Jimmy Singh, Principal at Criminal Defence Lawyers Australia (CDLA), analyses sexual assault trials in Australia, specifically in NSW in relation to section 293. He discusses how this section can lead to significant injustice in comparison to other places around the world.
Section 293 of the Criminal Procedure Act 1986 (NSW) is basically designed to exclude evidence of an alleged sexual assault victim’s past sexual activity or experience (or lack of same), with some exceptions. This also means that 293 prohibits evidence of an alleged victim’s previously fabricated sexual assault complaints, proven or unproven.
The United States have recognised the humiliation and discrediting purpose by which prior sexual activity or experience evidence can be used against a sexual assault complainant in sexual assault trials.
Section 293(2) of the Criminal Procedure Act 1986 (NSW) (CPA) prohibit evidence relating to the sexual reputation of a complainant in relation to a prescribed sexual offence. In addition, subsection (3) further prohibits, in more broad terms, evidence that discloses or even implies that a complainant has or may have had sexual experience or a lack of sexual experience, or has or may have taken part or not taken part in any sexual activity.
A ‘prescribed sexual offence’ here includes the offences outlined in the definitions of section 3 of the CPA and includes sexual intercourse without consent or sexual touching.
Subsection (2) and (3) are mandatory with no court discretion. In respect to subsection (2), it causes evidence relating to the sexual reputation of the complainant inadmissible. Secondly, in reference to subsection (3), it causes evidence disclosing or implying certain things about the complainant’s sexual experience or activities as inadmissible unless any of the exceptions to this in subsection (4) apply.
NSW is in fact the only place across Australia’s States and Territories that prohibits this kind of evidence in a mandatory way reflected in section 293. This can cause significant injustice in the ways outlined further into this article, particularly in comparison to other places around the world.
Comparison to Other Jurisdictions in Australia and Around the World
As some criminal lawyers Sydney based who also appear interstate will have observed, all other States and territories in Australia determine the admissibility of a complainant’s sexual activity or experience in a discretionary way unlike NSW’s section 293. Those other states and territories therefore allow a Judge the discretion to allow or admit evidence relating to a complainant’s sexual experience if considered sufficiently relevant to the case.
In fact, England and New Zealand also take the discretionary approach to this kind of evidence.
Even Canada which had initially taken the mandatory approach to precluding evidence of sexual activity of a complainant without discretion for the Judge to allow it, had subsequently changed that approach with a discretionary approach to allowing courts to admit this kind of evidence at their discretion in the early 90’s. This was in response to the principles of fundamental justice underlying a fair criminal trial.
Section 293 and Risk of Injustice in Sexual Assault Cases
Section 293 serves the purpose of protecting alleged victims to a great degree in the way outlined in Jackmain (a pseudonym) v R  NSWCCA 150.
In Jackmain’s case, the accused person was defending charges of assault occasioning actual bodily harm, in addition to three counts of sexual intercourse without consent against the same alleged victim (complainant). The complainant is the accused person’s ex-partner.
This case is an example of how 293 operates unjustly against an accused person and to an extent has been summarised by our sexual assault lawyers in Sydney.
The accused in this case had tried to adduce evidence about the complainant’s past false complaints.
The fabricated complaints at least implied a lack of sexual activity or experience by the very reason the false complainants were concerning false sexual complainants against the accused. By reason of this, the Supreme Court of the Court of Criminal Appeal (CCA) in this case, ultimately held that although section 293 is not well drafted and is capable of operating unfairly (and did so in this case), the complainant’s false sexual complaint evidence was not allowed to be admitted as evidence in the case for the defence because it was caught by 293 due to the way Parliament has drafted the section and Parliaments’ clear intention.
To fully understand the extent of the injustice that 293 causes, let’s elaborate a bit more on this case…
The complainant and the accused were involved in a relationship for nearly a decade. From their relationship, they have a child. Closely leading up to the end of the complainant and accused relationship, the complainant alleged that her then partner, the accused, has sexually assaulted her with physical violence.
Amongst other things, the complainant attended a doctor a few days after the alleged sexual assaults in addition to taking photos of her rib injuries.
The complainant also gave evidence to the effect that she called police after the sexual assault.
As a result, the accused was arrested, charged and subjected to an apprehended domestic violence order (AVO).
Without outlining the details of the alleged sexual assaults, if true, would amount to consecutive violent sexual assaults in the context of a very abusive and controlling relationship which would not doubt cause long lasting harm to the complainant.
The accused understandably wanted to produce evidence of 12 previous false sexual assault complaints made by the complainant in order to establish the fact that she has a tendency to fabricate sexual assault allegations against men, including when speaking to police, doctors and friends. This evidence if allowed would be otherwise very relevant to creating a reasonable doubt about the serious allegations against the accused by the complainant.
