Director of Public Prosecutions v Brown (No 2)
[2024] ACTSC 226
•15 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Brown (No 2) |
Citation: | [2024] ACTSC 226 |
Hearing Date: | 15 July 2024 |
Decision Date: | 15 July 2024 |
Before: | Mossop J |
Decision: | 1. Pursuant to s 4AF of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), direct that the questioning of the witness, [SL], be in accordance with the recommendations in paragraph 3.2 of the Report of Sarah Cocco dated 1 July 2024, subject to recommendation 1 being limited to requiring a start time for the witness’ evidence of not before 11:00am. 2. Direct that the recommendations at 3.3.4 and 3.3.5 in the Report of Sarah Cocco dated 1 July 2024 be implemented at the hearing. 3. Note the recommendations at 3.3.1 through to 3.3.3 of the Report and that the Director of Public Prosecutions will investigate the implementation of 3.3.2 and 3.3.3 for the purposes of the hearing. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Witness intermediaries – directions for the conduct of examination of witness prophylactic rather than remedial – recommendations adopted notwithstanding submissions by counsel for the accused |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 4AF |
Parties: | Director of Public Prosecutions Joseph Brown ( Accused) |
Representation: | Counsel C Daly ( DPP) J Masters ( Accused) |
| Solicitors Director of Public Prosecutions Peter Agoth & Associates ( Accused) | |
File Numbers: | SCC 326 of 2023 SCC 327 of 2023 |
MOSSOP J:
Introduction
1․This is a ground rules hearing for a witness in a criminal proceeding. The witness is [SL], who is the complainant. The evidence establishes that he has diagnoses of paranoid schizophrenia, an acquired brain injury secondary to a fractured skull and mild mental retardation. The accused tendered, for the purposes of the ground rules hearing, an audio recording of a recorded conversation between the witness and the police. That was relied upon in support of the submission that the witness was able to appropriately respond to questions during the seven or so minutes of the conversation during which he gave his version of events.
2․Counsel for the accused provided a schedule of the accused’s response to particular recommendations made in the Intermediary Court Report and Recommendations prepared by Sarah Cocco. That included either an objection or a statement that a particular recommendation was unnecessary.
3․In relation to a number of the recommendations, the general proposition put was that it was open to the court to monitor the giving of evidence and if any particular identified problem arose, then that could be addressed during the course of the trial. In my view, this submission reflects a misunderstanding of the utility of intermediary reports and the recommendations contained therein. They are largely a prophylactic, designed to avoid communication problems arising. They are based upon the expertise of the intermediary in assessing the communication needs of a witness. They address communication needs which will not necessarily be apparent either to the court or the lawyers involved. It is that lack of obviousness which has made the intermediary program particularly valuable. In addressing recommendations such as those in Ms Cocco’s report, care must be taken to not assume that the lawyers and the court are of the same level of expertise as the intermediary in assessing the communication requirements of the witness.
4․Insofar as the objections were based upon the proposition that a rigid direction should not be made in advance because it may hamper the conduct of the trial, it must be borne in mind that the trial judge retains a discretion to depart from directions earlier made if that is appropriate in the circumstances. However, the making of directions at an early stage allows counsel for the prosecution and the accused to properly prepare for the hearing within the framework of the directions provided.
Report of Sarah Cocco dated 1 July 2024
5․Generally speaking, I consider that it is appropriate to adopt the recommendations in the table in part 3.2 of the Report. There are some additional recommendations contained in part 3.3. It is appropriate that some of those be noted and that some of them be the subject of directions.
6․I will address the individual objections made on behalf of the accused.
Recommendation 3: Use a moderate, steady speaking pace.
7․This is said to be unnecessary. I reject that submission. For a person with mild mental retardation, it is an obvious and appropriate recommendation.
Recommendation 7: Signpost topics of questioning and use signposting to redirect the witness’ focus to the immediate question if required.
8․This was said to be unnecessary as a result of what can be observed from the interview with police and a “constraint upon the proper exercise of cross examination”. I reject this submission. Signposting is a particularly valuable part of cross-examination. It is usually a valuable technique in ensuring that the cross-examination is fair. In the case of a person with the disabilities that the witness has, it is a requirement that should be enforced.
