R v Taylor 2018 NZDC 4854
Published 15 March 2019
Application to cross-examine complaint on sexual history — Evidence Act 2006, s 44A.
The defendant faced a charge of rape, and sought a ruling to cross-examine the complainant on her sexual experience with her husband.
It was alleged the rape took place in the early hours of a Saturday and the complainant went to get a medical examination kit (MEK) done on the Tuesday. Two days prior, on the Sunday, the complainant had intercourse with her husband.
The Judge noted that had the application been made in accordance with s 44A, which provides for applications to question the sexual experience of the complainant, the Judge would have declined it. However, it was raised during cross-examination and the hearing was not opposed by the Crown.
The Judge reviewed the relevant exchanges and was not satisfied that the questioning of the complainant about intercourse with her husband on the Sunday evening was of any relevance to the facts in issue. Therefore, the Judge declined to allow the cross-examination of the complainant's sexual history as the MEK record provided evidence in itself, and would invite the jury to reason based on the cross-examination of the complainant's consensual intercourse which would be illegitimate.
Judgment Date: 14 March 2018.