DPP v Demir (a pseudonym) (Ruling No. 1)
[2022] VCC 922
•22 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02713
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALAN DEMIR (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 March 2022 | |
DATE OF RULING: | 22 June 2022 | |
CASE MAY BE CITED AS: | DPP v Demir (a pseudonym) (Ruling No. 1) [2022] VCC 922 | |
RULING
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Subject:CRIMINAL LAW
Catchwords: Application for pre-trial ruling – Whether complainant is ‘cognitively impaired’ within the meaning of s 3 of Criminal Procedure Act 2009 – Complainant diagnosed with complex-PTSD – Parties agree complainant has a mental illness – Statutory construction of s 3 – Whether s 3 should be construed broadly or narrowly – Whether evidence of cognitive impairment.
Legislation Cited: Criminal Procedure Act 2009 (Vic); Interpretation of Legislation Act 1984 (Vic); Crimes (Sexual Offences) Act 2006 (Vic); Evidence Act 1958 (Vic)
Cases Cited:Paull v The Queen [2021] VSCA 339; DPP v Stetco (Ruling No. 1 (Unreported, County Court of Victoria, His Honour Judge O’Connell , 2 December 2021); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335.
Ruling: Complainant has a ‘cognitive impairment’ within the meaning of s 3 of Criminal Procedure Act 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms N Deltondo | Office of Public Prosecutions |
| For the Accused | Ms A J Burnnard | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1These reasons deal with an application by the parties for a pre-trial ruling. The accused disputes the complainant in this matter has a cognitive impairment within the meaning of s 3 of the Criminal Procedure Act 2009 (‘CPA’). The prosecution maintains the complainant is cognitively impaired. There are two issues before the Court. First, the meaning of the term ‘cognitive impairment’ as defined by the CPA. Second, whether the complainant’s mental illness falls within that meaning.
2The determination of these issues has implications as to how the complainant’s evidence will proceed. If the Court finds the complainant has a cognitive impairment within the meaning of s 3, the accused will not be allowed to cross-examine the complainant before trial and the VARE[1] will be used as the complainant’s evidence-in-chief.[2]
[1] Visual and Audio Recording of Evidence.
[2] As well as other matters discussed below, see [82].
3A draft indictment has been filed in this proceeding containing two charges of rape and one charge of attempted rape.[3]
[3]4At the hearing on 30 March 2022, the prosecution called Dr Danny Sullivan, a consultant forensic psychiatrist who examined the complainant and prepared a report dated 22 November 2021.[4]
[4] Exhibit A.
5Subsequently, the prosecution became aware of an unreported and restricted ruling of His Honour Judge O’Connell dealing with the same issue: DPP v Stetco (Ruling No. 1) (‘Stetco’).[5] Supplementary written submissions addressing the implications of this ruling to the present application were filed by the defence on 19 May and by the prosecution on 30 May 2022.
[5] (Unreported, County Court of Victoria, His Honour Judge O’Connell , 2 December 2021).
6In addition to the oral submissions made before me at the hearing, I have considered all the filed material[6] as well as the evidence given during the course of the hearing.
[6]
The issue for determination
7The defence accepts that the complainant has a diagnosed mental illness,[7] namely, complex post-traumatic stress disorder (‘complex-PTSD’). The issue in dispute is whether the complainant’s mental illness is such that the complainant can be said to have a cognitive impairment within the meaning of s 3 of the CPA. As stated above, the defence submits she does not have a cognitive impairment.
[7]8The onus to establish the complainant has a cognitive impairment lies with the prosecution as the party seeking to adduce the VARE into evidence.
9Section 3 of CPA, provides the following definition of cognitive impairment:
“cognitive impairment” includes impairment because of mental illness, intellectual disability, dementia, or brain injury.
10It is apparent from the wording of s 3 that mental illness alone is insufficient. The prosecution must show the complainant has a cognitive impairment because of her mental illness, namely, complex-PTSD, for the requirements of s 3 to be satisfied.
Summary of alleged offending and procedural history
11The alleged offending occurred in the early hours of 9 January 2021. The complainant first met the accused, Alan Demir[8], in 2018, and approximately 6 months after meeting, the two engaged in an ‘on and off again’ sexual relationship. On around 6 January 2021, the complainant went to Mr Demir’s house in Campbellfield and between 6 January and 9 January, stayed there at his invitation. During this time, the complainant says she was not in a sexual relationship with the accused and that Mr Demir was in a relationship with another woman named ‘Emma’.[9]
[8]A pseudonym.
[9] A pseudonym.
12Shortly after midnight on 9 January, the complainant says she was lying on the bed in the accused’s bedroom when Mr Demir entered the room. He then locked the bedroom door. The complainant was wearing cotton pants, a singlet, bra and underwear. Mr Demir was wearing black jeans, a t-shirt and a cap.
13The complainant says that after locking the door, the accused jumped on the bed and landed on top of her. He called her ‘sexy’ and told her ‘I want to fuck you’. She says that she told Mr Demir ‘No’ and ‘What about Emma?’. The accused told the complainant to ‘Shut up about Emma’ and that he did not give ‘a fuck’ about her as she was in jail.
14It is then alleged that Mr Demir attempted to remove the complainant’s pants. The complainant says that she placed her hand on her pants to prevent their removal and that she told the accused ‘No’ and ‘I do not want to do that, I don’t feel like that for you anymore’. She also told the accused that she did not love him or have any feelings for him.
15The complainant says that she rolled and kicked on the bed to get away from Mr Demir, however, he was able to grab the complainant’s legs with one elbow and pin her down with his other elbow. The complainant says that her shoulders were also pinned down. She alleges that Mr Demir put one arm across her body and with his other arm removed her pants and underwear. He then exposed his penis from his pants. The complainant says that she repeatedly told Mr Demir ‘No’.
16She alleges that Mr Demir used his arms to separate her legs and then penetrated her vagina with his penis until he ejaculated inside her vagina (Charge 1 – Rape). After ejaculating, the complainant says that Mr Demir stated that he felt better. The act lasted several minutes.
17Mr Demir then left the bedroom before returning and falling asleep. At some stage, he left the bedroom again. The complainant says that she then fell asleep. At around 3am, Mr Demir returned to his bedroom. The complainant says that she was woken by the accused when he physically rolled her over to face him. She says that he removed his pants and was naked from the waist down.
