R v Incandela
[2021] ACTSC 222
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Incandela |
| Citation: | [2021] ACTSC 222 |
| Hearing Date: | 30 July 2021 |
| Decision Date: | 30 July 2021 |
| Before: | Loukas-Karlsson J |
| Decision: | See [52] |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – pre-trial application – application to appoint intermediary for complainant – whether complainant has a “communication difficulty” – application for a ground rules |
| hearing to be held for complainant | |
| EVIDENCE – TAKING OF EVIDENCE – pre-trial application – application for complainant to give evidence at pre-trial hearing – witness in a relevant proceeding – sexual offence proceeding – adult complainant – whether complainant is a “vulnerable adult” | |
| Legislation Cited: | Crimes Act 1900 (ACT) s 54 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 4AA, 4AB, 4AE, 4AJ, 41, 42, 43, 44, 46, 60 Evidence Act 2011 (ACT) s 41 |
| Cases Cited: | LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016 Taikato v The Queen (1996) 186 CLR 454 |
| Parties: | The Queen (Crown) |
| Salvatore David Incandela (Accused) | |
| Representation: | Counsel |
| P Dixon (Crown) | |
| S McLaughlin (Accused) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| Legal Aid ACT (Accused) | |
| File Number: | SCC 64 of 2021 |
| LOUKAS-KARLSSON J: | |
| Introduction |
1. Salvatore David Incandela (the accused) is due to stand trial on an indictment containing a single count of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act). The prosecution alleges that the accused anally penetrated SH (the complainant) without her consent on 28 November 2020.
2. By way of an amended application in proceeding dated 30 July 2021 filed with leave in court, the prosecution seek the following orders:
o First, that an intermediary be appointed for the complainant, as a witness with a “communication difficulty”, pursuant to s 4AJ(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act); o Second, that a ground rules hearing be held for the complainant, pursuant
to s 4AB(2) of the EMP Act; ando Third, that the complainant be allowed to give her evidence at a pre-trial
hearing pursuant to s 60(1) of the EMP Act.
3. In order for the prosecution to be successful in the first order sought, the Court must
be satisfied that the complainant has a “communication difficulty”. If the prosecution is
successful in obtaining the first order, the second order must also succeed pursuant to a proper reading of s 4AB(2) of the EMP Act. For the prosecution to succeed in relation to the third order sought, the Court must be satisfied that the complainant is a “vulnerable adult” as defined in s 42 of the EMP Act.
Background
4. On 30 July 2021, this matter came before me as an urgent duty judge matter. It has a somewhat convoluted genesis.
5. The pre-trial questionnaire dated 14 April 2021 filed by the prosecution indicated that the prosecution would be agitating a pre-trial application for the appointment of an intermediary for the complainant.
6. When the matter came before the Registrar on 13 May 2021 for directions, the pre- trial application for the appointment of an intermediary and a ground rules hearing was listed on 22 July 2021 before Associate Justice McWilliam. The Registrar also listed the matter for a pre-trial hearing for the complainant to give evidence on 12 August 2021. These dates were set prior to the determination of the relevant questions before me today.
7. As a result of the Registrar’s directions made on 13 May 2021, the registry sent a
sealed order to the ACT Intermediary Program requesting an intermediary report
addressing the complainant’s communication needs pursuant to s 4AE of the EMP
Act. That section states the following:
4AE Ground rules hearings—intermediary’s report If an intermediary is appointed for a witness before a ground rules hearing is held for
the witness, the intermediary must—
(a) prepare a written report about the communication needs of the witness; and (b) give the report to the court before the ground rules hearing. (emphasis added)
8. The ACT Intermediary Program were also sent a sealed Notice of Listing stating that the matter was listed for a ground rules hearing on 22 July 2021 and for a pre-trial hearing for the complainant to give evidence prior to the trial on 12 August 2021. The ACT Intermediary Program was then of the understanding that an intermediary had been appointed for the complainant. An intermediary had not been appointed.
9. On 13 July 2021, Ms Sarah Cocco, an intermediary employed by the ACT
Intermediary Program, completed a report titled ‘Intermediary Court Report and Recommendations in respect of: SH’ (the intermediary report). The report was
provided to the court and sent to the parties on 15 July 2021.
10. The matter did not proceed before Associate Justice McWilliam on 22 July 2021. The bench sheet for 22 July 2021 reveals that the accused had missed his flight and was unable to appear before the Court and that the prosecution had an issue which meant the matter could not proceed at that time. The parties were granted liberty to approach the Registrar for a further hearing date for the ground rules hearing. It is noted that the bench sheet records the matter as being listed for a ground rules hearing only and did not contemplate the pre-trial application to appoint an intermediary.
