R v Cannon [2020] NSWDC 327

District Court New South Wales

Medium Neutral Citation: R v Cannon [2020] NSWDC 327 Hearing dates: 22 June 2020 Date of orders: 22 June 2020 Decision date: 22 June 2020 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: The application for the Accused's de facto spouse to be present in Court during the presentation of the Complainant's evidence is refused Catchwords: CRIMINAL PROCEDURE — Trial — Sexual offence proceedings Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Cases Cited: B v Gould and the Director of Public Prosecutions (1993) 67 A Crim R 297 Michael Graham Kennedy (1997) 94 A Crime R 341 Category: Principal judgment Parties: Regina (Crown) Matthew David Cannon (Accused) Representation: Donna Daleo (Crown Prosecutor) Chris O'Donnell SC (senior counsel for the Accused) Parisa Hart (junior counsel for the Accused)

Director of Public Prosecutions (NSW) (Crown) Criminal Law Centre (Accused) File Number(s): 2018/00376401 Publication restriction: No publication of the name of the Complainant or of any information which may enable her identity to be ascertained

JUDGEMENT UPON THE application PURSUANT TO s 291 Criminal Procedure Act 1986 Introduction 1. Matthew David Cannon is on trial upon 16 charges of sexual assault arising from 14 episodes of alleged misconduct said to have occurred between 1 January 2017 and 23 July 2018. After the accused was arraigned for the determination of preliminary issues argued in the days before the commencement, on 18 June 2020 a jury was selected and the trial proceeded. 2. The offences alleged are, Counts One, Two, Three and Four Between 1 January 2017 and 30 June 2017, at Galston in the State of New South Wales, did assault EW a person then under the age of 16 years, namely, 13 and at the time of such assault did commit an act of indecency on the said EW. Section 61M(2) Crimes Act 1900 Counts Five and Six Between 1 January 2017 and 31 December 2017, at Glenorie in the State of New South Wales, did assault EW a person then under the age of 16 years, namely, 13 or 14 years of age, and at the time of such assault did commit an act of indecency on the said EW. Section 61M(2) Crimes Act 1900 Count Seven Between 1 January 2017 and 31 December 2017, at Glenorie in the State of New South Wales, did have sexual intercourse with EW, a person then above the age of ten years and under the age of 16 years, namely 13 or 14 years of age. Section 66C(3) Crimes Act 1900 Count Eight in the alternative to Count Seven Between 1 January 2017 and 31 December 2017, at Glenorie in the State of New South Wales, did assault EW a person then under the age of 16 years, namely, 13 or 14 years of age, and at the time of such assault did commit an act of indecency on the said EW. Section 61M(2) Crimes Act 1900 Count Nine Between 1 January 2017 and 31 December 2017, at Glenorie in the State of New South Wales, did assault EW a person then under the age of 16 years, namely, 13 or 14 years of age, and at the time of such assault did commit an act of indecency on the said EW. Section 61M(2) Crimes Act 1900 Count Ten Between 1 January 2017 and 1 January 2018, at Arcadia in the State of New South Wales, did assault EW a person then under the age of 16 years, namely, 13 or 14 and at the time of such assault did commit an act of indecency on the said EW. Section 61M(2) Crimes Act 1900 Count 11 Between 1 January 2017 and 1 January 2018, at Arcadia in the State of New South Wales, did assault EW a person then under the age of 16 years, namely, 13 or 14, and at the time of such assault did commit an act of indecency on the said EW. Section 61M(2) Crimes Act 1900 Count 12 Between 1 January 2017 and 3 March 2018, at Arcadia in the State of New South Wales, did assault EW a person then under the age of 16 years, namely, 13 or 14, and at the time of such assault did commit an act of indecency on the said EW. Section 61M(2) Crimes Act 1900 Count 13 Between 1 January 2017 and 3 March 2018, at Arcadia in the State of New South Wales, did attempt to have sexual intercourse with EW a person then above the age of ten years and under the age of 16 years, namely, 13 or 14 years. Section 66D Crimes Act 1900 Count 14 in the alternative to Count 13 Between 1 January 2017 and 3 March 2018, at Arcadia in the State of New South Wales, did assault EW a person then under the age of 16 years, namely, 13 or 14, and at the time of such assault did commit an act of indecency on the said EW. Section 61M(2) Crimes Act 1900 Count 15 Between 1 January 2018 and 1 July 2018, at Glenorie in the State of New South Wales, did assault EW a person then under the age of 16 years, namely, 14 and at the time of such assault did commit an act of indecency on the said EW. Section 61M(2) Crimes Act 1900 Count 16 Between 1 July 2018 and 23 July 2018, at Galston in the State of New South Wales, did assault EW a person then under the age of 16 years, namely, 14 and at the time of such assault did commit an act of indecency on the said EW. Section 61M(2) Crimes Act 1900 The Crown Case 1. The accused and his de facto spouse of 20 years were friends with the complainant's mother who was at material times estranged from the complainant's father. The accused and his partner have two children and the complainant lived with her mother and her younger brother. The two families spent time together, and the accused spent time alone with the complainant in her home, in his home, and in the home of his partner's parent, during which the offences are alleged to have occurred. 