Director of Public Prosecutions v Garcia (a pseudonym) - [2023] ACTSC 372

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Garcia (a pseudonym)
Citation:	[2023] ACTSC 372
Hearing Date:	30 October 2023
Decision Date:	30 October 2023
Before:	Loukas-Karlsson J
Decision:	See [16]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Ground Rules Hearing – consideration of intermediary report and recommendations – vulnerable witness – directions made as to manner of questioning of witness
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 4AB, 4AE, 4AF, 4AJ, 4AK, 42 Evidence (Miscellaneous Provisions) Regulation 2009 (ACT), reg 3B
Cases Cited:	Browne v Dunn (1983) 6 R 67 R v Smith [2022] ACTSC 12 R v QX (No 6) [2021] ACTSC 248
Parties:	Director of Public Prosecutions Donald Garcia (a pseudonym) ( Accused)
Representation:	Counsel S Jerome ( DPP) D Perkins ( Accused)
Solicitors ACT Director of Public Prosecution Darryl Perkins Solicitors ( Accused)
File Number:	SCC 111 of 2023

LOUKAS-KARLSSON J:

Introduction

1․On 18 May 2023, the Registrar directed than an intermediary be appointed for the complainant pursuant to s 4AK of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act). Subsequently, an intermediary report was ordered, and a ground rules hearing was directed to be held for the complainant, pursuant to s 4AB of the EMP Act.
2․The complainant is a “prescribed witness” within the meaning of reg 3B(1)(a) of the Evidence (Miscellaneous Provisions) Regulation 2009 (ACT) and is also a “child” within the meaning of s 42 of the EMP Act.
3․The ground rules hearing proceeded before me on 30 October 2023. I decided the directions to be made pursuant to s 4AF of the EMP Act. Orders and reasons follow.
4․By way of background, the accused, Mr Donald Garcia (a pseudonym), is charged with several sexual assault offences in relation to two complainants. These reasons refer to one of the complainants and for the purposes of these reasons, I will refer to “the complainant”. The sexual assault charges related to the complainant for the purposes of this ground rules hearing are:
(a)Two counts of an act of indecency on a person under the age of 10 years.

5․These offences are alleged to have been committed against the complainant on or about 26 January 2023.

The Intermediary Report

6․Ms Margo Lilley (the intermediary) is the intermediary appointed for the complainant. The intermediary prepared their report pursuant to s 4AE of the EMP Act. The report dated 11 September 2023 makes recommendations as to the adjustments and questioning techniques that will best support the complainant in giving her evidence for the purposes of the trial of the accused.
7․The intermediary report comprehensively set out their assessment of the communication needs of the complainant. I will now briefly summarise this by way of background.
(a)On 18 May 2023, the ACT Intermediary Program received notification of an order made by the ACT Supreme Court regarding the complainant.
(b)On 19 May 2023, the Intermediary Program received a referral for the complainant from the Office of the Director of Public Prosecutions (ACT) indicating age and trauma may impact the complainant’s communication at court.
(c)On Friday 14 July 2023, the intermediary attended Winchester Police Centre to watch the recording of the evidence-in-chief interview (‘the interview’) with the complainant, conducted on 27 January 2023 by Police. The interview was one hour and nine minutes in length and the intermediary watched the entirety. At the time of the interview, the complainant was aged eight years and 10 months.
(d)On 31 July 2023, the intermediary spent approximately two hours conducting a communication assessment (‘the assessment’) with the complainant. The complainant’s stepmother was present and provided written consent for the assessment but did not otherwise participate in any assessment activities.
(e)The assessment activities were designed to assess the complainant’s communication needs, ability to attend to spoken conversation, receptive and expressive language and understanding of different question forms. The complainant’s ability to engage in a narrative, describe sequences of events, and refute inaccurate suggestions were also assessed.

Intermediary Report Recommendations

8․The intermediary report contained a total of 22 recommendations. The recommendations contained in the intermediary report are based on information gathered about the complainant’s language skills and observed functional communication needs during the assessment. It is the opinion of the intermediary that the complainant’s communication at court will be assisted if the recommendations outlined in this report are followed.
9․The recommendations made at 3.2 in the intermediary report are extracted, in part, as follows:

Questioning Recommendation

Advice for Questioner

1

Parties to introduce themselves (in person in the remote suite, if possible) and their role prior to commencing questioning.