18She alleges that Mr Demir sat her up on the bed and tried to insert his erect penis in her mouth. She says that he grabbed her hair and shoved her face towards his penis and told her to ‘Suck it’. The complainant says that she told him ‘No’ and ‘I am not sucking it’. She says she closed her mouth, but Mr Demir continued to grab her hair and force her face towards his penis. She was able to resist Mr Demir by keeping her mouth closed and moving her head away (Charge 2 – Attempted rape).
19The complainant then alleges that Mr Demir pulled her pants half-way down, physically picked her up and inserted his penis into her vagina. She says that she told Mr Demir ‘No’, however, Mr Demir continued to penetrate her vagina with his penis until he ejaculated inside her vagina (Charge 3 – Rape). The complainant says that after he had finished, Mr Demir threw her off him and she pulled up her pants. This act lasted for approximately 10 minutes.
20The complainant says that she could not sleep after this and sat on a couch in Mr Demir’s bedroom.
21Later that day, the complainant attended Broadmeadow’s police station where she reported the rape. A forensic medical examination was conducted that day and forensic samples were obtained from the complainant.
22On 12 January 2021, the complainant participated in a VARE with police in the presence of an intermediary.
23The accused was arrested and interviewed by the police on 7 February 2021. He denied committing the alleged offences and denied ever seeing the complainant in 2021. He told police that the complainant was ‘crazy’, ‘mentally sick’, ‘not normal’, and ‘complains’ about others.[10] He was later released.
[10] See record of interview Q/A 34,36-40,75-77,83-90,98,112-113,116,169,173,174,175,180,224.
24A forensic report dated 20 August 2021, relating to the forensic samples taken from the complainant revealed that the accused’s DNA was found in the high vaginal swab. In relation to this DNA evidence, the report states that it is 100 billion times more likely if the accused is a contributor.
25On 22 July 2021, the accused was re-arrested and charged, and proceedings in the Magistrates’ Court were commenced.[11]
[11] As far as can be ascertained from the Depositions.
26On 21 December 2021, at the Magistrates’ Court the accused was committed for trial. At that stage, the defence did not take issue with the prosecution’s claim that the complainant is cognitively impaired. Accordingly, the matter was committed in accordance with s 123 of the CPA which does not permit the cross-examination of cognitively impaired complainants, or any other witness.
27The issue as to whether the complainant is cognitively impaired was first raised by the defence at the Initial Directions Hearing (‘IDH’) in this Court on 31 January 2022. At the IDH, the matter was listed for a pre-trial hearing, which I subsequently heard on 30 March 2022.
Evidence of Dr Sullivan
28Dr Sullivan met with the complainant in person for one hour on 23 October 2021 at Fawkner police station. He gave evidence of her presentation during that meeting. As detailed in his report, following that meeting he diagnosed the complainant with complex-PTSD which he described in evidence as follows:
Complex post-traumatic stress disorder is a variety of post-traumatic stress disorder, and we often use the term PTSD to abbreviate that. Complex PTSD overlaps very significantly with borderline personality disorder, and in short compass, it arises in a person whose upbringing was generally marked by extreme trauma. A result of that is, significant problems in emotional regulation, frequent episodes of distress or emotional tumult which can be triggered by various recollections, cues, or other events which remind a person of the traumatic events that have occurred to them. And in addition, people with complex PTSD tend to have significant interpersonal difficulties, problems with relationships, problems with trust, and problems with forming and sustaining stable emotional bonds with others.[12]
[12] TN 6 [L14-31].
29At [53] of his report, Dr Sullivan concluded that the complainant’s complex-PTSD arises from trauma associated with severe sexual and other childhood abuse:
She would meet diagnostic criteria for borderline personality disorder, but more appropriately, complex post-traumatic stress disorder. This is manifest in poor emotional regulation, high levels of anxiety and distress, intrusive recollections including nightmares and flashbacks, a propensity to dissociation at times of stress or in response to aggression and significant difficulties in developing and sustaining intimate and non-intimate relationships related to profound mistrust and unpredictable presentation. The diagnosis arises due to trauma associated with severe sexual and other childhood abuse.
30He noted further at [21], that the complainant was “…very sensitive to the abuse of children or to sexual abuse. Mention of this would ‘trigger’ her and she would become aggressive and distressed”.
31He said in evidence that he did not discuss the details of the alleged offences or ask the complainant any questions relating to allegations.[13]
[13] TN 31 [L6-11].
32In relation to the complainant’s presentation during their meeting, Dr Sullivan said in evidence:
…she was chaotic. I certainly had been forewarned by the informant that [she] was a complex and frequently challenging person to interview. And consequently, I was minded to make the most of the opportunity, but also with the awareness that it might not be straightforward, or that she might terminate the interview prematurely before I could obtain the information I needed. As it turned out, she was well engaged with the interview, but her thinking was very disorganised, she moved rapidly from topic to topic, she often digressed into topics of limited relevance to our discussion, and I was mindful that were I to control the interview firmly, or interject or talk over her, my impression was that any rapport that I had formed, and my ability to continue interviewing her would be potentially compromised.[14]
…
…it took much effort to maintain [her] focus on the matters at hand that her answers, at times, bore limited relevance to the question, or digress so far from the topic that they were no longer related to the question. And also, that her emotional state was frequently overwrought or distressed in ways which I think would interfere with her capacity to communicate information clearly and cogently.[15]
[14] TN 7 [L17-31] – TN 8 [L1].
[15] TN 11 [L6-13].
33At [46] of his report, he made the following further observations of her presentation:
Her speech was pressured, interruptible and her demeanour was not irritable. Speech was of normal volume and without errors in expression or comprehension. Latency was reduced and spontaneity increased. She frequently swore emphatically but not in a hostile matter. On one occasion during the interview, she was stuttering.
34He explained in evidence that latency of speech ‘refers to the time between asking a question and receiving an answer’.[16] In relation to the complainant, he said that she ‘was responding very rapidly to my speech, not necessarily interrupting, but certainly speaking quickly, but immediately after I’d asked any questions’.[17]
[16] TN 7 [L7-8].
[17] TN 7 [L12-15].
35When asked in cross-examination if he was able to understand the complainant, he said that he was able to, but that he had to herd the conversation:
Yes, I was able to understand, I was able to understand her, but it did take some, I suppose, herding of the conversation, or returning to themes which had earlier been raised, where I didn’t feel that I had satisfactorily received a full explanation which met my needs.[18]
[18] TN 17 [L14-19].
