R v Sami Kurdi

[2009] NSWDC 363

Reported Decision: 10 DCLR (NSW) 115

District Court

CITATION:	R v Sami KURDI [2009] NSWDC 363
JUDGMENT DATE:	11 November 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The application is rejected.
CATCHWORDS:	CRIMINAL LAW - s 294B(3) Criminal Procedure Act 1986 - application by defence that complainant not give evidence via CCTV - "special reasons in the interest of justice"
LEGISLATION CITED:	Criminal Procedure Act 1986 s 294B(3)
CASES CITED:	R v Sudath [2008] NSWCCA 207
PARTIES:	Regina Sami Kurdi
FILE NUMBER(S):	2009/8389
COUNSEL:	Mr E Moberley Mr M Thangoraj
SOLICITORS:	Director of Public Prosecutions NSW Watsons

JUDGMENT
1. These are proceedings in respect of a prescribed sexual offence. Accordingly under s 294B(3) of the Criminal Procedure Act 1986 the complainant, if called as witness, is entitled to give evidence by means of closed circuit television facilities. The complainant in this case has so elected, thereby exercising her entitlement.

2. Mr Thangaraj who appears for the accused has applied under section 294B for an order that the complainant not give her evidence by means of closed circuit television facilities. Mr Moberley who appears as Crown Prosecutor opposes that application.

3. A court may make such an order “only if it is satisfied that there are special reasons, in the interests of justice, for the complainant’s evidence not to be given by such means”: see s 294B(6). Mr Thangaraj argues that this is a case where the circumstances are such that I should exercise my discretion.

4. His client faces 28 charges. Six of those are prescribed sexual offences. The charges, it is common ground, arise out of a relationship between the complainant and the accused which went on for some years. It involved consensual sexual intercourse at various stages. The charges on the indictment not only include the six prescribed sexual offences which I have referred to but charges such as assault and demanding money with menaces and assault occasioning actual bodily harm. All of those charges are ones in respect of which the complainant is the alleged victim.

5. Mr Thangaraj argues that his cross-examination will be stilted and his client will be deprived of his right to be confronted by his accuser. He points out that my discretion should be excited in this case by two principal factors. One is that the offences occurred in the context of a very lengthy relationship which included a consensual sexual relationship. The second factor is that the significant majority of the charges on the indictment are not prescribed sexual offences.

6. The fact that his client is not confronted by his accuser and that cross-examination will be rendered more difficult do not, in my opinion, amount to special reasons in the interests of justice to order that the facilities not be used. I am not suggesting that Mr Thangaraj urged me to accept that proposition but it seems to me that those are consequences which flow naturally from the operation of the statutes as Mr Moberley pointed out.

7. The purpose of the legislation was referred to in R v Sudath [2008] NSWCCA 207. In a judgment of the Chief Judge at Common Law, with whom Hidden J and Fullerton J agreed, his Honour said at [29] that it was “because of the personal trauma likely to be experienced by a complainant when giving evidence that s 294B was enacted.”

8. In my opinion the submissions of Mr Thangaraj would involve an inappropriate isolation of those charges on the indictment involving prescribed sexual offences. The personal trauma which the legislature is attempting to reduce would, in my opinion, still be experienced by the complainant in this case because of the nature of many of the other allegations involving violence or threatening behaviour.

9. The fact that the allegations are in the context of a lengthy relationship which includes consensual sexual relations is also not in my opinion a special reason which would warrant, in the interests of justice, me dispensing with the use of the facilities. Many cases involve lengthy consensual sexual relationships. Indeed Sudath was a case involving violence within a marriage.

10. In my opinion there is nothing in this case which would satisfy me that there are special reasons in the interests of justice for the complainant’s evidence not to be given by closed circuit television facilities. For these reasons I ruled yesterday that Mr Thangaraj’s application would be rejected.

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