DPP v Jacobs (a pseudonym)
[2023] VSC 610
•18 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0067
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEAN JACOBS (a pseudonym)[1] |
[1]Because this is a ruling for the purpose of a pre-trial hearing, a pseudonym has been used in place of the name of the accused and the reasons have been revised in a form which omits identifying details of the accused, the deceased, and their children.
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JUDICIAL REGISTRAR: | FREEMAN JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 August 2023 |
DATE OF RULING: | 18 October 2023 |
CASE MAY BE CITED AS: | DPP v Jacobs (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 610 (1st revision 8 December 2023) |
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CRIMINAL LAW – Practice and procedure – Accused charged with murder and intentionally causing injury - Application for the appointment of an intermediary for a witness – Whether witness eligible for an intermediary – Where witness under the age of 18 years when the proceeding commenced, but is now aged 18 years – Part 8.2A of the Criminal Procedure Act 2009 – Inconsistent definition of ‘witness’ in Divisions 1 and 2 of Part 8.2A – Whether the power to appoint an intermediary is discretionary – Application granted - Criminal Procedure Act 2009 (Vic), Part 8.2A – Interpretation of Legislation Act 1984 (Vic), ss 35, 45.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson KC | Office of Public Prosecutions |
| For the Accused | Mr J Desmond | KPT Legal |
FREEMAN JR:
Introduction
The accused is charged with the murder of his wife AB[2] on 3 December 2022. He is also charged with intentionally causing injury to CD[3], the son of the accused and deceased, during the same incident.
[2]Ibid.
[3]Ibid.
The prosecution makes application for the appointment of an intermediary for CD, who has made a statement to police and is to be called as witness in the prosecution of the accused. As at the date of the alleged offence, and the date on which the proceeding commenced, CD was aged under 18 years. He is now 18 years of age.
This application is made in the context of the hearing of preparatory cross-examination of a number of prosecution witnesses, pursuant to s 198B of the Criminal Procedure Act 2009 (‘CPA’), as part of the Court’s fast-track process for homicide prosecutions.
The application is opposed by the accused, who submits that the Court does not have power to appoint an intermediary for CD now that he is over the age of 18 years. The prosecution, on the other hand, submits that not only does the Court have power to appoint an intermediary for CD, but the exercise of that power is not discretionary and must be exercised by the Court if it is satisfied that the witness is eligible for an intermediary.
Accordingly, the determination of the present application requires consideration of three primary issues:
(a) Does the Court have power to appoint an intermediary for CD, a witness who was under the age of 18 years when the proceeding commenced, but who has subsequently turned 18 years of age as at the date of the application for the appointment of an intermediary and the proposed hearing of his evidence;
(b) In the event the Court has the power to appoint an intermediary, is the exercise of that power mandatory or discretionary; and
(c) If the power to appoint an intermediary is discretionary, should it be exercised in the present application for CD.
Background
The prosecution case against the accused
It is sufficient for the purpose of this ruling to provide a brief summary of the prosecution case against the accused.
[Redacted].
[Redacted].
The deceased died at the scene. The accused was arrested at the property. The deceased’s cause of death was determined at autopsy to be blunt force trauma injuries to her head and neck. The deceased had sustained at least twenty separate wounds. CD also required treatment at hospital for his injuries.
Importantly, the only eye-witnesses to the events inside the house, including the alleged attack of the deceased, were the two children. The entire factual narrative of the prosecution case, insofar as the alleged actions of the accused, and the acts constituting the alleged murder, is from their evidence.
Procedural history
The accused was charged with murder on 4 December 2022 and, relevantly, that is the date the criminal proceeding against the accused was commenced.[4]
[4]See s 5(1(a) of the Criminal Procedure Act 2009 (‘CPA’). The charge-sheet for the charge of murder against the accused was filed with the Magistrates’ Court on 4 December 2022.
On 5 December 2022, CD made a nine-page statement to police detailing the events of 3 and 4 December 2022, as well as other relevant family background. CD was 17 years of age as at the date the criminal proceeding commenced against the accused. [5] Notwithstanding his age, investigating police did not utilise the option of ‘VARE’[6] interviews for CD and his sister, but rather, ‘traditional’ police statements with signed jurats were taken by the informant, Detective Senior Constable Benjamin Lavakeiaho of the Homicide Squad, from each of them.
