ISSUE: 20190808- Re: ISSUE 65-RAPE litigation

As a CONSTITUTIONALIST my concern is the true meaning and application of the constitution.

* Gerrit, what is this about the rape issue?

**#** INSPECTOR-RIKATI®, as I understand it various Parliament held that it was not
appropriate for an accused to terrorize a alleged victim by self representing in litigation and then
cross examine the alleged victim while himself/herself then making an unsworn statement upon
which the accused could not be cross-examined upon. Not uncommon totally innocent matters
were then so to say blown up as if the alleged victim was one of bad reputation, etc. It is for this,
at least as I understand it that the various State parliaments decided to restrict matters. The
problem is that we have separation of powers and the Parliament must not turn a court in some
kind of STAR CHAMBER COURT.

Hansard 31-1-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE

Mr. SYMON (South Australia).-The only argument I have heard in support of the argument of my
honorable friend (Mr. Glynn) was that which O'Connell used in the House of Commons. He said that he was
concerned in a case in which a prisoner was being tried for murder. The case was tried in Ireland. The one
witness who was called for the defence was the murdered man. There was no doubt as to his identity,
but the jury found the prisoner guilty.

END QUOTE

Well we now seem to have a system that anyone accused is denied a FAIR and PROPER trial
because allegedly legislation denied a court to consider relevant details.
.
When one does cross-examine the aim is to place the evidence of the witness in question. One
one can achieve that then the jury might be swayed against the witness being questioned.

I for example had this council worker being a Law Enforcement officer, and during cross-
examination he admitted not having had any legal training. He didn’t even know the relevant
legal provisions in regard of which the litigation was held. During cross-examination he had to
admit that his earlier evidence was incorrect, etc. A person who conduct a proper cross-
examination can often expose the truth. If however as in the care below a Defendant’s legal
representatives is not permitted to expose past deceptive conduct then this denied the Accused a
FAIR and PROPER trial. The Court is then turned into some kind of a STAR CHAMBER
COURT rather then having litigation conducted in a proper manner.
While the legislation might be constitutional valid where it comes to preventing a person to
harass an alleged victim during cross-examination on the other hand I view that in the matter
referred to below the legislation would be unconstitutional as it interferes with the impartiality of
the court. The legislation in effect could and seems likely to result that an innocent person can be
wrongly convicted.
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I view that rape is a very serious matter and if we have a court system that anyone fabricating a
rape event can nevertheless get a conviction then this rather is harmful to the real victims of rape.
What appears to me is that the Parliament has overstepped its authority and dictate to the court it
must follow certain procedures and denies an accused of a FAIR And PROPER trial. That is
turning the court into a STAR CHAMBER COURT.

QUOTE
Re: Judge erred at law
7 Aug. at 4:25 pm

Mr G. H. Schorel-Hlavka O.W.B. <admin@inspector-rikati.com>

To: Joel van der Horst <joelenis@hotmail.com>

Joel,

thank you for including the article because I never have subscribed to any publisher to access their articles.

Hansard 8-2-1898 Constitution Convention Debates

QUOTE
Mr. OCONNOR.-No, it would not; and, as an honorable member reminds me, there is a decision on
the point. All that is intended is that there shall be some process of law by which the parties accused
must be heard.
Mr. HIGGINS.-Both sides heard.
Mr. OCONNOR.-Yes; and the process of law within that principle may be [start page 689] anything
the state thinks fit. This provision simply assures that there shall be some form by which a person
accused will have an opportunity of stating his case before being deprived of his liberty. Is not that a
first principle in criminal law now? I cannot understand any one objecting to this proposal.
END QUOTE

Hansard 8-3-1898 Constitution Convention Debates

QUOTE
Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the states
on terms that are just to both.
END QUOTE

Marriage of Baines (No. 2) (1981) 7 Fam LR 232 at 237;-

QUOTE

We recognise that each party is entitled to a Fair and Proper trial and to an adequate opportunity to
adduce relevant evidence and to test the quality and veracity of the evidence adduced by the other
party.

END QUOTE

Marriage of Baines (1981) 7 Fam LR 226 at 229

QUOTE
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 The adversary system involves the presentation of facts ascertained by questions put to
witnesses, or legal representations to the court. The role of the judge is that of adjudicator. This does
not mean that he can ask no questions but he is at common law restricted in that he cannot in general
call witnesses himself.

