Rape case on hold, clarity sought on keeping false claims secret

A rape trial has been put in limbo while the NSW government considers whether to amend a ­ law on prior history.

A rape trial has been put in limbo while the NSW government considers whether to amend a ­ law that prevents defend­ants from ­introducing evidence­ about any previous false sexual complaints made by their accusers.

The trial was due to start this week in regional NSW, but the District Court judge agreed on Monday to put the case on hold until the legal issue can be reviewe­d by NSW Attorney-Genera­l Mark Speakman.

The Australian recently revealed that a judge in a separate rape trial, involving a man known as “RB”, had called for changes to section 293 of the Criminal Procedure Act because of its potential to cause “significant unfairness”.

The section was introduced to protect rape victims from being cross-examined about their sexual history. However, it is drafted so broadly that courts have agreed it also prevents an accused from introduc­ing evidence about any previous false sexual complaints made by the alleged victim.


RB’s lawyers had uncovered evidence of 12 incidents in which his accuser had made previous false complaints about sexual abuse.

This included two separate incide­nts in which the woman had made false reports to police.

The reports triggered 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 in RB’s case said the woman’s history of lying to police and making false allegations was relevant to the trial but he could not allow the evidence to be introduced because it was caught by s293. He said the situation was an “affront to justice” and caused unfairne­ss to the accused that was “real and not illusory”.

However, he said it was up to parliament to consider reforming the law to allow evidence if it was in the interests of justice.

Mr Speakman told The Aust­ralian earlier this month that the Office of General Counsel would examine the judgment in RB’s case in detail and brief him on it.

The judge in the second rape trial, which raises similar issues regardin­g false complaints, agreed to put the case on hold until after Mr Speakman was briefed on RB’s case. The prosecution did not object­ to the dates being vacated.

Yesterday, Mr Speakman said he expected to receive a brief “by the end of the month” from the Department of Communities and Justice, which would include informatio­n regarding the operation of s293. “As matters remain before the court, any further comment­ from me at this time would be inappropriate,” he said.

Opposition legal affairs spokesman Paul Lynch said “expeditio­us action” by Mr Speakman was needed and there was “no justification for delay” because the Attorney-General had intervened in RB’s case to argue the law was constitutionally valid.

“As judges have warned, there seems to be unfairness in the way the section operates in these particular types of cases,” Mr Lynch said. “If the end result is prosecutions going on hold indefinitely, then that’s … unsatisfactory.”

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

Unlike in other states, the NSW law provides only limited exemptions and gives the judge no discretion to allow in evidence when it is in the interests of justice.

RB’s lawyers have argued the judge should exclude evidence from his accuser on the grounds the material would be unfairly prejudicial to the accused or misleading, given RB can’t tell the jury of the previous false complaints.