[5]Or more specifically, 17 years, 9 months and 11 days as at the date the proceeding was commenced.
[6]‘Video and Audio Recorded Evidence’; see Division 5 of Part 8.2 of the CPA and Part 2 of the Criminal Procedure Regulations 2020.
Following service of the hand-up brief, the accused was committed to stand trial on 11 April 2023 upon his election in accordance with this Court’s ‘fast-track’ process for homicide prosecutions.[7] The fast-track process ordinarily involves the accused making application in this Court to conduct preparatory cross-examination of prosecution witnesses, pursuant to s 198B of the CPA, in lieu of seeking leave to cross-examine prosecution witnesses at a committal hearing in the Magistrates’ Court.[8]
[7]Pursuant to s 143 of the CPA.
[8]See the Court’s guide, ‘Fast-tracking homicide matters to the Supreme Court’, (second revision) dated 4 November 2021, published on the Supreme Court of Victoria website.
At a post-committal directions hearing on 10 May 2023, I heard and granted an application on behalf of the accused to conduct preparatory cross-examination of seventeen (17) prosecution witnesses, including EF and CD.[9] That application was not opposed by the prosecution however the prosecution foreshadowed that applications would be made for the appointment of intermediaries for CD and EF .
[9] That application was referred to a Judicial Registrar for hearing and determination, inclusive of the hearing of any preparatory cross-examination so ordered, by an order of Croucher J dated 9 May 2023, pursuant to rule 84.03(1) of the Supreme Court (General Civil Procedure Rules).
On 27 July 2023, the prosecution filed applications seeking the appointment of intermediaries for EF and CD for the hearing of preparatory cross-examination.[10] Those applications were supported by intermediary assessment reports prepared by the proposed intermediaries for each witness.
[10] The application by the prosecution for the appointment of intermediaries and the conduct of any ground rules hearing (together with other associated applications in relation to the use of a court dog for the witnesses) was referred to a Judicial Registrar for hearing and determination by an order of Jane Dixon J dated 8 August 2023, also pursuant to rule 84.03(1).
The accused opposed the appointment of an intermediary for CD, but not for EF . On 9 August 2023, I granted the application to appoint an intermediary for EF and adjourned the further hearing of the contested application for the appointment of an intermediary for CD to 15 August 2023.
The parties each filed written submissions in respect of the application, supplemented by further oral submissions made at the hearing of the application.
The application for the appointment of an intermediary
Intermediaries and Ground Rules hearings - the legislative scheme
The CPA was amended in 2018 to introduce a two-part legislative scheme for the use of intermediaries for particular classes of witnesses and the holding of ground rules hearings to regulate the manner in which such witnesses give their evidence, including the manner in which they are questioned and the obligations of counsel and judicial officers in that process.
Part 8.2A was inserted in the CPA by the Justice Legislation Amendment (Victims) Act 2017 (‘the amending Act’). The explanatory memorandum to the amending Act stated:
Intermediary schemes aim to protect and empower vulnerable witnesses to give their best evidence. Intermediaries are not advocates or support workers. Their role is to facilitate communication with the witness. Ground rules hearings are used to discuss and establish how certain witnesses will be enabled to give their best evidence. The introduction of such a scheme in Victoria was endorsed in Ward v The Queen [2017] VSCA 37.
In the second reading speech, the then Attorney-General stated:
These reforms will facilitate a less stressful experience for the witness and a more efficient trial.
Division 1 of Part 8.2A (‘Division 1’) sets out the provisions concerning the holding of ground rules hearings. Division 2 of Part 8.2A (‘Division 2’) establishes the intermediary scheme, including the circumstances in which intermediaries may be appointed.
Unlike the provisions for ground rules hearing, intermediaries are available to eligible witnesses in any kind of hearing and are not limited to proceedings for certain kinds of offences, subject to the proceeding being listed at a participating venue of a court.[11] Furthermore, ground rules hearings may be held for particular classes of witnesses even where no intermediary has been appointed.[12]
[11]See ss 389F(1)(b) and 389G.
[12]See ss 337(1) and 389B(1).