END QUOTE

While I can understand the motives of the NSW Parliament reality is that

Sorell v Smith (1925) Lord Dunedin in the House of Lords

QUOTE

In an action against a set person in combination, a conspiracy to injure, followed by actual injury, will
give good cause for action, and motive or instant where the act itself is not illegal is of the essence of
the conspiracy.”

END QUOTE

HANSARD 8-2-1898 Constitution Convention Debates

QUOTE

Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable member is quite
right in saying that it took place under the next clause; but I am trying to point out that laws would
be valid if they had one motive, while they would be invalid if they had another motive.

END QUOTE

Therefore the issue before the judge in my view was to consider if the legislation seeking to protect a alleged
victim from being unduly subjected to a cross-examination about her alleged past even if there really nothing
substantial was, versus where in this case there was clear evidence that the alleged victim might be habitually
making false claims.

In my view in this case the character of the alleged victim is relevant and hence the Court ought to have
determined so, and allowed evidence that is on court record of past trails to be submitted.

It would in my view be totally different if the alleged victim had a speeding conviction and the Defence
simply wanted to raise this as some form of bad charter in her past. However, I do not hold that in this case
the Court could exclude court records evidence of her having filed false and misleading allegations.

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 The trial judge clearly acknowledges that the man would be denied a FAIR and PROPER trial if evidence is
not allowed to be admitted and I view that thereby his own ruling indicates the accused never can obtain
JUSTICE. Therefore he should have allowed the evidence of court convictions regarding the alleged victim
where it goes directly to critical issue of the allegations.

I actually was faced with the AEC (Australian Electoral Commission) in AEC v Schorel-Hlavka on 16 & 17
November 2005 making known that I was not entitled to give a unsworn statement. I documented that into
my writings. (ADDRESS TO THE COURT) that this was done to protect victims in rape cases, where an
accused could refuse to give evidence under oath/affirmation and make a unsworn statement upon which the
accused couldn't be cross-examined. As such that denial of unsworn statement was wrongly applied in non
rape cases.

Again, I can understand that you do not want a self-represented alleged rapist being able to so to say torture a
alleged rape victim but on the other hand you neither must deny an alleged rapist (or other accused of
whatever) to be denied a FAIR and PROPER trial. I successfully appeals both cases on 19 July 2006!

While I recognise that a person having past made false allegations nevertheless can make a genuine
complaint about a real incident of rape, however it is for the jury to decide upon the evidence and the
demeanour of both the alleged victim and the accused who they decide to be more credible.

Thanks for your question.

Gerrit

---
Mr G. H. Schorel-Hlavka O.W.B.
MAY JUSTICE ALWAYS PREVAIL®
107 Graham Road
Viewbank 3084, Victoria, Australia

Author of INSPECTOR-RIKATI® books on certain constitutional and other

legal issues.

THE MORAL OF A SOCIETY CAN BE MEASURED BY HOW IT PROVIDES FOR THE

DISABLED

On 2019-08-07 10:42, Joel van der Horst wrote:

Hi Gerrit,
My wife subscribes to the Australian newspaper and this article is behind a paywall so I'm posting it here for
you:
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 Judge calls rape case evidence law an 'affront to justice'
The judge said the law caused "significant unfairness" to the accused.
 EXCLUSIVE
NICOLA BERKOVIC

 AN HOUR AGO AUGUST 7, 2019

A man accused of rape will be forced to defend himself in court without being allowed to tell the jury about
the alleged victim's history of making false allegations to police, in a situation the judge has labelled an
"affront to justice".

A NSW judge has called for law reform after he was forced to exclude the evidence from the man's trial
because it was caught by strict state legislation aimed at protecting rape victims from being cross-examined
on their sexual history.

He joins at least three other judges who have called for the legislation to be reformed to give courts a wider
discretion to allow evidence to prevent an injustice.

The regional NSW woman had accused the man of raping her.

The man, known as "RB", denied the allegations. He argued he should be allowed to introduce evidence of 12
incidents in which the woman made false complaints about sexual abuse.
This included two separate incidents in which she made false reports to police, prompting sexual assault
investigations that ended in her admitting her allegations were fabricated.

After the second incident, she was charged and pleaded guilty to making a false report to police.

The judge said the history of false complaints was relevant to the trial, but he could not allow the evidence to
be introduced because it was caught by section 293 of the Criminal Procedure Act. The section was
introduced to stop "offensive and demeaning" cross-examination related to a complainant's sexual history.