36In relation to her cognitive abilities, Dr Sullivan said at [50] of his report that the complainant ‘appeared to be of low average to average intellect’.
37He stated further at [57] that the complainant’s ‘level of cognitive functioning appears grossly intact although her thoughts were disorganised’.
38He explained in re-examination how on the one hand the complainant’s cognitive function is mostly intact, yet at the same time her thinking was disorganised, she was unable to stick to topic, and was chaotic. He said:
The disorganisation was not, in my opinion, reflective of the disorganisation of speech we see from neurological disorders, that is disorders of the brain effecting particular regions which control language. It was not consistent with a psychotic illness in which formal thought disorder results in a breakdown of language structure. But rather, it was consistent with the disorganisation seen in a person who is emotionally dysregulated.
So in that sense, I’ve used a somewhat artificial distinction between the cognitive, or neurological, or intellectual aspects of brain functioning, and then the emotional or mental illness effects on brain functioning to distinguish between those.[19]
[19] TN 25 [L20-31] – TN 26 [L1-2].
39In re-examination, he said that her disorganised thinking was directly related to the complainant’s mental illness:
I consider it’s related directly to mental illness. The other possibility, of course, is that it reflects intoxication with substance use, but it’s certainly consistent with many people I’ve seen with similar conditions, and I noted that she had previously had accommodation which reflected the needs of a person with mental illness.[20]
[20] TN 26 [L22-28].
40In cross-examination, Dr Sullivan agreed that the complainant was in the normal range of intellect. He said:
Yes, she’s in the normal range of intellect, that’s right. And that’s an impression formed, obviously, Your Honour, not by neuropsychological testing, but by an assessment of her use of language, her ability to grapple with abstract concepts, and not so much a reflection of her educational level, but rather, what her innate level of intelligence is likely to be.[21]
[21] TN 16 [L9-16].
41He also agreed that intellectually the complainant can process information, she has the capacity to concentrate, but it is dependent on her emotional state, she can formulate responses to questions which are capable of being understood, she can process ideas and concepts, she can express herself and can give a narrative.[22]
[22] TN 14 [L-30-31] – TN 15 [L1-16].
42He opined that the complainant’s presentation that day, in particular her disorganised thinking, rapid movement from topic to topic, and that she often digressed from the topic at hand, was due to her complex-PTSD. He said in evidence:
I believe so. I’ve gone through the process that I go through to explain a diagnosis, but also to explore differential diagnoses, and also lay bare my thinking about other considerations that I had. In this situation I was comfortable that her presentation was consistent with complex PTSD, that she showed some evidence of depression, although that, I don’t think, impaired her capacity to communicate significantly. And I couldn’t determine whether or not she was intoxicated or withdrawing. One possibility was that she was affected by stimulates, however she didn’t have dilated pupils, she wasn’t sweating, I didn’t take her pulse, it was the height of Covid restrictions, so we were at a couple of metres distance and with masks, so it was difficult to see her face. So, the other possibility is that, at the time she was intoxicated with methamphetamine, but I couldn’t determine any other evidence of that and her behaviour in other senses was entirely consistent with the emotional dysregulation of complex PTSD.[23]
[23] TN 8 [L19-31] – TN 9 [L1-7].
43He explained in re-examination that when the complainant switches from topic to topic, this was not due to a loss in concentration as seen in people affected by a brain disorder, but rather a failure to maintain attention on external factors due to her mental illness. He said:
…not her concentration as in, a person whose concentration is affected by a brain disorder, but the distraction that we often see in people who are highly anxious, and who therefore struggle to maintain attention on external factors while dealing with (indistinct), thoughts or self-examination, due to their emotional state, which presents [sic] them from focussing fully on external matters.[24]
[24] TN 27 [1-8].
44As to whether the complainant may present in a similar manner in a court setting, Dr Sullivan said in evidence:
…I’m extrapolating from my single meeting with [the complainant]. It’s the fact about complex PTSD is that an emotional state can be unpredictable, that is, that sometimes a person may be calm and stable and resilient, and at other times they may be brittle, easily distressed, easily unable to control their own emotions. It is possible that while giving evidence she could maintain some stability, but I certainly couldn’t consider her to have the same likelihood as a person without a mental illness.[25]
[25] TN 9 [L11-21].
45At [61] of his report, Dr Sullivan gave the following opinion as to her ability to give evidence:
[The complainant] is emotionally labile and her condition is marked by a propensity to dissociate or to become emotionally overwhelmed. Although she would have no problem with the cognitive and intellectual requirements to give reliable evidence, I consider that her poor emotional regulation related to mental illness is severe: due to this, robust cross-examination might result in her decompensating and becoming disorganised in thought or hostile, and potentially abandoning her evidence.
46When asked in cross-examination whether the dissociation referred to in [61] of his report involved a lapse in conscious attention or a loss of focus, Dr Sullivan agreed, stating:
Yes, I think that’s a – that’s the manifestation of it but it’s certainly seen in complex post-traumatic stress disorder as a frequent response to stress, a way in which the person often, from childhood, has learnt to manage extreme emotion, by simply becoming as it were, mentally separated from it.[26]
[26] TN 20 [L1-7].
47He was asked about the other ways in which the dissociation might manifest, namely, if the complainant may appear to be daydreaming, a bit vague, or give a non-responsive answer. He agreed and said further:
Yes, as well as perhaps, losing concentration, requiring the question to be repeated, becoming, I suppose, sufficiently overwhelmed that she ceased to respond appropriately to questions.[27]
[27] TN 20 [L11-15].
48Dr Sullivan agreed in cross-examination that it was likely the court would notice if the complainant dissociated, and potentially, the complainant might notice herself and ask for a question to be repeated.[28] When asked whether if this occurred the complainant would be capable of asking for a break, Dr Sullivan said that it depended on how long a person dissociates for:
yes, well it – it does depend how long a person dissociates for. So some people with complex PTSD can dissociate for hours on end, as opposed to mere seconds or minutes, depending on the level of stress and their emotional state at the beginning.[29]
[28] TN 20 [L29-31] – TN 21 [L1-5].
[29] TN 21 [L8-12].
