Erosion of an Accused’s Rights in Sexual Assault
Cases
by Tania
Evers
Paper presented
at 9th International Criminal Law Congress, 2004
Human nature is
varied.
Within the spectrum
of behaviour, just as there are ruthless and violent people who
perpetrate hideous offences against innocent victims, in many
cases destroying their lives because of their own interest and
self-gratification, equally there are people who are prepared to
make false allegations, with total disregard, and sometimes with
deliberate intent, to ruin another person’s life.
Governments and
legislators have the responsibility of ensuring that vulnerable
people are protected from unscrupulous behaviour. However,
increasingly, governments appear to have lost sight of the fact
that not only are there victims of crime, but that the justice
system is replete with examples of accused persons being the
victims of false allegations, and that there is an obligation
upon government to ensure that it provides a proper balance in
its responsibility to protect both sides of the justice system.
Victims of sexual
assault have in recent years become better organised and more
vocal. This is only right, as it was not too long ago that
victims were even further victimised by our criminal justice
system by being subjected to demeaning cross-examination about
matters totally irrelevant to the issues before the Court.
Victims now receive unequivocal sympathy from the public and
sympathetic publicity from the press. Many of them actively
seek this out both directly or through their family and friends,
and it is readily given by both the electronic media and the
newspapers.
On the other hand,
victims of the criminal justice system mostly neither want
publicity nor seek it. A person wrongly accused of a serious
sexual offence knows all too well that publicity can lead to
discrimination in employment, or disrupt their relationships and
friendships. There are no lobby groups to protect their
interests and it is only in exceptional cases, like Lindy
Chamberlain’s (where she had nothing further to lose) that
publicity is sought.
It is thus the
responsibility of government to ensure that a proper balance be
achieved, and that an accused is equally protected against false
allegations as a victim is protected against harassment and
further intimidation and bullying.
In the absence of
an informed and aware government, it is the obligation of bodies
such as this one, with our shared extensive experience of the
criminal justice system, to ensure that this delicate balance is
not further eroded against the interests of the voiceless people
we represent.
For some years now
it has been implicit in law reform that the consequences to a
victim of a crime are more serious than the consequences to a
victim of the criminal justice system. As a result of this,
enactment of legislation in recent times has been very heavy
handed. Whilst undoubtedly most of the objectives
designed to be achieved by the reforms cannot be the subject of
any criticism, the difficulty is that legislation has been
introduced without proper analysis of all the possible
consequences, with the result that real prejudice can be
occasioned to an accused person in defending him or her self at
trial.
A striking example
of this is s.293 of the New South Wales Criminal Procedure Act
1986 (previously s.409B of the New South Wales Crimes Act)
introduced in 1981 essentially to protect women who complain of
sexual offences, from being questioned about irrelevant sexual
activity. Whilst I do not challenge the essential objective of
the section, it demonstrates well the problems of allowing
excessive enthusiasm to create rigid rules. The section is so
badly drafted that, read literally, it prevents evidence being
given that a woman complaining of an offence has children
(because that would disclose that she has had sexual
experience), or that even (as in the case in which Tom Molomby
of Senior Counsel appeared), that the child present at the scene
of an alleged offence was the child of the complainant. Whilst
this particular feature of the section may be unlikely to
prejudice anyone’s defence (although the lesson of experience is
that it is foolish to think one can predict that), it provides a
good example of the unintended consequences of unduly rigid
rules. More pertinent to prejudice is the fact that the section
prevents evidence being given that the complainant is, for
example, a fantisiser or someone who has previously made false
complaints. Despite this interpretation of the Act being made
clear by the Court of Criminal Appeal many years ago, nothing
has been done to correct this.
In the case of M
(1993) 67 A Crim R 549, Justice Allen, with whom Chief Justice
Gleeson and Justice Meagher concurred, analysed the history and
intention of the introduction of s.409B with reference to the
remarks of both the Attorney and Premier of the day. His Honour
concluded that s.409B enacted a blanket prohibition and to that
prohibition, the only exceptions were those specifically set out
within the section, and that there was no judicial discretion
arising from considerations of justice as perceived by the Court
in any individual case.
