Director of Public Prosecutions v Burch (a pseudonym)
[2025] VCC 1075
•30 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GAVIN BURCH (A PSEUDONYM) |
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JUDGE: | HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 July 2025 | |
DATE OF RULING: | 30 July 2025 | |
CASE MAY BE CITED AS: | DPP v Burch (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1075 | |
RULING
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Subject:CRIMINAL LAW
Catchwords: Whether complainants cognitively impaired
Legislation Cited: Criminal Procedure Act 2009
Cases Cited:DPP v Stetco (Ruling No. 1) [2021] VCC 2201, DPP v Demir (a pseudonym) (Ruling No 1) [2022] VCC 922, Paull v The Queen [2021] VSCA 339
Ruling: Cognitive impairment not established
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms B Goding | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms J Poole with Mr T Clamart | Angus Cameron Lawyers |
HER HONOUR:
1The question before the court is whether each of the three complainants in the upcoming trial of the accused has, for the purposes of s.123 and Part 8.2 of Division 5 of the Criminal Procedure Act 2009 (CPA), a cognitive impairment.
2This will determine whether or not the defence will be able to apply for pre-trial cross examination pursuant to s.198A in relation to any of the complainants or whether the evidence will be given by way of special hearing pursuant to s.370 of the CPA.
3All of the complainants provided signed statements to police. That is, none participated in a VARE.
4The prosecution submits that each of the complainants has a cognitive impairment. The defence disputes that this is the case in relation to each complainant.
Relevant legislation
5Section 3 of the CPA provides a definition of cognitive impairment, namely that it “includes impairment because of mental illness, intellectual disability, dementia or brain injury.” Mental illness alone is clearly insufficient – the mental illness must have caused a cognitive impairment.
6Section 123 of the CPA prohibits the cross examination of a complainant in a sexual offence proceeding if the complainant was a child or had a cognitive impairment when the proceeding commenced.
Alleged offending and procedural history
7The offending is summarised in the Summary of Prosecution Opening for Trial dated 12 November 2024 and will not be recited here, save to say the alleged offending spans the period 1 November 1974 to 21 October 1991 and involves 3 distantly related complainants who are all biological relatives of the accused’s wife.
8On 19 August 2024 a special mention was held before his Honour Magistrate Southey to determine whether Ms Elsie Hunter[1] has a cognitive impairment. Prof Sullivan was called and cross-examined. Having received reports regarding each of the three complainants, the prosecution enlarged its application to include Ms Watkins[2] and Ms Sonja Meza.[3] Magistrate Southey ruled that all three complainants have a cognitive impairment as per the Act, such that they should not be cross-examined. The matter proceeded to the County Court.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
9On 30 April 2025 his Honour Judge Tiwana heard from Prof Sullivan in relation to each complainant. I note that Judge Tiwana did not consider himself part heard and that having read transcripts of the previous hearings, I have now heard detailed submissions from each party.
Prof Danny Sullivan
10Professor Danny Sullivan has provided a psychiatric report in relation to each complainant, Greta Watkins, Sonja Meza and Elsie Hunter. He gave evidence in the Magistrates’ Court before his Honour Magistrate Southey in relation to Elsie Hunter on 19 August 2024 and in this court before his Honour Judge Tiwana on 30 April 2025 in relation to all 3 complainants. He opined that each complainant has a cognitive impairment being impairment by reason of mental illness. It is not contended that any of them have an intellectual disability, dementia or brain injury.
Complainant 1 – Greta Watkins
11Ms Watkins has diagnoses of post-traumatic stress disorder of moderate severity, recurrent depressive disorder with anxious distress and severe substance disorder dependence (tobacco and cannabis). She takes a number of medications.
12Prof Sullivan stated in his report that “her concentration could be impaired if, at the time she is giving evidence, she is preoccupied by anxiety symptoms. These may also reduce her ability to communicate effectively. If she is experiencing anxiety, this would potentially distract her and prevent her from effectively processing information.”[4] He noted that a court hearing would be further complicated if she is affected by cannabis intoxication or withdrawal.
[4] Report of D Sullivan dated 13 July 2024 at [72].
13Prof Sullivan opined that “It is likely that court proceedings would exacerbate her chronic anxiety. Her anxiety symptoms are severe and chronic and transcend ‘normal’ anxiety which might be expected when giving evidence.”[5]
[5] Report of D Sullivan dated 13 July 2024 at [77].
14Prof Sullivan distinguished Ms Watkin’s anxiety “from the normal anxiety that anyone would experience in court … For a person who experiences an anxiety spectrum or mood disorder diagnosis, they have a much increased liability to anxiety. That’s a biological phenomenon associated with those disorders but what it means is that the level of anxiety that they experience is qualitatively much greater and quantitatively much greater and secondly that it transcends what perhaps ordinary people, people without a diagnosis would experience as a mildly elevated level of anxiety.”[6]
[6] 30 April 2025 at T25.26.
