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.
Having read s293 of the Criminal Procedure Act 1986 (NSW legislation) [https://www.legislation.nsw.gov.au/#/view/act/1986/209/chap6/part5/div1/sec293], I cannot see how the section could/should be used to prevent evidence of a complainant’s prior false complaints being admitted.
Section 293 of the Act deals with: “Admissibility of evidence relating to sexual experience“.
Evidence of a history of prior false complaints by a complainant is evidence of false complaints. It is not evidence about a complainant’s actual sexual history. I’ve read The Australian newspaper article referred to and I’ve read section 293 of the Act. I have not read any other material which details the legal arguments/transcripts of proceedings.
On the face of it, I think the judge may have erred in not admitting the history of false complaints into the evidence. Evidence of a history of making false sexual assault complaints is not in my view, evidence of a person’s sexual history. On this basis, I think the evidence as to the reliability/truthfulness of the complainant was admissible and should have been admitted and the trial should have been able to proceed with it admitted as evidence. As such, this admissibility issue could still be contested in court by the complainant during the trial or later perhaps be subject to an appeal by the Crown/the complainant.
By the way, there is/was a trial to be decided. A trial must be conducted on the basis that the accused is innocent (‘Presumption of innocence’) and that guilt, if it were present, would need to be proven beyond reasonable doubt. For a trial to take place, if my understanding of the legal system is correct, an accused must have earlier faced preliminary proceedings and – on the basis of evidence presented to a court – that court must have decided there was sufficient cause to send the matter to trial. By this I mean that the court, in committing an accused to trial, thinks that a not guilty or a guilty verdict are both possible.
In other words, to my way of thinking, in any trial that takes place, it is possible that the accused is innocent and it is possible that the accused is guilty. It is for a court/jury to decide as to innocence or guilt. So too in this present case under discussion. [This last remark is made while not knowing whether the trial was concluded before the appeal papers were lodged. The Australian report does not make this matter clear.]
In the case of the trial of Susan Neill-Fraser, preliminary proceedings (11-12July2010) were held by Magistrate Chris Webster. Witnesses giving evidence at those preliminary proceedings: Forensic Scientist Debra McHoul, John Hughes, Peter Lorraine, James McKinnon, Constable Stockdale, Mark Wilby, Constable Etherington, Au Ming Hong.
It is worth noting that it was reported by the media that “Magistrate Chris Webster refused a request by Director of Public Prosecutions Tim Ellis to ban the media from the hearing.”
A tragic twist of fate…
“Magistrate Chris Webster last month (March 2014) found Ellis guilty of causing the death of 27-year-old Natalia Pearn by negligent driving.