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District Court 11 November 2009

R v Sami KURDI

[2009] NSWDC 363

Sexual offencesAssault & violence
CRIMINAL LAW S 294B(3) CRIMINAL PROCEDURE ACT 1986

Citation: R v Sami Kurdi [2009] NSWDC 363
Court: District Court of New South Wales
Date: 11 November 2009
Judge(s): Cogswell SC DCJ

Background

The accused faced 28 charges arising from a relationship with the complainant that spanned several years. Six of those charges were prescribed sexual offences under the indictment. The remaining charges included assault, assault occasioning actual bodily harm, and demanding money with menaces. The complainant was the alleged victim across all charges.

The complainant elected to give evidence via closed circuit television (CCTV), as she was entitled to do under section 294B(3) of the Criminal Procedure Act 1986. Defence counsel applied for an order that she instead give evidence in the ordinary way, directly in the courtroom.

  • Whether the court should make an order under section 294B of the Criminal Procedure Act 1986 directing that the complainant not give evidence via CCTV facilities
  • Whether the circumstances of this case, specifically the lengthy consensual relationship and the predominance of non-sexual charges, constituted "special reasons, in the interests of justice" sufficient to displace the complainant's entitlement to use CCTV

Decision

Under section 294B(6), a court may only override a complainant's entitlement to give evidence via CCTV if it is satisfied there are "special reasons, in the interests of justice" for doing so. The defence argued two principal factors: the charges arose from a long relationship that included consensual sexual activity, and the majority of the 28 charges were not prescribed sexual offences.

Cogswell SC DCJ rejected both arguments. The fact that cross-examination might be more difficult and that the accused would not physically confront his accuser were consequences flowing naturally from the operation of the statute, not special reasons justifying departure from it.

The court also declined to treat the non-sexual charges as a basis for isolating and diminishing the CCTV entitlement. Given the nature of the remaining charges, which involved allegations of violence and threatening behaviour, the personal trauma the legislation was designed to reduce would still be present for the complainant. The court drew on the Court of Criminal Appeal's reasoning in R v Sudath, which had confirmed that section 294B was enacted specifically to address the trauma complainants face when giving evidence.

The court further noted that the existence of a prior consensual sexual relationship did not constitute a special reason. Many cases involving such relationships come before the courts, and Sudath itself concerned violence within a marriage.

Orders Made

  • The defence application for the complainant to give evidence other than by CCTV facilities was rejected.

Key Takeaways

  • Under section 294B(6) of the Criminal Procedure Act 1986, a court can only displace a complainant's CCTV entitlement where "special reasons, in the interests of justice" are established. This is a demanding threshold.
  • The inherent difficulties for the defence in cross-examining a witness via CCTV, including the absence of direct physical confrontation, do not in themselves constitute special reasons sufficient to override the statutory entitlement.
  • Where an indictment combines prescribed sexual offences with other charges involving violence or threatening conduct, a court will not isolate the sexual offence charges to reduce the weight of the CCTV entitlement. The personal trauma the provision addresses may persist across the full range of such charges.
  • A prior consensual sexual relationship between the complainant and the accused is not, without more, a special reason justifying departure from the CCTV provisions.
  • The District Court confirmed that the purpose of section 294B, as articulated by the Court of Criminal Appeal in R v Sudath, is to reduce the personal trauma likely to be experienced by complainants when giving evidence.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), section 294B(3) and (6)

Cases
- R v Sudath [2008] NSWCCA 207