s.41

August 1, 2019

A judge had erred in imposing a wasted costs order on a defence barrister after discharging the jury following the barrister’s closing speech. In front of the jury, the barrister had inappropriately criticised the procedure by which questions for young and vulnerable witnesses were formulated in advance, and had also strayed beyond the bounds of appropriate comment in relation to the complainant’s sexual behaviour. However, his comments could have been dealt with in the judge’s summing up and did not call for the discharge of the jury.

CHILD SEX OFFENCES CLOSING SPEECHES CRIMINAL EVIDENCE CRIMINAL PROCEDURE CROSS-EXAMINATION DISCHARGE OF JURY PROCEDURAL IRREGULARITY PROPORTIONALITY PROSECUTION OF OFFENCES ACT 1985 s.19A s.41 SEXUAL BEHAVIOUR VICTIMS WASTED COSTS ORDERS YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 s.28

January 31, 2012

A conviction under the Sexual Offences Act 2003 s.9 could not be substituted for a conviction under the Sexual Offences Act 1956 s.14(1), as the indictment based on the 1956 Act could not be said to expressly or impliedly include an allegation of an offence under s.9 of the 2003 Act.

ALTERNATIVE OFFENCES CHILD SEX OFFENCES CRIMINAL APPEAL ACT 1968 s.3 CRIMINAL EVIDENCE CRIMINAL PROCEDURE CROSS-EXAMINATION DEFECTS GROSS INDECENCY INDECENT ASSAULT INDICTMENT DID NOT EXPRESSLY OR IMPLIEDLY INCLUDE ALLEGATION OF OFFENCE UNDER NEW ACT INDICTMENT REFERRING TO REPEALED ACT INDICTMENTS JURY DIRECTIONS s.41 s.41(2) s.41(3) s.41(4) SEXUAL BEHAVIOUR SEXUAL OFFENCES ACT 1956 s.14(1) SEXUAL OFFENCES ACT 2003 s.9 SUBSTITUTION OF CONVICTION UNDER NEW ACT YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 s.41(1)

June 23, 2011

Where an accused convicted of indecent assault of a man had mistakenly been charged under the Sexual Offences Act 1956 s.14(1) instead of s.15(1) and had been found unfit to stand trial under the Criminal Procedure (Insanity) Act 1964 s.4A, the conviction was unsafe. Section 4A clearly stated that the jury had to be satisfied that the accused had done the act charged. Even though the indictment particulars were accurate, the actus reus of indecent assault on a woman could not be established by an indecent assault on a man.

ACCUSED MISTAKENLY CHARGED WITH INDECENT ASSAULT OF WOMAN ACCUSED UNFIT TO STAND TRIAL FOR INDECENT ASSAULT OF MAN ACTUS REUS OF INDECENT ASSAULT OF WOMAN NOT ESTABLISHED BY INDECENT ASSAULT OF A MAN. BAD CHARACTER CRIMINAL APPEAL ACT 1968 s.15 CRIMINAL PROCEDURE CRIMINAL PROCEDURE (INSANITY) ACT 1964 s.4A FITNESS TO PLEAD INDECENT ASSAULT JURY DIRECTIONS MISTAKE RETRIALS s.15(1) s.16 s.16(1)(b) s.16(4) s.161 s.3 s.4 s.41 s.4A(2) s.4A(2)(b) s.5 SEXUAL OFFENCES ACT 1956 s.14(1) SUMMING UP UNSAFE CONVICTIONS

February 20, 2004

The defendant’s conviction was unsafe as the judge had wrongly refused an application for leave to cross-examine the victim, and had put to the defendant, evidence of previous sexual acts of a similar nature. The judge’s attention had wrongly been drawn to s.41(3)(c)(ii) Youth Justice and Criminal Evidence Act 1999 when the matter should have been considered under s.41(3)(c)(i).

COMPLAINANT’S PREVIOUS SIMILAR CONSENSUAL BEHAVIOUR WITH ACCUSED CONSENT CRIMINAL EVIDENCE CROSS EXAMINATION ON PREVIOUS CONSENSUAL SEXUAL BEHAVIOUR CROSS-EXAMINATION EVIDENCE FALSE IMPRISONMENT INDECENT ASSAULT RAPE s.14(2) s.41 s.41(1) s.41(1)(2) s.41(2) s.41(3)(a) s.41(3)(b) s.41(3)(c) S.41(3)(C) YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 s.41(3)(c)(i) s.43(3)(ii) SEXUAL BEHAVIOUR SEXUAL OFFENCES SIMILAR CONSENSUAL SEXUAL BEHAVIOUR STRIKING SIMILARITY TIME YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 S.41(3)(C)(I) AND (II) YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 s.41(3)(c)(ii)

s.41

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