Presently, however, as a consequence largely of available resourcing, the intermediary scheme operates more narrowly than provided for by the Act and is not currently available for all witnesses who would otherwise be eligible. For example, intermediaries are only available for witnesses in proceedings before courts in the Melbourne legal precinct and a small number of regional locations.[13]
[13]See ‘Multi-Jurisdictional Court Guide for the Intermediary Program: Intermediaries and Ground Rules Hearings’ published jointly by the Supreme Court, County Court, and Magistrates’ Court (‘the Court Guide’) at [3.4]-[3.5].
For the purpose of determining the present application, it is necessary to first consider the relevant provisions of Division 2. Section 389F provides:
389F Application of Division
(1)This Division applies to a witness (including the complainant) other than the accused in a criminal proceeding if—
(a) the witness—
(i)is under the age of 18 years at the time at which the proceeding commences; or
(ii) has a cognitive impairment; and
(b) the criminal proceeding is in a participating venue of a court.
(2)This Division applies at any stage of the criminal proceeding, including an appeal or rehearing.
(3)In this Division (other than in section 389J(4)(c)), witness means a witness referred to in subsection (1).
Section 389I outlines the role and functions of an intermediary in the following terms:
389I Function of intermediaries
(1) The function of an intermediary is—
(a)to communicate or explain to a witness for whom an intermediary is appointed, questions put to the witness to the extent necessary to enable them to be understood by the witness; and
(b)to communicate or explain to a person asking questions of a witness for whom an intermediary is appointed, the answers given by the witness in reply to the extent necessary to enable them to be understood by the person.
(2)An intermediary is an officer of the court and has a duty to act impartially when assisting communication with the witness.
Provided the witness falls within the definition of a ‘witness’ specified in s 389F(3), s 389J(1) provides:
389J Appointment of intermediaries
(1)A court may appoint an intermediary for a witness from the panel established under this Division.
Notes
1 Section 337(1) enables this appointment to be made by the court on the application of a party or on its own motion.
2 Section 337(2) provides that this appointment may be varied or revoked.
…
There are particular circumstances in which the Court must not appoint an intermediary, such as where the witness is aware of the right to make an application for an intermediary but is able and wishes to give evidence without one,[14] or if the proposed intermediary is a friend, relative, or acquaintance of the witness or has had a prior professional relationship with the witness.[15] The circumstances of the present application do not give cause to further consider these ‘exclusionary provisions’, save that they are instructive in the overall operation and context of the intermediary scheme.
[14]Section 389J(3).
[15]Section 389J(4).
If the Court appoints an intermediary for a witness, it is then necessary to turn to the provisions in Division 1 which deals with the conduct of ground rules hearings.
389A Application of Division
(1)This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for—
(a) a sexual offence; or
(b)an offence if the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008; or
(c)an indictable offence which involves an assault on, or injury or a threat of injury to, a person; or
(d)any offences against section 23 or 24 of the Summary Offences Act 1966 if the offences are related offences to an offence specified in paragraph (a) or (c), 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.
(2)This Division applies at any stage of the criminal proceeding, including an appeal or rehearing.
(3)This Division applies to—
(a)a witness (including a complainant) other than the accused in a criminal proceeding referred to in subsection (1) if the witness is—
(i) a person under the age of 18 years; or
(ii) a person with a cognitive impairment; and
(b) a witness who is a complainant in relation to a charge for a sexual offence.
(4)In this Division, witness means a witness referred to in subsection (3).
389EF Ground rules hearings
A ground rules hearing is a hearing at which the court—
(a)considers the communication, support or other needs of witnesses; and
(b)decides how the proceeding is to be conducted to fairly and effectively meet those needs.
389B Ground rules hearing to be held
(1)The court may direct that a ground rules hearing is to be held.
Note
Section 337(1) enables this direction to be made by the court on the application of a party or on its own motion.
(2)An application for the court to direct that a ground rules hearing is to be held may be made orally or in writing.
(3) A ground rules hearing must be held if—
(a) an intermediary is appointed under Division 2; or
(b)a witness is a complainant in relation to a charge for a sexual offence.
The following can be observed from these provisions for the purposes of the present application.
First, an application for the appointment of an intermediary requires the Court to consider the provisions in Division 2 before considering the provisions in Division 1.
