Director of Public Prosecutions v Davidson (a pseudonym) (No 2)
[2023] ACTSC 303
•24 October 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Davidson (a pseudonym) (No 2) |
Citation: | [2023] ACTSC 303 |
Hearing Date: | 24 October 2023 |
Decision Date: | 24 October 2023 |
Before: | Baker J |
Decision: | (1) I order that a witness intermediary be appointed for the witness, [redacted], under s 4AJ of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). (2) I order that a ground rules hearing be held pursuant to s 4AB of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). (3) I order that [redacted]’s evidence be given by audiovisual link pursuant to s 32 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – pre-trial application for witness intermediary for witness – s 4AJ Evidence (Miscellaneous Provisions) Act 1991 (ACT) – witness intermediary to be appointed for the witness – ground rules hearing to be held. |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 4AB, 4AJ, 32 Evidence (Miscellaneous Provisions) Regulation 2009 (ACT) |
Cases Cited: | Director of Public Prosecutions v McGary [2023] ACTSC 14 Manny v David Lardner Lawyers [2021] ACTSC 232 R v BNS [2016] ACTSC 51 R v Cunningham (No 4) [2021] ACTSC 86 R v QX (No 2) [2021] ACTSC 244 |
Texts Cited: | Presentation Speech, Evidence (Miscellaneous Provisions) Amendment Bill 2019 (ACT) (Hansard, 24 September 2019, p 3746) |
Parties: | Director of Public Prosecutions ( Crown/Applicant) Phillip John Davidson (a pseudonym) ( Accused/Respondent) |
Representation: | Counsel M Dyason ( DPP) F Purnell SC ( Accused) |
| Solicitors ACT Director of Public Prosecutions Bevan & Co Lawyers ( Accused) | |
File Numbers: | SCC 220 of 2022 SCC 221 of 2022 |
BAKER J:
Introduction
1․By application filed on 16 October 2023, the Director of Public Prosecutions (the Director) seeks the following orders:
(i)A witness intermediary be appointed for the witness, [redacted] (the witness), pursuant to s 4AJ of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act);
(ii)A ground rules hearing be held pursuant to s 4AB of the EMP Act; and
(iii)The witness give evidence by audiovisual link pursuant to s 32 of the EMP Act.
2․For the reasons outlined below, I have granted this application.
Background
3․The accused, Phillip John Davidson (a pseudonym), is charged with the following offences:
(a)Two counts of assault occasioning actual bodily harm;
(b)One count of assault with intent to commit an act of indecency;
(c)One count of act of indecency without consent; and
(d)Four counts of sexual intercourse without consent.
4․The complainant and the accused are former domestic partners and share three children. The witness was also a former domestic partner of the accused.
5․The witness will be called by the prosecution to give evidence about the events in question, as well as tendency evidence.
6․The trial previously proceeded to trial on 19 June 2023, but was unable to conclude. The trial has now been listed for hearing on 20 November 2023.
Legislation
Appointment of a witness intermediary and the direction for a ground rules hearing
7․Chapter 1B of the EMP Act contains various provisions relating to the appointment and functions of witness intermediaries.
8․The Court must appoint a witness intermediary for a prescribed witness, namely, a child complainant in sexual proceedings or a child witness in a serious violent offence involving the death of a person: s 4AK of the EMP Act and reg 4 of the Evidence (Miscellaneous Provisions) Regulation 2009 (ACT). Section 4AJ of the EMP Act provides for the appointment of witness intermediaries for witnesses who are not prescribed witnesses. Section 4AJ states:
4AJ Appointment of witness intermediary—generally
(1)A court may appoint an intermediary in a criminal proceeding for a witness with a communication difficulty—
(a)on its own initiative; or
(b)on the application of—
(i) the DPP; or
(ii) the witness; or
(iii) the accused person.
Example—communication difficulty
a mental or physical disability that impedes speech
(2)A court must not appoint an intermediary for a witness under this section if satisfied that the witness—
(a)is aware of their right to make an application for an intermediary to be appointed; and
(b)is able to, and wishes to, give evidence without the assistance of an intermediary.