49He explained in evidence what the term ‘emotionally labile’ referred to in [61] of his report means. He said:
Labile means that the rooms of a person’s emotion and the stability of it – sorry, the range of it is increased, and the stability of an emotional state is reduced. That is, a person can move rapidly from states of being cheerful, to being angry, to being distressed and tearful in ways that don’t necessarily correlate with events around them. So a labile mood or a labile affect is one which fluctuates rapidly and unpredictably.[30]
[30] TN 9 [L25-31] – TN 10 [L1].
50He also explained what is meant by the word ‘decompensating’. He said in evidence:
Where a person has a mental illness which is prone to fluctuation we talk about compensatory mechanisms as the strategies that a person may use to maintain stability or to mitigate against the effects of that mental illness. As a result, the person decompensates, it reflects that they can’t deploy those strategies effectively.
So, by decompensation there, I’m referring to becoming increasingly emotionally overwrought, distressed, angry, hostile, potentially petulant, and if particularly distressed, simply ceasing to participate effectively.[31]
[31] TN 11 [L23-31] – TN 12 [L1-3].
51Dr Sullivan gave the following evidence about how the complainant might ‘decompensate’ if required to give evidence-in-chief.[32]
It’s certainly possible. Complex PTSD is a chronic condition but prone to fluctuation dependant both on external stressors in someone’s life, but also due to unpredictable internal factors. So, it is possible, due to that condition, that getting [sic] evidence would lead to her becoming increasingly emotionally distressed.
At my assessment of her, in common with people with this diagnosis, one has the experience of, as it were, walking on eggshells around a person, being weary of addressing topics in a way which causes increased emotional arousal, or triggers distress. And I imagine that to be fairly similar to the experience of cross-examining or examining a vulnerable person who may, if not handled correctly, or sympathetically, may well walk away from giving evidence or give ineffective evidence.[33]
[32] The question related to evidence in chief, although the answer addressed cross-examination as well.
[33] TN 12 [L12-26].
52He said that the complainant had told him that she would decline to give evidence if required to do:
…she indicated that the process of giving evidence was something that she would decline to do.
Now, whether that simply reflected her thought on the day or was a manifestation of her distress at the thought of giving evidence, it was certainly a bold comment both to give a statement to police, but then to state that she would simply walk away from the case with an awareness that that would mean that there would be no continuation of the prosecution.
…
…I think it was, in her words, she linked it to the fact that she perceived that she had been a victim of abuse all her life and giving evidence would simply be further evidence of her being a victim or would be an experience which she would consider to be akin to abuse. That was the impression that I received from her.[34]
[34] TN 12 [L31] – TN 13 [L1-18].
53On this point, he further noted at [41] of his report:
She expressed marked ambivalence about giving evidence, related to the fact that she had been abused and mistreated all her life and considered that this was no different. She reported that she found court distressing, at times difficult to follow and it made her anxious.
54Dr Sullivan said that he attributed the complainant’s comment that she would decline to give evidence to her complex-PTSD. He stated in evidence:
I attributed it to her complex post-traumatic stress disorder, on the basis that people who have significant childhood trauma can become exquisitely sensitive and avoidant of anything which they consider might trigger such trauma, and as a result they also tend to an increased likelihood of substance abuse, often of sedatives or, opiates of benzodiazepines. And they’re often highly avoidant of situations which may result in, or they anticipate will result in emotional distress.[35]
[35] TN 13 [L21-30].
55He agreed in cross-examination that while there were no overt markers, he couldn’t exclude that the complainant was abusing drugs at the time of the assessment.[36]
[36] TN 19 [L5-6].
56At [31-37] of his report, Dr Sullivan outlined the complainant’s history of substance abuse, noting that she reported previous use of cannabis, methamphetamine, cocaine, GHB, and benzodiazepines, each to varying degrees. He noted at [55] that the current status of her substance use was unclear, although she appeared to claim to be abstinent from drugs.
57At the time of giving evidence, Dr Sullivan had not viewed the VARE in which it was agreed by the parties that the complainant appears calm and able to listen and respond to the questions posed. He was asked to reconcile that presentation with how the complainant appeared during their meeting. He said there were three possible reasons the complainant appeared to be more stable during the VARE:
Perhaps if I can say that there are three potential contributors to that level of stability. The first is the efforts of the informant to put [the complainant] at ease, to provide an intermediary, and to, as best possible, accommodate her needs in order to obtain the statement.
Secondly, it is possible that the medication that she was taking at the time of that statement was associated with stability and perhaps if I can just add a footnote to that comment, specific medication may reduce anxiety and distress, but it may come at the expense of causing significant sedation and impairment of recall such that a person may be calm, but actually functioning at a lower intellectual level than they would otherwise without medication.
And, finally, the other possibility relates to whether or not she was intoxicated or whether any drugs of abuse were present at the time and related to her stability.[37]
[37] TN 10 [L9-27].
58In cross-examination, he agreed that the complainant’s calm presentation during the VARE was consistent with his diagnosis of complex-PTSD:
Yes, it can be, certainly. As I mentioned before, complex PTSD leads to fluctuating emotional regulation and that means that there are times where a person can be calm and stable.[38]
[38] TN 21 [L20-23].
59He was asked in cross-examination about other strategies which might mitigate the impact of the complainant’s mental illness or her difficulties giving evidence. He said that regular breaks might be of assistance if the complainant was in control of asking for them, rather than the court deciding to have a break every hour, for instance.[39] In relation to whether signposting of questions would be useful, Dr Sullivan said that it ‘would be entirely dependent upon her preceding emotional state and how she managed the stress of giving evidence’.[40] He agreed that a witness conference with the OPP prior to giving evidence would be of assistance, as would having a support person present, and a therapy dog.[41]
[39] TN 22 [L1-10].
[40] TN 22 [L11-15].
[41] TN 23 [L7-19].
60When asked about the suggestion that her evidence be pre-recorded so that she would not have to give evidence in front of a jury, Dr Sullivan said that the issue was not that the complainant would become anxious in front of a crowd or in the weighty environment of a court, but rather ‘the fact that the topics that would be explored are likely to resonate with her as having been traumatised in her childhood for various reasons’.[42] Pre-recording of her evidence would be useful, he said, in so far as it allowed counsel to build a more effective rapport with the complainant.[43]
[42] TN 22 [L16-23].
[43] TN 22 [L24-31] – TN 23 [L1-2].
61He was taken to [63] of his report where he suggests a Ground Rules Hearing as an appropriate measure to reduce the emotional impact of giving evidence. He stated:
Furthermore, attention should be paid to the way in which material is put to her, in order to reduce the emotional impact of giving evidence and the likelihood that she will become irritable or angry. This might be addressed in advance through a ground rules hearing, as set out in Part 8.2A of the Criminal Procedure Act.