Second, there are particular circumstances the Court may hold a ground rules hearing where no intermediary has been appointed.
Third, where an intermediary has been appointed under Division 2, a ground rules hearing must be held. Section 389B(3)(a) is expressed in mandatory terms.
Fourth, the definition of a ‘witness’ for the purpose of Division 1 (i.e. for ground rules hearings) is more limited than in Division 2 (i.e. for the appointment of intermediaries). The former states that it applies to a witness ‘under the age of 18 years’, and the latter applies to a witness ‘under the age of 18 years at the time at which the proceeding commenced.’ In that regard, there is an inconsistency between the respective definitions which has given rise, in large part, to the issues in dispute in the present application.
Finally, there are exclusionary provisions in Division 2, expressed in mandatory terms, that prohibit the Court from appointing an intermediary for an eligible witness in particular circumstances.
The submissions of the parties
The prosecution submitted that the Court has the power to appoint an intermediary for CD. Specifically, the prosecution relies upon a plain reading of the words of s 389F(1)(a)(i) as applying to CD who was under 18 years of age at the date the proceeding commenced, but who has since turned 18 years of age.
The prosecution further submitted that if the Court is satisfied that the witness is eligible for an intermediary, having regard to the relevant criteria in s 398F, then the Court must hold a ground rules hearing, as required by s 389B(3)(a).
Additionally, the prosecution argued that provided the Court is satisfied the witness is eligible for an intermediary, having regard to the relevant criteria in s 389F, and provided that none of the exclusionary provisions in ss 389J(3) or (4) apply, the Court must appoint an intermediary, as the exercise of that power is not discretionary. Alternatively, the prosecution submitted that should the Court find that the appointment of an intermediary is an exercise of discretion, then the particular circumstances of the case clearly warrant the exercise of that discretion in favour of CD.
The accused, on the other hand, argued that the Court does not have the power to appoint an intermediary for CD, specifically as a consequence of the operation of Division 1 in relation to the conduct of a ground rules hearing.
The accused did not take issue with the fact that, as a starting point, CD falls within the definition of a ‘witness’ for the purpose of Division 2, being a witness who was under the age of 18 years when the proceeding against the accused commenced. It was submitted, however, that as CD is now 18 years of age, the Court cannot appoint an intermediary for CD, as a ground rules hearing cannot be held as a consequence of the more limited definition of witness in Division 1. Put another way, the accused argued that s 389B(3) contains a ‘negative implication’, namely an intermediary cannot be appointed if a ground rules hearing cannot be held.
The accused submitted that as CD is no longer under the age of 18 years, he does not meet the definition of a ‘witness’ in Division 1, as specifically provided for by s 389A(4), and accordingly the provisions in relation to ground rules hearings do not, and cannot, apply to him. In those circumstances, having regard to the mandatory requirement in s 389B(3)(a) that a ground rules hearing must be held if an intermediary is appointed, then the Court has no power to appoint an intermediary in the present case.
Finally, the accused submitted in the alternative, that if the Court determines that it has the power to appoint an intermediary for CD, then the exercise of that power is discretionary, and the Court should not exercise that discretion in this instance. In addressing the exercise of the discretion, the accused relied upon the stated intent and purpose of the legislation outlined in the second reading speech as empowering children and vulnerable witnesses to give their best evidence and CD, having attained the age of 18 years, would no longer fall into such category of witness.
Analysis
The determination of the application and the arguments advanced by the parties requires, in part, an exercise of statutory interpretation.
Whilst the parties did not specifically address me during argument in any detail on the principles of statutory interpretation, senior counsel for the prosecution did refer me to s 35 of the Interpretation of Legislation Act 1984 (‘ILA’) as the starting point for the determination of this application. In any event, the principles of statutory interpretation are well known and long established. In Vicinity Funds Re Ltd & Ors v Commissioner of State Revenue [2022] VSCA 176, the Court of Appeal noted:
The starting point in any exercise of statutory construction is the text of the provision. However, the text is to be considered in light of its context and purpose. Context includes the legislative context, because the meaning of a provision must be determined by reference to the entire Act. Consideration of purpose is further reinforced by s 35(a) of the ILA, which provides as follows:
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.
