In NSW Prior False Claims of Sexual Assault Are Inadmissible; Is Reform Needed?

The Wigs

In this episode the Wigs look at a fairly recent case of Jackmain (a pseudonym) v R [2020] NSWCCA 150 which raises the issue of what happens when a sexual assault complainant has a history of making false sexual assault claims. Currently in NSW such false allegations can't be used by an accused to defend themselves at trial. For decades the law has maintained that a jury simply cannot be told the complainant has previously made similar false allegations because of a provision introduced to protect sexual assault complainants from humiliating and improper cross examination about their sexual history.

In Jackmain, the accused faced a number of sexual assault charges which he said were fabricated by the complainant against him.

The NSW Court of Criminal Appeal confirmed that the law in NSW prevented him from using the complainant’s tendency to fabricate sexual assault allegations in his defence but did hold that a trial court in such a case has a power to stay the proceedings as an abuse of process.

The Wigs discuss the practical, policy and human rights implications of this law and examine the case for legislative reform.

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