15In cross-examination, a number of hypotheticals were put to Prof Sullivan as to Ms Watkins giving evidence:
“Now I'm just going to pose a hypothetical situation then. At a grounds rule, which will occur in this case, I'm going to suggest to that the following matters are agreed and these would be the measures that are put in place, that there would be directions given in relation to the conduct of cross-examination, for example, the not aggressive. Measures put in place to reduce the emotional impact of questions that are being asked, et cetera. So that's one measure, yes?---Yes.
Regular breaks would be scheduled, another measure?---Yes.
Third would be giving evidence from a remote facility?---Yes.
Obviously that means that you would not have, she would not be seeing Mr Burch, confronted with him?---Yes.
With a support person, obviously a closed court so that she's not just telling the world at large what's occurred?---Yes.
So essentially in many respects or in relation to those elements that's a mirror of the setup of your assessment of her, of Ms Watkins?---I agree.
Yes, and is it fair to say that in your opinion those measures, with those measures in place it would significantly reduce the likelihood of the development of the effects that we've discussed that you've identified, possible effects?---Yes that's correct.[7]
[7] 30 April 2025 at T61.1.
Complainant 2 – Sonja Meza
16Ms Meza has diagnoses of recurrent depressive disorder with anxious distress, generalised anxiety disorder, post-traumatic stress disorder and severe substance disorder (tobacco and prescribed benzodiazepines). She takes a number of medications.
17Prof Sullivan opined that “she is liable to anxiety symptoms which may reduce her ability to concentrate, to communicate, to process information, and to comprehend questioning if she is preoccupied by physical or cognitive symptoms of anxiety during a court hearing.”[8]
[8] Report of D Sullivan dated 15 July 2024 at [53].
18In cross-examination a number of measures that could be taken by way of ground rules hearing were put to Prof Sullivan:
In terms of her evidence your suggestions are that she doesn't actually need to even pre-record her evidence?---Correct.
So in that sense you've got no concerns about having to build rapport with her, et cetera, for counsel to have to do that?---No.
No. You said that giving evidence by audiovisual link would help, you agree with that?---Yes.
Your suggestions are that we should go slowly through her evidence given her hearing issues?---Correct and perhaps also her shortness of breath, I probably should have added that as well.
So once again if you, if the same rules were in place as I mentioned in relation to Ms Watkins about the conduct of cross‑examination, giving evidence remotely, having regular breaks, et cetera, do you agree that such measures would significantly reduce the possibility of the development of these symptoms that you've identified?---Yes I do.[9]
[9] 30 April 2025 at T69.17.
Complainant 3 – Elsie Hunter
19Ms Hunter as a diagnosis of complex post-traumatic stress disorder.
20Prof Sullivan opined in his report that the consequences of this condition are that she is liable to anxiety symptoms which “would potentially distract her, reduce her capacity to process information effectively, and possibly reduce her ability to communicate in a logical and orderly manner.”[10]
[10] Report of D Sullivan dated 18 July 2024 at [54].
21Prof Sullivan gave the following answers in the Magistrates’ court:
So let me give you this hypothetical situation. These are the ground rules hearing. There are firm directions given in relation to the conduct of the cross-examination which for instance would be – to be – to not be conducted in an aggressive tone. Or if there were to be a provision of regular breaks, either at regular times, it’s every 15 to 20 minutes. Is it fair to say that such measures would significantly reduce her likelihood of the risk that you have identified of Ms Hunter being impaired?---Yes[11]
So it is entirely possible that if adequate strategies are ordered by the court at a ground rules hearing Ms Hunter may not become impaired?---Correct.[12]
[11] 19 August 2024 at T11.16.
[12] 19 August 2024 at T24.14.
Analysis
22In Victoria, a statutory construction which promotes the purpose of an Act shall be preferred to a construction which would not (Interpretation of Legislation Act 1984,s 35(a)).
23The CPA is protective legislation, designed to allow a complainant to give their best evidence. I consider that permits a wide reading of the provisions.
24I was taken to 3 relevant cases by both parties.
25His Honour Judge O’Connell stated in DPP v Stetco (Ruling No. 1) [2021] VCC 2201 [96], “There is no requirement that the impairment be operative at the time of the VARE. The impairment may be subtle, its symptoms may be very mild or fluctuate. Indeed, the impairment may not be apparent at all. The statute simply provides that the witness be “a person with a cognitive impairment.” In my view it is a relatively low threshold to overcome.”
26I agree with his Honour that the threshold is relatively low. It is not however, a foregone conclusion that someone with a mental illness is cognitively impaired for the purposes of the Act.
27His Honour Judge Tiwana later stated in DPP v Demir (a pseudonym) (Ruling No 1) [2022] VCC 922 [99] that “All [definitions] suggest there must be a decline, reduction or weakening of a person’s cognition consistent with the ordinary meaning of the word ‘impairment’.”
28In the case of each complainant here, the decline, reduction or weakening of the cognition remains only a possibility on the evidence of Prof Sullivan.
