content: Sorry; when I found it, it was somehow free.  “Appeal on judge’s rape case decision” Exclusive, Nicola Berkovic, LEGAL AFFAIRS CORRESPONDENT, @NicBerko A man accused of rape has appealed against a judge’s decision to continue his criminal trial while excluding evidence of the complainant’s history of prior false sexual assault complaints. He has applied for the appeal to be heard by five judges, rather than the usual panel of three. NSW Attorney-General Mark Speakman was handed a report from his department more than three months ago on whether a strict NSW law, aimed at protecting rape victims from being cross-examined about their sexual history, needs to be amended. The provision — section 293 of the Criminal Procedure Act — has been interpreted by the NSW courts as also preventing any evidence of prior false sexual assault complaints made by the victim. A NSW District Court judge ruled in August that the man, known as RB, could not introduce evidence of 12 incidents in which his alleged victim had made previous false claims about sexual abuse because the evidence was caught by section 293. The woman’s history included two separate incidents in which she had made false sexual assault complaints to police, prompting investigations that ended in her admitting the allegations were fabricated. She was charged and pleaded guilty to making a false report to police after the second incident. RB has now launched an appeal in the NSW Court of Criminal Appeal against the judge’s decision to exclude the evidence and continue his criminal trial. In appeal documents seen by The Australian, RB’s lawyers have argued that if the evidence could not be introduced at his trial, the prosecution should have been permanently stayed as it gave rise to such unfairness. The evidence would present “a wholly distorted picture of the true state of affairs in relation to the key issue in the trial; namely the credibility and reliability of the complainant”, his appeal documents say. His lawyers have argued that properly construed, section 293 should not apply to exclude evidence of the woman’s prior false complaints. They also argue the judge was wrong to rule the evidence was not covered by one of the exceptions to section 293. The District Court judge who excluded the evidence said the situation was an “affront to justice” and called on parliament to reform section 293. He said the statute caused “significant unfairness” to RB that was “real and not illusory”; it prevented him from “showing the complainant to be a compulsive false accuser of sexual misconduct on the part of others”. However, he refused to grant a permanent stay of prosecution because he said the law was constitutionally valid and he was bound to enforce it. NSW opposition legal affairs spokesman Paul Lynch said Mr Speakman should release the department’s report on section 293. Watching the Attorney-General deal with the issue was “like watching grass grow”, he said. Mr Speakman said the government was “committed to ensuring that NSW law strikes the right balance between ensuring justice for survivors of sexual abuse and maintaining the right to a fair trial”. “The concerns raised … give rise to complex issues,” he said. [ENDS]