Andrew L. Urban.
A man accused of rape has evidence of 12 incidents in which his alleged victim had made previous false claims about sexual abuse – but the court cannot allow that evidence to be heard, due to the catch-all nature of section 293 of the Criminal Procedure Act. The judge is calling for the section to be amended.
The woman’s history included two separate incidents in which she had made false sexual assault complaints to police, prompting investigations that ended in her admitting the allegations were fabricated. She was charged and pleaded guilty to making a false report to police after the second incident.
But section 293 of the Criminal Procedure Act has been interpreted by the NSW courts as also preventing any evidence of prior false sexual assault complaints made by the victim. The man’s lawyers have argued that properly construed, section 293 should not apply to exclude evidence of the woman’s prior false complaints. They also argue the judge was wrong to rule the evidence was not covered by one of the exceptions to section 293.
As reported in The Australian (26/12/2019), the man, referred to as RB, has now launched an appeal in the NSW Court of Criminal Appeal against the judge’s decision to exclude the evidence and continue his criminal trial.
In appeal documents seen by The Australian, RB’s lawyers have argued that if the evidence could not be introduced at his trial, the prosecution should have been permanently stayed as it gave rise to such unfairness.
The evidence would present “a wholly distorted picture of the true state of affairs in relation to the key issue in the trial; namely the credibility and reliability of the complainant”, his appeal documents say.
The District Court judge who excluded the evidence said the situation was an “affront to justice” and called on parliament to reform section 293.
NSW Attorney-General Mark Speakman was handed a report from his department more than three months ago on whether this NSW law, aimed at protecting rape victims from being cross-examined about their sexual history, needs to be amended. So far, though, Speakman has not spoken on what his department will do.