The
evidence is admissible only upon the ground that it was a com
plaint of that which is charged against the prisoner, and can
be legitimately used only for the purpose of enabling the jury
to judge for themselves, whether the conduct of the woman was
consistent with her testimony on oath given in the witness-box
negativing her consent, and affirming that the acts complained
of were against her will, and in accordance with the conduct
they would expect in a truthful woman under the circumstances
detailed by her :" The Queen v. Lillyman, [1896] 2 Q. B. 167
at pp. 170, 177.
In this civil action the absence of consent, the conduct of
the female plaintiff and her credibility, are all in issue quite as
much as they would be on the trial of a criminal charge
preferred upon like grounds. Professing to apply in the
administration of criminal and civil justice the same general
rules of evidence, upon what sound principle, by what reason
able or even plausible distinction, could we hope to justify the
exclusion of evidence of such complaints where the defendant's
pocket only is in peril, while admitting it so freely when his
very life may be, and his liberty certainly is, in jeopardy ?
Lord Halsbury has denied to our system of jurisprudence
all title to recognition as a logical code : Quinn v. Leatham
[1901] A.C. 495 at p. 506. Nevertheless, when in fields not
judicially exploited, we find ourselves at liberty to apply in the
civil forum, to facts and issues not merely similar but absol
utely identical, rules of evidence which obtain before our
criminal tribunals, the judicial friends of our legal system will
be impelled to take advantage of such opportunities to minimise
the reproach that our jurisprudence is illogical and unscientific.
To exclude in such an action as this the evidence now in
question, could, in my opinion, only serve to establish one more
variance, as indefensible as it would be arbitrary.
evidence is admissible only upon the ground that it was a com
plaint of that which is charged against the prisoner, and can
be legitimately used only for the purpose of enabling the jury
to judge for themselves, whether the conduct of the woman was
consistent with her testimony on oath given in the witness-box
negativing her consent, and affirming that the acts complained
of were against her will, and in accordance with the conduct
they would expect in a truthful woman under the circumstances
detailed by her :" The Queen v. Lillyman, [1896] 2 Q. B. 167
at pp. 170, 177.
In this civil action the absence of consent, the conduct of
the female plaintiff and her credibility, are all in issue quite as
much as they would be on the trial of a criminal charge
preferred upon like grounds. Professing to apply in the
administration of criminal and civil justice the same general
rules of evidence, upon what sound principle, by what reason
able or even plausible distinction, could we hope to justify the
exclusion of evidence of such complaints where the defendant's
pocket only is in peril, while admitting it so freely when his
very life may be, and his liberty certainly is, in jeopardy ?
Lord Halsbury has denied to our system of jurisprudence
all title to recognition as a logical code : Quinn v. Leatham
[1901] A.C. 495 at p. 506. Nevertheless, when in fields not
judicially exploited, we find ourselves at liberty to apply in the
civil forum, to facts and issues not merely similar but absol
utely identical, rules of evidence which obtain before our
criminal tribunals, the judicial friends of our legal system will
be impelled to take advantage of such opportunities to minimise
the reproach that our jurisprudence is illogical and unscientific.
To exclude in such an action as this the evidence now in
question, could, in my opinion, only serve to establish one more
variance, as indefensible as it would be arbitrary.
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