AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 22 June 2020

R v Cannon

[2020] NSWDC 327

Sexual offences

Citation: R v Cannon [2020] NSWDC 327
Court: District Court of New South Wales
Date: 22 June 2020
Judge: Bennett SC DCJ

Background

The accused faced 16 charges of sexual assault involving a child complainant, alleged to have occurred across multiple locations between January 2017 and July 2018. The charges included acts of indecency, sexual intercourse with a person under 16, and attempted sexual intercourse. The complainant was between 13 and 14 years of age at the relevant times.

The two families were closely connected: the accused's long-term de facto partner and the complainant's mother were best friends, and the accused had spent time alone with the complainant across several households. The complainant's evidence was to be presented to the jury entirely by way of pre-recorded audio-visual recordings, including electronically recorded interviews and pre-recorded examination-in-chief and cross-examination.

Before the evidence was played, the accused's counsel applied for an order permitting the accused's de facto partner to remain in the courtroom during the presentation of that evidence. The Crown opposed the application, and the complainant did not consent to it.

  • Whether section 291 of the Criminal Procedure Act 1986 requires the complainant's pre-recorded evidence to be heard in camera even when the complainant is not physically present in court.
  • Whether the circumstances advanced by the accused constituted "special reasons in the interests of justice" sufficient to justify a direction that the evidence be heard in open court, so as to permit the accused's partner to remain present.

Decision

The court confirmed that section 291 applies to these proceedings and that the default position is that the complainant's evidence must be heard in camera. The court rejected the argument that the in camera requirement falls away simply because the complainant's evidence is delivered by pre-recorded audio-visual recording rather than in person. The legislative protections attach to the presentation of the complainant's evidence in whatever form it takes.

The accused advanced several factors in combination to support the application: the long-term relationship between the two families, the accused's partner's existing knowledge of the complainant's identity and of the essence of the allegations, the partner's wish to support the accused, and her willingness to undertake not to disclose the complainant's identity. The court acknowledged these factors but found they did not individually or collectively amount to special reasons in the interests of justice.

Bennett SC DCJ reasoned that the legislative purpose underlying section 291 is to protect the complainant from embarrassment and humiliation, to encourage accurate and complete evidence, and to safeguard the complainant's privacy. Those purposes remain operative regardless of whether the complainant is physically present when the evidence is played. Allowing even limited access based on the closeness of the families would dissolve the legislative protection the provision was enacted to provide.

The court also noted that refusing the application did not appear to adversely affect the accused's right to a fair trial. No such argument was advanced on his behalf. His wish and that of his partner was for the comfort of her support throughout the trial, but that consideration did not meet the statutory threshold for the relief sought.

Orders Made

  • The application for the accused's de facto spouse to be present in court during the presentation of the complainant's evidence was refused.

Key Takeaways

  • Section 291 of the Criminal Procedure Act 1986 requires that any part of proceedings in which a complainant's evidence is given, including by audio-visual recording, must be held in camera unless the court directs otherwise on the application of a party.
  • A direction to proceed in open court requires "special reasons in the interests of justice." The general principle that justice should be seen to be done does not, by itself, constitute such special reasons.
  • The in camera requirement applies to the presentation of pre-recorded complainant evidence even when the complainant is not physically present in the courtroom at the time.
  • The familiarity of a proposed observer with the complainant's identity and the circumstances of the allegations does not of itself satisfy the special reasons threshold, nor does the emotional support that observer might provide to the accused.
  • Under s 291, the legislative purposes of reducing complainant embarrassment, protecting privacy, and encouraging reliable evidence continue to operate at every stage when the complainant's evidence is presented, not only at the moment the evidence is first given.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(3), 66D
- Criminal Procedure Act 1986 (NSW), s 291

Cases:
- B v Gould and the Director of Public Prosecutions (1993) 67 A Crim R 297
- Michael Graham Kennedy (1997) 94 A Crim R 341