11. When this duty judge matter was listed before me, correspondence was exchanged between chambers and the parties to confirm whether the listing was for a pre-trial application to appoint an intermediary for the complainant and seeking a direction that a ground rules hearing be held or whether it was for the ground rules hearing to take
place. The prosecution confirmed that the listing was to determine the prosecution’s
application to appoint an intermediary for the complainant and direct that a ground rules hearing be held. It was noted by the prosecution that if the application was successful, the ground rules hearing may potentially have been able to occur immediately thereafter.
12. As stated by the prosecution the matter was not without its difficulties:
…this is why it is probably a little bit back to front, because the [prosecution’s]
application for the making of the intermediary order relies upon the intermediary report
that was ordered on 13 May this year.
First Order Sought: Whether an intermediary should be appointed for the complainant
13. The prosecution seeks an order that the Court appoints an intermediary for the complainant pursuant to s 4AJ(1) of the EMP Act. That section provides as follows:
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.14. It is noted that “communication difficulty” is not defined within the EMP Act, only the example of a ‘mental or physical disability that impedes speech’ is included.
15. The prosecution’s application was supported by an affidavit of Ms Archita Sreekumar
affirmed on 19 July 2021 (the supporting affidavit). The supporting affidavit exhibited the following material that the prosecution submits establishes that the complainant
has a “communication difficulty”:
(a) A medical report under the hand of Dr Virginia French dated 11 February 2021 (the Dr French report); and (b) The transcript of the complainant’s evidence in chief interview conducted by the police on 1 December 2020 (the EICI transcript).
16. Notwithstanding the fact that the intermediary report was commissioned despite an intermediary not yet being appointed, the prosecution also sought to rely on the
intermediary report to satisfy the Court that the complainant has a “communication
difficulty”. Counsel for the accused did not object (T23.25-27).
The Dr French Report
17. The Dr French report is based on the contemporaneous notes that Dr French made during the clinical forensic examination of the complainant which took place on 30 November 2020 at the Canberra Hospital Forensic Medical Service Suite. The Dr French report notes that the complainant had reported the following medical and psychological conditions during the examination:
(a) Epilepsy; (b) Previous cervical cancer with hysterectomy; (c) Total left knee replacement; (d) Back pain with past surgery and ongoing right sided sciatica; (e) Psychiatric condition including depression, anxiety and bipolar tendencies; (f) Receives a disability pension for her medical and psychiatric conditions; (g) Repeated year two at school and left education after year 10.
18. The complainant informed Dr French that she was prescribed the following medications: Lamotrigine 200mg twice daily, Clonazepam 2mg twice daily, and Fluoxetine 40mg daily.
19. The Dr French report notes that distress was observed in the complainant’s facial expression and in difficulty describing events. The complainant’s distress was
increased by having to verbalise words describing genitals and the description of the
alleged sexual assault. The result of the complainant’s distress was that it appeared
to reduce her ability to describe what had happened.
20. Dr French opined that the complainant’s behaviour and use of language was less
mature than expected of a woman in her fifth decade of life. The Dr French report noted that the complainant had used simple words, avoided words to describe genital organs and had impaired comprehension when explanations were offered. The clinical impression was of impaired cognition.
21. Under the heading ‘intellectual disability’, the Dr French report notes that the
complainant did not report having a known diagnosis of intellectual disability, yet the complainant had presented clinically as having reduced capacity to understand new information and expressed herself using language and gestures typical of a person much younger. In reference to the complainant repeating year two and leaving school after year 10, Dr French noted this may indicate that the complainant has difficulties
with learning. Dr French also drew upon the complainant’s diagnosis of epilepsy and
noted that individuals with epilepsy are more likely to have learning disabilities compared to those who do not have epilepsy. The Dr French report noted that the complainant may have an undiagnosed learning disability.
22. The Dr French report noted that the complainant did not undergo cognitive testing as it is not routine practice to assess complainants of sexual assault for possible
intellectual disability. It was noted that further assessment of the complainant’s
intellectual function may be warranted and would require specialist psychometric
examination.
