Jackmain (a pseudonym) v R [2020] NSWCCA 150

Jackmain (a pseudonym) v R [2020] NSWCCA 150

The evidence of prior false complaints by the complainant was inadmissible under s 293(3) of the Criminal Procedure Act 1986 (NSW), as interpreted by longstanding authority, and the exceptions in s 293(4) did not apply because the incidents were too remote in time from the charged offences. Jurisdictional limits precluded the Court from reviewing certain evidentiary or tendency rulings without proper appeal or cross-appeal. Section 293 was held not to be constitutionally invalid as the court retained a power to grant a stay in the event of fundamental unfairness. The circumstances did not warrant a permanent stay of the proceedings.

Parties
Applicant: Jackmain (a pseudonym); Respondent: Crown; Intervener: Attorney-General (NSW)
Jurisdiction
Australia
Judgment Date
03 July 2020
Procedural Posture
Criminal Appeal / Interlocutory Appeal Before Court of Criminal Appeal From District Court, Pre Trial Evidentiary Rulings and Application for Permanent Stay
Outcome
Appeal dismissed (grant of leave confined to grounds 1-5); orders of primary judge affirmed.
Legal Topics
Admissibility of Sexual History Evidence, Rape Shield Provisions, Permanent Stay of Proceedings, Jurisdiction of Court of Criminal Appeal, Kable Doctrine, Statutory Construction, Tendency Evidence
Criminal Law Constitutional Law Evidence Admissibility of Sexual History Evidence Rape Shield Provisions Permanent Stay of Proceedings Jurisdiction of Court of Criminal Appeal Kable Doctrine +2 more

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Parties

Jackmain (a pseudonym)

Applicant

Crown

Respondent

Attorney-General (NSW)

Intervener

Procedural Posture

Criminal Appeal / Interlocutory Appeal Before Court of Criminal Appeal From District Court, Pre Trial Evidentiary Rulings and Application for Permanent Stay

Legal Issues

  1. 1 Whether evidence of prior false complaints of sexual assault is rendered inadmissible by s 293 of the Criminal Procedure Act 1986 (NSW)
  2. 2 Whether s 293(3) applies to 'proven' instances of false complaints
  3. 3 Whether exception in s 293(4)(a) applies to evidence of false complaints remote in time

Ratio Decidendi

The evidence of prior false complaints by the complainant was inadmissible under s 293(3) of the Criminal Procedure Act 1986 (NSW), as interpreted by longstanding authority, and the exceptions in s 293(4) did not apply because the incidents were too remote in time from the charged offences. Jurisdictional limits precluded the Court from reviewing certain evidentiary or tendency rulings without proper appeal or cross-appeal. Section 293 was held not to be constitutionally invalid as the court retained a power to grant a stay in the event of fundamental unfairness. The circumstances did not warrant a permanent stay of the proceedings.

Court Disposition

Appeal dismissed (grant of leave confined to grounds 1-5); orders of primary judge affirmed.

Orders

  • Grant leave to appeal confined to grounds 1-5.
  • Dismiss the appeal.