62On this point, he said in cross-examination:
From my perspective, this is equivalent to what we use in healthcare, and is described as trauma informed care. And it simply reflects that, particularly in dealing with women in contact with the criminal justice system we understand that many experiences such as being interviewed by doctors, or being in a mental health setting, or having reminders of the justice system can cause a person to re-experience trauma. So we seek measures to take that into account, to be sympathetic to overt that, and where possible, to modify our processes so as best to support the person. [44]
[44] TN 23 [L31] – TN 24 [L1-10].
63As to how the complainant functions in her every-day life, Dr Sullivan said that she demonstrates significant impairment in her functioning and requires support:
I’d consider that she demonstrates quite significant impairment in her functioning, her level of organisation, her ability to attend appointments, or to be present without being emotionally overwhelmed, and that’s evident in the amount of support that she requires, and the amount of structure and framework that’s put around her by workers in order to enable her to manage the demands, the daily demands of life, which most would manage without a problem.[45]
[45] TN 27 [L20-29].
Meaning of the term ‘cognitive impairment’
64Whether the complainant has a ‘cognitive impairment’ within the meaning of s 3 of the CPA is a question of statutory construction, the principles of which are well settled. The starting point for the ascertainment of the meaning of a statutory provision is the text of the provision considered in light of its context and purpose.[46]
[46] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at [69] (‘65It is the duty of the Court to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. While, ordinarily, the grammatical meaning and the intended meaning will coincide, it is not always so.[47]
[47] Project Blue Sky [78].
66Section 35(a) of the Interpretation of Legislation Act 1984 (Vic), provides that the Court is to prefer a construction that would promote the purpose or object underlying the Act to one that would not achieve that purpose. It states:
In the interpretation of a provision of an Act or subordinate instrument—
a)a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and
b)consideration may be given to any matter or document that is relevant including but not limited to—
(i) all indications provided by the Act or subordinate instrument as
printed by authority, including punctuation;
(ii) reports of proceedings in any House of the Parliament;
(iii) explanatory memoranda or other documents laid before or
otherwise presented to any House of the Parliament; and
(iv) reports of Royal Commissions, Parliamentary Committees, Law
Reform Commissioners and Commissions, Boards of
Inquiry, Formal Reviews or other similar bodies.67Beginning then with the text of the provision, s 3 states, relevantly:
“cognitive impairment” includes impairment because of mental illness, intellectual disability, dementia, or brain injury.
68The Macquarie Dictionary does not provide a definition for the word ‘cognitive’, however, the noun ‘cognition’ is defined as:
1. the act or process of knowing; perception.
2. the product of such a process; thing thus known, perceived, etc.[48]
…
[48] Macquarie Dictionary (online at 14 June 2022).
69The Oxford Dictionary similarly defines ‘cognitive’ as ‘of or pertaining to cognition, or to the action or process of knowing; having the attribute of cognizing’.[49] ‘Cognition’ is defined as ‘the action or faculty of knowing; knowledge consciousness; acquaintance with a subject’. [50]
[49] Oxford Dictionary (online at 14 June 2022).
[50] Ibid.
70The word ‘impairment’ is defined by the Macquarie Dictionary as follows:
a. to make worse
b. to alter for the worse [51]
[51] Ibid No 47.
71The Oxford Dictionary defines ‘impairment’ as ‘the action of impairing, or fact of being impaired; deterioration; injurious lessening or weakening’.[52]
[52] Ibid No 48.
72Other than the two discussed below, the case law is bereft of decisions which deal with the definition of ‘cognitive impairment’.
73The meaning of the term ‘cognitive impairment’ as set out in s 3 was helpfully considered by the Court of Appeal (Priest, Kaye and Niall JJA) in Paull v The Queen[53] (‘Paull’). It should be noted from the outset, the court’s task in Paull was not determining the meaning of s 3. The court’s brief comments on this point cannot therefore be fairly characterised as providing a complete construction of s 3. Nevertheless, the decision is illuminating. In Paull, the court raised a question, not in issue, namely, whether the complainant in that matter had a cognitive impairment within the meaning of s 3. The court was told that the complainant had suffered from depression and anxiety. In light of that, the court made the following comments, in obiter, as to the meaning of the term. It said, relevantly at [17]:
When the Court enquired of the applicant’s counsel as to the nature of the cognitive impairment under which SMA was labouring, we were informed that there was evidence that he suffered from depression and anxiety. Counsel also informed us that he had made a deliberate decision pre-trial not to challenge the claim that SMA had a cognitive impairment. In those circumstances, we did not further explore the nature and extent of the complainant’s cognitive impairment (if any). We note, however, 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).
[italics added]
[53] [2021] VSCA 339.
74In Stetco, a decision of this Court decided five days before Paull, His Honour Judge O’Connell adopted a broad construction of s 3. Stetco concerned a prosecution application to rely on the complainant’s VARE and committal cross-examination. The defence objected to the use of the VARE on the basis that the complainant did not have a cognitive impairment at the time the VARE was conducted. The evidence before the court was that the complainant had been diagnosed with bipolar disorder at the time of the VARE, and that after the incident the subject of the charges in that case, experienced symptoms of PTSD, high levels of anxiety, stress, depression and panic attacks. Whether the complainant suffered from these symptoms before the incident was unclear. As to whether the complainant was cognitively impaired, a psychologist who had treated the complainant, and had seen him on 19 occasions, stated in a report tendered on the application that it was not possible for her to draw a conclusion on that particular matter.
75The police officer who dealt with the complainant on the day of the VARE gave evidence on voir dire, and his statement was tendered. In his statement he noted the presentation of the complainant before the VARE was conducted that day. He noted the complainant had difficulty expressing himself, was distracted and unable to concentrate, failed to make eye contact, appeared confused, disorientated, out of touch with reality, and had difficulty remembering facts and details.
76A few hours later, the VARE was conducted. His Honour at [93] commented on the ‘marked disconnect’ between the observations of the complainant made by the police officer in the morning and the presentation of the complainant during the VARE in the afternoon, noting that the complainant did ‘not appear to be labouring under any degree of impairment; indeed, his presentation is coherent, articulate and ordered’.[54]
[54] Stetco [93].
