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EXCLUSIVELEGAL AFFAIRS CORRESPONDENT
A woman made false sexual complaints 12 times over nine years — about real people, fake people, former partners and her employer. She even went so far as to seek medical treatment for apparent internal injuries.
Many complaints triggered police investigations. On one occasion she was charged with, and pleaded guilty to, making a false complaint.
Now a man accused by the woman of rape has asked the High Court to stop his prosecution because of a restrictive NSW law that prevents him telling the jury of her history of false sexual complaints.
The man, known as “Jackmain”, argues that a person accused of sexual assault is entitled to a fair trial like every other accused.
Jackmain has applied to the High Court for special leave to appeal against a decision to exclude evidence of the false complaints and continue his trial.
He says he should not have to face a “charade trial” in which he is “forced to stay mute on the most critical element” of his defence — this would undermine public confidence in the courts and damage its integrity.
The relevant provision, section 293 of the Criminal Procedure Act, is aimed at protecting rape victims from cross-examination about their prior sexual experience. But the section has been interpreted by the NSW courts as also excluding evidence of prior false sexual complaints by victims.
NSW Attorney-General Mark Speakman received a brief on reform of the section about a year ago and has been consulting on proposed changes. The law in other states gives judges a discretion to admit evidence in exceptional cases.
Lawyers for Jackmain, led by top criminal barrister Tim Game SC, argue the courts have wrongly interpreted section 293, and that, properly construed, the evidence is admissible.
A literal reading of the section would exclude evidence a complainant had a child, because it implied sexual activity — or that they were driving at a particular time, because it implied a lack of sexual activity. Instead, an interpretation that “avoids absurdity” while fulfilling the legislative intent, would generally allow such evidence, they argue.
Alternatively, they say the High Court should declare the law unconstitutional — because it damages the integrity of the court by forcing it to administer a trial that is manifestly unfair, which is “anathema to the rule of law” — or permanently stay his prosecution.
The trial judge, who excluded the evidence, described the situation as “an affront to justice”, but said the legislation was constitutionally valid and he was bound to enforce it.
Five NSW Court of Appeal judges rejected Jackmain’s appeal in July. The Court of Appeal said the jury could be told the woman had made a prior false complaint about violence, but not sexual violence. Jackmain’s lawyers argue courts cannot condone deliberately misleading a jury in this way.