R v Peter James Day [1]

[2009] NSWDC 360

CITATION:	R v Peter James DAY [1] [2009] NSWDC 360
HEARING DATE(S):	20 April 2009
EX TEMPORE JUDGMENT DATE:	20 April 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Application is refused
CATCHWORDS:	CRIMINAL LAW - Judgment - Application for complainant to give evidence in Court - Special reasons in the interest of justice - Prescribed sexual offences
LEGISLATION CITED:	Crimes Act 1900 Evidence Act 1995 Justices Act 1902
PARTIES:	The Crown Peter James Day
FILE NUMBER(S):	07/21/3387
COUNSEL:	E Balodis - Crown P. King - Accused
SOLICITORS:	Director of Public Prosecutions Matouk Joyner Lawyers - Accused

JUDGMENT

1 HIS HONOUR: The accused is charged with an offence which has as one of its elements an allegation that he intended to kidnap a person by the name of RM. For that reason, the offence is a prescribed sexual offence within the meaning given to those terms in the Criminal Procedure Act.

2 That has a number of consequences in relation to the way the trial is to be held. In particular, it has an impact on the way in which the evidence of Ms M is to be given. The complainant is entitled to give evidence by way of closed-circuit television facilities unless I am satisfied that there are special reasons in the interests of justice for her evidence not to be given by those means.

3 Mr King, on behalf of the accused, suggests that there are special reasons in the interests of justice that Ms M be required to give her evidence in court. He has not been able to find any authority dealing with the phrase "special reasons in the interests of justice" as they appear in s 294B of the Criminal Procedure Act but has helpfully referred to a similar expression in s 43(e)(a) of the Justices Act. It must be remembered, however, that the purposes of s 43(e)(a) of the Justices Act are different to the purposes for which s 294B was enacted.

4 It is generally the case that complainants involved in proceedings defined as prescribed sexual offences give evidence about sexual matters and the focus of the second reading speech in the Legislative Council was on such more common cases but Parliament has specifically prescribed that an offence under s 86 of the Crimes Act is a prescribed sexual offence as are offences that include an intention to commit that offence or an offence of attempting or conspiring or inciting to commit that offence.

5 Thus, whilst it is more usual for complainants who seek to give their evidence by way of closed-circuit television to be giving evidence about intimate sexual matters, that is only because such cases come before the courts more often than offences of kidnapping.

6 It cannot be a special reason under s 294B(6) that the offence the subject of the present proceedings is one which is less usual than other offences caught by the definition of prescribed sexual offence. However, I accept Mr King's submission that a relevant matter in deciding whether there are special reasons is that Ms M will not be required to give evidence about particular sexual acts forming the basis of an alleged offence.

7 It is safe to assume that her distress and embarrassment will be less than if she was giving evidence of that type. On the other hand, the circumstances of this offence as alleged by the Crown are that Ms M was to be kidnapped by a man who had a sexual interest in her, that she was present in her home when two men attempted to invade those premises for the purposes of kidnapping her so one can easily imagine that Ms M will be required to give evidence about events which she finds distressing.

8 It was also said by Mr King that Ms M has earlier admitted to lying. A transcript of proceedings in the Local Court was tendered to me in which Ms M admits to having told police on two occasions things which were not true. She admitted to lying to police about those matters. I have to say that that is not at all uncommon. The courts regularly hear applications under s 38 of the Evidence Act based on such matters.

9 Mr King also suggests that in those proceedings, the magistrate took into account the demeanour of the witness, that is Ms M, That submission I reject. There is no reference to it in the magistrate's judgment and one would have safely assumed that if the magistrate took into account Ms M gave her evidence, the magistrate would have said so.

10 It may be that there was nothing in the way Ms M gave her evidence that was unusual or that assisted the magistrate. In any case, as I have said, I do not find that there was anything in the demeanour of the witness apparent in the earlier Local Court proceedings of relevance to this application.

11 Mr King says that the jury will get a better assessment of the demeanour of Ms M in giving her evidence. Of course that is invariably the case, if it is true of course, (a matter to be determined), when a witness gives evidence by way of closed-circuit television. If the factual basis for Mr King's submission is accurate then that applies in every case where a witness gives evidence by way of CCTV.

12 In any case, I do not accept that a jury will be better able to assess the demeanour of Ms M if she gives evidence in court compared to the situation of her giving evidence by way of closed-circuit television. The jury will see her face in close up, see her facial expressions in much closer detail than if the witness were actually in court.

13 Mr King says that there might be other movements of the witness which are not apparent. If that is the case then the court could always ask Ms M to sit further away from the camera so that more of her body is visible. In any case, I do not accept the assumption behind Mr King's submission. I do not accept that one is able to better assess the demeanour of a witness in court than if the witness gives evidence by way of closed-circuit television.

14 Mr King also says that it is important in encouraging Ms M to tell the truth that she is face to face with the accused. Once again, that is not anything special about this case. Once again, the assumption behind the submission has not been proved. There is nothing in my experience or reading or knowledge to suggest that witnesses are more likely to tell the truth when they are able to view the person about whom they are giving the evidence than otherwise.

15 It is not the case that I should go through each reason advanced by Mr King and decide whether it alone is special or whether it alone suggests that the interests of justice require the witness give her evidence in court. I look at all of the matters advanced by Mr King. All of them, when taken together, may, in an appropriate case, amount to something which is accurately described as special but that is not this case.

16 I am satisfied that Mr King has not demonstrated, either individually or when taken together, that the reasons he advanced are special. Certainly I do not find that they are special reasons in the interests of justice. The matters relied on by Mr King are either commonplace, inherent in cases where witnesses propose to give their evidence by way of closed-circuit television or where their unusual features only arise from the fact that offences of this type are less common than other offences prosecuted in the District Court. For those reasons, the application is refused.

**********