Citation: R v James Duncan SMITH [2009] NSWDC 244
Court: District Court of New South Wales
Date: 6 May 2009
Judge(s): Cogswell SC DCJ
Background
The accused faced a jury trial in the District Court. The Crown sought to call a sixteen-year-old witness to give tendency evidence, meaning evidence of prior alleged conduct by the accused used to establish a pattern of behaviour. The evidence was expected to concern alleged sexual assaults committed by the accused against that witness.
The witness had previously appeared as the complainant in a separate, earlier prosecution of the same accused. That earlier prosecution resulted in a conviction. Because she was a complainant in those proceedings, she had given her evidence in camera (in a closed court) under section 291 of the Criminal Procedure Act 1986.
The Crown Prosecutor applied under section 291A of the same Act for a direction that the current proceedings also be held in camera during her evidence.
Legal Issues
- Whether the court should exercise its discretion under section 291A of the Criminal Procedure Act 1986 to direct that proceedings be held in camera during the evidence of the sixteen-year-old witness.
- Whether the witness's prior status as a complainant entitled to a closed court was relevant to that exercise of discretion in the current proceedings, where she was not a complainant but a tendency witness.
Decision
Cogswell SC DCJ granted the application. The court reasoned that Parliament's rationale for requiring complainants in sexual assault proceedings to give evidence in camera applied with equal force to the present situation. The witness had previously been entitled to that protection as a complainant and was now giving evidence of substantially similar alleged conduct in separate proceedings involving the same accused.
The court did not set out an extended legal analysis but applied a purposive approach, treating the underlying parliamentary policy as sufficient justification for extending the in camera protection in these circumstances.
One exemption was made to the direction. The witness's grandmother, identified by the Crown Prosecutor as a support person, was permitted to remain in the courtroom during the evidence.
Orders Made
- Direction made under section 291A of the Criminal Procedure Act 1986 that the proceedings be held in camera during the evidence of the witness.
- The witness's grandmother, as identified support person, was exempted from the in camera direction.
Key Takeaways
- The District Court held that a witness who was previously a complainant in related proceedings, and who was entitled to give evidence in camera under section 291 in those proceedings, may be afforded equivalent protection under section 291A when giving similar evidence in subsequent proceedings as a tendency witness.
- Under section 291A of the Criminal Procedure Act 1986, the court has a discretion to direct that proceedings be held in camera, and that discretion can be informed by the parliamentary policy underlying the specific complainant protections in section 291.
- The fact that a witness is not technically a "complainant" in the current proceedings does not automatically foreclose an in camera direction where the nature of the evidence and the witness's circumstances closely resemble those Parliament intended to protect.
- A support person can be expressly exempted from an in camera direction, confirming that such directions need not be absolute and can accommodate the particular needs of vulnerable witnesses.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 291 (evidence of complainants in camera)
- Criminal Procedure Act 1986 (NSW), s 291A (discretionary in camera direction)
Cases cited: None cited in the judgment.