Director of Public Prosecutions v Fairhall
[2020] VSC 662
•9 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0180
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| JAMES FAIRHALL | Accused |
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JUDICIAL REGISTRAR: | Freeman JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2020 |
DATE OF RULING: | 9 October 2020 |
CASE MAY BE CITED AS: | DPP v Fairhall |
MEDIUM NEUTRAL CITATION: | [2020] VSC 662 |
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CRIMINAL LAW – Practice and procedure – Pre-trial processes – Fast-tracking of homicide cases during COVID-19 pandemic – Application by accused to conduct limited preparatory cross-examination of prosecution witnesses – Application in respect of child witnesses opposed by prosecution – Whether limited preparatory cross-examination necessary to avoid serious risk that the trial of the accused would be unfair – Need to minimise trauma to child witnesses in giving evidence – Relevant considerations – Application granted – Criminal Procedure Act 2009 ss 97, 124, 198B.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N Rogers SC | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr S Bayles | Balmer & Associates |
JUDICIAL REGISTRAR:
Introduction
By an application filed on 1 September 2020, the accused seeks an order pursuant to s 198B of the Criminal Procedure Act 2009 (‘the CPA’) to conduct limited preparatory cross-examination of 13 prosecution witnesses whose statements form part of the depositions filed with the Court for the purpose of the prosecution of the accused for the offence of murder, contrary to the common law (‘the s 198B application’).
On the Court’s own motion, the s 198B application was referred to me for hearing and determination, pursuant to Rule 84.03(1) of the Supreme Court (General Civil Procedure Rules 2015.[1]
[1]By Order of the Honourable Justice Hollingworth dated 15 September 2020.
The s 198B application is made in the context of the parties pursuing the option of ‘fast-tracking’ this case to the Supreme Court. This process has been made available to accused persons charged with murder or manslaughter, as a consequence of the COVID-19 pandemic and the impact that the pandemic has had across the State’s criminal justice system, including the significant delays that have been caused in the listing and conduct of committal hearings in the Magistrates’ Court. The fast-track process enables the parties, by agreement, to conduct a number of the preliminary processes in a criminal proceeding which are ordinarily conducted at the committal stage, such as additional disclosure and the cross-examination of prosecution witnesses, in this Court.[2] The fast-track process is not a result of legislative amendments introduced during the pandemic, but rather it operates within the existing legislative framework of the CPA and the Supreme Court (Criminal Procedure) Rules 2015 for the pre-trial management of criminal proceedings in this Court.
[2]See guide to ‘Fast-tracking of Homicide Cases to the Supreme Court’, first revision, dated 24 August 2020 available on the Supreme Court of Victoria website.
In accordance with the established fast-tracking process, the accused was committed to this Court on 31 July 2020, following service of the hand-up brief. The fast-track process specifically envisages applications by accused persons for orders to conduct limited preparatory cross-examination of prosecution witnesses, pursuant to s 198B of the CPA in lieu of the accused seeking leave to conduct such cross-examination at a committal hearing. Accordingly, in this case there was no cross-examination of any prosecution witnesses in the Magistrates’ Court before the accused was committed to stand trial in this Court.
The case against the accused
In order to give the s 198B application proper context, it is necessary to provide a brief summary of the prosecution case against the accused.
The accused is charged with murdering his former de facto partner on 4 February 2020 at the deceased’s home in bayside Melbourne. The accused and deceased had been in a relationship since approximately 2002. Whilst they were not married, there are three biological children of the relationship, who are aged (as at the date of the hearing of the s 198B application) 17, 16, and 14 years respectively. All three children resided with the deceased. The history of the relationship between the accused and deceased is alleged to have been volatile, including allegations of violence by the accused toward the deceased, and a number of periods of separation. Although it is somewhat unclear, it appears the accused was in fact residing with the deceased at the time of her death, notwithstanding the existence of an intervention order prohibiting the accused from attending the address or indeed having any contact with the deceased or their children.
The prosecution alleges that during the afternoon on 4 February 2020 the accused and the deceased were arguing, with the accused alleging, inter alia, that the deceased had been unfaithful to him and had been seeing other men. The accused is alleged to have been yelling at the deceased and threatening her with a kitchen knife. All three children were present and at times attempted to intervene during the argument, both verbally and physically, as the accused and deceased moved throughout the house.
