Area of Law – Sexual Offences

An Article about re-examination of complainant in sex case

Re-examination of complainant in a sex case
Once the complainant in a sexual assault or rape case has given evidence the Prosecutor can seek to re-examine them. What this means is that they can ask them questions about matters that were raised in the cross-examination or to clarify answers to questions. There are real limitations to the right to re-examine and they are based on fairness. The Prosecution had the chance to ask the questions they thought they needed to and they should not be allowed to try and fix up their case because the complainant has given evidence that has been unhelpful.

Re-examination is something that occurs whenever there is cross-examination in criminal cases.

In any criminal case you need a lawyer who understands the law and knows when to object to evidence that should not be allowed to be in your case.

Some law on re-examination in a sexual assault or rape case is as follows:

In the present case, the re-examination covered a number of answers which immediately preceded the relevant committal answers. We doubt that the introduction of those questions or answers was justified on the basis of explaining away or clarifying the relevant committal answers, but little turned upon the content of those further questions and answers. Of greater significance was the introduction of questions and answers from an earlier stage in the complainant’s evidence at the committal, to which we have referred in dealing with Ground 8. Those answers did not clarify or explain away the relevant committal answers. Instead, they provided a more detailed description of what the complainant alleged the applicant had done to her, and gave rise to further evidence from the complainant upon which the prosecution relied heavily in closing address.

In our view, the prosecution should not have been permitted to re-examine on these additional answers. The mere fact that the complainant had dealt, at different points in her committal evidence, with matters the subject of the cross-examination did not entitle the prosecutor to take the complainant to each of those passages. The effect of what occurred was that the re-examination was used solely to elicit information which should have been elicited in examination-in-chief. This is fundamentally wrong. Moreover, it breached the principle that a witness’s prior consistent statements are not to be introduced into evidence save in well-defined circumstances. The additional answers did not clarify or explain the relevant committal answers, and the nature of the cross-examination did not justify the introduction of those passages on any other basis.

A further point needs to be made. The complainant in re-examination agreed that she had given the relevant answers at the committal, but she was not asked whether the answers were true. Indeed, none of the testimony given by the complainant at the committal proceedings, upon which the prosecution relied at the trial, was adopted by the complainant as true before the jury.

R v AJS [2005] VSCA


Date: 09/01/2009