It is permissible to have regard to extrinsic materials in resolving the meaning of the text, particularly in cases of ambiguity. However, legislative history and extrinsic materials cannot displace the meaning of the statutory text. It is also permissible, in determining which of two competing interpretations of a statute ought to be adopted, to have regard to the consequences of each interpretation.[16]
[16] At [69]-[70] (citations omitted).
Additionally, the Court of Appeal has noted:
As the High Court has repeatedly emphasised, the task of statutory interpretation begins, and ends, with the words which Parliament has used. For it is through the statutory text that the legislature expresses, and communicates, its intention.[17]
[17] DPP v Walters (a pseudonym) [2015] VSCA 303 at [2] (citations omitted).
In determining this application I have had regard not only to the relevant provisions of the CPA, but also to the explanatory memorandum to the amending Act which introduced Part 8.2A of the CPA, and the second reading speech made at the time the Bill was introduced to Parliament.
(a) Does the Court have power to appoint an intermediary for CD?
In order to determine the application, the Court must first consider the provisions of Division 2 which concern the appointment of an intermediary, before returning to Division 1 if an intermediary is appointed, to consider the provisions concerning the conduct of a ground rules hearing. This is particularly so having regard to the way in which the accused argued his opposition to the application.
The parties accept and agree that, on a plain reading of s 389F, CD is a witness who was under the age of 18 years at the time at which the proceeding commenced.
In my view, the language of s 389F(1)(a)(i) is very specific in its terms. It clearly contemplates the availability of an intermediary for a witness who was under the age of 18 years when the proceeding commenced, but who may subsequently turn 18 years of age during the course of the proceeding. This definition of a witness demarcates the point in time that the age of the witness is to be considered; namely, as at the date the proceeding commenced. Notably, however, the provisions in Division 1 apply at any stage of the criminal proceeding, including an appeal or rehearing. Therefore, the provisions must contemplate a situation where the witness has turned 18 years of age by the time of an application for the appointment of an intermediary and/or the witness giving evidence with the assistance of an intermediary, which may be quite some time after the proceeding has commenced.
There can be no other sensible interpretation of the operative words of the provision. If the intention of the legislature was to limit the availability of an intermediary for only witnesses under the age of 18 years as at the date of the application (or, for example, as at the date the witness is to give evidence), it could – and surely would - have expressed so in unequivocal terms.
This definition of a ‘witness’ for the purposes of Division 2 is quite specific and deliberate, and can be contrasted with a number of other provisions of the CPA (aside from the definition in Division 1) which refer to ‘a person under the age of 18 years’; see, for example the definition of a ‘child’ in s 3; and the use of recorded evidence in particular proceedings in Division 5 of Part 8.2.
There is otherwise no guidance in any of the extrinsic materials to which I have been referred that provide any further elucidation of the specific text in s 389F(1)(a)(i). The search for legislative meaning in that regard must begin and end with the words of the provision,[18] which in my view are consistent with the overall context of the legislative scheme, having regard to the purpose for which the provisions were enacted. Additionally, construing the provisions in this way does not in my view adversely affect or interfere with the fundamental rights of the parties to the proceeding (i.e. it does not infringe the ‘principle of legality’[19]).
[18]Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 97 ALJR 98, at [39].
[19] See Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309.
I turn now to further consider the argument of the accused concerning the holding of a ground rules hearing. Division 1 sets out the framework and process of a ground rules hearing.
There is clearly an inconsistency in the definitions of a ‘witness’ in s 389A and s 389F respectively. The former states that Division 1 applies, inter alia, to ‘a person under the age of 18 years’, and the latter states that Division 2 applies, inter alia, to ‘ a person under the age of 18 years at the time at which the proceeding commenced’. I accept that on one view this inconsistency gives rise to a degree of ambiguity in the harmonious operation of the provisions in respect of the appointment of intermediaries on the one hand, and the holding of ground rules hearings on the other.
The accused submitted that due to the more limited definition of ‘witness’ in s 389A(4), Division 1 only applies to a witness ‘under the age of 18 years’, and cannot apply to CD, who has turned 18 years of age since the proceeding commenced. In those circumstances, it was submitted, as the holding of a ground rules hearing is mandatory consequent upon the appointment of an intermediary, and a ground rules hearing cannot be held for CD who is 18 years of age, the Court has no power to appoint an intermediary.