It is further alleged that as the deceased tried to retreat from the accused into one of the children’s bedrooms, she was cornered by the accused. At least two of the children positioned themselves between the accused and deceased, at which time the accused is alleged to have reached over the children and inflicted a single stab wound to the left neck area of the deceased. Immediately following the stabbing, one of the children tackled the accused to the ground and he dropped the knife, whilst the deceased ran from the house and across the street into the driveway of a neighbour’s property. The accused and the children followed the deceased out of the house and across the road almost immediately.
A number of neighbours had heard arguing and yelling coming from within the deceased’s house and had already called ‘000’ seeking the attendance of police. A number of those neighbours also came out into the street and made relevant observations of, and interacted with, the accused and deceased in the street and neighbour’s driveway up until the time that police arrived at the scene. Paramedics also attended soon after and commenced resuscitation efforts which were ultimately unsuccessful. The deceased was pronounced dead at the scene.
Importantly, the only eye-witnesses to the events inside the house, including the alleged stabbing of the deceased, were the three children. The entire factual narrative of the prosecution case, insofar as what is alleged to have occurred inside the house, and specifically the act constituting the charge of murder, is from the evidence of the children.
Each of the three children were the subject of VARE interviews[3] with investigating police at Seaford Police station on the evening of 4 February 2020 (the same day of the incident), and provided accounts of what had occurred. The transcripts of the VARE interviews are contained in the depositions.
[3]In accordance with Division 5 of Part 8.2 of the Criminal Procedure Act 2009.
Procedural history
At the post-committal directions hearing in this Court on 11 August 2020, at which counsel for the accused foreshadowed the s 198B application, I gave directions for the filing of the application. In accordance with those orders, the accused filed the s 198B application on 1 September 2020, which is a jointly signed document setting out the particulars and grounds of the application on behalf of the accused, the prosecution’s response to the application, and other procedural information which is not relevant for present purposes.
The hearing of the s 198B application proceeded before me on 17 September 2020. In advance of the hearing, following my review of the s 198B application as filed and the contents of the depositions, each party filed (at my request) additional written submissions specifically addressing the contested aspects of the application. The parties also expanded upon the written submissions in oral argument before me at the hearing. I have been greatly assisted in the determination of the s 198B application by the detailed and helpful submissions of the parties.
The s 198B application
It is clear from the content of the application and from the additional written submissions filed on behalf of the parties, that at this relatively early stage of the proceeding, the central issue in dispute is the intention or mens rea element of the offence charged; namely, whether the accused possessed the requisite intention to kill, or cause really serious injury to, the deceased at the time he inflicted the fatal injury by stabbing her.[4] It is in this context that the application falls to be determined.
[4]Or that the accused knew it was probable that death or really serious injury would result from that act (‘reckless murder’); R v Crabbe (1995) 156 CLR 464.
Of the 13 witnesses who are the subject of the s 198B application, the prosecution does not oppose the application in respect of 10 of those witnesses (‘the unopposed witnesses’). At the hearing, Senior Counsel for the prosecution conceded that the accused had identified legitimate issues for the cross-examination of the unopposed witnesses and had appropriately established the purpose of the proposed cross-examination.
The unopposed witnesses are comprised of:
(a) the forensic pathologist, who conducted the autopsy of the deceased and expressed opinions in relation to the deceased’s injuries and cause of death;
(b) the deceased’s brother, who provided background on the nature and history of the relationship between the accused and deceased;
(c) a friend of the deceased who had contact with both the deceased and accused in the days leading up to 4 February 2020;
(d) three police members who attended the scene in the immediate aftermath of the incident, who made observations of the accused and deceased;
(e) three neighbours who heard the argument between the accused and deceased and also made observations of the accused and deceased in the street; and
(f) the Informant, who was responsible for conducting the police investigation and compiling the hand-up brief for the prosecution of the accused.
For each of the unopposed witnesses the accused has detailed the issues upon which the witnesses are sought to be cross-examined and the purpose of that cross-examination. In summary, the proposed cross-examination is directed toward the primary issue of the intention of the accused, or other relevant issues such as the relevance and/or admissibility of the evidence. Accordingly, I do not intend to say much more in respect of the unopposed witnesses, to whom I will return later.
The prosecution does, however, oppose the s 198B application in respect of the three teenage children of the accused and the deceased (hereafter referred to, collectively, as ‘the child witnesses’). The prosecution’s position is that the child witnesses only wish to give evidence once in the proceeding, namely at the trial of the accused.
