‘Lazy, and perhaps politically expedient’: Judge lashes DPP over rape cases

A NSW judge has called for the ‘lazy and perhaps politically expedient’ referrals of baseless rape accusations to the court to stop after a miscarriage of justice.

NSW District Court Judge Robert Newlinds SC.

A NSW judge has called for the “lazy and perhaps politically ­expedient” referrals of baseless rape accusations to the court to stop after the case of a man who spent eight months on remand in jail and faced a jury trial despite never committing a crime.

The “deep level of concern” over the abrogation of the prosecutor’s duty to interrogate complainants’ allegations – raising the risk of false convictions – has been exposed in a NSW District Court case in which a man faced trial despite clear evidence the sex he had with the alleged victim was consensual.

The woman had alleged the man sexually assaulted her, ­because she was so drunk she had a blackout and could not ­remember the events, despite it being clear she had “enthusiastically participated” in sex and consent was obtained every step of the way.

The man spent eight months in prison before eventually being granted bail and then acquitted by a jury on December 4.

In an application for a costs certificate following the trial, it was revealed the complainant had made five virtually identical allegations against other men. But a much-criticised piece of NSW legislation that fails to provide exceptions to admit tendency evidence relating to prior sexual history largely prevented the jury from knowing about the pattern of accusation. Had the jury known, the accused would have been “acquitted within minutes”, according to District Court judge Robert Newlinds.

His excoriating judgment granting a costs order, which is causing shockwaves at the NSW criminal bar, has exposed concern within the judiciary and among criminal lawyers as to the impact of the MeToo movement on the Office of the Director of Public Prosecution’s assessment of sexual assault cases, with a pattern emerging in which prosecutors take a reflexive “believe the victim” stance, and prefer to let the jury decide rather than discontinue hopeless cases.

“I think the prosecution took the lazy and perhaps politically expedient course of identifying that the complainant alleged she had been sexually assaulted and without properly considering the question of whether there was any evidence to support that allegation, and just prosecuted so as to let the jury decide,” Judge Newlinds said in the costs judgment.

“This must stop. Justice has not been served and will not be served by repeated cases being ­prosecuted based on obviously flawed evidence.”

The accused, who was given the pseudonym Mr Martinez by the court, faced trial in late November after being charged in June 2021 with four counts of sexual intercourse without consent. He was initially refused bail, which was then granted eight months later by the NSW Supreme Court.

The charges arose after Mr Martinez, who identifies as non-binary and prefers to use the pronoun “they”, had sex with the complainant, who was a friend. The complainant had had a lot to drink, but the evidence indicated the woman had initiated sex and participated enthusiastically in four occasions of intercourse.

During a conversation the next day, when the complainant, who had little memory of the evening, asked what had happened, Mr Martinez indicated they had ­obtained consent continually throughout the sexual activity and understood consent was provided.

Evidence before the court indicated those experiencing alcoholic blackouts, especially seasoned drinkers, may not appear seriously intoxicated to people with whom they were interacting, and can be capable of presenting rationally and coherently, and performing ordinary tasks. However, due to her alcoholic blackout the complainant formed the view she had not consented, and made a criminal complaint to police – something she had done in almost identical circumstance on four previous occasions.

Judge Newlinds said, although the complainant’s belief she had been sexually assaulted was genuine, it was pursuant to “her own idiosyncratic definition of sexual assault”, based on “a misguided understanding of the law to the effect that if a person cannot remember having sex with someone else that equates to sexual assault”.

Prosecutors did not challenge or rationally interrogate the woman’s view, and based their case on an incorrect interpretation of the law, telling the jury that if a person was severely intoxicated, they were not capable of consent. In fact, a finding of serious intoxication is simply one factor a jury can take into account. “In my ­judgment (the accused) did not commit any crime and should never have been prosecuted,” Judge Newlinds said. “This prosecution is a miscarriage of justice. The evidence did not, in any realistic way, ever demonstrate any prospect of the crown obtaining a conviction.

“I do wish to record that I am left with a deep level of concern that there is some sort of unwritten policy or expectation in place in the Office of the Director of Public Prosecutions of this state to the ­effect that if any person alleges that they have been the subject of some sort of sexual assault then that case is prosecuted without a sensible and rational interrogation of that complainant so as to at least be satisfied that they have a reasonable basis for making that allegation, which would include to at least being satisfied that the complainant has a correct understanding of the legal definition of sexual assault or sexual intercourse without consent.

“If no effort was made to work that out, then the prosecutor failed to perform the important role of filtering hopeless cases out of the system and has thus been the primary cause of this applicant spending eight months in jail for a crime he did not commit.”

During the trial, the complainant’s history of accusing men of rape in similar circumstances was largely not allowed into evidence due to section 294CB of the Evidence Act in NSW, which forbids tendency evidence that goes to a complainant’s sexual history from being placed before a jury.

Unlike in other states, the NSW legislation has no exception provision. Judge Newlinds echoed other judges in saying there was “a serious need for law reform in this regard”. “I do think that the trial was unfair because the applicant was not able to put before the jury the true history of the complainant’s complaints thus putting into context all of her evidence and the circumstances of her conduct before the jury,” the judge said.

“If the jury had known the full picture of the complainant’s history of accusing men of rape in similar circumstances, the time of deliberation would have been measured in minutes. Knowing what I know now, I have concluded that it was not possible for the applicant to have a fair trial without the introduction of the evidence of those other complaints.

“I think I am entitled to infer that within the Office of the DPP those various cases (of similar accusation) are all known. If no one in the DPP has ‘joined the dots’, someone should do that now. This must stop. Justice has not been served and will not be served by repeated cases being prosecuted based on the obviously flawed evidence of the complainant.”

Another man accused by the same complainant was recently also found not guilty by a jury in a case described by one senior legal figure as “a farce”. Two other men accused by the same woman are still before the courts.