R V Mokrecovas Case Study

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In R v Mokrecovas, a case of rape in which consent was a defence, the issue was if it was open to the defence under section 41 (3) (a) to cross examine the complainant about an allegation that she had consensual sexual relations with the accused’s brother on two occasions during 12 hours before alleged rape. It was held that the cross examination about sexual intercourse with the accused’s brother would add nothing to these grounds for allegation. The subsections (3)(b) and (c) were enacted to reverse what was decided in R v Riley. In most of the cases, the jury would most likely infer such behaviour by virtue of the other evidence in the case. When evidence is introduced that the accused and the complainant have either been married or have been living together for a period of time, and in situations such as this, it’s the judge’s duty to direct the jury that any inference can have no bearing on the issues to be decided.
Section 41 (3) (c), shows what amounts to similarity between the complainant’s behaviour and that alleged to have occurred as part of, or about the same as the occasions in question. According to Lord Clyde in R v A , the similarity need be neither ‘rare’ nor ‘bizarre’. The question in R v A was whether or not the defendant was allowed to cross examine the
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This was in order to allow sexual history evident to be admissible as evidence. The Supreme Court of Canada declared the rape shield law that was being operated there as unconstitutional. This was illustrated in the case of R v Seaboyer. The reason the Supreme Court declared it as such was on the grounds that they violated the fundamental principle, which was that the innocent should not be punished. As result of the decision in this case, parliament enacted new provisions which were less firmly drafted, according trial judges much greater autonomy in admitting sexual history

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