In my view the argument advanced on behalf of the accused invites the Court to embark on the process of construing the legislation by ‘reverse-engineering’ the relevant provisions, and must be rejected. Counsel for the accused could not provide any cogent explanation or example of the work that the words ‘at the time the proceeding commences’ in s 389F(1) would have to do if the construction advanced by the accused was accepted. The only example provided was one where an intermediary could be appointed and a ground rules hearing held whilst the witness was still under the age of 18 years, but the witness subsequently turned 18 years of age by the time they were called to give evidence in the proceeding. In my view, such a circumstance would be so rare (and arbitrary) as to render the text futile. Indeed, to accept that interpretation of the provisions would be to unreasonably confine or read-down the operation of the provisions in a way that is not otherwise supported by any of the extrinsic materials, or the objects and purpose of the overall legislative scheme.
In my view, the answer to this issue is far simpler. Section 389B(3) mandates the holding of a ground rules hearing if an intermediary is appointed under Division 2. This requires the Court to approach the application for the appointment of an intermediary consistently with the provisions in Division 2, including the definition of a ‘witness’ under s 389F(3). In that context, if the Court exercises the power to appoint an intermediary for an eligible witness, the mandatory requirement to hold a ground rules hearing provided for by s 389B(3) will apply, irrespective of the more restrictive definition of a witness provided for by s 389A(4).
This construction gives effect to a coherent, harmonious and consistent operation of the provisions in Part 8.2A, particularly having regard to my earlier determination of the clear intent and operation of s 389F.
This construction is also supported by the fact that the operation of Division 1 in relation to the holding of ground rules hearings applies to circumstances more broadly for particular classes of witnesses who are to give evidence where no intermediary has been appointed. In that respect, Division 1 operates more broadly than only as a consequence of an appointment of an intermediary under Division 2. This may explain, at least in part, the more confined definition of a witness in Division 1.
Even if I am in error as to the operation of s 389B(3), then as a consequence of the principles of statutory construction, the application of the definition of ‘witness’ in Division 1 should be read to include the expanded definition of ‘witness’ in Division 2 in the context of a ground rules hearing being held consequent upon the appointment of an intermediary. Otherwise, as I have already identified, the words ‘at the time at which the proceeding commences’ in respect of the definition of a witness in Division 2 would have no work to do.
As the High Court held in Project Blue Sky Inc v Australian Broadcasting Authority:[20]
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.[21]
(emphasis added)
[20](1998) 194 CLR 355.
[21]Ibid. at [70]-[71].
To accept the argument advanced by the accused would in my view result in the specific words ‘at the time at which the proceeding commences’ in the definition of a witness for the purpose of Division 2 being rendered superfluous and insignificant. The provisions should be construed in a way that all the words are made useful and pertinent.
Accordingly, I reject the submissions of the accused and find that the Court does have the power to appoint an intermediary for CD under Division 2, and consequent upon such appointment a ground rules hearing under Division 1 can (and indeed, must) be held in advance of CD giving evidence in the proceeding.
(b) Is the power to appoint an intermediary discretionary?
Having determined that the Court has the power to appoint an intermediary for CD, the next issue to be determined is whether the exercise of that power is discretionary.
The parties were not able to direct me to any authority which had previously considered this issue. In a recent decision of this Court,[22] Beale J refused an application for the appointment of an intermediary for two witnesses who were each over 18 years of age (but who were under the age of 18 years when the proceeding commenced) on the basis that there was nothing that suggested any communication difficulties for either witness which required the appointment of an intermediary.[23] In any event, the issues of whether the Court had the power to appoint an intermediary for a witness who had turned 18 years of age since the proceeding commenced, and whether the exercise of the power to appoint an intermediary is discretionary, were not raised or argued by the parties and His Honour was not required to determine them.
[22]DPP v Atkinson (unreported, Supreme Court of Victoria, Beale J, 19 July 2023).
[23]The reasons for refusing the application have not been published and were provided ex tempore in the course of a directions hearing in the proceeding.
In my view, this issue can be disposed of fairly readily. In its terms, s 389J(1) of the CPA provides that the court ‘may’ appoint an intermediary.