2. The complainant's mother and the accused's partner were best of friends. Consequently, the accused's partner knew well the complainant and her family, and is aware of the allegations upon which this prosecution has been brought. 3. No further detail is required for the purposes of this judgement. The Accused's Application 1. On 18 June 2020 the accused's counsel applied for an order permitting the accused's partner to remain in the court room in the course of the evidence from the complainant to be heard in camera, presented to the jury by way of electronic recordings. The Crown opposed the application. The complainant would not consent to the application. 2. The application is made pursuant to s 291 Criminal Procedure Act 1986 which provides, (1) Any part of any proceedings in respect of a prescribed sexual offence in which evidence is given by a complainant, or an audio visual or audio recording of evidence of the complainant is heard by the court, is to be held in camera, unless the court otherwise directs. (2) This section applies even if the complainant gives evidence by means of closed-circuit television or other technology or under any alternative arrangements available to the complainant under section 294B or under Part 6. (3) The court may direct that the part of proceedings in which evidence is given by the complainant be held in open court only at the request of a party to the proceedings and only if the court is satisfied that— 1. special reasons in the interests of justice require the part of the proceedings to be held in open court, or 2. the complainant consents to giving his or her evidence in open court. (4) The principle that proceedings for an offence should generally be open or public in nature, or that justice should be seen to be done, does not of itself constitute special reasons in the interests of justice requiring the part of the proceedings to be held in open court. (5) If the court directs that the part of the proceedings in which evidence is given by the complainant be held in open court, that does not affect the entitlement of the complainant to give evidence in the manner provided for by section 294B or by Part 6. (6) If the proceedings are proceedings in which a record of the original evidence of the complainant is tendered by the prosecutor under Division 3, this section does not require the record to be tendered in camera. (7) This section does not affect the entitlement of a complainant to have a person or persons present when giving evidence under section 294C. The Issue 1. It is not disputed that s 291 Criminal Procedure Act 1986 applies to these proceedings. The term prescribed sexual offence is defined in s 3 of the Act to mean, relevantly, 1. an offence under section ..., 61M, ..., 66C, 66D, ... of the Crimes Act 1900, or 2. ..., or 3. ..., or 4. an offence of attempting, .., to commit an offence referred to in paragraph (a),.... 1. These are proceedings in respect of prescribed sexual offences. The complainant's evidence is by way of audio visual recording, first the electronically recorded interviews in which she participated with investigators, and thereafter her pre-recorded evidence including examination in chief and cross examination before another judge of this court. The evidence is to be heard in camera unless the court otherwise directs. 2. The application made by the accused as a party to the proceedings rests upon written submissions served on the Crown and filed with the court. These are said to provide a sound basis for finding that there are special reasons in the interests of justice for the accused's partner to be permitted to remain in court during the evidence from the complainant. 3. The accused accepts that in the absence of a direction his partner must remain out of the court during the complainant's evidence. 4. It is submitted that the following matters in combination provide special reasons in the interests of justices for the order sought: 1. The accused and his partner have a relationship that has continued for 20 years, from which they have two children; 2. She wishes to be present in court to continue her support for her de facto spouse; 3. The complainant's identity is known to the accused's partner and thus her presence in court will not impact upon the need to protect the identity of the complainant from publication to her; 4. The accused's partner will if required of her provide her specific undertaking not to disclose the complainant's identity, which she accepts she must not do; 5. The entirety of the complainant's evidence was pre-recorded; 6. The accused's partner was not present during the pre-recording of the complainant's representations to the police and in court; 7. The presence of the accused's partner in court could have no intimidatory effect or other adverse impact upon the complainant who will not be present during the presentation of her pre-recorded representations; 8. The accused's partner will not give evidence in the trial; and 9. The support his partner could provide the accused during the presentation of the evidence is important at this crucial phase of the proceedings. 1. It is submitted that the combined effect of these factors takes this case out of the ordinary, and that the order sought would strike the balance contemplated by s 291(3)(a) of the Act between protecting the identity of the complainant and the confidentiality of her evidence on the one hand and the right of the accused to a fair trial on the other. 