I think too much weight is been given to what she said, it was more than that as the witness said she took the lead, was forceful at times intintiated oral sex and dictated the sexual posissons. He came forward and gave his account, it was more her behaviour than the words she used, and for that reason i think his testimon was overlooked due to perceptions of it being barred unders 41, so it wasnt "thoroughly explored", which is nothing new.
Hi Pac Man, just catching up on this. You started ok with your first post but then it all went crashing downhill. Add to that you've managed to find your way into the most contentious thread, on one of the least welcoming boards on the internet, with a contrary opinion!
You're barking up the wrong tree here regarding s41.
There is a view here that the new evidence should never have been admitted IN LAW. The poster who is most vocal about that has hung his whole argument on it and conceded that the second trial jury's verdict was understandable given the admission of the new evidence, but the original guilty verdict would never have been quashed, thus no second trial, if the evidence weren't admitted. "No shit?" I hear you say.
So this argument is that the appellate judges got the law wrong.
They didn't.
The relevant bit of section 41 is section 3 (c) which allows the introduction of a complainants sexual behaviour if:
c)it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar—
(i)to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or
(ii)to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,
that the similarity cannot reasonably be explained as a coincidence.
So if it's
similar to that alleged by the defendant and took place at more or less the same time.
Kieron Vaughan (for Evans) argued that the the behaviour described by the witnesses was indeed similar. It referred to X taking control, adopting a specific position, and using specific words. People have argued that many people enjoy sex in certain positions, take control, and use certain words. That's true, and Ms Laws (for the prosecution) raised this, pointing out that such behaviour was not unusual. Trouble is, that's not the point. Section 41 does not require the behaviour to be UNUSUAL. It requires the behaviour to be SIMILAR. Vaughan argued that each of these behaviours
individually were SIMILAR to what Evans had described,
each alone satisfying the requirement, but taken
cumulatively they could also reasonably be considered to be beyond coincidence (see section 58 of the appeal transcript).
The judges agreed with Vaughan, in that respect the law was satisfied.
The judges also considered the spirit of the law. That is that sexual behaviour should be excluded if any part of its purpose is to traduce the character of the defendant, which would prevent other victims coming forward, and
"to counter the twin myths that unchaste women are more likely to consent to intercourse, and in any event are less worthy of belief".
That's not the case here. As the judges themselves noted very strongly, this has absolutely no bearing on the character of X because she hadn't made any accusations of rape or commented on consent
herself.
So the law was good.
Next you will have people taking issue with the potential for the money to have played a part but you dealt with that quite well yourself. The judges determined to allow the jury to decide on the evidence. The jury would have been aware of the reward offered but either decided it was not relevant or decided to acquit on an entirely different basis.
Someone might say to you:
Juries can't object to the admission of particular evidence. That you seem to think they can reveals a profound misunderstanding about the process, and the role of a jury.
.... which of course is a deliberate misrepresentation of the position. The fact is that juries are duty bound to decide on the veracity of evidence admitted, and in this case they either did, and believed it, or they didn't believe it relevant.
I'm sure that's what you were thinking!