Recommendation 8: If required and appropriate, use visual resources to assist the witness’ verbal communication during questioning.
9․This was said to be unnecessary. The Report refers to the potential use of visual timelines, such as ordering Post-it notes to assist the witness to address the sequence of events. In my view, the recommendation is an appropriate one which is couched in suitably flexible terms. The use of visual timelines can be important for some witnesses. It is not clear at this stage whether the nature of the questioning or the timelines involved are such that these proposed techniques might be required. However, parties should be put on notice that they should prepare to adduce evidence in this way if it is required in the circumstances of the case.
Recommendation 10: Ask one question containing one idea at a time. Shorten sentences as much as possible.
10․This is said to be unnecessary, but the accused appears to accept that it is required in any trial. In my view, the recommendation is an appropriate one and should be made.
Recommendation 11: Use terms such as first, then, next, before and last in questioning relating to timelines.
11․This recommendation is said not to be necessary. For the reasons set out in the Report, I consider that such a direction is appropriate.
Recommendation 12: Avoid the use of tag and assertion questions during questioning.
12․This was objected to on the basis that practitioners often prefer this style of questioning. In my view, this submission fails to take account of the fundamental point made in the rationale given by the intermediary, namely that “[t]ag and assertion questions are linguistically complex and can increase the likelihood of unintentional, inaccurate responses or be suggestive of the answer the recipient perceives the questioner wants from them.” Because of the prevalence of the use of tag questioning and the entrenched habits of many barristers, it is very important that this direction be made so as to allow them to prepare in a manner that will give rise to a fair cross‑examination of the witness.
Recommendation 14: Give the witness adequate time to commence and complete his responses to questions.
13․This is said to be an unnecessary direction given that all witnesses should be provided with adequate time and the intermediary may intervene when more time is needed. For the reasons that I have articulated earlier, for a witness with the identified communication difficulties of this witness and where the recommendations are intended to avoid rather than retrospectively address communication difficulties, it is important that this direction be made.
Recommendation 15: Indistinct or unclear speech may require clarification during questioning.
14․This relates to the potential for the witness to give unclear answers. It is designed to ensure that those unclear answers are clarified. This is said to be not necessary because counsel will raise anything that is not clear. Having listened to the audio of his recording with police and having regard to the rationale set out in the Report, I consider that it is an appropriate recommendation which establishes the obligations in relation to questioning in advance.
Recommendation 16: Clarify the witness’ use of pronouns and other descriptors if required.
15․This arises out of the witness’ use of pronouns and other descriptors in the interview with the intermediary. It is an obvious and useful recommendation of which the lawyers should be aware in advance.
Recommendation 17: Ensure that there is a shared understanding of time references between the witness and parties.
16․This arises out of particular difficulties that the witness had in relation to references to time. The rationale for the recommendation is set out in the intermediary report and it is appropriate that it be adopted.
Other recommendations.
17․Amongst the recommendations in the “Other recommendations” section was a recommendation that there be a telephone conference between the lawyer and the intermediary to discuss their proposed questions and seek advice on the wording of those questions. Lawyers, particularly lawyers appearing for an accused person, are often reluctant to take up this opportunity for either good or bad reasons. I consider that it is appropriate to note that recommendation but not require that this exercise be undertaken. I will adopt a similar approach in relation to two of the other recommendations in this section but make a direction in relation to the final two of them.
Orders
18․The orders of the Court are:
1.Pursuant to s 4AF of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), direct that the questioning of the witness, [SL], be in accordance with the recommendations in paragraph 3.2 of the Report of Sarah Cocco dated 1 July 2024, subject to recommendation 1 being limited to requiring a start time for the witness’ evidence of not before 11:00am.
2.Direct that the recommendations at 3.3.4 and 3.3.5 in the Report of Sarah Cocco dated 1 July 2024 be implemented at the hearing.
3.Note the recommendations at 3.3.1 through to 3.3.3 of the Report and that the Director of Public Prosecutions will investigate the implementation of 3.3.2 and 3.3.3 for the purposes of the hearing.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 23 July 2024 |
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