Section 45 of the ILA provides:
45 Construction of ‘may’ and ‘shall’
(1)Where in this Act or any Act passed or subordinate instrument made on or after the commencement of this Act the word ’may’ is used in conferring a power, that word shall be construed as meaning that the power so conferred may be exercised, or not, at discretion.
(2)Where in this Act or any Act passed or subordinate instrument made on or after the commencement of this Act the word ‘shall’ is used in conferring a power, that word shall be construed as meaning that the power so conferred must be exercised.
(3)The provisions of this section shall have Effect notwithstanding any rule of construction to the contrary and any such rule is hereby abrogated with respect to this Act and any Act passed or subordinate instrument made on or after the commencement of this Act.
In the course of argument, senior counsel for the prosecution sought to explain the use of the word ‘may’ in s 389J(1) as operating consistently with the exclusionary provisions in ss 389J(3) and (4), in that the use of the word ‘may’ does not confer a discretion, but reflects the possibility that the Court might be prevented from appointing an intermediary if one or more of the circumstances in the exclusionary provisions existed. In those circumstances, it was argued, the text could not be expressed in mandatory terms, such as the use of the words ‘must appoint’, because there are circumstances where the Court must not appoint an intermediary.
The prosecution submissions on this aspect of the application must be rejected. The statute books are replete with provisions expressed in mandatory terms (with the use of words ‘must’ or ‘shall’) which require a power conferred by the provision to be exercised, even where there may be qualifications or ‘carve-outs’ to the mandatory exercise of that power (such as with the use of the words ‘unless’ or ‘subject to’). Such examples are in fact found throughout the CPA.
Consistently with s 45(1) of the ILA, in conferring the power to appoint an intermediary for a witness, the word ’may’ is to be understood as meaning that the power is to be exercised at discretion. Lest there be any mistake about it, and notwithstanding the absolute terms in which s 45(3) of the ILA is expressed, there is nothing in the extrinsic materials to which I have referred earlier in this ruling which would support the alternative construction of s 389J(1) urged by the prosecution as imposing an obligation on the Court to appoint an intermediary.
Additionally, the discretionary nature of the power of appointment is, in my view, supported by a number of the surrounding provisions in Part 8.2A, including:
(a) the notes to s 398J, which specifically references s 337 of the CPA as enabling the appointment of an intermediary by the Court to be on the application of a party or on its own motion, and further that such appointment may be varied or revoked. In this context, the legislation contemplates various options for the manner in which such application can be made. If the Court must appoint an intermediary for a witness once satisfied that the witness is eligible, then it would not be necessary for the CPA to provide options by which such application can be made; and
(b) sections 389J(3) and (4) which prescribe circumstances, in mandatory terms, where the Court must not appoint an intermediary. This includes circumstances where a witness is aware of their ‘right to make an application for an intermediary to be appointed’, but wishes to give evidence without one. This supports a construction that an eligible witness has no more than a right to make an application for the appointment of an intermediary, as opposed to the prosecution’s contention that a witness has a mandated right to have an intermediary appointed, provided they are eligible. The distinction is significant.
The introduction of the intermediary program was a fundamental alteration to the manner of eliciting evidence of vulnerable witnesses in criminal proceedings. The Court of Appeal has previously referred to the introduction of such a scheme as a ‘radical’ change.[24] If the legislature had intended that an intermediary must be appointed for a witness provided the eligibility criteria had been met then it could and would have enacted the provision in unequivocal terms.
[24]Ward v The Queen [2017] VSCA 37 at [104].
I accept that somewhat unhelpfully the CPA does not prescribe any express criteria for the exercise of the discretion to appoint an intermediary. Nonetheless, in my view the discretion should be exercised in a way that gives effect to the purpose and objectives of the legislative scheme which I have already outlined earlier in this ruling. Additionally, the discretion should be exercised having regard to the function of an intermediary, as outlined in s 389I, and the particular communications capabilities and needs of the witness, informed by the content of the intermediary assessment report filed in support of the application.
Accordingly, I reject the submission of the prosecution that upon being satisfied of the eligibility of a witness, the appointment of an intermediary is mandatory. The appointment of an intermediary is discretionary, to be exercised having regard to the considerations I have referred to.
(c) Should an intermediary be appointed for CD?