Parties should introduce themselves and their role prior to the commencement of questioning. The intermediary can facilitate introductions in the remote suite for parties, as appropriate and if required.

2

The complainant should not be asked to read during proceedings

Avoid asking the complainant to read during proceedings. In addition, any written material should be read to the complainant and limited to two sentences in length.

3

Remind the complainant of the communication rules prior to questioning, after returning from breaks and as required.

Parties should remind the complainant of the communication rules prior to questioning and after breaks, including:

-    advising when she does not understand a question;

-    advising when she does not know the answer to a question; and

-    advising when something is incorrect.

This can be done by saying, “please let me know if I ask a question or use a word you don’t understand,” or, “If I ask a question and you don’t know the answer, please let me know” or, “If I say something that is not right, please let me know”. The intermediary can alert the court if the complainant indicates she does not understand a question, if directed.

4

For visual communication aids relating to the communication rules and breaks to be available for the complainant to refer to during questioning

For visual communication aids (“I don’t understand”, “stop” and “communication rules”) to be made available to the complainant during questioning (see Appendix 1).

The intermediary can provide the visual aids and alert the court if the complainant points to one, if required.

5

For the complainant to be offered a short break every 30 minutes, with the possibility of additional breaks if necessary.

A short break should be offered every 30 minutes, and if refused, questioning may continue. The intermediary can alert the court about the need to have additional breaks if needed and advise about the length of breaks, if required.

6

Signpost topics during questioning to alert the complainant to changes in topic.

Parties should signpost changes in topic, for example: - “I am now going to ask you about the mountains”. - When the topic changes say, “I have finished asking about the mountains, I am now going to ask about the beach”. Parties can also advise the complainant when they are continuing to ask questions about the same topic by saying, "I am going to ask you some more questions about the beach."

7

Use clear, simple language.

Parties should use uncomplicated and direct language during questioning. For example, say: “It is time to start the game.” Rather than: “It is time to commence with the activities”.

8

Avoid idioms, abstract language and questions framed in the negative.

For example, say: “We will start from the beginning”. Rather than: “We will start from scratch”. For example, say: “It is raining today?” Rather than: “It isn’t raining today?”

9

Use the complainant’s own vocabulary for body parts.

Use the complainant’s own vocabulary for body parts during questioning and clarify their meaning where required.

10

Use references to the complainant’s routine or events of significance rather than specific times and dates, if required.

Parties can use events of significance such as the complainant’s birthday or their regular routines, such as getting ready for school, lunchtime or after school, when referencing time.

11

Ask questions using a neutral tone and a slow pace with a clear pause in between to allow the complainant to process and complete their responses in totality.

Parties should use a neutral tone and slow pace during questioning, pausing for three seconds after each question to allow the complainant to process what is being asked and to formulate and provide their response. Parties can check the complainant has finished their answer before proceeding to the next question, if required.

12

Ask questions containing one idea at a time and avoid multipart questions and preamble.

Instead of, “What time did you go to the beach on Saturday and what did you do on the way?” Ask, “What time did you go to the beach on Saturday?” and then, depending on the answer, “What did you do on the way?” The intermediary can provide advice about formulating questions without the use of preamble, if required.

13

To put an argument, use a short, simple statement followed by “True or not true?”

For example, say, “You went to the beach yesterday. True or not true?” Parties should also avoid questions that begin with:

-    “I have been told…”

-    “I have heard…”

-    “Is it correct…”

-    “Is it false…”

-    “I suggest to you…”

-    “It’s true to say…”

14

Avoid the use of tag questions

For example, ask, “Did you go to the beach?” instead of, “You went to the beach, didn’t you?”

15

Allow the complainant to use reference points or use objects or gestures to describe distances. Avoid references to left and right during questioning.

To clarify distances, parties can use the diagram located in the remote suite and the intermediary can also provide a measuring tape, if required (see Appendix 2).

The intermediary can provide reference to the measurements of the remote suite and measuring tape if required.

