R v Incandela (No 2)
[2021] ACTSC 264
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Incandela (No 2) |
| Citation: | [2021] ACTSC 264 |
| Hearing Dates: | 13 October 2021 |
| Decision Date: | 13 October 2021 |
| Before: | Elkaim J |
| Decision: | See [24] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application – application to appoint intermediary – application to appear by audio-visual link |
| Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 4AB, 4AB(2), 4AJ, 32 |
| Parties: | The Queen (Crown) Salvatore David Incandela (Accused) |
| Representation: | Counsel |
| P Dixon (Crown) | |
| T Jackson (Accused) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| Legal Aid ACT (Accused) | |
| File Number: | SCC 64 of 2021 |
| ELKAIM J: |
1. Mr Incandela is accused of one act of sexual intercourse without consent, said to have occurred on 28 November 2020. His trial, with a jury, is likely to commence in early 2022.
2. By an application filed on 7 October 2021 the Crown seeks orders under the Evidence (Miscellaneous Provisions) Act 1991 (ACT) in respect of two witnesses it proposes to call at the forthcoming trial.
3. The first witness is Ms Freda Thompson (a pseudonym). The Crown wishes an intermediary to be appointed pursuant to s 4AJ of the above Act and a direction be given, under s 4AB, for the holding of a ground rules hearing.
4. The second witness is Ms Janie Dukes (a pseudonym). The same orders are sought for this witness, but in addition a further order is sought that she give her evidence by audio-visual link, in accordance with s 32 of the same Act.
5. All of the orders were opposed.
6. Both witnesses are expected to give evidence of complaint by the alleged victim as to the circumstances of the asserted offending.
7. Section 4AJ 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.
8. I note the example given to the section. It says that a communication difficulty could be
“a mental or physical disability that impedes speech”.
Ms Thompson
9. The Crown relied on a report of a psychologist, Dr Michael King, dated 2 June 2021.
10. According to this report Ms Thompson suffers from significant mental health issues seemingly arising from previous trauma. She has been diagnosed with a Major
Depressive Disorder linked to an Adjustment Disorder. I was taken to the doctor’s
assessment of Ms Thompson self-care and independent living, her social/recreational activities and her concentration and task completion. Although to some extent dependent on self-reporting, the assessments all indicate either a severe or extreme functional impact.
In respect of concentration it is noted that “she gets lost if she tries to focus on even a
single conversation, and she has to ask a person many times what were we talking
about”.
12. In my view there is clear evidence of a mental disability which is productive of difficulties with communication. When considered against the background of trauma and the stress of a courtroom I think the case for appointment of an intermediary is made out.
13. There is a discretion as to whether the appointment should be made. The only matters put to me suggesting a prejudice to the accused arose from the evidence likely to take longer and the possible necessity for the accused to have to extend his stay in Canberra.
14. The evidence may take a little longer than would be the case but that is not necessarily so. Further, as pointed out by the respondent, cross examination of Ms Thompson is not likely to exceed half an hour in any event.
15. No submissions were made as to the direction for a ground rules hearing. Under s 4AB(2) the direction must follow on the appointment of an intermediary.
Ms Dukes
16. Ms Dukes is the complainant’s daughter. She is now 21 years of age. She participated
in a recorded interview with the police in December 2020. I listened to a portion of the interview at the request of the respondent. The purpose was for me to obtain an
impression of Ms Dukes’ capacity to communicate with the police.
17. I observed immediately after listening to the portion of the interview that it appeared to me that her manner of responding to questions was consistent with a person with a learning disability. This is precisely the condition discussed in a letter from Ms Kristy Capper, a Disability Liaison Officer, dated 27 September 2021.
18. I also observed, as did counsel for the respondent, that her manner and tone of talking suggested she might have been significantly younger than the 19 years of age she was at the time of the interview.
19. The respondent pointed out that nevertheless the manner in which Ms Dukes deals with the questions she is asked by the police is lucid and leads to appropriate answers. Although I tend to agree with this observation, based on the stresses of giving evidence in a courtroom, the same capacity to communicate may not exist. I draw support for this view from Ms Capper:
During these conversations I observed that Ms Dukes had difficulty understanding many of my questions. I often needed to ask the same question multiple times, in different ways, in order for Ms Dukes to understand what I was asking her.
20. Once again I am satisfied that there is a real possibility of a communication difficulty justifying the appointment of an intermediary. I make the same comment as above in respect of the direction for a ground rules hearing.
21. Although mostly relied upon in respect of the s 32 application my view derives some support from a letter from a psychotherapist/counsellor, Ms Miche Hodgetts, dated 6 September 2021. In this letter Ms Hodgetts refers to severe domestic violence having been suffered by Ms Dukes (not related to the present case), and she concludes:
She identifies that being in the court room would be very triggering for her and requests consideration in the provision of an alternative option so she can regulate herself and feel safe. This would enable her to give her best evidence.
22. What is stated by Ms Hodgetts is enough for the order under s 32. But it reinforces the likely stress and possibility of communication problems that I have derived from the letter from Ms Capper.
23. Finally, in relation to s 32, I note that evidence via an audio-visual link is very common since the commencement of the COVID-19 pandemic, and, in any event, the giving of the evidence in this way will be attended by standard directions as to inferences and the weight of the evidence.
Orders
24. I make the following orders pursuant to the Evidence (Miscellaneous Provisions) Act 1991 (ACT):
(1) An intermediary is appointed for the following witnesses: Ms Freda Thompson
and Ms Janie Dukes (s 4AJ).
(2) Ground rules hearings are to be held for Ms Thompson and Ms Dukes (s
4AB).
(3) Ms Dukes is to give evidence by audio-visual link from a place in the ACT that
is outside the courtroom (s 32).
(4) Liberty to the parties to approach the Registrar to arrange a date for the
Ground Rules hearing.
I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.
Associate:
Date: 13 October 2021
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