Rape – restrictions on cross-examination under s. 154 – whether unfair to defendant for trial judge to have refused leave to adduce evidence of, and ask questions about complainant’s sexual experience with persons other than defendant
D was an air-conditioning technician. At his trial for rape, of which the jury convicted him, it was an admitted fact that sexual intercourse had taken place between him and V, the complainant. The issue was whether or not she had consented to that. At the trial, defence counsel sought the Trial Judge’s leave to cross-examine V on a magazine article and a video-recorded interview, both of which were made eight months after the alleged rape. The image and impression given by the article and the interview was of a scantily clad woman, said to be V, who was promiscuous and consented to sexual intercourse with men she selected at nightclubs, and expressing disdain for men who were not rich or educated. Defence counsel submitted that the attitude depicted in the material on which he sought to cross-examine V was consistent with the defence of consent and therefore went far beyond V’s credibility so that cross-examination thereon would be very relevant. He also submitted that the giving of such an interview contradicted what V said about the psychological impact on her of the event in question, namely that she had nightmares every day for a month afterwards and continued to endure great pressure thereafter. The Trial Judge refused to permit cross-examination of V on the article and interview. With leave granted by a single Justice of Appeal, D appealed against his conviction on the ground that the Trial Judge’s refusal of permission to cross-examine V on the article and interview made his conviction for rape unsafe and unsatisfactory.
Held, dismissing the appeal, that:
- In a matter such as leave under s. 154 of the Crimes Ordinance (Cap. 200), the judge did not have a discretion, and had to make a judgment as to whether he was or was not satisfied in terms of the section.
- Having regard in particular to the fact that the article and interview were made eight months after the alleged rape and the very limited evidence in respect of the ongoing psychological impact of the alleged rape on V at the time, it was obviously not appropriate to allow cross-examination on the basis that the material was inconsistent with her testimony.
- Nor ought there to have been cross-examination on the basis that the material went to the issue of consent. First, such a proposition relied on the impermissible and impugned line of reasoning that promiscuity in V, to be inferred from that material, made it more likely that she consented to sexual intercourse with D. Second, in any event, the circumstances of promiscuity to be inferred from the material were wholly different from those of the sexual intercourse with D. The former set a scene in which, dressed seductively, V flirted with men, selecting and preying on rich, younger men in nightclubs. By contrast, at the time of sexual intercourse with D, V was drunk, dressed casually and had retired to sleep. Third, D did not fit at all the profile of the men that the female in the interview said she targeted.