Ms Fiona Murphy:

I will answer Senator Ruane’s question on behalf of the Bar Council. The position is that it is the judge’s decision as to whether questions on the sexual history of a complainant or victim can be allowed or permitted in the course of a trial and the judge will have to give a reason as to why he feels it is appropriate. When the application is made, defence counsel have to make it very clear why it is relevant. More and more, there are rulings from trial judges where they say that if one is asking for perhaps five different aspects, and the judge does not see the relevance of two to three of those aspects, the judge will then refuse those questions outright but will allow the application on those other aspects for a particular reason. In all cases, the judge will have to explain his reasons as to why he sees the relevance. As Mr. Hayes pointed out and as is clear from all of the testimony, the position is that victims have their own representation for the purpose of that application. On many occasions what can and does happen is that a victim will say to their representative that she understands, for example - I am not talking here about any particular case - that this is her ex-boyfriend and that he might want to question her about “A”, “B” or “C” and she has no issue at all with that question being asked. Frequently, there is agreement to some extent from the victims themselves as to the extent of the questioning. It is not something in my experience that is done lightly by any judge to allow questioning on previous sexual history. Certainly, in cases where the complainant or victim was a child at the time of the offence, judges are reluctant to allow questioning on sexual history because it is very difficult to see a link in those circumstances and the judge would need a very particular reason for relevance to be shown.

The relevance test is a high bar and judges are reluctant to allow people, as referred to by the Senator, to be questioned about something so personal and there has to be a very relevant reason as to why that should be done. This is in recognition of the standard of proof and the presumption of innocence but this is a very careful decision which is made by any judge in such cases. I hope that answers the Senator’s question.