His Honour stated
(at page 558):
“What
there was said by the Minister supports what is clear from the
structure of the section. The legislature has endeavoured to
foresee all the exceptions which justice requires and to provide
specifically for them. It has excluded all others. It has
taken the risk that experience will throw up circumstances,
which it has failed to foresee and expressly provide for, in
which denial of evidence disclosing or implying that the
complainant has or may have had sexual experience or lack of
sexual experience, or has or may have taken part or not taken
part in any sexual activity, results in injustice to an accused
at his trial. The wisdom of so Draconic a restriction upon
judicial discretion and of so bold an assumption of perfect
prescience may be questioned. (my emphasis) The courts must
apply, however, the law as enacted. If the present case has
thrown up an instance of injustice or of possible injustice
indicating the desirability of a further exception to the
blanket prohibition the exception must be one enacted by
Parliament. It is not for the courts to usurp its role.”
Despite these
comments, and the potential injustices that an experienced court
of review recognised, there have not been any amendments made to
overcome the injustices.
It was held in R v
PJE (NSW CCA 9 October 1995) , (1995) 2 Crim LN 73 that the
trial judge has no power to stay a prosecution on the basis that
the effect of the section may result in a trial which is
unfair. Following an unsuccessful leave to appeal to the High
Court, the operation of s.409B (as it was then) was referred to
the Law Reform Commission in December 1996. This has not
resulted in any amendments to the legislation.
The absence of
reform in this area has played into the hands of liars and even
liars proven to be so on earlier occasions.
Unfortunately,
because of a lack of publicity of cases in which the falsely
accused becomes a victim of the criminal justice system, the
public is not aware of the pervasiveness of the problem and so
its anger is understandably focussed on cases where a victim of
a savage rape or other sexual abuse fails to receive justice
because some unfairness or impropriety in the conduct of the
trial has resulted in a retrial or an acquittal.
Nevertheless, the
plain fact is that on occasions false complaints (and not only
about sexual offences) are surprisingly easily made and
sometimes surprisingly easily believed. A false story is not
always as easily exposed as in some of the cases attached to
this paper. It is thus obviously vital for the protection of
innocent people against whom false complaints are made that
complaints be thoroughly scrutinised and that the system allows
accused people a full opportunity to defend themselves. This
necessarily means that those with true complaints have to suffer
the trauma and indignity of being questioned about their
complaints.
Despite the fact
that a real victim is placed in a very unfortunate position by
some of the procedures of the justice system, at the end of the
track there is no escape from the difficulty that unless the
real victims are scrutinised, the false victims cannot be
exposed. In very many cases one cannot tell, without undergoing
the process, which is which.
The problem is that
over-enthusiastic reform in the interest of the victims has
prejudiced the defence of the innocent. The problem of course
is that such reforms equally protect false victims as real
victims.
I have appended
three cases in which Mr Molomby appeared in which the
allegations were false. In two cases acquittal followed an
appeal to the Court of Criminal Appeal after conviction at
trial.
The following case
provides an illustration of some of the ways that changes to the
legislation impact on the right of the accused to a fair trial.
A 6 year old child
formed an attachment to a man (E) believed by the local
community to be a paedophile. The child was strictly prohibited
from going to E’s house. The child (on her own evidence)
deceived her mother by pretending to be going to a friend’s
place when she in fact went to E’s house. She was accompanied
there by her 10 year old cousin who (on the account of several
witnesses) had a history of telling lies and encouraging the
younger child (the complainant) to do so – especially to get out
of trouble. The mother of the complainant discovered that her
daughter had been taken to the man’s house by the cousin, went
to the house and brought her daughter home. Both children were
now in a lot of trouble and the complainant was repeatedly
questioned by her mother as to whether or not any one had
“touched her”. This, the child denied. The mother then
contacted members of her ex-husband’s family and told them of
her concerns. Various members of this extended family then
questioned the child, and finally the child said to her mother
in response to further questioning by her as to whether anyone
had touched her, that “X” had. X was the mother’s former
defacto partner who had been removed from the house by the
police for having assaulted the mother. X never denied that he
had assaulted the mother but vigorously denied having in any way
sexually assaulted the complainant.
During the trial,
it emerged from the complainant’s own account, that she
regularly told lies to her mother, that she made false
allegations against her brother to get him into trouble when she
and her cousin had got into mischief, that she used to trick her
mother and so on.
Moreover, it
emerged that her real father and his family intensely disliked X
(the accused) because of his history of physical abuse towards
the child’s mother and that this family had, on numerous
occasions, discussed X’s behaviour in the presence of the
child. There was therefore every reason for the child to
dislike X who had caused distress to both her mother and to her
extended family. It is not hard to imagine that in such
circumstances and with such a behaviour pattern she could have
invented the complaint.
