Rape jury ‘can’t hear false sex assault history’

High Court rules a man accused of rape would have to face trial without being allowed to tell the jury of the complainant’s history.

The High Court has ruled a man accused of rape would have to face trial without being allowed to tell the jury of the complainant’s history of false sexual assault complaints.

The NSW government is facing fresh calls to amend a law criticised by successive judges as unfair after the High Court ruled a man accused of rape would have to face trial without being allowed to tell the jury of the complainant’s history of false sexual assault complaints.

The provision, section 293 of the Criminal Procedure Act, is aimed at protecting rape victims from being cross-examined on their sexual history. However, it has been interpreted by the NSW courts as also preventing any evidence of prior false sexual-assault complaints by victims.

In this case, a man known as Jackmain has been prevented from introducing evidence at his trial of numerous incidents in which the complainant allegedly made false sexual assault claims — a situation the trial judge labelled an “affront to justice”.

The High Court recently rejected Jackmain’s application for special leave to appeal against a NSW Court of Appeal decision to exclude the evidence and continue his trial, one of many rape cases to come before the courts in the next 18 months.

A panel of three High Court judges was assembled, rather than the usual two, to hear Jackmain’s special leave application — but judges Geoffrey Nettle, Michelle Gordon and James Edelman ruled that Jackmain did not have “sufficient prospects” of successfully convincing the court the section was invalid, or that his prosecution should be permanently stayed. On the question of whether the law had been wrongly interpreted for almost 30 years, the High Court said, essentially, that Jackmain could come back after he was convicted.

Justice Nettle said the High Court’s position was that it was “highly undesirable” to interrupt criminal proceedings by allowing appeals on the admissibility of evidence. Jackmain’s argument was not “without merit” but it was not “so compelling as to warrant exceptional intervention” at this stage of the trial, he said.

Jackmain’s lawyers had argued their client should not have to face a “charade trial” in which he was “forced to stay mute on the most critical element” of his defence, as this would undermine public confidence in the courts and damage its integrity.

Law Society of NSW president Richard Harvey said the law society supported the objective of section 293 — which was to reduce the distress, humiliation and embarrassment experienced by complainants at sexual assault trials.

“However, recent cases have demonstrated that the competing interests of protecting the complainant and ensuring the accused has a fair trial are not appropriately balanced by section 293 … and there is a clear need to review the provision,” he said.

Mr Harvey said in other Australian jurisdictions, judges had a discretion to admit evidence, subject to certain criteria.

“We consider that this approach is an appropriate balance,” he said.

NSW opposition legal affairs spokesman Paul Lynch said it was “extraordinary” the government had not yet amended the section. He said he backed its intent, but it was clear it could also give rise to unintended, substantial miscarriages of justice.

“There’s a very powerful case for judges to have an appropriate discretion in exceptional cases to allow into evidence material currently excluded,” he said.

NSW Attorney-General Mark Speakman circulated a 60-page issues paper to stakeholders in November and his department is now completing an options paper that will canvass their submissions on possible reforms.

He told 2GB recently that he wanted to ensure that defendants received a fair trial and that victims weren’t deterred from coming forward. Unless the right balance was struck, victims could have to face trials within trials to test whether prior complaints were false, he said.

“If a woman has been pressured into withdrawing a complaint, is that a false complaint? … We want to make sure that we don’t have a whole lot of mini trials that exacerbate an already stressful and potentially humiliating situation,” he said