The EICI Transcript
23. The EICI transcript is a record of the complainant’s evidence in chief interview
conducted at Winchester Police Centre on 1 December 2020. The complainant, two police officers, a support person from the Canberra Rape Crisis Centre, and an intermediary were present during the interview. The total length of the interview was 176 minutes. During the interview, the complainant informed police that her medication regime included Fluoxetine and Vivitrol. Short breaks were taken at various points in the interview.
The Intermediary Report
24. Ms Sarah Cocco prepared an intermediary report that makes recommendations as to adjustments to enable the best communication with the complainant when she gives evidence. Ms Cocco viewed approximately 90 minutes of the evidence in chief interview and also spent approximately 45 minutes with the complainant conducting a communication assessment.
25. The intermediary report noted that the complainant appeared visibly fatigued at approximately 30 minutes into the communication assessment. It was noted that the
complainant had the ability to follow Ms Cocco’s questions when Ms Cocco advised
her each time a new activity would commence and when an activity had concluded (signposting). The intermediary report stated that there were occasions where the complainant started discussing unrelated topics and that the complainant may have difficulty comprehending complex and multipart questions.
26. It was noted in the intermediary report that the complainant often found it difficult to respond to propositional statements and that she sometimes had inconsistent responses to such statements, even when the information was known to her and innocuous in nature.
27. As part of the communication assessment, the complainant was asked to independently read aloud a passage suitable for adults which was three short paragraphs in length and then convey a short summary of the passages. The complainant was able to read the passage aloud but was unable to provide a summary, even with the use of prolonged pauses and being informed that she was able to take her time.
28. From viewing part of the evidence in chief interview, the intermediary report noted
that the complainant’s presentation during the interview indicated that she was
experiencing stress or anxiety, including becoming teary and crying as well as requiring significant time to provide her responses in totality. Ms Cocco also observed
the complainant’s presentation during the communication assessment to include her
becoming teary and requiring significant processing and response time.
29. The intermediary report further noted that Ms Cocco had explained the intermediary’s
role at court to the complainant and Ms Cocco noted that she was able to establish that the complainant had a basic understanding of this explanation. The complainant had provided both verbal and written consent for an intermediary assessment and the use of an intermediary to support facilitation of her communication at court.
Prosecution Submissions
30. Counsel for the prosecution placed reliance on the Dr French report and the EICI
transcript as evidence establishing the existence of a “communication difficulty”. It
was submitted that the points extracted from the Dr French report either individually or in conjunction with the other material before the Court ought to satisfy the Court
that the complainant has a “communication difficulty”. In respect of the EICI transcript,
counsel asserted that the overall impression that is to be gleaned from the transcript
is that the complainant’s answers to police questions were characterised by an
unsophisticated sentence structure.
31. Counsel also referred to the nature of the alleged criminal act, being a case of sexual intercourse without consent. It was submitted that the overwhelming nature of the
evidence to be given by the complainant itself exacerbated the complainant’s already
compromised ability to communicate. Counsel noted that the material before the Court, particularly the Dr French report and the intermediary report, demonstrated that the complainant has had difficulty talking about the incident. Counsel submitted that the appointment of an intermediary for the complainant as a witness with a
“communication difficulty” would put the complainant in the best position to give her
evidence and would also assist the Court in its receipt of clear and cogent evidence.
Defence Submissions
32. Counsel for the accused opposed the prosecution’s application seeking the
appointment of an intermediary for the complainant. Counsel submitted that the
material before the Court did not establish a “communication difficulty” relevant for the
granting of an intermediary. It was submitted that there is a difference between a lack
of sophistication in a person’s language and vocabulary and a “communication difficulty”. Counsel also noted that the complainant informed police that she was on
the medication Vivitrol, the brand name for Naltrexone, but that Dr French was not
aware of this medication forming part of the complainant’s regime.
33. Counsel highlighted that the complainant had self-reported her medical conditions to Dr French and that there had not been independent verification of those records, nor of the reason why the complainant was the recipient of the disability pension.
34. In respect of the EICI transcript, it was submitted that even though at times the complainant uses unsophisticated language, she still provides detailed responses to what particular people were doing at particular points of time. Counsel noted that the EICI transcript revealed at times the complainant has the ability to disagree and to correct the police officers when they ask her questions. It was submitted that the complainant was able to communicate effectively and it was noted that there was minimal interjection by the intermediary present during the interview (T22.17-24).