Therefore the focus of the submissions of the parties was directed primarily at the application in respect of the child witnesses.
Applicable legal principles
Given the arguments advanced in respect of the child witnesses, it is appropriate that I set out in some detail the applicable legal principles for the determination of the s 198B application.
For present purposes, the relevant parts of s 198B of the CPA provide as follows:
198B Order for accused to conduct limited preparatory cross-examination
(1)An accused may apply to the court for an order under this section that the accused cross-examine a witness at a time and place fixed by the court.
(2) An application under subsection (1) must state—
(a) the issue to which the proposed questioning relates; and
(b) the purpose of the proposed questioning.
(3)The court must not make the order sought in the application unless the court is satisfied that it is necessary to do so in order to avoid a serious risk that the trial would be unfair.
(4)In determining whether it is necessary to make the order sought in the application in order to avoid a serious risk that the trial would be unfair, the court must have regard to—
(a)the purposes of a committal proceeding as set out in section 97; and
(b)the limitations that apply in relation to cross-examination of a witness at a committal hearing.
(5)If the court makes the order sought in the application, the prosecution may re-examine a witness who is cross-examined in accordance with the order.
…
Upon enactment, s 198B of the CPA replaced the well-established procedure at common law known as a Basha ‘hearing’ or ‘inquiry’.[5] The Basha procedure provided an accused the opportunity prior to the commencement of a trial (or in some instances, during the trial but in the absence of the jury) to cross-examine a prosecution witness who had not been cross-examined at the committal stage, in order to remedy any unfairness or prejudice to the accused. The over-riding objective of the Basha procedure was to ensure the fair trial of the accused.[6] Whilst s 198C of the CPA expressly abolished the Basha procedure at common law, s 198B is a codification of the procedure[7] and provides a ‘not dissimilar mechanism’[8] to apply for an order to cross-examine a prosecution witness.
[5]R v Basha (1989) 39 A Crim R 337.
[6]See also Harvey v McManus v County Court of Vic. & Ors [2006] VSC 293 at [20]-[23] for a summary of the application, at common law, of the Basha procedure in Victoria.
[7] Explanatory Memorandum to the Justice Legislation Miscellaneous Amendment Bill 2018.
[8]Cook v R [2019] VSCA 87, at [26]; see also DPP (Cth) v Bayly (1994) 63 SASR 97 at 120, which indicates the requirements of s 198B(4) match the principles that applied to the Basha procedure at common law.
Section 198B requires that I must not make the order sought in the application unless I am satisfied that it is necessary to avoid a serious risk that the trial of the accused would be unfair. In determining this question, I must have regard to the purposes of a committal proceeding, as set out in section 97 of the CPA, and the limitations that apply in relation to cross-examination of a witness at a committal hearing (s 198B(4)).
Section 97 of the CPA relevantly provides:
97 Purposes of a committal proceeding
The purposes of a committal proceeding are—
(a)to determine whether a charge for an offence is appropriate to be heard and determined summarily;
(b)to determine whether there is evidence of sufficient weight to support a conviction for the offence charged;
(c) to determine how the accused proposes to plead to the charge;
(d) to ensure a fair trial, if the matter proceeds to trial, by—
(i)ensuring that the prosecution case against the accused is adequately disclosed in the form of depositions;
(ii)enabling the accused to hear or read the evidence against the accused and to cross-examine prosecution witnesses;
(iii)enabling the accused to put forward a case at an early stage if the accused wishes to do so;
(iv)enabling the accused to adequately prepare and present a case;
(v)enabling the issues in contention to be adequately defined.
…
The parties were ad idem that consideration of the matters in s 198B(4) require that I also have regard to s 124 of the CPA, which sets out the test for an application for leave to cross-examine a witness at a committal hearing. There is in my view some overlap in the tenor of ss 97 and 124, however I accept that relevant aspects of s 124 are, at the very least, instructive when considering the limits that apply to cross-examination of a witness at a committal hearing, particularly given the matter has proceeded to this Court under the fast-track procedure without the usual preliminary processes in a committal hearing having been conducted.
Relevant to the present application, those limitations include, before leave is granted, that the Magistrates’ Court must be satisfied that the proposed cross-examination is justified to ensure, inter alia, that:
·the prosecution case is adequately disclosed (s 124(4)(a));
·the issues are adequately defined (s 124(4)(b));
·the accused is able to adequately prepare and present a defence (s 124(4)(d));
·trivial, vexatious or oppressive cross-examination is not permitted (s 124(4)(g)); and
·the interests of justice are otherwise served (s 124(4)(h)).