2. In oral submissions counsel added that there could be no impediment to the complainant's role as witness in the trial before the jury, when her sworn evidence is by way of the pre-recordings made without others present apart than the representatives and the accused. 3. It was submitted that the order sought would not undercut the primary purpose of the provisions which is to protect the confidentiality of the complainant in respect of the giving of her evidence. It was conceded that the protection sought by the legislation extended beyond the protection of the complainant's identity. 4. There was not found any directly relevant authority but I was invited to the judgement of Hunt CJ at CL in Michael Graham Kennedy (1997) 94 A Crime R 341 at page 352 where his Honour wrote, "What are "special reasons" and what are not will vary from case to case and cannot be defined in advance. The decision should not be approached in an unduly restrictive way; what must be shown is that such evidence will serve the true purpose of committal proceedings, which exist in order to achieve a fair trial in the trial court. Something more than disadvantage to the accused from the loss of the opportunity to cross examine the complainant at the committal must be shown. There must be some feature of the particular case by reason of which it is out of the ordinary and which establish that it is in the interests of justice that the complainant be called to give oral evidence. Two cross examinations are not justified simply in order to find material in order to discredit the witness at trial" 1. His Honour thereafter continued discussion upon the purposes that might properly support an application for cross examination of a complainant at committal. The case was concerned with such an application, opposed by the Crown, and refused by the magistrate. The legislative context in which his Honour wrote was whether the magistrate erred by refusing the application to cross examine the complainant unpersuaded that there were special reasons in the interests of justice for her to be required to attend court for that purpose. The imprecision in the representations she had made were such that the application ought to have been granted. 2. In B v Gould and the Director of Public Prosecutions (1993) 67 A Crim R 297 Studdert J was concerned with a magistrate's decision not to require the victim of assault and sexual intercourse without consent for cross examination at a committal hearing, not satisfied that there were special reasons in the interests of justice why the victim should be required to attend for that purpose. At page 303 his Honour wrote that what is envisaged by the special facts, or special circumstances, is to be determined by the context and thrust of the particular statutory setting. He continued, "There can be no rigid definition as to what may constitute "special reasons" in the setting of s 48EA and the "interests of justice", whilst necessitating careful consideration of the interests of the defendant, cannot be limited to a consideration of his interests alone. A defendant who wishes to cross-examine an alleged victim on committal must satisfy the magistrate to whom the application is made that there are special reasons for this course to be adopted. The reasons must be special to the particular case. There must be some features of the particular case by reason of which it is out of the ordinary and by reason of which it is in the interests of justice that the alleged victim should be called to give oral evidence. It cannot be enough that the defendant would be prejudiced if the alleged victim is not called". 1. His Honour thereafter discussed matters that would support a finding of special facts which in the interests of justice would justify such an order. The summons seeking relief was dismissed. 2. The Crown observed that there was nothing special or unusual about the matters raised on behalf of the accused, understandable though it might be that he would like the support of his partner in the court room throughout the trial. The Crown advanced the purpose of the legislation, which was not confined to the protection of the complainant's identity, but was to limit access to the evidence of the complainant by reason of the sensitive and personal nature it has. Consideration 1. The authorities cited make clear that what will amount to special reasons in the interests of justice will depend upon the legislative context in which the words appear. 2. Consistent with s 291(1) of the Act, and as required by it, the part of the proceedings in which the evidence of the prescribed sexual offences is being given by the complainant is by way of audio visual recordings of her evidence to be heard by the court in camera, unless the court otherwise directs. 