R v James Duncan Smith - [2009] NSWDC 411

NEW SOUTH WALES DISTRICT COURT

CITATION:
R v James Duncan SMITH [2009] NSWDC 411

FILE NUMBER(S):
2007/113560

HEARING DATE(S):

JUDGMENT DATE:
11 May 2009

PARTIES:
Regina
James Duncan Smith

JUDGMENT OF:
Cogswell SC DCJ

COUNSEL:
Mr J Gibson
Mr G Porter

SOLICITORS:

CATCHWORDS:
CRIMINAL LAW
jury note
evidence of complainant in trial given according to s 306U of Criminal Procedure Act 1986
jury note requesting transcript of complainant's interview with police
discussion of authorities

LEGISLATION CITED:
Criminal Procedure Act 1986 s 306B, s 306I, s306U
Evidence (Children) Act 1997

CASES CITED:
Gately v the Queen (2007) 232 CLR 208
R v NZ (2005) 63 NSWLR 628

TEXTS CITED:

DECISION:
I will provide the jury with a transcript not only of the record of interview with the police but with a transcript of the evidence-in-chief, cross-examination and re-examination of the complainant which was given at the previous trial.

PUBLICATION RESTRICTION:
Statutory non-publication of the identity of the complainant.

JUDGMENT:

JUDGMENT

In the course of this trial I received a note from the jury which I marked for identification 6. The note reads:
“Your Honour I would like to request a copy of the transcript of the record of interview DVD of [the complainant].”

[The complainant] is the complainant in this case. As I have made clear to anybody in the court, her name is not to be published outside the court, nor is she to be identified in any other way. This was a trial that - sorry it was three zero - what was the section?

CROWN PROSECUTOR: 306 capital ‘I’ was it?

HIS HONOUR: Capital ‘I’. Yes it’s not after a new trial being ordered is it, it’s a--

CROWN PROSECUTOR: No your Honour.

HIS HONOUR: And Mr Gibson the complainant’s evidence was admitted under 306U wasn’t it?

CROWN PROSECUTOR: The pre-trial, the recorded pre-recorded interview yes.

HIS HONOUR: Correct.

CROWN PROSECUTOR: That’s right.

HIS HONOUR: I will return to the judgment now.

In this trial the complainant’s evidence was admitted pursuant to a number of provisions of the Criminal Procedure Act 1986. Under s 306U the complainant, who was at all relevant times a child, gave evidence in chief partly in the form of a recording made by an investigating official of an interview between the complainant and the official.

That interview was recorded on video tape; the video tape was marked for identification 2 and played to the jury. The jury were supplied with copies of the transcript of that interview which they had access to during the recording but the transcripts were returned at other times. In addition, because this was a re-trial, the Crown Prosecutor elected to use the provisions of s 306I of the Criminal Procedure Act and tendered as evidence in these proceedings, a record of the original evidence of the complainant. The complainant had given evidence in a previous trial. That evidence was given on 12 February 2009. The record was in the form of a DVD and it too was marked…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v James Duncan Smith

Details

AGLC: R v James Duncan Smith [2009] NSWDC 411
Case: [2009] NSWDC 411
Decision Date: 11 May 2009

CaseChat Overview and Summary

In the case of R v James Duncan Smith, the defendant was charged with serious criminal offences, the specifics of which are not detailed in the summary. The dispute centred around the manner in which evidence from the complainant was presented to the jury, particularly in relation to a previous trial. The matter was heard in a relevant court, the details of which are not specified. The crux of the issue was whether the jury should be provided with additional documentary evidence from the complainant, beyond what was initially stipulated.

The legal issues that the court had to decide involved the scope and extent of documentary evidence that should be made available to the jury when the complainant's evidence is given under section 306U of the Criminal Procedure Act 1986. Specifically, the court had to consider whether the jury should be provided with a transcript of the complainant's evidence-in-chief, cross-examination, and re-examination, in addition to the record of interview with the police, as requested by the jury. This required a careful analysis of the relevant statutory provisions and case law on the matter.

The court, after a detailed discussion of the authorities, concluded that the jury should indeed be provided with the full scope of the documentary evidence requested. The reasoning was based on the need to ensure the jury had all necessary information to properly assess the credibility and reliability of the complainant's evidence. The court held that the provision of such comprehensive documentary evidence was consistent with the principles of fairness and the proper administration of justice.

The court ordered that the jury be provided with a transcript of not only the record of interview with the police but also the evidence-in-chief, cross-examination, and re-examination of the complainant as given at the previous trial. This order was made to ensure that the jury had all relevant information at their disposal to reach a fair and just verdict.

Orders

Orders of the court

I will provide the jury with a transcript not only of the record of interview with the police but with a transcript of the evidence-in-chief, cross-examination and re-examination of the complainant which was given at the previous trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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