77As stated above, His Honour construed s 3 widely, stating at [90]:
By reference to dictionary meanings, a person with a cognitive impairment refers to a person whose cognition, that is, their capacity to acquire or possess empirical factual knowledge, is less effective or weaker in some respect.
I do not think that a diagnosis from a neuropsychologist is required before the provision is engaged. It seems to me that it encompasses a wide spectrum of impairment from quite severe to very mild.
78In reaching that conclusion, His Honour considered the text of the statute, stating at [89]:
The points to be made about that definition for the purposes of this application are: first, that it is inclusive, and second, that it does not import a standard as to the level of impairment required.
79As to the standard of the level of impairment required, His Honour found at [96]:
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.
80In determining the issue, His Honour had regard to the context of s 3, stating at [91]:
It is to be remembered also that the context in which this provision appears is clearly directed to providing witnesses who may be at a disadvantage a better prospect of providing their account in a manner which does them justice. That context justifies according the provision a wide meaning.
81It is appropriate to say more about the alternative procedures set out in the CPA for cognitively impaired witnesses. Section 366(2)(b) of the CPA provides that Part 8.2 of Division 5 of the Act applies to a witness with a cognitive impairment, in summary and trial proceedings that relate wholly or partly to a charge for:
(a) a sexual offence; or
(ab)an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008; or
(b)an indictable offence which involves an assault on, or injury or threat of injury, to a person; or
(d)any offences against section 23 or 24 of the Summary Offences Act 1966 if those offences are related offences to an offence specified in paragraph (a), (ab) or (b), despite whether any such related offences are withdrawn or dismissed before an offence against section 23 or 24 of the Summary Offences Act 1966 is heard and determined.
82Provided these conditions are met, alternative procedures comprising special protections for the giving of evidence by cognitively impaired complainants is provided for in Part 8.2 and s 123 of the CPA. These special protections include:
· using the VARE of a complainant’s statement to police as their evidence-in-chief; [55]
· the Special Hearing procedure, where the complainant is cross-examined at a Special Hearing, either before or during the trial;[56]
· appointing an Intermediary, if necessary, to communicate or explain to a complainant the questions put to them, as well as communicate or explain to any person asking questions, the answers given by the complainant;[57]
· the holding of a Ground Rules Hearing in which the court gives directions for the conduct of the Special Hearing, including inter alia, directions concerning the manner in which the complainant is questioned, the duration of questioning, and directions about the questions that may or may not be asked;[58] and
· the complainant is not required to give evidence at a committal hearing or
pre-trial.[55] s 367 CPA.
[56] s 370 CPA.
[57] ss 389F – 389K CPA.
[58] s 398B CPA.
83These alternative arrangements represent a significant departure from the traditional trial processes, as was noted by the court in Paull at [17]:
Of course, the VARE and special hearing arrangements (including the assistance of intermediaries) statutorily provided for [sic] represent a departure from the traditional processes of a criminal trial. They exist to protect the witnesses who are vulnerable because of age or cognitive impairment, and should not be invoked simply for the sake of expediency.
84The Special Hearing procedure was first introduced into law by the Crimes (Sexual Offences) Act 2006. Clause 38 of that amending legislation inserted a new Division 3AA into Part II of the Evidence Act 1958, which provided for the Special Hearing procedure. The same amending Act introduced the term ‘cognitive impairment’ into a number of statutes, including the Evidence Act 1958. Prior to this, the term used was ‘impaired mental functioning’.
85The Special Hearing procedure was a recommendation of the Victorian Law Reform Commission (VLRC) in its report, Sexual Offences: Final Report.[59] It recommended the Evidence Act 1958, be amended to allow complainants with a cognitive impairment in sexual offence cases to give their evidence and be cross-examined at a separate recorded hearing at which only the judge, defence and the prosecution are present.[60] It was also recommended that the evidence be given by CCTV. [61]
[59] Victorian Law Reform Commission, Sexual Offences: Final Report (2004).
[60] Ibid, Recommendation 43. See also VLRC, Sexual Offences: Final Report, Summary and
Recommendations in Plain English, 8.
[61] Ibid, Recommendation 59. See also VLRC, Sexual Offences: Final Report, Summary and
Recommendations in Plain English, 8.
86The VLRC in the same report recommended that the term ‘impaired mental functioning’ contained in the then s 23 of the Evidence Act 1958, be replaced by the term ‘cognitive impairment’.[62]
[62] Ibid, Recommendation 162.
87The report outlines the reasons for the change in terminology. It acknowledged the ‘stigmatising’ nature of the term ‘mental’, whereas the term ‘cognitive’ was considered by disability groups as a more accurate description and was at the time widely used and accepted.[63]
[63] Ibid, 321.
88As mentioned above, in ascertaining the meaning of s 3 of the CPA, the Court must take into account the underlying purpose of the alternative procedures provided for cognitively impaired complainants under the CPA: s 35(a) of the Interpretation of Legislation Act 1984 (Vic).
89The ‘mischief’ the amending legislation sought to address in relation to cognitively impaired complainants is spelled out in the Second Reading Speech, where it was said:
Victims of sexual assault experience incredible trauma and stress, the effects of which are long-term and devasting. The impact of crime also extends to victims’ families, our public health system, the capacity of victims and their families to contribute to our society, and of course, our criminal justice system.
Whilst the right to a fair trial is a cornerstone of our legal system, for too long the balance of fairness in the prosecution of sexual assault has been heavily weighted against the complainant. Regrettably, for many complainants this has meant the process failed to treat them with respect and in a way that preserved, as far as possible, their dignity. The criminal justice system has thus not only denied them an acknowledgement of their experience but, worse still, has had the effect of re-traumatising them through the very process through which they have sought redress.
…
The bill will make it easier for children and people with a cognitive impairment to give their evidence in the prosecution of sexual offences against them. It will do this through four key amendments.
Firstly, in the Magistrates Court Act so that children and people with a cognitive impairment cannot be required to give evidence at the committal stage of the prosecution of sexual offences against them.
Secondly, the bill amends the Evidence Act to create a right for children and people with the cognitive impairment to give their evidence to the court through alternative arrangements that do not require them to be in the same room as the accused person, instead allowing them to be seen and heard via closed-circuit television. These alternative arrangements will also allow children and people with a cognitive impairment to have the evidence-in- chief pre-recorded once and played before the court trial. These amendments will ensure that children and people with a cognitive impairment give evidence-in-chief and are cross-examined only once, thus protecting them from having to repeatedly give evidence and from unnecessary delays and further trauma in the prosecution of sexual offences against them.