3. The accused's submissions tend toward temporal considerations marking the difference between proceedings in which the complainant might be present in court to present her evidence during in camera proceedings and circumstances such as here where the complainant is not present because her evidence was pre-recorded. The terms of the provisions do not differentiate between the two, but upon their plain reading apply in either case. 4. Though they were not referred to me in the course of the argument, it is noteworthy that the submissions by the Crown succinctly reflect the purposes of this provision described in the 2nd Reading Speech by the then Attorney General on 23 March 2005 which included the following passages: " ... Sexual assault is a difficult event to come to terms with, to report, to investigate and to judge. And by its very nature, giving evidence of a sexual assault is like no other evidence. Sexual assault complainant evidence must include precise and explicit details of sexual acts and of intimate sexual violence. Evidence may include swear words, slang usage for body parts, name calling, derogatory terms or remarks of a personal nature. It is embarrassing and humiliating evidence to give. It can come as no surprise that many victims feel reluctant to come forward and report sexual assaults ..., In assisting to reduce the stress and humiliation complainants face when giving evidence, closed courts also assist complainants to give best evidence; that is, accurate, reliable, coherent and complete evidence. Assisting complainants to do this also serves the interests of justice. The amendments replace the existing section 291 and will ensure that courts are closed as a matter of course. They will give greater certainty and privacy to sexual assault complainants and, as mentioned, assist in the giving of best evidence. The new provisions require that any part of proceedings in respect of a prescribed sexual offence in which evidence is given by a complainant are to be held in camera; that is, in a closed court, unless the court otherwise directs. This applies even if the complainant gives evidence by means of closed-circuit television or other technology, or under any alternative arrangements available to the complainant. This is important, because the embarrassment and humiliation associated with giving evidence arises from the presence of the listening public—whether or not the complainant can actually see them. Also, complainants using closed-circuit television can still hear and often see the public. New subsection 291 (3) provides that a court may direct the evidence to be given in open court only if a party to the proceedings requests it and the court is satisfied that: (a) special reasons in the interests of justice require the part of the proceedings to be held in open court, or (b) the complainant consents to giving his or her evidence in open court. That last subparagraph is important, because it empowers complainants by allowing them a choice in how they give their evidence". 1. The complainant was a child at the time of the alleged offences and will not reach her majority until 2021. The observations in the 2nd Reading Speech are significant considerations regardless of a complainant's age, but in my judgement have greater significance in the case of a complainant of the age specified at the time of the alleged offences and at the time when she is required to give evidence regarding them. 2. The protection afforded by this provision against embarrassment and humiliation and to encourage accurate, reliable, coherent and complete evidence and to facilitate the complainant's privacy is not confined to occasions when the complainant might give evidence in the court room or from a remote location with the evidence transmitted to the court room, but extends to the presentation of evidence as in the current trial. These factors do not lose their significance after the complainant provides her evidence but continue on and are relevant whenever the occasion arises for the evidence to be presented in the electronic format as is the case here. In these proceedings this evidence cannot be presented in open court unless there are special reasons in the interests of justice for it. 3. The application is confined to an order to allow the accused's partner to be present when the complainant's evidence is presented. Refusing this application does not appear to me to adversely impact upon the accused's right for his trial to be conducted fairly. No argument in these terms is advanced. His wish, and no doubt that of his partner, is to have the comfort of her support in the entirety of the trial as it proceeds. The argument is essentially that in the circumstances of the relationship between the two families, the knowledge each has of the other, and that the accused's partner is familiar with the complainant and the complainant is familiar with his partner who is aware of at least the essence of the allegations, there can be no harm in having the accused's partner present when the evidence is presented in the complainant's absence. 4. However this does not bring to account the ever present risk of embarrassment and humiliation and the need to encourage accurate, reliable, coherent and complete evidence and protection of the complainant's privacy, which the legislation was promulgated to address by having the evidence adduced in camera unless upon the application of a party it is found that there are special reasons in the interests of justice to proceed otherwise. The complainant is entitled to have the court bring to account these factors when deciding whether to allow even limited public access to the court when her evidence is presented, regardless of whether she is present or not. The legislative purpose of limiting stress and humiliation for a complainant would otherwise be dissolved. 5. I am not satisfied that for the reasons advanced on behalf of the accused that it is in the interests of justice that the part of the proceedings in which the evidence from the complainant is presented be conducted in open court. Order 1. The application for the accused's de facto spouse to be present in court during the presentation of the complainant's evidence is refused.