35. As stated earlier at [16], counsel for the accused conceded that in light of s 4AJ(3) of the EMP Act, the Court was entitled to consider the intermediary report in determining
whether the complainant has a “communication difficulty”, despite the fact that the
intermediary report ought not to have been before the court as an intermediary had
not been appointed: s 4AJ(1) EMP Act.36. It was submitted that the intermediary report must also be considered in conjunction
with the Court’s power to control the questioning of witnesses, in particular in relation
to s 41 of the Evidence Act 2011 (ACT). Counsel submitted that the complainant was not in a different category to the large majority of witnesses coming before the Supreme Court or the Magistrates Court, all of whom experienced nervousness and
anxiety upon having to give evidence. Counsel asserted that the “communication difficulty” required to justify the appointment of an intermediary is a requirement that
must be over and above the average member of the community.
Consideration
37. I am entitled to rely on the intermediary report, on the basis of s 4AJ(3) of the EMP Act. I note that there is some force to the submissions made by counsel for the accused in respect of the EICI transcript and the Dr French report. Nevertheless, on the basis of the Dr French report and the intermediary report under the hand of Ms
Cocco, I am satisfied that the complainant has a “communication difficulty” and it is
therefore appropriate to appoint an intermediary in this proceeding. I am satisfied in light of the impaired cognition referred to by Dr French and the matters referred to in the intermediary report; in particular, fatigue and difficulty comprehending complex or
multipart questions. Therefore, I am satisfied there is a “communication difficulty”
under s 4AJ(1) of the EMP Act. In my view it is appropriate for the Court to appoint an
intermediary for the complainant pursuant to s 4AJ of the EMP Act.38. I also note that the requirement not to appoint an intermediary for a witness with a “communication difficulty” outlined in s 4AJ(2) of the EMP Act is not applicable in the
present matter, as the intermediary report makes clear that the complainant had provided consent for both the intermediary assessment and the use of an intermediary when she is to give evidence in the proceeding.
Second Order Sought: Whether a ground rules hearing should be held for the complainant
39. In light of the first order sought (appointment of an intermediary), the prosecution also seek a direction that a ground rules hearing be held for the complainant pursuant to s 4AB(2) of the EMP Act. Section 4AB relevantly provides:
4AB Direction to hold ground rules hearing
(1) A court may, at any time, if satisfied that it is in the interests of justice, direct that a ground
rules hearing be held for a witness in a criminal proceeding.(2) However, if an intermediary is appointed for a witness in a criminal proceeding, the court
must direct that a ground rules hearing be held for the witness.(3) The court may make a direction—
(a) on its own initiative; or (b) on the application of— (i) the DPP; or
(ii) the witness; or
(iii) the accused person.
(4) An application may be made orally or in writing. 40. The definition of a ‘ground rules hearing’ is contained in s 4AA of the EMP Act. That
definition provides:
4AA Definitions—ch 1A In this chapter:
ground rules hearing means a hearing for a witness in a criminal proceeding, where the
court—
(a) considers the communication, support or other needs of the witness; and (b) decides how the proceeding must be conducted to fairly and effectively meet those needs. …
41. I note that both parties were in agreement that if the prosecution were successful in their application seeking the appointment of an intermediary for the complainant as a
witness with a “communication difficulty”, that a ground rules hearing must be held
pursuant to s 4AB(2) of the EMP Act. Accordingly, as I have ordered the appointment of an intermediary for the complainant, I also direct that a ground rules hearing be held for the complainant.
Third Order Sought: Whether the complainant is entitled to give her evidence at a pre-trial hearing
42. The prosecution also seek an order that the complainant be permitted to give her evidence at a pre-trial hearing, pursuant to s 60(1) of the EMP Act. Section 60 contains the following:
60 Witness may give evidence at pre-trial hearing
(1) A witness in a relevant proceeding may give evidence at a pre-trial hearing. (2) The evidence must be given by audiovisual link from an external place that is linked to the
courtroom by an audiovisual link.… 43. Section 46 of the EMP Act defines a ‘relevant proceeding’ as follows:
46 Definitions—pt 4.3
In this part: relevant proceeding, in a provision of this part, means a proceeding to which the
provision applies under section 43.
witness, in a provision of this part, means a witness to whom the provision applies under
section 43.
