Nicholas Bradley (a pseudonym)[1] v The Queen and the Secretary to the Department of Justice and Community Safety

[2021] VSCA 63

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0268

NICHOLAS BRADLEY (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent
and
THE SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	Intervenor

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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JUDGES:	MAXWELL P, McLEISH and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 March 2021
DATE OF JUDGMENT:	18 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 63
JUDGMENT APPEALED FROM:	DPP v [Bradley] (Unreported, County Court of Victoria, Judge Hampel, 18 December 2020)

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CRIMINAL LAW – Appeal –  Interlocutory  appeal – Certification – Application to review refusal to certify – Sexual offences – Intermediaries – Child complainants interviewed in presence of intermediaries – Use of sensory aids during interviews – Foreshadowed defence application to exclude VARE recordings on ground of unfairness – Judge refused application to cross-examine intermediaries and manager of ‘Intermediary Pilot Program’ – Whether decision ‘of sufficient importance’ to justify interlocutory appeal – Reasonably open to refuse to certify – Review application refused – Criminal Procedure Act 2009 s 295(3)(b), s 296(1), div 7 of pt 8.2 – Frazier v The Queen [2017] VSCA 370 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Edney and Ms N Kaddeche	Ms E Turnbull
For the Respondent	Mr D Hannan and Ms V Jones	Ms A Hogan, Solicitor for Public Prosecutions
For the Intervenor	Mr L Brown and Ms S Fitzgerald	Mr M Hocking, Victorian Government Solicitor

MAXWELL P
McLEISH JA
SIFRIS JA:

1. The applicant is charged with a number of sexual offences allegedly committed against two young girls.  The complainants are his granddaughters.

1. As is routine with child complainants, it was proposed that each complainant’s evidence in chief would be recorded, and the recording (‘VARE’) used at the trial, as authorised by div 7 of pt 8.2 of the Criminal Procedure Act2009 (‘CPA’).  Interviews with the complainants were duly recorded. 

1. The defence have given notice of an application to exclude the two VAREs.  The basis for the exclusion is said to be the improper or unfair conduct of two intermediaries, who assessed the communication capabilities of the respective complainants before the VAREs were conducted, were present during the interviews and provided the complainants with ‘sensory toys’ to hold while being interviewed.

1. The participation of intermediaries in criminal proceedings is authorised by pt 8.2A of the CPA but there is, as yet, no express authorisation for their involvement in the VARE process.  The judge noted that the involvement of intermediaries in the present case occurred as part of a pilot program, governed by a manual of procedures developed by the Department of Justice and Community Safety.

1. The matter comes before this Court because the trial judge refused a defence application to cross-examine the two intermediaries, and the manager of the ‘Intermediary Pilot Program’, in aid of the application to exclude the VAREs.  The judge also refused to certify that the decision was ‘of sufficient importance to justify it being determined on an interlocutory appeal’.[2]

   [2]CPA s 295(3)(b).

1. The applicant has now applied under s 296(1) of the CPA to review the refusal to certify.  On such a review, this Court applies the principles in House v The King.[3] There being no suggestion of specific error in the certification decision, the applicant needs to show that it was not reasonably open to her Honour to refuse to certify.[4]

   [3](1936) 55 CLR 499; [1936] HCA 40.

   [4]Frazier v The Queen (a pseudonym) [2017] VSCA 370, [8] (Maxwell P and Kyrou JA); Peterson v The Queen(a pseudonym) (2019) 57 VR 521, [11]; [2019] VSCA 12 (Maxwell P and Taylor AJA).

1. For reasons which follow, the judge’s decision — that the ruling was not of sufficient importance to justify an interlocutory appeal — was well open to her.  Indeed, far from being satisfied that the applicant has pointed to House v The King error, in our opinion the judge was plainly correct to refuse to certify.

1. In Rowley v The Queen,[5] Beach J said:

Voir dires are time consuming and frequently result in the incurring of considerable public expenditure.  In my opinion, there is no obligation upon a trial judge to conduct one unless he is satisfied a real question of voluntariness, unfairness or impropriety has arisen, for as Gibbs CJ and Wilson J pointed out in [MacPherson v The Queen[6]], it does not advance the cause of justice to allow a voir dire which is used merely as a fishing expedition … .[7]

[5](1986) 23 A Crim R 371.

[6](1981) 147 CLR 512, 523; [1981] HCA 46.

[7](1986) 23 A Crim R 371, 380. See also R v Callaghan (2001) 4 VR 79, 90–1 [21]; [2001] VSCA 209 (Winneke P, with whom Brooking JA and O’Bryan AJA agreed at 101 [43] and [44]).

1. The applicant contends that ‘a real question of fairness’ arises in relation to the VAREs, and that he has sufficiently demonstrated the relevance to that question of the matters about which he would cross-examine the intermediaries.  His contention is that the answers given by the complainants in the interviews may have been influenced by what the intermediaries said or did and that he should be able to question them about their actions and their motivations.

1. As her Honour correctly said, however, the basis for the unfairness argument already exists in the material before the Court:  the VARE recordings themselves and the detailed pre-interview assessment reports, in which the intermediaries set out their observations and recommendations concerning the communication abilities of the complainants.  It will be a matter for the trial judge to determine, when the exclusion application is made, whether the provision of the sensory toys — or any other aspect of the conduct of the intermediaries — affected the answers given by either complainant in such a way as to give rise to irremediable unfairness.

1. As her Honour said:

The VAREs speak for themselves.  The sensory aids are clearly seen on the recordings.  The manner in which they were used by the complainants is clearly seen on the recordings.  The manner in which the intermediaries conducted themselves can clearly be seen on the recordings.  The trial judge can, and indeed must, assess for him or herself whether the provision or use of the sensory toys affected the evidence of the complainants and was productive of unfairness to the accused, sufficient to warrant their exclusion.  Nothing in my decision adversely impacts on the defence’s ability to rely on the VAREs to seek to demonstrate unfairness or impropriety sufficient to warrant their exclusion.[8]

[8]DPP v [Bradley] (Unreported, County Court, Judge Hampel, 18 December 2020), [17] .

1. It was well open to her Honour to conclude that no basis had been established to justify the proposed cross-examination.  She said:

Again, as with the pre-VARE assessment reports, there is nothing in the VAREs to indicate, or provide any evidentiary foundation to support any suggestion of deliberate attempts to influence the evidence of the complainants.  [Defence counsel] does not submit he is possessed of information which would provide a basis for making such a suggestion.[9]

[9]DPP v [Bradley] (Unreported, County Court, Judge Hampel, 30 November 2020), [91].

1. Insofar as the applicant sought to explore whether the intermediaries had said anything to the complainants before the VAREs were conducted, there was no basis for suggesting that the intermediaries had private conversations with the complainants;  the informants were present during the pre-assessment interviews.

1. Nor was it relevant to explore ‘why the intermediaries did what they did during the VAREs [or] why they intervened when they did’.  As her Honour said, what will be in issue on the exclusion application is whether what the intermediaries did can be shown to have had any unfair impact on the responses given by the complainants.  That is, of course, an important question.  It may be one calling for expert evidence.  But none of this requires evidence from the intermediaries about the matters suggested by the applicant.

1. In light of these conclusions, and for the reasons her Honour gave, the ancillary question of whether the intermediaries should be cross-examined was not ‘of sufficient importance to justify it being determined on an interlocutory appeal’.

1. The application also sought to have the manager of the ‘Intermediary Pilot Program’ cross-examined on a voir dire.  Our above conclusions apply with added force to that aspect of the case.

1. We therefore affirm the decision of the judge to refuse to certify.

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