The accused was
questioned by way of ERISP interview. There he nominated that
the 10 year old cousin had encouraged the complainant to tell
lies and that on a prior occasion the complainant had told him
that the cousin had got her to make false allegations of
indecent assaults against two young boys.
The problems which
emerged at trial:
(a) The
complainant, aged 6, made her statement by way of a video
recorded interview two years before the trial commenced. This
video recording was played in court as evidence in chief.
During the interview, the complainant was encouraged to play
games, the police made various misrepresentations to her, for
example, “you can talk about whatever you like”, the police
reminded her of what she had said earlier during the interview
when she was giving an account on its face inconsistent with her
earlier version. (Example, she initially stated that the
assault had taken place in her mother’s bedroom but later
referred to it taking place in her own bedroom. She was
reminded that it had “taken place” in her mother’s bedroom.
(b) The trial
commenced when the child was aged 8. She gave evidence by way
of CCTV, so that she never had to face the alleged perpetrator
(her step-father). The first question asked of her was whether
the account she had given two years earlier was true and
correct. She said it was. There was a serious difficulty for
the accused to challenge this assertion. Even at the time of
the interview, the alleged offence was relatively stale, having
allegedly occurred several months prior. Further, the child had
given three totally different versions at the time of the
complaint; one to her mother, one to the police and one to the
doctor. What the child said to the police was dramatically
different from, but far less serious than what she had said
originally to her mother by way of first complaint. Because
this complaint itself was stale, it could not be led by the
Crown. However, because the version to the police was less
serious, it was not in my client’s interest to cross-examine the
child on her earlier version. In the context of these
discrepancies, and different versions made within a short space
of time two years earlier, there was a clear injustice in asking
the child whether one of the versions (ie the one which happened
to be recorded) was true and correct.
An attempt to
prevent evidence being given by way of taped interview failed,
despite the problems referred to in (a) and (b).
(c) The Crown
successfully argued that my client’s account in his ERISP
interview that the child had admitted to him that she had made
false allegations of indecent assaults against two other people
at the instigation of an older cousin (aged 10) be excluded as
being in breach of s.293 of the Criminal Procedure Act 1986.
The complainant’s mother agreed that the accused had told her
that he had had this conversation with the complainant. The
purpose of eliciting this evidence would have been only to show
that the child was easily influenced by an older child who
encouraged her to make false allegations. This was particularly
significant in the light of the fact that at the time the
complainant made the allegation against the accused, both the
complainant and her cousin (living with her at the time) were in
a lot of trouble for going to the home of a suspected paedophile
(E) against the express directions of the complainant’s mother.
There was also evidence that the cousin told lies when in
trouble.
(d) The
accused made a successful application under s.293 for the
complainant to be cross-examined about what had transpired at
E’s house. It was clearly important to question the child about
this to place the allegation in a possible context. The Crown
vigorously opposed the application. The trial aborted after 4
days because the child volunteered (when caught out in a number
of lies) that the accused was in gaol at the time she had made
the allegation. At the retrial, which may be held before a
different Judge, it is quite possible that an application under
s.293 will fail, particularly as it is arguable that such a
cross-examination does not fall within the exceptions to s.293,
as was argued by the Crown. Should this occur, it is apparent
that there will be a grave injustice to the accused,
particularly in light of the evidence which emerged during the
trial in which the complainant on a large number of occasions
was shown to be lying. Indeed the complainant admitted that she
used to tell a lot of lies at the time the allegation had been
made. Many of the lies which became apparent during the trial,
and were provable, related directly to the cross-examination
about the complainant’s friendship with E.
Should
the accused fail on the next occasion in his application under
s.293, the outcome in the trial could be very different to the
anticipated outcome of the aborted trial.
Another case in
which I am currently involved provides further illustration of
the prejudice that can flow to a person against whom a complaint
is made. This is the case of H. In this case, the complainant
has alleged to the police that H had forcibly taken her to his
home, kept her there against her will for two days and
repeatedly “raped” her and encouraged another man to “rape”
her. The police granted bail to H at the time of charging, and
H complied with all the conditions imposed on him for three
months. The case then came into the hands of the Director of
Public Prosecutions’ Office which put on an application for the
bail to be revoked. The application succeeded on the grounds of
“protection of the community”. The basis was the following,
outlined by the Crown as part of its bail chronology:
“It
seems the applicant has serious issues in relation to sexually
deviant behaviour: he has photographed the complainant whilst
that other man has raped her. He has over a 1,000 pornographic
photos of young females in his unit. He is alleged to have
claimed to the complainant that he took those pictures whilst
his friends were having sexual intercourse with the girls.”