(3)In making a decision under this section, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
9․The phrase “communication difficulty” is not defined in the EMP Act. However, as extracted above, s 4AJ provides an “example” of a communication difficulty as being a “mental or physical disability that impedes speech.”
10․I considered the meaning of the phrase “communication difficulty” in Director of Public Prosecutions v McGary [2023] ACTSC 14. At [15], I held:
The phrase “communication difficulty” should be broadly construed in accordance with its beneficial purpose. Accordingly, it is of “wide import”: R v QX (No 2) [2021] ACTSC 244 at [72], per Loukas-Karlsson J. The phrase is not limited to witnesses who have a formal diagnosis or a difficulty of a particular severity: R v QX (No 2) at [77]. A tendency to disassociate when communicating about alleged offence will amount to a “communication difficulty” within the meaning of the provision, as will difficulties discussing a particular subject due to distress and/or anxiety: R v QX (No 2) at [72].
11․If a witness intermediary is appointed for a witness in a criminal proceeding, the court must direct that a ground rules hearing be held for the witness: s 4AB(2) of the EMP Act.
Giving evidence by AVL
12․Section 32 of the EMP Act provides as follows:
32Territory courts may take evidence and submissions from another place
(1)Subject to any Act or rules of court, a territory court may, on the application of a party to a proceeding before it or on its own initiative, direct that a person, whether or not a party to the proceeding, appear before, or give evidence or make a submission to, the court by audiovisual link or audio link from—
(a)a place in the ACT that is outside the courtroom or other place where the court is sitting; or
…
(2)The court may make the direction only if satisfied that—
(a)the necessary facilities are available or can reasonably be made available; and
(b)it is in the interests of the administration of justice to make the direction.
(3)In considering whether it is in the interests of the administration of justice to make the direction, the court may consider—
(a)whether the evidence or submission can more conveniently be given or made from the place; and
(b)whether the making of the direction is unfair to any party opposing the making of the direction; and
(c)whether the making of the direction could support court efficiency by reducing costs or delay to the proceeding; and
(d)anything else that the court considers appropriate.
(4)The court may at any time amend or revoke a direction made under this part, either on the application of a party to the proceeding or its own initiative.
Evidence
13․The evidence tendered by the prosecution in support of the applications included the following:
(a)Evidence of a case manager at ACT Together (an organisation supporting Aboriginal and Torres Strait Islander children in foster care), who stated:
I have observed that [the witness’] mental health causes her to have trouble focussing and she often moves rapidly from one subject to another. I have noticed that this trauma response increases when she is speaking about traumatic content relating to [the accused]. I have observed that [the witness] can at times become distressed when this occurs, and this can further impact her ability to communicate.
(b)Evidence of the witness’s treating clinical psychologist, in which the psychologist recorded that she had “concerns that [the witness] may shutdown due to a trauma response if she needs to provide evidence in the court”.
(c)The witness’ response to a question in her Record of Interview with police, in which she stated:
… And then – sometimes its really hard to – its hard for me to remember. Then I – if I forget something, to go back to it.
Determination
Application for the witness to give evidence with a witness intermediary
14․As noted at [10] above, the phrase “communication difficulty” in s 4AJ must be broadly construed, consistent with Parliament’s beneficial purpose in enacting the provision.
15․There is no reason to narrowly construe the provisions. “An intermediary is an independent communication specialist whose role is to assist a person with communication difficulties to communicate their best evidence to police and to the Court”: Presentation Speech, Evidence (Miscellaneous Provisions) Amendment Bill 2019 (ACT) (Hansard, 24 September 2019, p 3746). As the Attorney General observed in the Presentation Speech:
… high quality communication with witnesses and obtaining accurate and complete testimony can ensure that not only the complainant but also the accused experiences a fair trial.
16․Bearing in mind these matters, I do not accept the submission made by Mr Bevan on behalf of the accused that it is necessary for a formal diagnosis to be made in order for a witness to be considered to have a “communication difficulty”: see similarly QX(No 2) at [77].
