R v DL

[2024] NSWDC 340

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v DL [2024] NSWDC 340

Hearing dates:

12 August 2024

Date of orders:

12 August 2024

Decision date:

12 August 2024

Jurisdiction:

Criminal

Before:

Bennett SC ADCJ

Decision:

1. The Witness Intermediary may be present with and assist the complainant and the witness.

2. The Witness Intermediaries recommendations are to be followed by the advocates.

Catchwords:

CRIME – application for presence of a witness intermediary – use of witness intermediary while giving evidence – Complainants under the age of 16.

Legislation Cited:

Criminal Procedure Act 1986 s3, 306M, 306P,306ZK.

Category:

Procedural rulings

Parties:

Dylan James Lee (Defendant)
Rex (Prosecutor)

Representation:

Counsel:
Trevor Bailey (Crown)
Mark Davies (Counsel for the Accused)
Solicitors:
Office of the Director of Public Prosecutions
Ms. Dart (Solicitor for the Accused)

File Number(s):

2023/00189768

Publication restriction:

The case is ongoing and so this ruling is published in a restricted manner until the trial is ended. There is a non-publication order in relation to the name of the accused, the complainant and the complaint witness and anything which may tend to identify them.

JUDGMENT

Introduction

1. D.L. appears for trial upon an indictment reference 202307873_23.2 charged with ten counts for offences of sexual touching contrary to s 66DA(a) Crimes Act 1900, sexual intercourse with a child under the age of ten years contrary to s 66A(1) Crimes Act 1900, and sexual intercourse with a child under the age of 14 years contrary to s 66C(1) Crimes Act 1900.

2. There is one complainant and a second witness with evidence of complaint, both of them children at the material times.

The Application for the Presence of a Support Person also to Function as Witness Intermediary

3. The proceedings commenced on 12 August 2024 when the accused was arraigned and pleaded not guilty to each charge.

4. The court is about to commence a hearing for the receipt of evidence from the witnesses pursuant to Chapter 6, Part 6, Criminal Procedure Act 1986 for which the Crown applies for a person to be present with each of them in the remote location from which they will give evidence, to function as witness intermediary..

5. The proposed witness intermediary, Danielle Chytra, a speech pathologist, appeared via AVL. She confirmed her qualifications and experience, that she assessed each of the children, and confirmed her opinions and recommendations for each of them. Her reports included tables with guidance upon the approach to be taken when formulating questions for each witness. The accused does not cavil with the recommendations.

6. Ms Chytra’s reports include her observations of each child’s presentation upon which she assessed the appropriate formulation of questions to them.

7. The Crown seeks orders pursuant to s 306ZK Criminal Procedure Act 1986 which provides relevantly:

306ZK   Vulnerable persons have a right to presence of a support person while giving evidence. 

(1)    This section applies to—

(a)  a criminal proceeding in any court, and

…

(2)    A vulnerable person who gives evidence in a proceeding to which this section applies is entitled to choose a person whom the vulnerable person would like to have present near him or her when giving evidence.

(3)    Without limiting a vulnerable person’s right to choose such a person, that person—

(a)  may be a parent, guardian, relative, friend or support person of the vulnerable person, and

(b)  may be with the vulnerable person as an interpreter, for the purpose of assisting the vulnerable person with any difficulty in giving evidence associated with an impairment or a disability, or for the purpose of providing the vulnerable person with other support.

(3A)    An accused person is not entitled to object to the suitability of the person or persons chosen by a vulnerable person to be with the vulnerable person when giving evidence, and the court is not to disallow the vulnerable person’s choice of person or persons on its own motion, unless the vulnerable person’s choice is likely to prejudice the accused person’s right to a fair hearing (for example, because the person chosen by the vulnerable person is a witness or potential witness in the proceedings).

(4)    To the extent that the court or tribunal considers it reasonable to do so, the court or tribunal must make whatever direction is appropriate to give effect to a vulnerable person’s decision to have such a person present near the vulnerable person, and within the vulnerable person’s sight, when the vulnerable person is giving evidence.

(5)    The court or tribunal may permit more than one support person to be present with the vulnerable person if the court or tribunal thinks that it is in the interests of justice to do so.

(6)    This section extends to a vulnerable person who is the accused or the defendant in the relevant proceeding.

(7)    In this section (and despite section 306P)—

“vulnerable person” includes, in respect of proceedings referred to in subsection (1) (a) or (c), a person who is 16 years of age or over but under the age of 18 years.

8. S 3 of the Act, the definitions section, incudes

“vulnerable person” has the same meaning as it has in Part 6 of Chapter 6.

9. S 306M within Part 6 includes

(1)    In this Part—

“vulnerable person” means a child or a cognitively impaired person.

10. S 306P provides:

(1)    To the extent that this Part applies to children, this Part applies (unless a contrary intention is shown) in relation to evidence given by a child who is under the age of 16 years at the time the evidence is given.

11. Both witnesses are vulnerable persons for the purpose of these proceedings, being under the age of 18 years.

12. The accused does not oppose the orders sought by the Crown.

Orders

13. In respect of the witness Z.B., that:

1. Pursuant to s.306ZK (2) Criminal Procedure Act 1986, witness Intermediary Danielle Chytra be present in the remote witness room with Z.B. for the duration of her evidence.

2. Pursuant to s.306ZK(3)(b) Criminal Procedure Act 1986, Ms Chytra may assist with communication of questions to Z.B. and any answers given on account of communication difficulty.

3. When advocates are questioning Z.B. they adhere to recommendations 1 to 9 at pages 11 to 14 of the Communication Assessment Report of Ms Chytra, dated 1 August 2024.

14. In respect of complainant A.A. that:

1. Pursuant to s.306ZK (2) Criminal Procedure Act 1986, witness Intermediary Danielle Chytra be present in the remote witness room with A,A. for the duration of her evidence.

2. Pursuant to s.306ZK(3)(b) Criminal Procedure Act 1986, Ms Chytra may assist with communication of questions to A.A. and any answers given on account of communication difficulty.

3. When advocates are questioning A.A. they adhere to recommendations 1 to 10 and the additional recommendation 8 at pages 12 to 16 of the Communication Assessment Report of Ms Chytra, dated 1 August 2024.

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Amendments

13 August 2024 - AA and ZB are appropriately identified as complainant and witness respectively.

Decision last updated: 01 May 2025