Whilst it is true
that there are in excess of 1,000 photographs seized by the
police, almost all of them are of the type that all of us have
in our family albums - photographs of cars, friends, animals,
views and so on. There are approximately 20 photographs which
depict females wearing no clothes on their upper bodies, and
less than 50 photographs which are sexually explicit, although
most of them are of persons posing in ways seen not infrequently
in magazines readily available for sale. A very small number
(less than 20) depict active sexual encounters. None include
the accused, some are of homosexual contact and those where
there appears to be heterosexual intercourse taking place do not
show the faces of the persons engaged in the sexual activity
(and on the face of them, do not appear to reveal sexual conduct
with young girls). None of the photographs are the subject of
any charges, none would be admissible at trial and yet they form
the basis of prejudice resulting in the incarceration of a man
who has never been in custody, and has a very minor and not
related criminal record. His Housing Commission premises, which
he recently acquired after a six year wait, will be lost.
In addition, the
complainant’s account is at variance with her actual behaviour.
She (alone) went to a doctor in the middle of the alleged
kidnapping, told the doctor that she had love bites which she
acquired whilst having sex with the accused (not “being raped”)
and ignored the doctor’s suggestion that the police be called
when she told the doctor she felt trapped at the man’s home.
She voluntarily returned to the accused’s home because she said
she was short of money.
During the ERISP
interview, the accused volunteered that a number of people had
seen them together and that she had appeared to be happy in the
accused’s company. None of the persons nominated by the accused
have been interviewed by the Crown.
I have now had the
opportunity to interview at least two of the people who the
accused claimed had seen him with the complainant. Neither is
known to the police, both are in respectable jobs and both
confirmed the accused’s account that the girl appeared to be
happy to be with him and was kissing and cuddling him with
apparent affection.
Undoubtedly this
case has been the result of a knee jerk reaction to the
substantial publicity about victims of sexual assault in recent
times, and to the criticisms that have been directed both
towards the Court and the Crown for allowing sexual perpetrators
to be at large in the community.
Whilst it is true
that the accused in this case does not live a traditional
lifestyle, is friendly with a large number of people who do not
conform to society’s expectations, is significantly older (at
age 51) than the complainant (age 18) and undoubtedly has
friendships with young girls (many of them “working girls”),
such an unconventional lifestyle is no justification for his
incarceration.
These cases
illustrate the ease with which a false allegation can be made.
I do not suggest
that true victims who suffer life destroying events as a result
of horrendous crimes perpetrated against them should not be
protected as much as possible by the justice system.
Equally, however,
the justice system and the government have a duty to protect
falsely accused persons from being destroyed by the justice
system, which, in some cases, permits liars to readily make
false allegations without proper scrutiny. There are no longer
the proper checks or balances.
It is the role and
obligation of all of us to protect vulnerable persons in the
community and a person wrongly accused deserves all of our
protections, particularly given the ever increasing sentences
which are imposed upon persons convicted of sexual assault
offences.
ADDENDUM
Examples of three
accused represented by Mr Tom Molomby of Senior Counsel in which
it became clear that the complainant had made a false allegation
against the accused.
Story 1 - Father
and daughter
An 18 year old girl
(M) accused her father of having forced intercourse on her on
the floor of her bedroom when she was 14. She made this
allegation after being told by her father that he and her mother
were separating by consent, and that he was moving away to
another town, taking her younger brother, aged 9 (S). The girl
knew that her mother was very fond of S. She went straight
around to visit her mother and said:
“Dad
sexually assaulted me. Look, if I charge him with something
they’ll have to give you S back.”
The mother said
that wasn’t the right thing to do. M then went round to her two
younger sisters, and asked them if they would come to the police
station and make a statement saying that the father molested the
three of them, so that their mother could get custody of S. The
other two daughters refused, and one of them went and told her
mother of this conversation. M nevertheless went to the police
and made a complaint against her father, who when the police
came around and introduced themselves, said:
“Don’t
tell me, it’s about M, I knew you’d be up here. It’s all lies
and if you give me until this afternoon, I can bring my wife and
other two daughters down here and they will tell you. She’s
only doing this to stop me leaving town with my nine year old
son.”