Additionally, before leave is granted to cross-examine any witness under 18 years of age at a committal hearing, the Court must have regard to, inter alia:
·the need to minimise the trauma that might be experienced by the witness in giving evidence (s 124(5)(a));
·any relevant condition or characteristic of the witness, including age, culture, personality, education and level of understanding (s 124(5)(b));
·the importance of the witness to the case for the prosecution (s 124(5)(d));
·the existence or lack of evidence that corroborates the proposed evidence of the witness (s 124(5)(e));
·the probative value of the proposed evidence of the witness (s 124(5)(g));
·the issues in dispute (s 124(5)(h));
·the weight of the proposed evidence of the witness (s 124(5)(i)); and
·any statements of other witnesses that contradict the proposed evidence of the witness (s 124(5)(j)).
At the hearing there was common ground between the parties that:
(a) the central issue in dispute is the intention of the accused;
(b) the child witnesses were the only eye-witnesses to the relevant events inside the house;
(c) the factual narrative of the prosecution case, insofar as the actus reus element of the offence of murder, is derived solely from the evidence of the child witnesses;
(d) there is a lack of evidence to corroborate the evidence of the child witnesses, other than the evidence of the child witnesses themselves; and
(e) the considerations in s 124 of the CPA to which the parties submit I should have regard involve a balancing or weighing of those competing considerations.
The submissions on behalf the accused
The accused relies heavily on the fact that the child witnesses are the only eye-witnesses to the incident. The accused argues that as a jury will be asked to infer murderous intent from the actions and conduct of the accused at, and around, the time of the incident, the evidence of the child witnesses will be critical. It follows, the accused submits, that the ability to conduct limited preparatory cross-examination of the child witnesses is necessary and justified, having regard to the considerations contained in s 124(4) the CPA, in order to prepare and present his defence.
At the hearing, counsel for the accused further developed that argument. The VARE interviews of each of the child witnesses were conducted on the same day, within only a few hours, of the incident involving the death of their mother. It was submitted by counsel for the accused that witnessing those events would have been highly traumatic and stressful for the child witnesses. Further, at the time they were carefully interviewed by investigating police, it is probable that their accounts of the events may have been impacted by a number of emotions, such as shock, distress, and fatigue. It was submitted this may have impacted their ability to provide a clear and detailed account of the events.
It was also submitted (albeit not as a criticism of the police members conducting the VARE interviews), that given the sensitive nature and timing of the interview with each of the child witnesses, the questions asked by the police members seeking to adduce further detail may not have been as probing or exhaustive as would otherwise have been the case in respect of, for example, adult witnesses. The result, it was submitted, was a degree of vagueness in aspects of the accounts of the child witnesses and a paucity of specific detail on critical issues, such as the physical movements and actions of the accused at the time of inflicting the injury to the deceased, in circumstances where the prosecution will be asking a jury to infer the requisite intent for murder from the description of those events given by the child witnesses in the VARE interviews.
Counsel for the accused submitted that the purpose of limited preparatory cross-examination on these issues would be to clarify many aspects of the accounts of the child witnesses and seek further detail of what the child witnesses specifically saw and did where such detail is absent in their VARE interviews. The proposed questioning is not, it was submitted, to be confrontational or oppositional in nature, but rather a process of elicitation and clarification aimed at ensuring as detailed account as possible from the child witnesses of the relevant events is available to the accused prior to the trial.
The significance of the evidence of the child witnesses is such, it was submitted, that if those witnesses were in fact adults (and therefore not subject to the additional considerations of s 124(5) of the CPA) it would be difficult to envisage the prosecution seeking to oppose an application for preparatory cross-examination in respect of such evidence.
It was accepted on behalf of the accused that the giving of evidence by the child witnesses in relation to the fatal stabbing of their mother by their father would undoubtedly be a traumatic and stressful experience. It was submitted however, that the need to minimise the trauma that might be caused to the child witnesses must be weighed against the other competing considerations in s 124 of the CPA. Put another way, counsel for the accused submitted that having regard to the weight of those considerations in favour of the accused, there would be a serious risk of an unfair trial if the accused was not permitted to conduct limited preparatory cross-examination of the child witnesses.
