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District Court 17 September 2008

R v Md Kowser ALI

[2008] NSWDC 318

Sexual offences
CRIMINAL LAW JUDGMENT

Citation: R v Md Kowser ALI [2008] NSWDC 318
Court: District Court of New South Wales
Date: 17 September 2008
Judge(s): Berman SC DCJ

Background

The accused was tried and convicted on three counts of sexual assault. The complainant, a 19-year-old woman, had been the victim of an assault by a taxi driver when she was 18 years of age. At the commencement of the trial, the court had made an order under s 292 of the Criminal Procedure Act 1986 prohibiting publication of any material that may identify or tend to identify the complainant.

Following the verdict, Nationwide News (on behalf of the Daily Telegraph) applied to have that suppression order revoked. The complainant had signed a written consent authorising the Daily Telegraph to identify her in reports and photographs, and the application was made on the same day the verdict was delivered.

The court was required to determine whether to revoke the suppression order in circumstances where the complainant had consented and where the public interest considerations under the relevant legislation were engaged.

  • Whether the suppression order made under s 292 of the Criminal Procedure Act 1986 should be revoked following the complainant's written consent to publication of her identity.
  • Whether publication of the complainant's name was in the public interest, as required before the court could decline to revoke the order.
  • Whether the default position under the legislative scheme favoured publication, subject to specific conditions being met.

Decision

The court began by examining s 578A of the Crimes Act 1900, which prohibits identification of complainants in prescribed sexual offence proceedings unless certain exceptions apply. One such exception is publication made with the consent of a complainant who was 14 years of age or older at the time of publication. The complainant was 19, and her written consent was before the court. The statutory prohibition therefore did not apply.

The court then turned to s 292 of the Criminal Procedure Act 1986. His Honour observed that the section is framed so that publication is the default position. An order restricting publication is only to be made, or continued, where the court is satisfied that publication is not in the public interest. To maintain the existing suppression order, the court would need to be satisfied of that negative proposition.

His Honour acknowledged candidly that the decision was not without complexity. There was, he observed, a real and understandable risk that the complainant, aged only 19, might in later life regret her decision, given that a simple internet search of her name would permanently associate her with the assault. However, the court did not regard that risk as sufficient to override her informed, contemporaneous consent.

The court made a positive finding that publication was in the public interest. It reasoned that there remains a community attitude, which ought to be challenged, that victims of sexual assault should feel shame. Publication by a consenting, blameless victim was identified as one means of countering that attitude. The complainant was entitled to hold her head high and identify herself publicly if she chose to do so. The suppression order was accordingly revoked.

Orders Made

  • The application to revoke the order made under s 292 of the Criminal Procedure Act 1986, prohibiting publication of material identifying the complainant, was granted.
  • The suppression order was revoked, permitting publication of the complainant's name and identifying information.

Key Takeaways

  • Under s 292 of the Criminal Procedure Act 1986, publication is the default position. A court can only maintain a suppression order where it is affirmatively satisfied that publication is not in the public interest.
  • Where a sexual assault complainant is 14 years of age or older and gives informed written consent to publication, the prohibition in s 578A of the Crimes Act 1900 does not apply, and the principal remaining question is the public interest test under s 292.
  • The District Court held that a consenting adult complainant's wish to be publicly identified as a blameless victim of sexual assault can itself constitute a positive public interest in favour of publication, particularly where publication challenges lingering community attitudes that victims should feel shame.
  • Potential future regret on the part of a complainant who consents to publication does not, of itself, require a suppression order to be maintained. The court treated contemporaneous, informed consent as the central consideration.
  • The decision is confined to its particular facts, including the complainant's age, the existence of clear written consent, and the specific statutory framework engaged. It does not establish a general principle that suppression orders in sexual assault proceedings must always be revoked upon request.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 292
- Crimes Act 1900 (NSW), s 578A

Cases cited: None cited in the judgment.