R v Md Kowser ALI

[2008] NSWDC 318

CITATION:	R v Md Kowser ALI [2008] NSWDC 318
HEARING DATE(S):	9 September 2008 - 11 September 2008 16 September 2008 - 17 September 2008
JUDGMENT DATE:	17 September 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The application to revoke the order under s 292 Criminal Procedure Act to allow the publicaiton of the complainant's name is granted.
CATCHWORDS:	Criminal law - Judgment - Application to publish complainant's name - Publication of complainant's name in the public interest
LEGISLATION CITED:	Criminal Procedure Act 1986 Crimes Act 1900
PARTIES:	The Crown Md Kowsar Ali
FILE NUMBER(S):	DC 2008/11/0298
COUNSEL:	S Huggett (Crown) L McSpedden (Defendant) T. Maltz (Applicant/ Nationwide News)
SOLICITORS:	NSW DPP McGowan Lawyers (Defendant)

JUDGMENT

1 HIS HONOUR: At the commencement of the trial of Mr Ali I made an order prohibiting publication of any evidence which may identify or tend to identify the alleged victim in this case, Ms Loiterton. The trial has now concluded with findings of guilt in relation to the three sexual assault matters alleged against the accused. That would ordinarily be the end of my involvement in the matter until sentence proceedings but the matter has been brought back before me because an application was made on behalf of the Daily Telegraph that I revoke the order I earlier made under s 292 of the Criminal Procedure Act. Tendered before me was a photocopy of a document. It is agreed that it was signed by Ms Loiterton. She says “I give my permission for the Daily Telegraph to identify me in reports and photographs”. It is dated today.

2 Let me begin by looking at s 578A of the Crimes Act. That section prohibits publication of any matter which identifies the complainant in prescribed sexual offence proceedings unless one of a number of circumstances apply. The section does not apply to a publication made with consent of a complainant, being a complainant who was of or over the age of fourteen years at the time of publication. Ms Loiterton is nineteen. Thus the Daily Telegraph is entitled to publish Ms Loiterton’s name if I revoke the order I made under s 292 and thus that is the application that has been made on its behalf.

3 It is no light matter to identify someone as a victim of sexual assault. Nor is it a light matter to be identified as the victim of sexual assault. Once publication is made in these days of ready internet access Pandora’s box has been opened. Ms Loiterton will, if I grant the application, be forever more easily identifiable as the victim of a sexual assault. She is nineteen now and it would be entirely within my understanding of human nature that she may, in years to come, regret that she gave permission to her identity being published.

4 When this application was made she had left court and, as I understand it, was almost at home. She was prepared to come back in if necessary. I did not find it necessary to ask her to come back in. I will, however, proceed on the basis that there is a significant risk that Ms Loiterton may come to regret what will probably turn out to be the case later on in life, that is that a simple Google search of her name will reveal that she was raped by a taxi driver when she was eighteen years of age.

5 One of the things that I need to consider when making an order under s 292 of the Criminal Procedure Act, and necessarily therefore when considering whether to revoke such an order, is the public interest in the publication of Ms Loiterton’s name. Indeed I am not to make an order unless I am satisfied that publication is not in the public interest. The way that that is phrased in the negative is important. The default position is publication. Only when I have considered the views of the complainant and also when publication is not in the public interest do I make an order under s 292. To continue an order under s 292 by failing to revoke it I must also be satisfied that publication is not in the public interest.

6 There is a public interest in overcoming what seems to have been the community attitude for many years that victims of sexual assault should be ashamed. That is not the case at all. Although I have not heard submissions on sentence yet I anticipate that when I do sentence the offender I will be making some comment concerning the complete lack of blame which should be attributed to Ms Loiterton and her friends. Victims of robberies are not ashamed, victims of frauds may be embarrassed that they have been duped but their names are still published. Why should a person in Ms Loiterton’s position, entirely blameless who has been preyed upon by a taxi driver, feel embarrassed at what happened to her.

7 There is a public interest in overcoming what remains of community attitudes which suggest that people in Ms Loiterton’s position should be ashamed. I am satisfied that far from this being a case where publication is not in the public interest I make a positive finding that it is in the public interest for a victim of sexual assault who consents to her name being published having her name being published. Ms Loiterton should not, by implication, be forced to hide away, embarrassed about what has happened to her. She is entitled to hold her head up high and identify herself as a blameless victim of sexual assault. The order I made prohibiting publication of any evidence which may identify Ms Loiterton or tend to identify her is revoked.

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