The submissions on behalf of the prosecution
In their written submissions, the prosecution submitted that there is ‘no serious risk’ that the trial of the accused would be unfair if the application in respect of the child witnesses is refused. In that regard, the prosecution submitted that each of the child witnesses provided an account of what they did, saw and heard. Their accounts were neither vague nor ambiguous and they are each anticipated to confirm in their evidence at trial the account they gave in their VARE interviews.
The prosecution’s written submission also contended that as one of the purposes of a committal hearing is to determine whether there is evidence of sufficient weight to support a conviction for the offence charged (ss 97(b) and 198B(4)(a) of the CPA), there was ‘a body of evidence already available of sufficient weight to support a conviction for murder without each child witness being required for cross-examination.’
The principal submission, however, advanced by the prosecution at the hearing was the need to minimise the trauma that might be experienced by the child witnesses in giving evidence about the circumstances in which they witnessed their mother being fatally injured by their father. That consideration alone, it was submitted, outweighs all other considerations relied on by the accused. Given those circumstances, the child witnesses should only be required to give evidence on one occasion, namely at the trial. If the child witnesses were to undergo preparatory cross-examination, they would be required to watch their VARE interview before giving evidence. That process would then be repeated when they give evidence at the trial. The prosecution submitted that that the child witnesses should not be required to relive the traumatic events of the day in question more than once.
Availability of intermediary for child witnesses
During the course of argument, I raised with the parties what relevance, if any, the availability of the intermediary scheme, as provided for by Division 2 of Part 8.2A of CPA, might have to the application, and in particular the need to minimise the trauma that might be experienced by the child witnesses in giving evidence.
Senior Counsel for the prosecution submitted that the primary objective of the use of an intermediary was to enable a ‘vulnerable witness’ (which includes a child under the age of 18 years) to give their ‘best evidence’, having regard to the communication needs of the witness. The function of the intermediary, it was submitted, is to assist in the communication between the witness and the court (or questioner), not for the purpose of supporting the witness’ vulnerability or emotional wellbeing. This, it was submitted, is the function of the Child Witness Assistance Service (‘CWAS’).
Counsel for the accused did not urge me to form a different view to that expounded by the prosecution in relation to the relevance (or otherwise) to the s 198B application of the availability of an intermediary for the child witnesses. Indeed, it was indicated that should there be an application for an appointment of an intermediary for any of the child witnesses, counsel for the accused would seek to be heard on such application. In any event, I accept the submissions of the parties that the availability of an intermediary for the child witnesses is not a matter to which I should give much, if any weight, in the determination of the s 198B application insofar as the child witnesses are concerned. I only add, by way of comment, that if a child witness was to give evidence with the assistance of an intermediary, with the aim of ensuring that the questioning of, and answers by, the child witness was directed in such a way as to ensure the best evidence of the witness, an indirect consequence of that process may well be to facilitate a less stressful or traumatic experience for the witness in giving evidence.
Other considerations
I have also had regard to several other factors which in my view are relevant to the determination of the s 198B application in relation to the child witnesses.
I have already made mention of the CWAS. CWAS, which can be accessed through the Office of Public Prosecutions, is staffed by social workers and psychologists to provide support to children (and their families) during the court process. Referrals to specialist support services can be made by CWAS if and when required. I have no doubt that CWAS will be available to the child witnesses in the event I grant the application in respect of those witnesses, and CWAS will support the child witnesses throughout the proceeding.
Additionally, and although it was not specifically addressed by either party during the course of submissions, I note that s 41 of the Evidence Act 2008 prohibits improper questioning of a witness, being a question or sequence of questions put to a witness that:
(a) is misleading or confusing; or
(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or
(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or
(d) has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability).
Analysis
As eye-witnesses to the incident which is the subject of the charge of murder, the child witnesses are perhaps the most critical witnesses in the prosecution of the accused. They are the only witnesses to the incident in which the deceased suffered fatal injuries as a consequence of a single stab wound alleged to have been inflicted by the accused. The prosecution concedes that there is a lack of other evidence that corroborates the proposed evidence of the child witnesses, and that the intention of the accused at the time the deceased was stabbed is legitimately in issue in the prosecution of the accused.
I accept unreservedly the likely trauma and stress that may be experienced by the child witnesses when called to give evidence and required to relive the events of 4 February 2020. I can also understand that the child witnesses may not want to give evidence any more times than is absolutely necessary. However, given the issues in dispute, such is the significance and importance of their evidence, to both the prosecution and the defence, that the inability of the accused to conduct limited preparatory cross-examination of the child witnesses would, in my view, likely cause real unfairness and disadvantage to the accused.