17․I accept Mr Bevan’s submission that the fact that a witness expresses difficulties in recalling events from many years ago will not, of itself, demonstrate that the witness has a communication difficulty. A lack of memory or difficulty recalling events will not generally be a communication difficulty within the meaning of s 4AJ.
18․However, in the present case, the evidence tendered by the prosecution in support of the application also includes evidence from a case manager who has personally observed the communication difficulties that the witness experiences when discussing “traumatic content” related to the accused. These difficulties include the witness having trouble focussing, and becoming distressed when speaking about those events. That evidence is supported by more general evidence from the witness’ treating psychologist about the witness stress and the possibility of the witness “shutting down” as a result of a trauma response to giving evidence.
19․This evidence amply demonstrates that the witness has a “communication difficulty” within the meaning of s 4AJ of the EMP Act. The prosecutor confirmed that the witness wishes to be assisted by a witness intermediary: s 4AJ(2) of the EMP Act.
20․Accordingly, I will appoint a witness intermediary under s 4AJ of the EMP Act. It follows that I must also direct that a ground rules hearing be held: s 4AB(2) of the EMP Act.
Application for the witness to give evidence via audiovisual link
21․An order that the witness give evidence via audiovisual link can only be made under s 32 of the EMP Act if the Court is satisfied that:
(a)the necessary facilities are available or can reasonably be made available; and
(b)it is in the interests of the administration of justice to make the direction.
22․I am satisfied that the necessary facilities are available or can reasonably be made available. The witness will be giving evidence from a remote room, which is specifically designed for this purpose.
23․I am satisfied that it is in the interests of justice for the evidence to be adduced via an audiovisual link. As the prosecutor submitted, the adducing of evidence via audio-visual link may be able to proceed with fewer delays and breaks if the witness is removed from the pressure of the courtroom and the presence of the accused. Further, as outlined above, the witness’s treating clinical psychologist is concerned about the risk of the witness ‘shutting down’ as a result of a trauma response. I am satisfied that this risk will be mitigated by the witness giving evidence by an audio-visual link.
24․I do not accept that there will be any unfair prejudice that will flow from the taking of the witness’s evidence via audiovisual link. As submitted by the prosecution, the courtrooms in the Supreme Court are equipped with individual jury screens, and larger common screens, which will provide the jury with a close view of the witness as she is giving evidence.
25․This Court has held on many occasions that the giving of evidence by way of audiovisual link does not, of itself, give rise to unfairness: R v Cunningham (No 4) [2021] ACTSC 86 at [7] – [8]; R v BNS [2016] ACTSC 51 at [18] – [19]. In Manny v David Lardner Lawyers [2021] ACTSC 232 at [21], Murrell CJ noted:
Courts now realise that evidence given in this way is just as capable of being assessed as is evidence given in person. Provided there is a stable and clear AVL connection, a witness is at least as accessible to the factfinder as they would be in person.
The jury will be directed that there may be many reasons for a person to give evidence via audiovisual link and that they should not draw any adverse inference against the accused or give the evidence any greater or lesser weight by reason of the manner in which the evidence is given. There is no reason to infer that the jury would not follow this direction. Indeed, various provisions of the EMP Act are predicated on an acceptance of the efficacy of such directions: see, for example, ss 13 and 72 of the EMP Act.
26․Accordingly, I will order that the witness’s evidence be given by audiovisual link pursuant to s 32 of the EMP Act.
Orders
27․For the above reasons, the following orders are made:
(1)I order that a witness intermediary be appointed for the witness, [redacted], under s 4AJ of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
(2)I order that a ground rules hearing be held pursuant to s 4AB of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
(3)I order that [redacted]’s evidence be given by audiovisual link pursuant to s 32 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
(4)The proceedings are listed for directions in the Registrar’s list on Thursday, 26 October 2023 for the listing of a ground rules hearing.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A McCook Date: 24 October 2023 |
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Amendments
| 6 May 2024 | Replace the name of the accused with the pseudonym “Phillip John Davidson”. |
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