In addition, avoid using the terms ‘left’ and ‘right’ when asking the complainant to provide information. Allow the complainant to indicate direction using gestures. The intermediary can place objects on the table to the left and right of the complainant and these can be referred to for clarity if required.

16

For the complainant to have access to focus items.

The intermediary can arrange for focus items to be available for the complainant, if directed. These include an octopus squeeze item, sensory bracelet, sensory gel balls and gel strings (see Appendix 3).

17

For the complainant to have a plush weighted dog during questioning.

The intermediary can arrange for the plush weighted dog to be available at court, if required (see Appendix 4).

18

For the complainant to have access to a tactile cushion during questioning.

The intermediary can provide the tactile cushion to be available at court, if required (see Appendix 4).

10․In relation to the partially extracted table above, the intermediary detailed a ‘rationale’ for each recommendation that was directly responsive to the communication assessment conducted with the complainant. There was, therefore, clear demonstration that the recommendations suggested by the intermediary were targeted to the communication needs of the complainant in this case.
11․The intermediary report also contained ‘other’ recommendations at 3.3:
(a)That the complainant have access to the Canine Court Support Program during breaks from questioning, if possible;
(b)That the intermediary is seated near to the complainant at all times during court proceedings to assist, and be visible to the court;
(c)That the intermediary raises their hand and says, “Your Honour” to indicate that a communication need, or issue, has arisen for the complainant; and
(d)That the intermediary will be available to parties at the hearing to provide communication guidance, as directed and required.

Consideration

12․In my view, it is appropriate to make orders or directions consistent with 3.2 and 3.3 of the intermediary report of Ms Lilley.
13․As I underlined in R v QX (No 6) [2021] ACTSC 248 at [50]-[51], cross-examination has been described as the engine of truth, nevertheless the engine of truth may at times require fine turning. It is important that cross-examination, and indeed any examination, is done in a manner that is congruent with the evidenced communication needs of witnesses without compromising the effectiveness of questioning.
14․I agree with Mossop J in R v Smith [2022] ACTSC 12 at [6], that competent counsel can properly balance their Browne v Dunn (1983) 6 R 67 obligations while ensuring fair and appropriate questioning of a witness with a communication difficulty:
… competent counsel can properly formulate questions consistent with their obligations to their client, including the obligation to put matters for Browne v Dunn (1893) 6 R 67 purposes quite readily if they put sufficient time and effort into the formulation of the questions. The requirement for some additional time and effort on the part of cross‑examining counsel is a cost that needs to be incurred in order to ensure fair and appropriate questioning of a witness with a communication difficulty.
(Emphasis added.)
15․I am satisfied that the directions or orders I will make will enable proper supports to be given to the complainant so that this complainant may give their evidence, while at the same time ensuring a fair trial for the accused.

Orders

16․For the foregoing reasons, I make the following directions.
(1)I direct that the complainant be provided with the adjustments contained in, and questioned in a manner consistent with, the recommendations in Table 3.2 of the intermediary report of Ms Margo Lilley dated 11 September 2023.
(2)I direct that the complainant have access to the Canine Court Support Program during breaks from questioning, if possible.
(3)I direct that the intermediary be permitted to sit near to the complainant at all times during court proceedings to assist and be visible to the court.
(4)I direct that the intermediary raises their hand and says “Your Honour” to indicate that a communication need or issue has arisen for the complainant.
(5)I direct that the intermediary be available to parties at the hearing to provide communication guidance, as directed and required.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson.

Associate:

Date:

Questioning Recommendation	Advice for Questioner
1	Parties to introduce themselves (in person in the remote suite, if possible) and their role prior to commencing questioning.	Parties should introduce themselves and their role prior to the commencement of questioning. The intermediary can facilitate introductions in the remote suite for parties, as appropriate and if required.
2	The complainant should not be asked to read during proceedings	Avoid asking the complainant to read during proceedings. In addition, any written material should be read to the complainant and limited to two sentences in length.
3	Remind the complainant of the communication rules prior to questioning, after returning from breaks and as required.	Parties should remind the complainant of the communication rules prior to questioning and after breaks, including: - advising when she does not understand a question; - advising when she does not know the answer to a question; and - advising when something is incorrect. This can be done by saying, “please let me know if I ask a question or use a word you don’t understand,” or, “If I ask a question and you don’t know the answer, please let me know” or, “If I say something that is not right, please let me know”. The intermediary can alert the court if the complainant indicates she does not understand a question, if directed.
4	For visual communication aids relating to the communication rules and breaks to be available for the complainant to refer to during questioning	For visual communication aids (“I don’t understand”, “stop” and “communication rules”) to be made available to the complainant during questioning (see Appendix 1). The intermediary can provide the visual aids and alert the court if the complainant points to one, if required.
5	For the complainant to be offered a short break every 30 minutes, with the possibility of additional breaks if necessary.	A short break should be offered every 30 minutes, and if refused, questioning may continue. The intermediary can alert the court about the need to have additional breaks if needed and advise about the length of breaks, if required.
6	Signpost topics during questioning to alert the complainant to changes in topic.	Parties should signpost changes in topic, for example: - “I am now going to ask you about the mountains”. - When the topic changes say, “I have finished asking about the mountains, I am now going to ask about the beach”. Parties can also advise the complainant when they are continuing to ask questions about the same topic by saying, "I am going to ask you some more questions about the beach."
7	Use clear, simple language.	Parties should use uncomplicated and direct language during questioning. For example, say: “It is time to start the game.” Rather than: “It is time to commence with the activities”.
8	Avoid idioms, abstract language and questions framed in the negative.	For example, say: “We will start from the beginning”. Rather than: “We will start from scratch”. For example, say: “It is raining today?” Rather than: “It isn’t raining today?”
9	Use the complainant’s own vocabulary for body parts.	Use the complainant’s own vocabulary for body parts during questioning and clarify their meaning where required.
10	Use references to the complainant’s routine or events of significance rather than specific times and dates, if required.	Parties can use events of significance such as the complainant’s birthday or their regular routines, such as getting ready for school, lunchtime or after school, when referencing time.
11	Ask questions using a neutral tone and a slow pace with a clear pause in between to allow the complainant to process and complete their responses in totality.	Parties should use a neutral tone and slow pace during questioning, pausing for three seconds after each question to allow the complainant to process what is being asked and to formulate and provide their response. Parties can check the complainant has finished their answer before proceeding to the next question, if required.
12	Ask questions containing one idea at a time and avoid multipart questions and preamble.	Instead of, “What time did you go to the beach on Saturday and what did you do on the way?” Ask, “What time did you go to the beach on Saturday?” and then, depending on the answer, “What did you do on the way?” The intermediary can provide advice about formulating questions without the use of preamble, if required.
13	To put an argument, use a short, simple statement followed by “True or not true?”	For example, say, “You went to the beach yesterday. True or not true?” Parties should also avoid questions that begin with: - “I have been told…” - “I have heard…” - “Is it correct…” - “Is it false…” - “I suggest to you…” - “It’s true to say…”
14	Avoid the use of tag questions	For example, ask, “Did you go to the beach?” instead of, “You went to the beach, didn’t you?”
15	Allow the complainant to use reference points or use objects or gestures to describe distances. Avoid references to left and right during questioning.	To clarify distances, parties can use the diagram located in the remote suite and the intermediary can also provide a measuring tape, if required (see Appendix 2). The intermediary can provide reference to the measurements of the remote suite and measuring tape if required. In addition, avoid using the terms ‘left’ and ‘right’ when asking the complainant to provide information. Allow the complainant to indicate direction using gestures. The intermediary can place objects on the table to the left and right of the complainant and these can be referred to for clarity if required.
16	For the complainant to have access to focus items.	The intermediary can arrange for focus items to be available for the complainant, if directed. These include an octopus squeeze item, sensory bracelet, sensory gel balls and gel strings (see Appendix 3).
17	For the complainant to have a plush weighted dog during questioning.	The intermediary can arrange for the plush weighted dog to be available at court, if required (see Appendix 4).
18	For the complainant to have access to a tactile cushion during questioning.	The intermediary can provide the tactile cushion to be available at court, if required (see Appendix 4).