44. Table 43.4 in s 43 of the EMP Act establishes that a complainant in a “sexual offence proceeding” can give evidence at a pre-trial hearing if they are a “vulnerable adult”. Section 41 of the EMP Act defines a “sexual offence proceeding” as a proceeding
including against part 3 (Sexual Offences) of the Crimes Act, which includes the
present alleged offence of sexual intercourse without consent.45. The definition of a “vulnerable adult” is contained in s 42 of the EMP Act which
relevantly provides:
vulnerable adult means an adult complainant, or similar act witness, in a proceeding for
an offence who the court considers—
(a) has a vulnerability that is likely to affect the complainant’s or witness’s ability to give evidence because of the circumstances of the proceeding or the complainant’s or witness’s circumstances; or (b) is likely to suffer severe emotional trauma, or be intimidated or distressed, by giving evidence in the proceeding otherwise than in accordance with this part; or (c) needs to give evidence as soon as practicable because the complainant or witness is likely to suffer severe emotional trauma, or be intimidated or distressed.
46. Section 44 of the EMP Act also states the following:
44 Court may inform itself about particular witnesses
In deciding whether a person is a witness mentioned in this part, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
Prosecution Submissions
47. Counsel for the prosecution confirmed that the prosecution sought to rely on
subsection (a) of the definition of a “vulnerable adult” and not the remaining
definitions. Counsel also relied upon the Dr French report and the intermediary report, as well as the subject matter giving rise to the alleged offence in submitting that the
complainant should be declared vulnerable. It was submitted that the complainant’s
vulnerability arose because of her cognitive impairment which would be exacerbated by virtue of the nature of the evidence that she would give in the proceeding. Counsel
noted that the question of the “communication difficulty” fed into and was relevant to the determination of vulnerability. In response to counsel for the accused’s
submission that the complainant gave frank and detailed evidence in the evidence in chief interview, counsel for the prosecution emphasised that there is a distinction between participation in an evidence in chief interview with the police and giving evidence in court. It was noted that the evidence in chief interview process is not adversarial, whereas cross examination is different.
Defence Submissions
48. Counsel for the accused submitted that the question of whether the complainant was
a “vulnerable adult” was in a similar vein as to whether she had a “communication difficulty”. It was conceded that if someone had a “communication difficulty”, that
would be a relevant consideration to the question of whether they met the definition of
a “vulnerable adult”. It was again submitted that the Court ought to apply the definition of a “vulnerable adult” by acknowledging that the vulnerability would be over and
above what a usual member of the community possesses. Counsel submitted that the material before the Court only established a vague assertion of an impaired comprehension or impaired cognition which was not sufficient to satisfy the definition
of a “vulnerable adult”.
Consideration
49. I note that there is already a listing for the complainant to give evidence at a pre-trial hearing on 12 August 2021. That date was set without this question being determined.
50. I accept the submissions of the prosecution in relation to “vulnerable adult” as the
submissions accord with my view. That is that the three matters combined: first, the cognitive impairment, second, the nature of the evidence to be given, and third, the
finding of a “communication difficulty” inform the question of whether the complainant is a “vulnerable adult”. I am satisfied that a declaration should be made that the complainant is a “vulnerable adult” within the meaning of s 42(a) of the EMP Act and
that she is entitled to give evidence at a pre-trial hearing pursuant to s 61(1) of the
EMP Act. I confirm the existing pre-trial hearing date of 12 August 2021.
Overall Conclusion
51. I am satisfied that the complainant has a “communication difficulty”. I will order the
appointment of an intermediary for the complainant. I must also direct that a ground rules hearing be held for the complainant, an intermediary having been appointed for
the complainant. I am further satisfied that the complainant is a “vulnerable adult” and
may give her evidence in this proceeding at a pre-trial hearing.
Orders
52. I make the following orders:
(a) An intermediary is appointed for the complainant as a witness with a “communication difficulty”.
(b) A ground rules hearing is to be held for the complainant on 5 August 2021. (c) The complainant is entitled to give her evidence at a pre-trial hearing as she satisfies the definition of a “vulnerable adult”.
(d) The pre-trial hearing date of 12 August 2021 is confirmed.
Addendum
53. There is the issue of a potential lacuna in the legislation. There is a question of whether the legislation provides sufficient flexibility for the preparation of a report
concerning “communication difficulty”, where the appointment of an intermediary is
opposed. Such a report may inform the question of whether an intermediary should
be appointed.54. I recommend that this judgment be provided to the Attorney-General for the ACT to enable consideration of whether the Evidence (Miscellaneous Provisions) Act 1991 (ACT) requires amendment: see for example LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016 at [67]. As the High Court outlined in Taikato v
The Queen (1996) 186 CLR 454 at 466: ‘the operation of the criminal law should be as certain as possible’.
I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson
Associate: Rhiannon McGlinn
Date: 7 September 2021
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