By Nicola Berkovic, The Australian


A man accused of rape will be forced to defend himself in court without being allowed to tell the jury about the alleged victim’s history of making false allegations to police, in a situation the judge has labelled an “affront to justice”.

A NSW judge has called for law reform after he was forced to exclude the evidence from the man’s trial because it was caught by strict state legislation aimed at protecting rape victims from being cross-­examined on their sexual history.

He joins at least three other judges who have called for the legislation to be reformed to give courts a wider discretion to allow evidence to prevent an injustice.

The regional NSW woman had accused the man of raping her.

The man, known as “RB”, denied the allegations. He argued he should be allowed to introduce evidence of 12 incidents in which the woman made false complaints about sexual abuse.

This included two separate incidents in which she made false reports to police, prompting sexual assault investigations that ended in her admitting her allegations were fabricated.

After the second incident, she was charged and pleaded guilty to making a false report to police.

The judge said the history of false complaints was relevant to the trial, but he could not allow the evidence to be introduced because it was caught by section 293 of the Criminal Procedure Act. The section was introduced to stop “offensive and demeaning” cross-examination related to a complainant’s sexual history.

RB conceded the evidence was caught by the legislation, but argued it was constitutionally invalid because it required the court to follow a procedure incompatible with a fair trial. Alternatively, he said his trial should be permanently stayed. The judge rejected these arguments and declined to grant the stay, finding the legislation was constitutionally valid and he was bound to enforce it and to follow precedents set by higher courts.

He said the law caused “significant unfairness” to the accused.

“That unfairness is real and not illusory,” he said.

“It prevents the accused from placing before the jury relevant evidence (past fabrications) which is capable of going directly to an issue in the trial, namely the honesty and reliability of the complainant. It prevents the accused from showing the complainant to be a compulsive false accuser of sexual misconduct.”

He said it was not for him to decide that the balance struck by parliament between competing public interests in sexual assault cases was inappropriate or unfair.

“To do so would be to interfere with a constitutionally valid substantive law enacted by parliament,” he said.

Instead, he called on parliament to consider amending the legislation to allow evidence if it was in the interests of justice. It could not have foreseen the facts in this case, and the injustice caused to the accused, he said.

“It is for the parliament to consider reform and the facts of this case indicate why there should be reform.”

The judge said the prosecutor’s suggested approach — that the woman be cross-examined about her past allegations to the extent they were assaults, rather than sexual assaults — would be “misleading to the extreme” and “give a false picture to the jury”.

“The prosecutor, defence ­counsel, the witness and the judge would know that the conduct was a falsity of rape by a made-up ­person but the jury would be denied this information in their ­decision-making process by ­reason of the exclusionary nature of s293,” he said. “It is an affront to justice”.

Three NSW Court of Criminal Appeal judges called for the predecessor to section 293 to be reformed as far back as 1993. Hansard from 1981, when the law was introduced, revealed the NSW parliament rejected giving courts a general discretion to allow cross-­examination on sexual history.

NSW Attorney-General Mark Speakman intervened in the case to argue the law was constitutional. Last night he said: “The Office of General Counsel … will examine the (latest) judgment in detail.”

 

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