By Paul Gregoire and Ugur Nedim
The Australian criminal justice system has its foundations in the British courts, which have long held the presumption of innocence as one of their most basic tenets.
Indeed, the principle that a person is innocent until proven guilty is said to go back as far as the book of Genesis.
The most well known expression of the principle of protecting the innocent was made by 18th century English jurist Sir William Blackstone, who said, it’s “better that ten guilty persons escape than that one innocent suffer”.
However, the placing of the protection of the innocent ahead of the punishment of the guilty is not a given. It’s been said that 19th century German chancellor Otto von Bismarck remarked that it was better to see ten innocent people suffer, than one guilty person escape.
There are those who assert, though, that over recent years the Blackstonian principle is slowly being eroded in NSW by forces acting upon the sentiments of the German chancellor, with the rights of the accused now under attack.
And a recent ruling by the NSW Court of Criminal Appeal (NSWCCA) has left many Sydney criminal defence lawyers concerned that a law that makes a complainant’s history of making false sex allegations inadmissible in sexual assault cases is inconsistent with the law on tendency evidence.
The controversial finding
The Jackmain decision was handed down on 3 July. Facing several sexual assault charges, the accussed was appealing a pre-trial decision not to allow evidence revealing that his former partner – who’s made the accusations against him – has a history of making false allegations of this nature.
The NSWCCA judges ruled that NSW District Court Judge Sean Grant was correct in finding that evidence the complainant had made 12 false claims of sexual abuse in the past was inadmissible, despite one case having even resulted in her being found guilty of providing a false report to police.
The accused’s former partner claims he violently raped her on several occasions in mid-2014. He denies the claims and states that they should be taken into context with the numerous false accusations she’s been said to have made in the past.
The court dismissed all grounds of appeal that the accused raised, as it held that the law set out in section 293 of the Criminal Procedure Act 1986 (NSW) – which works to exclude questioning around the sexual history of a person who has made sex crime allegations – applies in this case.
The tendency rule
A person’s criminal history is not usually considered by a court. This is to prevent a judicial officer or a jury from being unduly swayed by a person’s past, when what should be on trial is the evidence pertaining to the charges they stand before the court accused of at present.
Although, there’s an exception, which is tendency evidence. This is a type of evidence that can be permitted, which takes into account a person’s character, reputation, conduct or a tendency they have or had in order to deduce whether they’re likely to have acted in a certain way.
Section 97 of the Evidence Act 1995 (NSW) stipulates that this evidence should not be permitted unless the prosecution gives reasonable written notice they will be producing it, that the evidence has significant value to the matter at hand and that its value outweighs any unfair prejudice .
This type of evidence is often raised in court. And this was the case even before the tendency rule was made a statutory provision, as it had long been a common law practice.
The sexual experience exclusionary law
Following on from this, the question has been raised as to why the history of giving false sexual assault accusations in the Jackmain case doesn’t constitute tendency evidence, and the answer is that it actually does.
In his determination on the matter, District Court Judge Grant specified that the false allegation history evidence was relevant to the current case, and it did show a tendency to “make false sexual allegations” and it should therefore be admitted in court.
But it was then that the sexual exclusionary law set out in section 293 of the Criminal Procedure Act came into play, making it inadmissible. This law relates to the sexual reputation, experience or past participation of the person who has made accusations of certain “prescribed sexual offences”.
This law applies unless the evidence occurred “about the time of the commission” of the alleged offence, or the evidence is “a connected set of circumstances”. And these exceptions didn’t apply as the allegations weren’t current – most relate to 2001 and 2002 – and nor did they form a set.
The move to protect the victim
The sexual experience exclusionary law was first enacted in 1981, when it was inserted into the Crimes Act 1900 (NSW). While in 1999, it was incorporated into the Criminal Procedure Act. And its inclusion in NSW law was part of an international push that began in the US.
This campaign sought to bring about the end to a courtroom culture, which saw women who’d brought complaints of a sexual nature being subjected to invasive questioning.
So, the law also aimed to encourage women to take the stand without fear of having their pasts dredged up.
However, NSW adopted the Michigan model of this law, which makes it mandatory, regardless of what sort of tendency evidence might be available. In fact, in every other Australian jurisdiction, there’s a discretionary allowance to permit such evidence as an exception to the rule.
Court calls to change the law
In the recent Jackmain ruling, the NSWCCA justices agreed with the determination of the District Court judge, in that the history of past allegations do constitute tendency evidence, although the mandatory nature of section 293 means there’s no discretionary room to allow it.
The appeals court justices further set out that the NSW Law Reform Commission stated back as far as 1998 that it was a problematic law that needed to be reformed. However, when parliament did change it slightly at the time of moving in into a new piece of legislation, it did a flawed job.
The 1993 NSW case M versus R is the authority on the current matter. It involved excluding evidence that a girl aged around 10 had lied about having intercourse with members of her family, which established that the rule applies to sexual activity that never happened.
However, since the 1993 ruling, numerous other case outcomes have been based upon it. So, if the court was to overturn the authority, it may affect subsequent rulings that have been made, and therefore any previous outcomes should rather be appealed under a reformed law.
“It follows that where a ‘line of authority’ on an evidentiary provision such as s 293… is overturned so as to narrow it as sought by the applicant, there may well be people who were convicted following trials at which evidence now known to be admissible was excluded,” Justice Mark Leeming said.
So, the NSWCCA upheld the District Court ruling with the inference that section 293 needs to be redrafted by NSW parliament to allow for discretionary measures where, as in the Jackmain case, a history of false sexual accusations could be admitted as evidence.
And as for the criminal defence lawyers representing the accused in the Jackmain case, they must be hoping that NSW attorney general Mark Speakman moves to reform the law prior to the commencement of their client’s trial.