RB conceded the evidence was caught by the legislation, but argued it was constitutionally invalid because it
required the court to follow a procedure incompatible with a fair trial. Alternatively, he said his trial should
be permanently stayed. The judge rejected these arguments and declined to grant the stay, finding the
legislation was constitutionally valid and he was bound to enforce it and to follow precedents set by higher
courts.

He said the law caused "significant unfairness" to the accused.

"That unfairness is real and not illusory," he said.

"It prevents the accused from placing before the jury relevant evidence (past fabrications) which is capable of
going directly to an issue in the trial, namely the honesty and reliability of the complainant. It prevents the
accused from showing the complainant to be a compulsive false accuser of sexual misconduct."

He said it was not for him to decide that the balance struck by parliament between competing public interests
in sexual assault cases was inappropriate or unfair.

"To do so would be to interfere with a constitutionally valid substantive law enacted by parliament," he said.

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 Instead, he called on parliament to consider amending the legislation to allow evidence if it was in the
interests of justice. It could not have foreseen the facts in this case, and the injustice caused to the accused, he
said.

"It is for the parliament to consider reform and the facts of this case indicate why there should be reform."

The judge said the prosecutor's suggested approach — that the woman be cross-examined about her past
allegations to the extent they were assaults, rather than sexual assaults — would be "misleading to the
extreme" and "give a false picture to the jury".

"The prosecutor, defence counsel, the witness and the judge would know that the conduct was a falsity of
rape by a made-up person but the jury would be denied this information in their decision-making process by -
reason of the exclusionary nature of s293," he said. "It is an affront to justice".

Three NSW Court of Criminal Appeal judges called for the predecessor to section 293 to be reformed as far
back as 1993. Hansard from 1981, when the law was introduced, revealed the NSW parliament rejected
giving courts a general discretion to allow cross-examination on sexual history.

NSW Attorney-General Mark Speakman said: "The Office of General Counsel ... will examine the (latest)
judgment in detail."

I'm of the opinion that actually the NSW law IS unconstitutional as it violates the separation of powers, due
process, right to a fair trial etc guaranteed in Chapter 3 of the Commonwealth Constitution. I don't believe
Parliament can pass a law unilaterally overiding the right of the Court to determine a matter in line with the
express rights of Chapter 3.
What are your thoughts? (certainly these judges have little constiutional training one would feel)
Also, I've noticed judges use this argument about "parliamentary sovereignty" a lot based on the Act of
Settlement. Yet they then go and dispense with the Bill of Rights 1688 which gave authority to the Act of
Settlement. What are your thoughts on that?

Blessings,

Joel

P.S. How's your Australian of the year situation going?

END QUOTE

* It seems to me that the State parliaments should avoid dictating judges how they should decide
a matter.
**#** Indeed, they judiciary cannot be forced to deny proper litigation procedures because the
Parliament so to say went overboard. It is one thing seeking to protect an alleged victim from
harassment during cross examination and inappropriate motives having been pursued during
cross-examination however, one cannot deny a person to challenge the character of the alleged
victim in particular where it is a matter of record that the alleged victim has previously made
false allegations to whomever. As I indicated this alleged victim may very well have been raped
but so to say her past simply is catching up with her having made previously false allegations. I
consider rape to be a very serious matter but here we seem to have a person who undermined the
very protection the Parliament sought to provide to rape victims. It are those who make false
allegations who are undermining the security real rape victims are entitled upon. In my view the
Parliament should not deny a trial judge the right to determine what the trial judge consider
appropriate in the circumstances. The separation of powers means that while the parliament can
prescribe certain legal provisions for the courts to work within on the otherhand it must not
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create a system where knowingly an innocent accused can end up being convicted because of
undue interferences by the Parliament. If the Parliament can do this with rape cases when it could
very well do this with say where someone was to litigate against the State that it then denies a
person to file certain adverse details against the State in clear violation of the legal principles
embedded in our federal constitution in which within Section 106 the States are created “subject
to this constitution” and so bound by the legal principles embedded in it.
* Do you view the case should be allowed to proceed as is?
**#** In my view the trial judge ought to stay proceedings pending the parliament to address the
matter in question as I do not accept that a judge could proceed with a case where he himself
holds the accused is denied a FAIR and PROPER trial.
We need to return to the organics and legal principles embed in of our federal constitution!
This correspondence is not intended and neither must be perceived to state all issues/details.
Awaiting your response, G. H. Schorel-Hlavka O.W.B. (Gerrit)
MAY JUSTICE ALWAYS PREVAIL® (Our name is our motto!)

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