13/07/2020 BY SONIA HICKEY & UGUR NEDIM
In a recent decision, a five judge bench of the New South Wales Court of Criminal Appeal (NSWCCA) ruled that legislation which prevents criminal defence lawyers from asking questions to complainants in sexual assault cases about their sexual history extends to prohibiting defence lawyers from raising evidence of false sexual assault accusations made by complainants against others – regardless of how numerous, brazen, unlawful or similar to the present complaint those allegations may have been.
The ruling has defence lawyers questioning the fairness of rules of evidence in criminal cases; considering that laws on tendency evidence allow prosecutors in certain circumstances to put before juries a defendant’s prior similar cases or even complaints previously made against them, even if those cases or complaints have nothing to do with the present complainant.
The District Court trial
The case in question involves a man (who cannot be named for legal reasons) who is standing trial over claims that he sexually assaulted the complainant (his former partner) back in 2014.
The man’s criminal defence lawyers sought to have evidence presented before the jury of 12 prior false sexual assault complaints made by the complainant.
Some of the complaints, the defence submitted, were so brazen that they involved falsified documentation – including a fake letter from a non-existent law firm.
Despite this, the NSWCCA ruled that under existing legislation, such evidence is inadmissible and cannot be brought before a jury for consideration.
The legislation
Section 293 of the NSW Criminal Procedure Act outlines the law regarding the admissibility of evidence relating to sexual experience. It states that:
(1) This section applies to proceedings in respect of a prescribed sexual offence.
(2) Evidence relating to the sexual reputation of the complainant is inadmissible.
(3) Evidence that discloses or implies–
(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or
(b) has or may have taken part or not taken part in any sexual activity,
is inadmissible.
(4) Subsection (3) does not apply–
(a) if the evidence–
(i) is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and
(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,
(b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,
(c) if–
(i) the accused person is alleged to have had sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900 ) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and
(ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,
(d) if the evidence is relevant to–
(i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or
(ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,
(e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),
(f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection,
(6), be asked,
and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.
(5) A witness must not be asked–
(a) to give evidence that is inadmissible under subsection (2) or (3), or
(b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.
(6) If the court is satisfied–
(a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period–
(i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or
(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and
(b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,
the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.
(7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.
(8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.
The Supreme Court did rule that the complainant could be cross-examined about one instance in which she pleaded guilty to making a false statement to police “about a serious claim against a man inflicting violence upon her”.
In handing down the ruling, Chief Justice Tom Bathurst said “…the purpose of the statutory prohibition is to prevent embarrassing and humiliating cross-examination about past sexual activities which it was believed was a deterrent in reporting sexual offences“. And a substantial number of prior cases also ruled that this extended to alleged false complaints.
Review of the law
Any change to the law needs to be made by the NSW Parliament, although it’s understood that the Attorney-General Mark Speakman has already asked his department to review the law.
False allegations are a criminal offence
False sexual assault allegations ruin lives. Sydney man, Stephen Black, was imprisoned for more than 10 months on false sexual allegations and is now suing police who he says doggedly pursued him despite the fact that the 14-year old girl who made the accusations against him said he had a circumcised penis when in fact he does not.
The same girl falsely claimed that she was gang-raped by a car-load of men after leaving a house party in Baulkham Hills, which was investigated by 10 detectives and dismissed only days before Mr Black was due to go on trial.
Several years ago, The Australian Institute of Family Studies (AIFS) speculated that the percentage of false sexual assault accusations may be somewhere between 2 – 10%.
The figure is based upon a 2010 United States study which looked at reported cases in that country over a 10 year period. However, the report authors also acknowledged that the figure was unreliable because many complaints were not reflected in official statistics because they were ‘baseless’, and many would argue the actual figure is significantly higher than that speculated.
There is also a growing concern that more false accusations could be made in the wake of the Royal Commission into Institutional Responses to Child Sex Abuse and of course, the high profile #metoo movement.
While genuine victims have every right to seek justice, those who make false accusations not only cause innocent people to go through hell, they waste public resources, and can also make it more difficult for genuine victims to have their complaints believed and acted upon.