If this false sexual assault complaint evidence was allowed/admitted, it would attack the complainants credibility and the weight of her evidence about the allegations against the accused in the case.
Section 293 precluded the false sexual assault complaint evidence from being admitted without any discretion for the Judge to otherwise allow it in the interest of justice. This means that the jury who will ultimately decide on whether or not the accused is guilty will never hear about that evidence before reaching their verdict.
Nature of Prior False Complaints
8 of the 12 incidents referred to as previous false sexual assault complaints were proven lies.
(1) In 2001, the complainant had said to a school friend and another person that she had been sexually assaulted. When asked more, she had giggled and walked off.
(2) In 2001, the complainant had told a friend from school that her ex-partner would rape her and bash her on occasions. She later gave a different name of the perpetrator.
(3) In 2001, the complainant told a friend from school that she has been gang raped.
(4) In 2001, the complainant provided two schoolgirls with a note each stating in it that she’s been raped and bashed the night prior. The mother of the complainant has said that this was impossible because the complainant was with her all evening.
(5) In 2001, a notifier had spoken to the complainant in relation to police getting involved to investigate. The complaint then denied disclosing sexual abuse to anyone. She also denied writing any letter. When the complainant was shown one of her letters claiming to be sexually abused, she said that it didn’t happen that way.
(6) In 2001, the complainant has said that the perpetrator was a person from a different school, but after further investigation into that school, it was revealed that there has never been a person with that name (nor a similar name) in that school.
(7) In 2002, the complainant provided a letter to a school friend stating that two males had bashed and raped her. The complainant later gave a different name as to one of the perpetrators. The school friend has said that she wasn’t sure whether the complainant was telling the truth because her claims did not make sense.
(8) In 2002, the complainant has said to a person that a person named Craig had “bashed her up and stuff” (where “and stuff” may imply sexual abuse).
(9) In 2002, the complainant told police that a person had sexually assaulted her on previous occasions. Police investigated and revealed multiple inconsistencies in her claims. The accused denied the allegations and offered to provide DNA evidence to prove his innocence. Later, the complainant then told police that she has never made prior accusations of sexual assault against anyone (inconsistent with the above claims made by her).
(10) during police investigations of the above (9) claims, the complainant also told police that boys at primary school have had sex with her.
(11) A letter dated August 2002 by the complainant claiming to have been sexually abused by a person and other males were revealed to have been fabricated. The complainant also admitted that it was “all made up”.
(12) In 2009, the complainant made false sexual assault allegations against a male. She claimed he had broken into her home, chased her down in the house, hit her on the head, and forcefully penetrated her vagina. The complainant later pleaded guilty to the offence of making a false report. During a meeting with the prosecutor in August 2018, the complainant confessed that the male she accused of was one of her clients and that is happy to admit that she did the wrong thing in making a false accusation against him.
To express the extent of fabrication, in respect to (11) above, involving a letter received by the complainant’s school friend was later torn up by the complainant. The pieces of the letter were later found and reconstructed. The letter appears to have the letterhead of a law firm addressed to a barrister. It refers to medical and DNA testing and purports to refer to civil proceedings involving sexual activity. It also claims to reveal that the semen belongs to a male she claimed sexually assaulted her. The letter also offers to meet to discuss making a deal.
Parts of the letter were found to not be plausible. The letterhead appeared to have been created using a different typeface on a word processor.
Investigations into this letter revealed that the law firm mentioned in the letter did not exist. That the doctor referred to in the letter was not registered.
The letter was found to be an elaborate forgery plan by the complainant to mislead her friend into believing that she was raped by a male.
In reference to (12), the complainant after pleading guilty to making a false complaint was sentenced in court and released without conviction and ordered to pay over $6,000 compensation.
In effect the court held that because the false or fabricated past sexual complaints were in effect implying at least a lack of sexual activity or experience, section 293 excluded it.
As an extreme example of the unfairness or absurdity of 293 is found in the constructions that “evidence that discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience or has or may have taken part or not taken part in any sexual activity is inadmissible.
The underlined words can have absurd results. For example, a sexual assault complainant’s birth certificate or even passport will be evidence of “not taken part in any sexual activity” implied by the date of birth which clearly is evidence that the complainant has not taken part in sexual activity before his/her date of birth.
Mr. Jimmy Singh is the principal lawyer at Criminal Defence Lawyers Australia, who are a team of criminal lawyers in Sydney appearing in courts Australia-wide. Jimmy has exclusively practiced in the area of criminal law since being admitted as a lawyer in 2009. You can find Jimmy on LinkedIn or via the CDLA Website.