Thirdly, the bill will make it easier for children and people with a cognitive impairment to give evidence by amending the Evidence Act to create a right for them to have a support person of their own choosing present with them when they give evidence.
Fourthly, the bill amends the Evidence Act to protect children and people with a cognitive impairment from confusing, misleading, harassing or inappropriate questioning when giving evidence in sexual offence cases.
…
The complex and unique nature of sexual assault will be recognised in the bill through the inclusion of a statement of principles. These principles expressly acknowledge that sexual assault is significantly under-reported, that women, children and people with cognitive disabilities overwhelmingly make up the majority of victims of sexual assault, that offenders are commonly known to victims and that physical signs of a sexual offence are unlikely to be present. These will form the basis for the interpretation of particular provisions of the Crimes Act and the Evidence Act relating to sexual offences.
90The VLRC’s report outlines the barriers faced by cognitively impaired people who are sexually assaulted and which underpins the Commission’s recommendations. It noted at page 322:
Problems faced by people with a cognitive impairment include the following:
·they may not tell anyone about the sexual abuse because they may not understand that what has happened is a crime;
·they may face misconceptions about their credibility and their memory, as a result of which their complaints about sexual assault may not be taken seriously by police;
·they may have difficulty in explaining what happened to them when they are interviewed by police.
91The Court is also required to have regard to the guiding principles which apply to the interpretation and application of Part 8.2 of the CPA. These principles are set out in s 388 of the Act and state:
Guiding principles
It is the intention of Parliament that in interpreting and applying this Part in any criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that—
a) there is a high incidence of sexual violence within society; and
b) sexual offences are significantly under-reported; and
c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and
d) offenders are commonly known to their victims; and
e) sexual offences often occur in circumstances where there is unlikely to be any physical sign of an offence having occurred.
92In the present case, the defence submits the term ‘cognitive impairment’ should be interpreted narrowly by the Court, in line with comments made in Paull, and not as construed by His Honour Judge O’Connell in Stetco, stating at [9(c)] of their supplementary submissions:
…the term, ‘cognitive impairment’ should be interpreted narrowly – not as a mere weakening of cognition as suggested in Stetco but ‘deterioration or diminution in a person’s processes, including compromised comprehension, thinking, memory or capacity to process information’, as suggested in Paull.
93The submissions do not address in any great detail the issue of statutory interpretation as it applies in this case. However, the defence relies on the following reasons in support of its submission:
· the VARE and Special Hearing procedures represent a significant departure from the traditional processes of a criminal trial. The accused is denied the opportunity to cross examine the complainant at a committal hearing and has less opportunity to test the evidence relied upon by the prosecution. The ability to cross-examine at trial is significantly restricted and must be done at a Special Hearing in accordance with Ground Rules set by the court. Any ambiguity in the legislation must therefore be resolved in favour of the accused;
· there are a number of other protections available for witnesses in sexual offence matters, including, giving evidence from a remote facility, access to a support person, the court’s power to disallow improper questions, and the pre-recording of evidence. These supports “weigh against a wide interpretation of ‘cognitive impairment’”; and
· witnesses whose evidence may be affected by distress, memory difficulties, intoxication, drug use, a chaotic lifestyle, poor mental health, anger or erratic behaviour are common in the criminal justice system and a person’s cognition or ability to give evidence could arguably be weakened by any of these factors. A wide interpretation of the term ‘would be incongruent with the court’s general experience’.
94In contrast, the prosecution submits that the Court should adopt a wide interpretation of the term, in line with the ‘low threshold’ approach taken in Stetco. In reliance of this position it argues:
· The wording of s 3 indicates that Parliament specifically did not prescribe a narrow or exhaustive definition of cognitive impairment. Nor did it seek to define the severity of the mental illness, intellectual disability or cognitive function;
· The reforms and the context of the provision justifies a wide interpretation be given.[64]
[64]95In my view, a broad construction of the term ‘cognitive impairment’ is preferred. Having regard to the text of s 3, its context, the guiding principles set out in s 338,[65] and the underlying purposes of the parts of the CPA which apply to cognitively impaired complainants, I do not consider that Parliament intended the definition be given a strict or narrow interpretation.
[65] s 338 CPA.
96The wording of s 3 is itself broad, general, and inclusive. This much is evident from the fact that neither the words ‘cognitive’ and ‘impairment’ have been given a specific definition. Nor does s 3 require a complainant have a certain threshold level of impairment. Rather, s 3 simply provides that a ‘cognitive impairment’ includes an impairment due to a number of listed conditions, namely, mental illness, intellectual disability, dementia or brain injury. The word ‘includes’ makes clear that the list is non-exhaustive and therefore a cognitive impairment may arise because of a condition other than that listed in s 3.
97The purpose of the provisions of the CPA which apply to cognitively impaired persons, namely, to prevent the re-traumatisation of this vulnerable group who are at a special disadvantage as witnesses, warrants a broader interpretation of s 3, as do the guiding principles mentioned above.
98The defence submission that a wide interpretation of the term would encompass witnesses whose evidence may be affected by distress, memory difficulties, intoxication, drug use, a chaotic lifestyle, poor mental health, anger or erratic behaviour, is misconceived. The definition, even broadly construed, requires a person have a cognitive impairment because of a mental illness, intellectual disability, dementia, brain injury or some other condition not listed. This was the point raised by the Court in Paull, namely, that the Special Hearing procedure ‘should not be invoked simply for the sake of expediency’,[66] but rather only in cases where it can be shown that the complainant has a cognitive impairment.
[66] Paull [17].
