Section 293 and the absence of evidence

A law to assist rape victims in NSW courts has left open the door for serious cases of injustice.

NSW Attorney-General Mark Speakman is facing pressure to implement reform of section 293. Picture: Dylan Robinson

It has been almost 40 years since a law was introduced in NSW to spare rape victims the indignity of being “slut-shamed” in court.

Until then, judges had allowed women to face humiliating cross-examination about their sexual history. This was supposedly relevant not only to consent, but also to credit, because a woman who had sex outside marriage was — somehow — less reliable as a witness, or worthy of belief.

Maybe because NSW was one of the last jurisdictions to ban this type of reprehensible evidence, its law, introduced by the Wran government in 1981, was also the toughest in Australia. Judges were to have no discretion to admit any evidence that could reveal a victim’s sexual experience other than what was allowed in the legislation.

But now, there are increasingly strident calls from judges and lawyers to bring NSW’s law into line with other states, prompted by a recent case that has shown how unfairly the law can operate.

A man accused of rape is being forced to stand trial without being allowed to tell the jury of the woman’s apparent history of making false sexual assault complaints. It is one of many rape cases to come before the courts in the next 18 months.

The trial judge said the exclusion of the false complaint evidence was “an affront to justice”. However, he ruled he could not allow it to be introduced because it was caught by section 293 of the Criminal Procedure Act — the provision meant to shield victims from cross-examination on their sexual histories.

The High Court recently refused to hear an appeal by the man, known as “Jackmain”, against the decision to exclude the evidence and continue his trial — intensifying pressure on NSW Attorney-General Mark Speakman to implement long overdue reform of the law.

‘False complaints’

The woman’s thick police file suggests she has concocted tales of sexual abuse on numerous occasions. The detail only came to light because of efforts by Jackmain’s lawyers to subpoena her file.

The complaints — or “tall stories”, as they were described by one officer — started when Jackmain’s accuser was just a schoolgirl. Some of the men were real, others fake, many of the incidents involved police.

On one occasion, the woman claimed a man had raped her with an unknown object. A friend took her to hospital, where she was treated for internal injuries. However, she later admitted it was all lies — there was no rape and no offender.

The District Court judge presiding over Jackmain’s trial said this false complaint evidence had “significant probative value” — it could be used to show the woman had a tendency to fabricate sexual assault allegations. In other words, that she was a serial liar. However, he ruled that Jackmain could not introduce any of this evidence at his trial.

The judge acknowledged this would cause “significant unfairness” to the accused that was “real and not illusory”.

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

Nevertheless, the judge said he was bound by a precedent set by the 1993 NSW Court of Appeal decision of M v R to exclude the evidence. That case involved a man accused of sexually assaulting a 10-year-old girl, who had previously made false complaints against members of her family.

The appeal court ruled in that case that the false complaint evidence was excluded by section 409B of the Crimes Act (the predecessor to section 293 of the Criminal Procedure Act) because the provision not only banned evidence of sexual experience but also a lack of experience.

Any evidence that the girl had lied about her sexual experience would not only establish doubt about her reliability, it would also establish that she had not had that particular sexual experience.

The court said the “wisdom of so draconian a restriction” on judicial discretion was questionable, but it was up to parliament to change the law.

Calling for change

Many other judges since then have called for a review, including the High Court in 1996 — while the NSW Law Reform Commission in 1998 called for judges to be given a limited discretion to admit evidence because it was “the only means of ensuring a fair trial”.

The District Court judge in Jackmain’s case also urged parliament to amend the section. Such an amendment could have a sunset period so that parliament could reassess its operation, he said.

“Parliament could not have foreseen the facts that I am confronted with and the injustice occasioned to the accused,” he said.

Nevertheless, the judge said he could not stop the trial; it was a constitutionally valid law and he was bound to enforce it.

The false complaint evidence did not fit within any of the exceptions because the false complaints were not closely connected in time to the alleged rape or part of a connected set of circumstances. Many of the complaints were made when the alleged victim was young, and the last one years earlier.

Prompted by Jackmain’s case, the NSW Law Society’s then president, Elizabeth Espinosa, wrote to Speakman last September seeking a review of section 293 and a “carefully curated amendment”.

Espinosa said in all other Australian jurisdictions, judges had a discretion to allow evidence, subject to specific criteria, which protected victims while still ensuring defendants could get a fair trial. Judicial training had improved enormously since the section was introduced back in 1981, she argued.

There had been hopes last year that the Berejiklian government might act swiftly to amend the section. At least two other NSW men were facing a similar issue at their sexual assault trials at the time. In one of those cases, District Court judge Andrew Colefax also called for law ­reform because the complainant could not be cross-examined as exten­sively as “the interests of ­justice” required. Nevertheless, the man’s trial proceeded, and he was found guilty of sexually abusing a relative, despite not being allowed to tell the jury all the relevant facts.

Another case in regional NSW was initially put on hold in the hope that Speakman would amend the law swiftly, but it eventually resumed.

Appeal avenues shut

Instead, Jackmain launched an appeal to the NSW Court of Appeal. A panel of five judges was assembled to relook at M v R and to decide whether, if the evidence had to be excluded, Jackmain’s prosecution should be stayed — but his appeal was rejected earlier this year.

Justice Mark Leeming, who wrote the lead decision, said there was “force” to the argument that M v R had been wrongly decided.

