from an epistemological point of view, and that in many cases there are more reliable substitutes that achieve a similar purpose. The obvious fix, in my view, is to eliminate the use of reputation testimony to support or undermine the credibility, honesty, chastity or peacefulness of a witness [ABSTRACT FROM AUTHOR]

When women die at the hands of men, a not infrequent defence is that she consented to, or initiated, the beating, strangulation and penetration which contributed to her death. While strangulation has been a typical method of killing in male on female intimate partner homicide 1 for many decades ('thou little recognised), what has changed is men's excuses for their violence. Excuses such as 'She made me lose my self-control in an argument' or 'She was unfaithful to me' are being supplanted by 'She consented to rough sex'. 2 Since the dead cannot speak, nor is there any property in the dead, the defendant's tactic of impugning the deceased's character cannot be easily rebutted, and he, while maligning her in this way, may profit from a lighter sentence. Law reformers, politicians, academics and activists 3 are pressing for legal reform to shut down this misogyny. On 16 June 2020, during the Public Committee stage of the Domestic Abuse Bill, 4 cls 4 and 5 were approved. Clause 4, 'No defence for consent to death', provides '(1) If a person ("A") wounds, assaults or asphyxiates another person ("B") to whom they are personally connected as defined in section 2 of this Act causing death, it is not a defence to a prosecution that B consented to the infliction of injury. (2) Subsection (1) applies whether or not the death occurred in the course of a sadomasochistic encounter'. Clause 5, 'No defence for consent to injury', provides '(1) If a person ("A") wounds, assaults or asphyxiates another person ("B") to whom they are personally connected as defined in section 2 of this Act causing actual bodily harm or more serious injury, it is not a defence to a prosecution that B consented to the infliction of injury or asphyxiation. (2) Subsection (1) applies whether or not the actual bodily harm, non-fatal strangulation, or more serious injury occurred in the course of a sadomasochistic encounter'. These two new clauses would prevent the alleged consent of the victim from being used as a defence to a prosecution in intimate partner homicides and non-fatal assault which result in s 47 assault occasioning actual bodily harm, Offences Against the Person Act 1861, or more serious injury. Additional new clauses including, proposing that consent of the Director of Public Prosecutions would be required, in the case of death, to accept a charge to anything less than murder (cl 6); the requirement to consult with the family of the deceased regarding charges (cl 7); the prohibition of reference to sexual history of the deceased in domestic homicide trials (cl 10); anonymity of victims of domestic homicide (cl 11); and anonymity of domestic violence survivors (cl 14); the Parliamentary Under-Secretary of State for Justice (Alex Chalk), while sympathetic, said there were difficulties with the clauses in their present form. 5 Of the proposal to make non-fatal strangulation 6 (cl 8) a standalone offence, he considered that 'creating a new offence could limit the circumstances covered, and create additional evidential burdens'. 7 These motions reflect the several debates since October 2019, when MPs, Harriet Harman and Mark Garnier, introduced the 'No defence for consent' amendment to the second reading of the Domestic Abuse Bill. 8 Since men also plead the 'sexual consent defence' on 'first dates', which may fall outside the definition of 'domestic abuse' as set out in the Bill, 9 a loophole also recognised by Alex Chalk at the Public Committee stage, 16 June 2020, this too will be addressed. 10 The murder of Grace Millane, in New Zealand 11 in 2018, murdered on a 'first date' provides such an example. [ABSTRACT FROM AUTHOR]

Cases of human trafficking are known to be difficult to prosecute. In this article we identify several issues in the law of evidence that may contribute to these difficulties. We argue for the victims' rights as an important factor in evidential decisions, coupled with an insistence that such rights cannot trump the defendant's right to a fair trial. Restrictions on evidence of a witness's bad character or sexual history should not be interpreted in such a way as to prevent the defence from introducing evidence, or asking questions, that are of substantial probative value, even if they are potentially distressing to witnesses; but such evidence and questioning should be limited to what is necessary for a fair trial. The protection of victims and witnesses may also justify a relatively flexible approach to the admission of hearsay evidence, which avoids prejudging the truth of a witness's evidence in order to establish that s/he is in fear. [ABSTRACT FROM AUTHOR]

This article contrasts the uses of gossip in fiction to legal rules against the admission of hearsay evidence, particularly as they both impinge on nineteenth-century formulations of the idea of character. Looking at Anne Brontë'sThe Tenant of Wildfell Hall, Elizabeth Gaskell'sCranfordand the controversial decision inR v Rowton(1865), especially its discussion of the meaning of character and the best, admissible means of accessing it, I argue that the novel's more capacious rules of evidence repurpose hearsay and find other uses for it: a sociological one of creating and maintaining communal boundaries; an epistemological one of confirming, discovering or otherwise creating knowledge, and a narratological one of generating plot. [ABSTRACT FROM AUTHOR]

This case note concerns the recent decision of the Court of Appeal in Hunter v R; Saruwu v R; Johnstone v R; Walker v R; Lonsdale v R. The Court of Appeal clearly intended this decision to be the leading authority on the nature and extent of good character directions. The court took the opportunity to conduct a comprehensive review of the law, and concluded that the principles of good character had been extended too far so that defendants with bad criminal records or those not entitled to good character directions were claiming entitlement to such directions. This led to a significant increase in applications for leave to appeal against the good character directions given by trial judges. The problem with the principles of good character arose in light of the wider definition given to the term 'bad character' under the Criminal Justice Act 2003, and this inevitably necessitated a reconsideration of the scope of good character directions. Thus, the court sought to reconceptualise good character, categorising defendants into those of 'absolute good character', 'effective good character' and 'bad character', and held that whether a defendant is one of effective good character or whether a defendant of bad character is entitled to good character directions are matters for the trial judge's discretion. It is argued that this is a welcome decision which will likely eliminate the recent practice of defence counsel manipulating good character principles to coax trial judges into endorsing the defence case. [ABSTRACT FROM AUTHOR]

Samuel Richardson's Clarissa has often been read as a rejection of law in favor of morality, thanks to Clarissa's decision not to bring her rapist Lovelace to court and the heavy religious symbolism that pervades the novel's final volume. The author critiques this reading as ahistorical while observing that it also tends to alienate the modern reader. The article suggests an alternative reading, rooted in the historical legal context that informs Clarissa's decision, including eighteenth-century evidence law and pre-modern forms of legal proof. The article further shows that law and its instruments are essential to the public vindication that Clarissa finds in the closing pages of the novel. It has become too easy to assume that Richardson rejects the utility of law just because his heroine refuses one form of legal process. A closer examination of the role that law plays in Clarissa demonstrates that Richardson reveres an idealized form of law even as he questions contemporary legal practices. [ABSTRACT FROM AUTHOR]