99Both parties sought to distinguish the approach taken in Stetco from the comments made in Paull. Both submitted that the court in Stetco had adopted a wide construction of s 3 , while the court in Paull had construed the term more narrowly. In my view, there is little difference between the two decisions. Firstly, both decisions adopt the ordinary meaning of the words ‘cognitive’ and ‘impairment’. However, in Paull the court spells out the various aspects of ‘cognition’, while in Stetco, His Honour Judge O’Connell does not. It does not follow from that, however, that the court in Paull adopted a narrow approach. In Stetco, His Honour Judge O’Connell construed ‘cognitive impairment’ as referring to ‘ a person whose cognition, that is, their capacity to acquire or possess empirical factual knowledge, is less effective or weaker in some respect’. In Paull, the court said that the term ‘contemplate[d] a deterioration or diminution in a person’s mental processes, including compromised comprehension, thinking, concentration, memory, or capacity to process information’. In order to acquire or possess empirical factual knowledge – adopting the words of His Honour Judge O’Connell – a person must surely need to think, concentrate, comprehend, use their memory, and process information. Indeed, to demonstrate a person’s capacity to acquire or possess empirical factual knowledge was diminished, evidence showing that their thinking, concentration, memory, comprehension and capacity to process information was compromised would be highly relevant. Moreover, having regard to dictionary meanings, the words ‘deterioration’ and ‘diminution’ do not import a higher threshold of impairment than the words ‘less effective or weaker’. All suggest there must be a decline, reduction or weakening of a person’s cognition consistent with the ordinary meaning of the word ‘impairment’.
100In my view, in so far as the decisions address the same matters, they are consistent with each other and I agree with the approach taken in both.
Does the complainant have a cognitive impairment?
101Turning to whether the complainant has a cognitive impairment within the meaning of s 3. Taking into consideration the matters discussed above, the evidence clearly supports a finding that the complainant has a cognitive impairment.
102Dr Sullivan gave evidence that:
· the complainant’s thinking was very disorganised. She moved rapidly from topic to topic and often digressed into topics of limited relevance to their discussion;
· it took much effort on his part to maintain her focus on the matters at hand during the assessment;
· her answers at times bore limited relevance to the questions asked;
· her emotional state was frequently overwrought or distressed in ways which would interfere with her capacity to communicate information clearly and cogently;
· her poor emotional regulation as a result of her complex-PTSD means that robust cross examination might result in her decompensating and becoming disorganised in thought, hostile and potentially abandoning her evidence;
· her emotional dysregulation is unpredictable such that she may be in an unfit state to give evidence and this cannot be predicted in advance;
· on a spectrum where at one end a person is calm, lucid, coherent, and present, and at the other end, a person is utterly incapable of any effective communication though extraordinary emotional distress, in his view, the complainant was two thirds of the way towards the completely unstable side;
· loss of concentration is one manifestation of dissociation; and
· she may struggle to fully focus on external matters that are going on around her, while she deals with internal matters.
103Importantly, Dr Sullivan’s evidence was that all these symptoms were linked to her complex-PTSD. He said:
I believe so. I’ve gone through the process that I go through to explain a diagnosis, but also to explore differential diagnoses, and also lay bare my thinking about other considerations that I had. In this situation I was comfortable that her presentation was consistent with complex PTSD, that she showed some evidence of depression, although that, I don’t think, impaired her capacity to communicate significantly. And I couldn’t determine whether or not she was intoxicated or withdrawing. One possibility was that she was affected by stimulates, however she didn’t have dilated pupils, she wasn’t sweating, I didn’t take her pulse, it was the height of Covid restrictions, so we were at a couple of metres distance and with masks, so it was difficult to see her face. So, the other possibility is that, at the time she was intoxicated with methamphetamine, but I couldn’t determine any other evidence of that and her behaviour in other senses was entirely consistent with the emotional dysregulation of complex PTSD.[67]
[67] TN 8 [L19-31] – TN 9 [L1-7].
104If I am wrong about there being no difference in the way s 3 was construed in Stetco and Paull, even on the construction given in Paull, the evidence establishes that the complainant’s thinking and concentration is compromised because of her complex-PTSD.
105I reject the defence’s submission likening the emotional dysregulation suffered by the complainant to the distress commonly experienced by witnesses. It is entirely different. In the case of the complainant, it is due to a mental illness, namely complex-PTSD, which is linked to the matters listed at [102] above.
106The fact that Dr Sullivan found that the complainant’s cognitive functioning was grossly intact does not mean the complainant is not cognitively impaired within the meaning of s 3. Dr Sullivan gave evidence that while on the one hand her cognitive functioning was grossly intact, her thinking was disorganised. He said that the disorganised thinking was not due to a neurological disorder or a psychotic illness which affects cognitive functioning differently, but rather emotional dysregulation associated with complex-PTSD. Section 3 clearly contemplates mental illnesses which result in cognitive impairment. The pathology or genesis of a cognitive impairment is likely be very different between individuals suffering from mental illnesses, intellectual disabilities, dementia and brain injuries.
107The defence argued that the complainant’s calm and lucid presentation during the VARE was evidence that she is not cognitively impaired. At the request of the parties I have viewed the VARE and make the following limited observations:
· the complainant appears to understand the questions and provides direct answers to those questions, although at times she provides unnecessary details to those questions;
· her thought processes do not appear to be disorganised;
· she speaks in an entirely matter of fact manner even when discussing distressing matters pertaining to the allegations made in this proceeding; and
· she is mostly devoid of emotion, although does display mild emotions at a few points during the interview.
108I note that the VARE was conducted on 12 January 2021 and Dr Sullivan assessed the complainant some 10 months later in November of 2021. It would be entirely speculative to attempt to resolve the difference in the presentation of the complainant at the VARE and her presentation during the assessment with Dr Sullivan. Moreover, it would be inappropriate for the Court to prefer its own conclusions to that of Dr Sullivan, who is an eminent expert in his field. In any case, it is also not necessary for the purpose of s 3. Section 3 does not import a temporal requirement, that is, it does not require the cognitive impairment be present at all times and to the same degree.
109Accordingly, I find that the complainant has a cognitive impairment within the meaning of s 3 of the CPA.
110And I so rule.
The following related summary offences have been transferred to this Court pursuant to s 145 of the
Criminal Procedure Act 2009
: Three charges of commit indictable offence whilst on bail and one charge
of contravene a conduct condition of bail.
Exhibit 1: Outline of defence submissions dated 29 March 2022; Exhibit B: Supplementary prosecution
submissions on cognitive impairment; Exhibit 2: Supplementary defence submissions on pre-trial
issue: Whether complainant has a cognitive impairment.
In addition to the complex-PTSD diagnosis, the complainant was diagnosed with recurrent depressive
disorder, although this diagnosis did not affect Dr Sullivan’s assessment as to her ability to give
evidence.
Project Blue
Sky’).
As it applies to cognitively impaired witnesses, the definition of ‘cognitive impairment’ set out in the
prosecution submissions (Exhibit B) is not accurately stated. See section 306M of the Criminal
Procedure Act 1986 (NSW).
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