R v Ayoub
[2021] ACTSC 181
•6 August 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ayoub |
Citation: | [2021] ACTSC 181 |
Hearing Date: | 6 August 2021 |
DecisionDate: | 6 August 2021 |
Before: | Elkaim J |
Decision: | See [21] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Pre-Trial Application – Application to appoint intermediary – consideration of relevant expertise of report writer – consideration of whether communication difficulty will be present during the trial |
Legislation Cited: | Evidence Act 2011 (ACT) s 41 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 4AJ |
Texts Cited: | Mayo Clinic, Personality Disorders, (Web Page) < |
Parties: | The Queen (Crown) Joseph Ayoub (Offender) |
Representation: | Counsel A Chatterton (Crown) J De Bruin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 57 of 2021; SCC 58 of 2021 |
ELKAIM J:
There were originally three applications made in this matter. There was an application by Legal Aid ACT to withdraw its representation of the accused. The application was filed on 13 July 2021. There were two applications filed by the Crown, both on 22 April 2021. One sought the appointment of an intermediary for the evidence of the complainant, the other requested that the complainant give evidence at a pre-trial hearing.
Two of the applications have been withdrawn leaving only the application for the appointment of an intermediary. The application is supported by an affidavit of Ms Erin Priestly, affirmed on 22 April 2021. The application was opposed.
The accused is charged with a number of offences arising from his engagement of a sex worker at a brothel in September 2020. It is alleged that rather than confining himself to the terms of the engagement, the accused sexually assaulted the complainant without her consent. The allegation includes a number of acts of strangulation.
An ‘intermediary application’ is made under s 4AJ of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The section states:
4AJ Appointment of witness intermediary—generally
(1) A court may appoint an intermediary in a criminal proceeding for a witness with a communication difficulty—
(a) on its own initiative; or
(b) on the application of—
(i) the DPP; or
(ii) the witness; or
(iii) the accused person.
Example—communication difficulty
a mental or physical disability that impedes speech
2) A court must not appoint an intermediary for a witness under this section if satisfied that the witness—
(a) is aware of their right to make an application for an intermediary to be appointed; and
(b) is able to, and wishes to, give evidence without the assistance of an intermediary.
(3) In making a decision under this section, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
Although no objection was taken to the affidavit of Ms Priestly there was objection to the opinion of Dr Barry, whose report is annexed to the affidavit, on the basis that the practitioner did not have the relevant expertise in respect of some of the matters at issue.
Dr Barry is certainly not a psychologist or a psychiatrist. Nevertheless, the strength of her report lies not in her opinion but rather in her factual observations. In particular, at [75], she says:
During the forensic medical examination, (the complainant) became significantly agitated during the history-taking process specifically related to recollection of the alleged strangulation. (The complainant) lapsed into an unresponsive state whilst remaining conscious.
The accused relied on an affidavit of Miss Le Couteur, sworn on 6 August 2021. The affidavit annexes two articles on psychogenic non-epileptic seizures. The authors of these articles are unquestionably more qualified in the area they address. However, the Crown does not rely on any specific diagnosis in the report of Dr Barry, but, as I have already stated, simply on her factual observations.
If the contest was between the expertise of the competing practitioners, clearly the accused would succeed. But that is not the case here. In addition, I note that by reason of subsection (3) of the above section, the court is not “bound by the rules of evidence”.
The matter was before Murrell CJ on 21 July 2021. It could not proceed on that date because Legal Aid ACT did not have instructions from the accused. Her Honour pointed out to the Crown however, that on the evidence before her, there was a lacuna in respect of whether or not the complainant’s communication difficulty was likely to still be present when the matter came on for hearing, most likely in September 2021.
Drawing on her Honour’s observation, the Crown filed a further affidavit of Ms Priestly, affirmed on 5 August 2021. This affidavit annexes the medical health records of the complainant. The intent is to show the extent of the complainant’s mental health condition and, in turn, the likelihood that it will affect her capacity to communicate on a long-term basis.
This issue, namely whether or not the communication difficulty will be present during the trial is the only real point of contention in the application. The mental health records seem to span the period from 4 September 2020 until 28 July 2021. The former date may be misleading in that the first entry is for 12 September 2020, which is one day after the offences are alleged to have occurred.
The most recent date seems to be 1 May 2021. The entry is to the following effect: the complainant is facing a “situational crisis in setting of recent sexual assault”, she is “engaging in safety planning” and there was a diagnosis of Post-Traumatic Stress Disorder and “Cluster B Personality Traits”.
Using the leave given to me by s 4AJ(3), Cluster B personality traits are “characterised by dramatic, overly emotional or unpredictable thinking or behaviour. They include antisocial personality disorder, borderline personality disorder, histrionic personality disorder and narcissistic personality disorder” (Mayo Clinic, Personality disorders, < type="1">
The Crown submitted that the entries for 11 March and 29 April 2021 not only show the communication difficulties that might be anticipated at the trial but are also linked to the current allegations. As to the latter point I do not think it is an integral part of the requirements of the section. A witness may have a communication difficulty entirely unrelated to the offences which are the subject of the trial.
In my view the primary question is whether or not the witness, when giving evidence, will have a communication difficulty. I do however accept that the events complained of may have a relevance if it is only when they are being discussed, that the communication difficulty arises.
On my reading of the medical notes, at least to the extent that they have not been redacted, the complainant unquestionably has significant difficulty in describing the events giving rise to the alleged offences. It cannot be said, as a matter of certainty, that a difficulty experienced in May of this year, will necessarily exist in September.
I think I can comfortably say that the difficulties which are evident over the term of the notes have existed for such a period as would logically suggest their continuation. Further, the entries for 1 May 2021 refer to an ongoing mental health crisis, unlikely to be susceptible to swift resolution.
I think it is a reasonable step to assume that communication difficulties that existed in May are likely to continue until, at least, the date of trial.
The accused submitted, in effect, that any person who had been sexually assaulted might have difficulty in giving evidence about the assault. It could not be the case, said the accused, that every complainant is entitled to an intermediary. In addition the accused submitted that the complainant, being a sex worker, would be more familiar with talking about matters of a sexual nature. Even if that were correct, this familiarity would not extend to sexual attacks involving extreme acts of violence, such as strangulation.
The accused also submitted that the appointment of an intermediary would not be in the interests of justice. The complainant’s welfare would be well protected by s 41 of the Evidence Act 2011 (ACT). No doubt this section would play an important part, but the intermediary system is specifically designed and intended to meet the needs of vulnerable witnesses. On the basis of the medical records this complainant is certainly a vulnerable witness, and one with a communication difficulty.
I make the following orders:
1.An intermediary is appointed for the complainant [redacted] as a witness with a communication difficulty, pursuant to s 4AJ of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
2.An Intermediary Report is ordered for the complainant [redacted], returnable by 27 August 2021.
3.A Ground Rules Hearing is to be held for the complainant [redacted] on 30 August 2021 at 10:00am before myself (estimate: 1 hour).
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 27 August 2021 |
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