Anna Tambour presents 


The virtuous medlar circle
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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.



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.


Tania Evers is a barrister based in Sydney. A brief bio would go: Currently president of Lawyers Reform Association and vice president of ANZAPPL NSW (Australia and NZ Association of Psychiatrists, Psychologists and Lawyers), on executive committee of Criminal Defence Lawyers, Glebe House (1/2 way house for prisoners) and NSW Women's Lawyers Association.
But that doesn't give you the true picture of Tania Evers, who has spent her entire working and private life devoted to what justice and human rights, compassion and love should mean. And it doesn't end where her family is concerned. I admire her immensely.

And a note on this paper. A comment made when this paper was presented was that she has "balls".
I would rather think that the qualities that Tania Evers possesses, if possessed by others, should be expressed as "S/he's got Tanias."

The virtuous medlar circle

is part of
Anna Tambour and Others

"Erosion of an Accused's Rights in Sexual Assault Cases" copyright © 2004 by Tania Evers
This paper appears here gratis, thanks to Tania Evers, whose commitment to justice and human rights I deeply admire.
It is part of a series of invited pieces by people I find deliciously inspiring, always a hoot, and who write like a bletted medlar tastes. A.T.
The Virtuous Medlar Circle © 2004 – 2006