Director of Public Prosecutions v Davidson (a pseudonym) (No 3)

[2023] ACTSC 334

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Davidson (a pseudonym) (No 3)

Citation: 

[2023] ACTSC 334

Hearing Date: 

17 November 2023

Decision Date: 

17 November 2023

Before:

Baker J

Decision: 

See [7].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ground rules hearing for witness in proceedings – s 4AB(2) Evidence (Miscellaneous Provisions) Act 1991 (ACT) – recommendations of witness intermediary adopted.

Legislation Cited: 

Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 4AJ(1), 4AB(2)

Cases Cited: 

DPP v Davidson (a pseudonym) (No 2) ACTSC 303  

Parties: 

Director of Public Prosecutions ( Crown)

Phillip John Davidson (a pseudonym) ( Accused)

Representation: 

Counsel

S Jerome ( DPP)

F Purnell SC ( Accused)

Solicitors

ACT Director of Public Prosecutions

Bevan & Co Lawyers ( Accused)

File Number:

SCC 220 of 2022

SCC 221 of 2022

BAKER J       

1․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.

2․The charges are listed for trial before a jury in this Court, commencing on Monday 20 November 2023.

3․On 24 October 2023, I made orders appointing an intermediary for [redacted] (“the witness”), a witness in the prosecution case, pursuant to s 4AJ(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT): DPP v Davidson (a pseudonym) (No 2) ACTSC 303. At that time, I also directed that a ground rules hearing be held for the witness, pursuant to s 4AB(2) of the Evidence (Miscellaneous Provisions) Act. That ground rules hearing proceeded before me today.

4․Ms Sarah Cocco was appointed as the witness intermediary for the witness. Ms Cocco prepared an intermediary report dated 14 November 2023, which makes recommendations as to the adjustments and questioning techniques that will best support the witness in giving her evidence at the trial of the accused.

5․The prosecution sought that I make directions consistent with the recommendations of the intermediary report. Mr Purnell, who appeared for the accused, indicated that he had no objection to any of the recommendations made by Ms Cocco, and that he had already commenced preparing his cross-examination in accordance with those recommendations.

6․After discussion of the particular recommendations with the parties, it was agreed that some of the recommendations should be made by the Court as a note, rather than as a direction (for example, the recommendation that the witness be advised of the relevant communication rules and court processes at the commencement of her participation in the proceedings). In addition, as Mr Purnell represents the accused, Ms Jerome, who appeared for the prosecution, properly agreed that recommendation 2 (that if possible and practicable, questioners during the proceedings should be female) should not be made.

1. Accordingly, I make the following directions:

(1)I direct that the witness, [redacted], be questioned in a manner consistent with the following recommendations of the report of Sarah Cocco, dated 14 November 2023:

(i)Parties and the judicial officer should look into the camera and keep expressions neutral when delivering questions or information to the witness (recommendation 3);

(ii)Use the witness’s preferred name ([redacted]) (recommendation 4);

(iii)Use a moderate, steady, speaking pace (recommendation 5);

(iv)Use a neutral tone of voice (recommendation 6);

(v)Parties should state their name and role prior to commencement of their questioning (recommendation 8);

(vi)The witness should have a break approximately every 60 minutes, with the possibility of additional breaks if necessary (recommendation 9);

(vii)Signpost topics of questioning and question forms. Utilise signposting to alert the witness should parties require time to consider the next question (recommendation 11);

(viii)Avoid repetitious questions whenever possible and if appropriate (recommendation 12);

(ix)Use simple, straightforward language during court proceedings (recommendation 13);

(x)Ask one question containing one idea at a time (recommendation 14);

(xi)Allow the witness adequate time to commence and complete her responses to questions (recommendation 15);

(xii)Clarify the witness’s use of pronouns, if required (recommendation 16);

(xiii)Where possible, avoid putting arguments containing negatively framed terms at the beginning of the question or statement (recommendation 17);

(xiv)References to clock time during court proceedings should include the use of AM and PM (recommendation 18);

(xv)The witness should be given a copy of any written documents which will be referred to, or read from, during questioning (recommendation 19). Such documents do not need to be provided to the witness prior to questioning. It is sufficient for the witness to be provided with a copy of the document at the time that it is read during questioning (recommendation 19)

(xvi)References or quotations from written documents by parties during questioning should be limited in length (recommendation 20);

(xvii)If possible, the witness should not be asked to write or draw during questioning (recommendation 21);

(xviii)Clarify the witness’s gestures or physical demonstrations if required during questioning (recommendation 22);

(xix)The witness is to have access to a focus item (such as a sensory ring) during questioning, if required (recommendation 23);

(2)I direct that the witness intermediary sit next to the witness at all times during court proceedings so as to assist and be visible to the Court.

(3)I direct that the witness intermediary raise their hand and say “Your Honour” to indicate that a communication need or issue has arisen for the witness.

(4)I direct that the witness have access to lollies located in the remote witness suite area during questioning, for the reasons outlined in 3.1.5 of Ms Cocco’s report.

(5)I also note the following:

(i)The Director of Public Prosecutions will take action to ensure compliance with recommendation 1 of Ms Cocco’s report, namely, to ensure that the screen inside the remote witness room only shows the Judge, Judge’s Associate and the lawyers.

(ii)The witness should be advised of the relevant communication rules and court processes at the commencement of her participation in proceedings. This will be done in the first instance by the prosecution, and should be repeated by the judge presiding over the trial (recommendation 7); and

(iii)The Court will consider whether any questioning of the witness can occur after 10:30am to facilitate the witness’s focus (recommendation 10).

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

 Associate:

Date: 17 November 2023

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Amendments

6 May 2024 Replace the name of the accused with the pseudonym “Phillip John Davidson”.