The police
nevertheless charged the father.
The mother on
hearing that the father had been charged phoned M and asked why
she was doing it, to which M said:
“”You’ll get S back. Now that he’s been charged he can’t leave
(town).”
Mr Molomby says,
“Remarkably, the jury in this case convicted M’s father, and I
represented him in the appeal in which his conviction was
overturned as unsafe.”
Story 2 - Uncle
and Niece
An 11 year old girl
accused her uncle, who was charged with having sexual
intercourse with her. She said that they were alone, sitting on
a couch, watching TV, when he put his hands on each side of her
waist, picked her up, stood up while holding her, tipped her
upside down, somehow transferred his hands from her waist to her
thighs, pulled off her pants, then whilst still holding her,
with her head resting on the floor, committed the assault,
transferred his hands back to her waist, tipped her back the
right way up, and put her down.
The girl weighed 42
kilos. The man was not particularly large, and had recently had
an operation on his back. But even for the strongest and
fittest person and even with a much lighter child, the motions
described, tipping upside down and back again while holding by
the waist, are quite impossible. This man had been convicted
(and unlike the first, who was given bail, spent 14 months in
prison) and Mr Molomby’s role was to represent him in the appeal
in which the conviction was overturned.
Story 3 - Man
and woman
A 23 year old woman
accused a 37 year old man of raping her. They had been drinking
together at a club, and were walking home when, she said, as
they were passing a paddock about 800 metres from her home he
suddenly pushed her, then chased her as she ran through the
paddock, finally catching her, getting on top of her, pulling
some of her clothes off and raping her. In a statement to the
police she gave a graphic description of all this. She said she
struggled and escaped, and ran further into the paddock (which
she knew well, having kept horses there). This paddock had
extensive clumps of bushes in it. As she was running, another
man wearing a dark coloured balaclava came running out, pushed
her down on her back and got on top of her. Eventually she
struggled away from him too, and made her way, wearing only her
bra and underpants, to a nearby house, where she roused the
owner, and was allowed to use his phone to call her parents.
The man’s account,
on the contrary, was that on the way home, they had been holding
hands and kissing, they lay down in the paddock kissing and
cuddling, when she shouted at him, threw her clothes off at him
and ran away – “She just went mad”. Police later assessed her
as “moderately intoxicated”.
The man said that
after she ran away, he collected her clothes and continued
walking to her parents’ house. And certainly he arrived there
soon afterwards, coincidentally, while she was on the phone to
her parents. At first he asked if she was at home, then on being
told that she was on the phone, said “Here’s her clothes and
purse”, handing them over. On discovering that he was there,
the woman screamed at her mother “get him out of the house” and
the mother asked him to leave.
The remarkable
feature of this case, and the main reason it ultimately did not
go to trial, was that the woman’s original story was very
different from the final version summarised above, and contained
only one rapist, the stranger in the balaclava.
With the
householder whose phone she used, this conversation occurred:
Householder: What happened?
She: I’ve been raped.
Householder: Do you know who did it?
She: Some bloke
who come out from the bushes when I was on my way home.
Then, with police
called by her parents:
Police (after
introducing themselves):
How are
you going?
She: Good, but
I’ve been raped.
Police:
Do you mind telling me what happened.
She: I was with
a friend walking home from (club), he left and then a guy in a
balaclava came out of nowhere.
Police:
What happened then?
She: He took me
into the bushes and raped me.
Police:
Do you know this man?
She: No.
Police:
Who was the friend you were with?
She: (Man’s
name)
If what the man
said was correct, it is not difficult to find an explanation for
the stranger in the balaclava. Alone in the paddock, sobering
up slightly, in only bra and underpants, the woman must have
realised that to walk home at 1.30am beside a sometimes busy
road was not sensible, and that her only safe way home was to
phone her parents to come to get her. The stranger in the
balaclava was her explanation to the householder for her
appearance. But then, after she had committed herself to that
story, and while on the phone to her parents, the man
unexpectedly turned up with her clothes – which on her initial
story he did not have. So he found himself added to the story
as another rapist.
This became clear
only on the morning of the day scheduled for the trial, when
clear police documentation on the woman’s initial story came to
light (the police who attended the house were not those who
later conducted the investigation); fortunately a reasonable
prosecutor saw the point and dropped the case. There were other
anomalies not included in this summary.