Justice Mark Leeming of the NSW Court of Appeal.

However, he said it would be inappropriate for the court to overturn the decision when it had been followed in such a large number of cases — to do so, necessarily with retrospective effect, would have “an unsettling effect on the fabric of the law”.

Leeming said that parliament had re-enacted the section — which contained “textual errors” and was “needlessly complex” — in almost exactly the same terms when it moved it from the Crimes Act to the Criminal Procedure Act in 1999, despite the recommendations that had been made for reform.

“(This) persuades me that this court should respect the legislature’s implicit decision not to alter the substance of the law, even though it is capable of operating unjustly in a case such as this,” he said. Leeming, married to constitutional law expert Anne Twomey, is a hot contender for one of two High Court places set to become available when Geoffrey Nettle retires in December and Virginia Bell in March.

Close observers believe his reasons in the case could bolster his chances for promotion by the Morrison government, because he took such an overtly conservative line.

After his loss in the Court of Appeal, lawyers for Jackmain tried one more roll of the dice, with an appeal to the High Court.

His lawyers argued Jackmain 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.

They argued the courts had wrongly interpreted section 293, and that, properly construed, the evidence was admissible. However, NSW Director of Public Prosecutions Lloyd Babb SC urged the High Court — successfully — to deny Jackmain special leave to appeal. He said the crown accepted the woman had made a false complaint only once and there were “real issues” as to whether the other incidents occurred or were false, he said.

If the court accepted Jackmain’s construction of the law, the protection provided by section 293 against humiliating and distressing cross-examination would “entirely vanish” as soon as there was any basis to suggest that a previous, unrelated complaint was false.

The High Court allocated three judges — rather than the usual two — to hear Jackmain’s application for special leave to appeal against the NSW Court of Appeal decision. Justice Nettle and Justices James Edelman and Michelle Gordon ruled Jackmain did not have “sufficient prospects of success” of convincing the court that section 293(3) was invalid, or that his prosecution should be permanently stayed. On the question of whether section 293 had been wrongly interpreted for at least 27 years, the High Court said, essentially, come back after you’re 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 might “not be without merit” but it was not “so compelling as to warrant exceptional intervention” at this stage of the trial, he said.

Having exhausted all avenues of appeal, Jackmain will now be forced into a trial that even the judge has labelled an affront to justice.

Reform delayed

NSW’s law is an outlier not only in Australia, but internationally.

The section was initially modelled on a law introduced in the US state of Michigan. However, even there, the courts have interpreted the section as allowing false complaint evidence, if it can be shown any prior accusation was demonstrably false. In Britain, Canada and New Zealand judges also have a discretion to admit evidence when it is in the interests of justice.

Speakman quietly circulated a 60-page issues paper for review of section 293 to stakeholders in November, including legal representative bodies, the Director of Public Prosecutions and rape and domestic violence services. The paper asked whether the section struck the right balance between protecting complainants and ensuring a fair trial for defendants — and, if more evidence was to be allowed, whether this should be achieved by expanding the list of exceptions or giving judges some discretion to admit evidence when the interests of justice demand it.

His department is currently putting the finishing touches on an options paper and will give stakeholders a chance to make submissions on possible reforms.

The Attorney-General has not exactly been in a hurry to reform the law, even allowing for the disruption caused by the pandemic. He told 2GB’s Ben Fordham recently that the issue was complex, and that views on the issue diverged. “What you’ve got to make sure is that an accused gets a fair trial but that victims of sexual assault aren’t so deterred by the humiliation and the stress of the criminal justice process that they don’t come forward,” he said. Unless the right balance was struck, the risk was that victims would have to face a trial within a trial to test whether previous complaints were false, he said. “If a woman has been pressured into withdrawing a complaint, is that a false complaint?

“If someone is acquitted because it was likely they committed an assault but you can’t prove it beyond reasonable doubt, is that a false complaint?” he said. “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.” This is a view echoed by Rape and Domestic Violence Services Australia executive officer Karen Willis, who says police often decide to close matters because there is not enough evidence to satisfy the high burden of proof — and can record this as a false complaint. “That doesn’t necessarily mean (the sexual assault) didn’t happen, it’s just that there is not enough evidence to go forward,” she says. “We need to be really careful that we don’t stop people from coming forward because of prior experiences.”

Karen Willis. Picture: AAP

However, NSW opposition legal affairs spokesman Paul Lynch says it is “extraordinary” the government has not yet amended the section. While he backs the law’s intent, he says it is clear it can 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,” Lynch says. “It is remarkable and regrettable that the law hasn’t already been amended … Courts have regularly pointed to the problem. Observing the state government’s response has been like watching grass grow.”

Barrister Bill Walsh, based in the NSW town of Orange and an adjunct associate professor at Charles Sturt University’s Centre for Law and Justice, recently handled a case in which a section 293 arose, and agrees reform is overdue. “The Court of Criminal Appeal has reviewed it over the years and said it’s a matter for parliament, and parliament hasn’t done anything about it,” he says.

“This anomaly leads to real injustice and the delay in reviewing it is a further injustice to people.”

There are few votes in ensuring alleged rapists get a fair hearing, but we all need to be able to have confidence in the system. After 39 years, it’s just about time for the Attorney-General to draft that “carefully curated amendment” that might bring NSW into line with every other state in the land. As the judge in Jackmain’s case has pointed out, a sunset clause could help to alleviate any concerns about its operation.