Having determined that the Court has the power to appoint an intermediary for CD, and that such appointment is discretionary, I turn finally to the issue of whether, in the particular circumstances of this case, an intermediary should be appointed for CD.
The accused submitted that should the Court determine there is power to appoint an intermediary for CD, and such power is to be exercised at discretion, then the particular circumstances of the case do not warrant the appointment, as CD is no longer a child and should not be considered a vulnerable witness.
The prosecution, on the other hand, submitted that the particular circumstances clearly warrant the appointment of an intermediary for CD.
Neither party addressed me at any significant length on the contents of the intermediary assessment report and the opinions expressed therein.
I have considered the intermediary assessment report prepared by Dr Anita Tan, who is a registered psychologist and the proposed intermediary.[25] Although the prosecution does not specifically rely on CD having any cognitive disability, the report identifies that CD self-reports having been diagnosed with ‘high functioning’ autism when aged approximately five or six years old.[26]
[25]Intermediary Assessment Report and Recommendations in respect of [CD], by Dr Anita Tan dated 25 July 2023.
[26]Ibid. at [3.2.4].
The report states that CD presented on assessment with an anxious demeanour and his concentration wavered at times during the assessment when his anxiety levels rose. The assessment also revealed that:[27]
[27]Ibid. see ‘Conclusions’ at [4.1].
· ‘[CD] struggled to express both his feeling state and external physiological responses associated with emotional escalation (e.g. anxiety/stress), indicating a tendency to internalise those responses’;
· ‘[CD] also displayed an eagerness to provide the correct answers to questions asked, that may inadvertently increase his anxiety during the question process’;
· ‘When confronted with more assertive challenging in the form of tonal statements posed as questions and complex questions, [CD] was observed to be less consistent in his response stance’; and
· ‘[CD] presented as an intelligent young person… [whose] communication skills (both narrative and vocabulary) appear to be aligned with that of same aged peers.’
In her report, Dr Tan recommended:
That [an] Intermediary is appointed to assist in the implementation and regulation of strategies accepted by the Court that will support [CD] to deliver his best evidence, as well as to monitor [CD]’s emotional regulation on the day of the Hearing. The intermediary is also able to assist Counsel with phrasing of questions prior to the Hearing.[28]
[28]Ibid. at [4.1.4].
[Redacted].[29]
[29][Redacted].
Having concluded that CD is eligible for an intermediary and that, in coming to that view, accepting that the legislature intended that a witness who was under the age of 18 years when the proceeding commenced but has since turned 18 years of age by the time of giving evidence in the proceeding is to be treated as a vulnerable witness who may be assisted by an intermediary, I am of the view that it is appropriate to exercise my discretion to appoint an intermediary in the present case. The appointment of the intermediary will facilitate a less stressful experience for CD, assist him to give his best evidence, and monitor his emotional regulation during the hearing.
Another relevant consideration to which I have had regard in granting the application to appoint an intermediary for CD, is the stage of the criminal proceeding. Presently, I am concerned with the application in the context of the hearing of preparatory cross-examination of prosecution witnesses. It is a preliminary process prior to the trial. The Court does not have the benefit of assessing for itself the communication capability of the witness. As I have already noted, CD was not the subject of a VARE, and he has not yet given evidence. The Court and the parties are informed only on the basis of the assessment report filed in support of the application. In the circumstances, I consider it appropriate to err on the side of caution when assessing the communication capability and needs of the witness having regard to some of the issues identified in the assessment report.
As I made plain to the parties at the commencement of the hearing of this application, my determination will be limited to the hearing of preparatory cross-examination. In the event the prosecution again seeks the appointment of an intermediary for CD for the trial, that application will need to be made to the trial judge. At that point the Court and the parties will have the benefit of the evidence given by CD at the hearing of preparatory cross-examination, and may be better placed to address the Court on the communication capabilities of the witness and whether, in the circumstances, it is appropriate for an intermediary to be appointed. It is anticipated, should such application be made to the trial judge for the trial, a further or updated intermediary assessment report would be required for the purpose of the application.
Conclusion
For the foregoing reasons, the application for the appointment of an intermediary for CD for the hearing of preparatory cross-examination is granted. I will otherwise hear from the parties as to any further or consequential orders required to give effect to this decision, including the listing of a ground rules hearing.
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