I note that the prosecution does not contend that the accused has failed to identify a legitimate issue/s to which the proposed questioning of the child witnesses relates, nor has the accused failed to establish the purpose of the proposed questioning. It is also relevant that the prosecution did not seek to argue against the contention on behalf of the accused that if in fact the eye-witness evidence of the child witnesses was being given by adult witnesses, it is unlikely an application to conduct preparatory cross-examination would be opposed.
In determining this application, I was also not assisted by the prosecution submission that, having regard to the purposes of a committal proceeding, there was already a body of evidence of sufficient weight to support a conviction for the offence charged without requiring the cross-examination of the child witnesses. In my view, that submission is not to the point. The very nature of an application pursuant to s 198B of the CPA is that it is made post-committal. As I have already outlined, s 198B has replaced the former Basha procedure to overcome the unfairness to an accused occasioned by an inability to cross-examine a witness at the committal stage.
I turn then to consider the relevant factors in s 124 of the CPA relied upon by the parties. On the one hand there is the need to minimise the trauma likely to be experienced by the child witnesses in giving evidence, to be weighed against, on the other hand, the requirement to have regard to:
(a) the need to ensure that the evidence of the child witnesses is adequately disclosed, having regard to the issue of clarity and detail, to which I have already referred;
(b) the need to ensure the accused is able to adequately prepare and present a defence, which will focus on whether the prosecution can prove beyond reasonable doubt that the accused possessed the requisite intent for murder;
(c) the importance of the child witnesses to the prosecution case which, on any view is critical eye-witness evidence;
(d) the lack of other evidence that corroborates the evidence of the child witnesses, which is conceded by the prosecution; and
(e) the probative value and weight of the evidence of the child witnesses, being the sole source of evidence of what occurred inside the house in the lead up to, and at the time of, the deceased being fatally injured by a single blow from the accused.
In my view, having regard to all the circumstances of this matter, the balance of those considerations weighs in favour of the accused.
Furthermore, the Court has significant powers to carefully regulate the cross-examination of the child witnesses, including ensuring that the questioning is confined to the relevant issues identified in the s 198B application and to ensure the questioning does not otherwise infringe upon the prohibitions in s 41 of the Evidence Act 2008.
There is also in my view a need to marshal the evidence of the child witnesses, including their cross-examination, in the form of depositions to ensure that only relevant and admissible evidence is adduced from the child witnesses at the trial of the accused. Allowing limited preparatory cross-examination of the child witnesses will not only facilitate that process, it is likely to confine the evidence that they will need to give at the trial. Furthermore, preparatory cross-examination of critical eye-witnesses, such as the child witnesses in this case, will likely have other broader benefits such as narrowing the issues in dispute, and even potentially aid the possible resolution of the matter prior to trial.
I have also considered the age of the child witnesses, who are all teenagers with the oldest almost an adult. That is not to disregard or discount the impact that witnessing the death of their mother is likely to have had on each of them, but the ages of the child witnesses is one further matter to be considered in the balance. As a general proposition, the contents of the VARE interview transcripts reveal that the child witnesses were able to comprehend the questions being asked of them, and they were able to provide appropriate responses with commendable composure notwithstanding the events that had transpired only hours earlier. Whilst I have only had the benefit of reviewing the transcripts and not the video and/or audio of the VARE interviews, my assessment of the child witnesses is that they were reasonably articulate.
It was not otherwise suggested that any of the child witnesses had particular characteristics, conditions or vulnerabilities that would be relevant to my consideration of the s 198B application. I have also already referred to the CWAS that will be available to support the child witnesses throughout the Court process.
Conclusion
Earlier in this ruling I addressed the application in respect of the 10 unopposed witnesses named in the s 198B application. For the reasons I have already detailed, I am satisfied that the application in respect of the unopposed witnesses should be granted.
I am also satisfied that having regard to the relevant considerations and reasoning set out above, the conduct of limited preparatory cross-examination of the child witnesses on behalf of the accused is necessary to ensure that the prosecution case is adequately disclosed, the issues in dispute are adequately defined, and to enable the accused to prepare and present his defence.
I am therefore satisfied that the order sought to conduct limited preparatory cross-examination of all 13 witnesses named in the s 198B application, including the child witnesses, is necessary in order to avoid a serious risk that the trial of the accused would be unfair. Accordingly, the application is granted.
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