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District Court 20 April 2009

R v Peter James DAY [1]

[2009] NSWDC 360

Sexual offences
CRIMINAL LAW JUDGMENT PRESCRIBED SEXUAL OFFENCES

Citation: R v Peter James DAY [1] [2009] NSWDC 360
Court: District Court of New South Wales
Date: 20 April 2009
Judge(s): Berman SC DCJ

Background

The accused faced a charge that included, as one of its elements, an alleged intention to kidnap a named complainant. Because an offence under section 86 of the Crimes Act 1900 (and offences involving an intention to commit it) falls within the definition of a "prescribed sexual offence" under the Criminal Procedure Act, the complainant was entitled to give her evidence via closed-circuit television (CCTV) rather than in open court.

Defence counsel brought an application seeking an order that the complainant give her evidence in court in person instead. The application required the court to be satisfied that there were "special reasons in the interests of justice" to depart from the default CCTV arrangement, as required by section 294B of the Criminal Procedure Act.

The Crown alleged that the complainant had been targeted by a man with a sexual interest in her, and that two men attempted to invade her home in order to kidnap her. The complainant had also, in earlier Local Court proceedings, admitted to having told police untruths on two occasions.

  • Whether "special reasons in the interests of justice" existed under section 294B of the Criminal Procedure Act to require the complainant to give evidence in court rather than by CCTV.
  • Whether the less intimate nature of the evidence in a kidnapping case (compared with more typical prescribed sexual offence proceedings) could constitute a special reason.
  • Whether prior admissions by the complainant of lying to police were relevant to the application.
  • Whether jury assessment of demeanour and the encouragement of truthfulness provided special reasons to require in-court evidence.

Decision

The court rejected each of the grounds advanced by the defence, both individually and cumulatively. It accepted that the complainant's distress and embarrassment would likely be less than in a case involving direct sexual acts, but noted that the alleged circumstances of the kidnapping attempt were still inherently distressing. The court found that the relative rarity of kidnapping as a prescribed sexual offence, compared with more typical sexual assault charges, could not itself constitute a special reason.

On the demeanour argument, the court declined to accept that a jury is better placed to assess a witness's demeanour when that witness appears in court compared with giving evidence by CCTV. The court observed that a CCTV feed allows the jury to see the witness's face in close-up and in greater detail than if the witness were physically present in the courtroom. The ability to adjust camera distance to capture more of the witness's body further addressed any concern about limited visibility.

The court also rejected the submission that witnesses are more likely to tell the truth when physically confronted with the person about whom they are giving evidence. It found no basis in experience, reading, or knowledge to support that proposition.

Finally, regarding the complainant's prior admissions of lying to police, the court noted that such matters are commonplace and regularly give rise to applications under section 38 of the Evidence Act 1995. There was nothing special about that feature of this case. Taking all the grounds together, the court found that they were either commonplace, inherent in CCTV cases generally, or arose merely from the unusual nature of the offence type rather than from any special circumstance in the interests of justice.

Orders Made

  • The application for the complainant to give evidence in court rather than by CCTV was refused.

Key Takeaways

  • Under section 294B of the Criminal Procedure Act, a complainant in proceedings involving a prescribed sexual offence is entitled to give evidence by CCTV unless the court is satisfied there are "special reasons in the interests of justice" to depart from that default.
  • The District Court confirmed that the relative rarity of a prescribed sexual offence (such as kidnapping) compared with more typical sexual offences does not, of itself, constitute a special reason.
  • Grounds that are commonplace or inherent in any CCTV evidence situation, including concerns about demeanour assessment and witness truthfulness, will not readily meet the "special reasons" threshold.
  • A complainant's prior admissions of lying to police, while relevant to credibility, are not unusual in proceedings of this kind and do not, without more, amount to a special reason in the interests of justice.
  • In assessing an application of this kind, the court looks at all advanced grounds cumulatively, not in isolation, but even in combination the grounds here fell short of what the provision requires.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act (NSW), section 294B (prescribed sexual offences and CCTV evidence)
- Crimes Act 1900 (NSW), section 86 (kidnapping)
- Evidence Act 1995 (NSW), section 38 (unfavourable witnesses)
- Justices Act 1902 (NSW), section 43(e)(a)

Cases:
No cases were cited in the judgment.