29The Victorian Supreme Court of Appeal in Paull v The Queen [2021] VSCA 339 [17] noted that “the term cognitive impairment contemplates a deterioration or diminution in a person’s mental processes, including compromised comprehension, thinking, concentration, memory or capacity to process information (such compromise ordinarily being associated with mental illness, intellectual disability, dementia or brain injury). Of course, the VARE and special hearing arrangements (including the assistance of intermediaries) statutorily provided for represent a departure from the traditional processes of a criminal trial. They exist to protect witnesses who are vulnerable because of age or cognitive impairment, and should not be invoked simply for the sake of expediency.”
30I do not consider that the section here is being invoked for the sake of expediency but I note the departure from the traditional processes of a criminal trial should I grant the application.
31Significantly, since Stetco, Demir and Paull were determined, the legislation has been amended to provide for a s.389A ground rules hearing in every sexual offence matter. This is a protective measure providing a framework by which to ensure the nature, tone and manner of questioning is appropriate to the individual complainant’s needs. It could include such things as the provision of regular breaks, time to be allowed before the answering of questions and the use of certain language.
Are the complainants cognitively impaired for the purposes of s.3A?
32On the evidence before me, I am satisfied that each of the complainants has a mental illness. The issue is whether that the nature and extent of that mental illness constitutes a cognitive impairment for the purposes of the Act in each case.
33The impairments contemplated may manifest in the course of giving evidence. That is, it cannot be said by Prof Sullivan with any certainty that they will result, rather they remain only a possibility while giving evidence. Prof Sullivan could not determine whether the symptoms will occur in relation to any of the complainants, rather that it is more likely that they will than in someone without these diagnoses.
34Turning first to Greta Watkins. I do not find that Ms Watkins is cognitively impaired for the purposes of s.3A of the CPA. This is because Dr Sullivan opined that “both post-traumatic stress disorder and recurrent depressive disorder are associated with an increased liability to experiencing anxiety symptoms. Experiencing anxiety symptoms may reduce Ms Watkins’ capacity to give responsive answers to questions and to deal with cross-examination, if she is distracted by internal experiences and anxiety symptoms which are distressing”[13] (emphasis added).
[13] Report of D Sullivan dated 13 July 2024 at [76].
35The uncertainty as to whether Ms Watkins will suffer any symptoms of her mental illness during the court process leads me to conclude that her mental illness is an insufficient basis upon which to find that she has a cognitive impairment for the purposes of the Act.
36Turning next to Sonja Meza. I do not find that Ms Meza is cognitively impaired for the purposes of s.3A of the CPA. Ms Meza herself stated to Prof Sullivan that “she was looking forward to giving evidence and did not feel overly anxious.”[14] While this does not mean she will not be affected by anxiety while giving evidence, I consider that manifestation of her anxiety symptoms remains only a possibility.
[14] Report of D Sullivan dated 15 July 2024 at [29].
37“If Ms Meza is experiencing anxiety symptoms while giving evidence, this may reduce her ability to give responsive answers to questions and to deal with cross-examination”[15] (emphasis added).
[15] Report of D Sullivan dated 15 July 2024 at [56].
38Again, the uncertainty as to whether Ms Meza will experience any symptoms of her mental illness whilst giving evidence leads me to conclude that she does not have a cognitive impairment for the purposes of the Act.
39Turning finally to Elsie Hunter. I do not find that Ms Hunter is cognitively impaired for the purposes of s.3A of the CPA. This is because her anxiety symptoms remain only a possibility and if they occur, they will be temporary in nature.
40Prof Sullivan opined that “complex post-traumatic stress disorder is associated with an increased likelihood of Ms Hunter experiencing significant and potentially severe anxiety symptoms. If she does experience anxiety, this may temporarily reduce her capacity to give responsive answers to questions and to deal with cross-examination”[16] (emphasis added).
[16] Report of D Sullivan dated 18 July 2024 at [56].
41The uncertainty as to whether Ms Hunter will experience symptoms of her mental illness whilst giving evidence leads me to conclude that she does not have a cognitive impairment for the purposes of the Act.
42While I have not found that any of the complainants fall within the scope of cognitive impairment contemplated by the Act, they will nevertheless be afforded the protections of a ground rules hearing outlined earlier in these reasons which should strictly control the nature, tone and manner of questioning.
43Ms Sonja Meza for instance “indicated that she would be assisted by a support person. She noted that she was unable to stand for long and would appreciate being able to give evidence seated. Ms Hunter told [Prof Sullivan] that her hearing was poor and that she might require questions to be repeated if they were long or delivered quietly.”[17] I consider that these matters will be adequately accommodated via a ground rules hearing, together with accommodations to manage her possible anxiety symptoms.
[17] Report of D Sullivan dated 15 July 2024 at [29].
44Finally, I note that I have not had the benefit of viewing the witness’ performances in court or in a VARE recording, or of hearing the nature and tone of cross examination post ground rules. The ground rules hearings should, as always, impose strict frameworks for the protection of the complainants and be rigorously adhered to.
Conclusion
45Accordingly, I find that while each complainant has a mental illness, there is an insufficient basis to conclude that any of the complainants has a cognitive impairment for the purposes of the Act.
46The usual trial processes should not be departed from. Ms Watkins, Ms Meza and Ms Hunter are all eligible for s.198B hearings should the judge determining those applications rule that leave should be granted for pre-trial cross-examination.
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