R v Malone (No 2) - [2022] ACTSC 59

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Malone (No 2)
Citation:	[2022] ACTSC 59
Hearing Date:	29 March 2022
DecisionDate:	29 March 2022
Before:	Elkaim J
Decision:	See [19], [37]-[38]
Catchwords:	CRIMINAL LAW – INTERMEDIARY – where the Crown wishes that an intermediary be appointed for certain witnesses – application under s 4AJ of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 4AJ, 4AK
Cases Cited:	R v Malone [2022] ACTSC 23 R v QX (No 2) [2021] ACTSC 244
Parties:	The Queen ( Crown) Kevin Malone ( Accused)
Representation:	Counsel S Jerome ( Crown) M Jones SC ( Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused)
File Numbers:	SCC 211 of 2021 SCC 212 of 2021 SCC 311 of 2021

ELKAIM J:

The accused is facing trial on an indictment which alleges two counts of sexual intercourse upon a child under the age of 10 years. He has pleaded not guilty to both charges.

The Crown intends to call evidence in the trial from, amongst others, the child (the complainant), the child’s mother and the child’s cousin. The latter two persons are expected to provide complaint evidence.

The Crown wishes an intermediary, in accordance with Chapter 1B of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), to be appointed for each of the above three witnesses.

The complainant is a prescribed witness under s 4AK of the above Act. The accused does not oppose the appointment in respect of the complainant. The only necessity in respect of the complainant is for there to be a ground rules hearing.

The accused does oppose the appointment for the other two witnesses. I will deal with each in turn.

By way of general statement, the application for each of the two witnesses is made pursuant to s 4AJ. For present purposes, the determinative question arising from this section is whether or not the witness has “a communication difficulty”. The section gives an example of a communication difficulty: “a mental or physical disability that impedes speech”.

As agreed by the parties, the definition is plainly broad.

Also generally, the Crown referred me to the decision of Loukas-Karlsson J in R v QX (No 2) [2021] ACTSC 244. I agree with learned senior counsel for the accused that the decision relates to its particular facts and is of no assistance in the matters before me.

The complainant’s mother, to be referred to as [X]

The application in respect of this witness was filed on 24 February 2022 and is supported by an affidavit of Mr Colin Balog, affirmed on the same day.

The affidavit annexes three letters from the witness’ general practitioner, Dr Michael Yeung.

The first letter, dated 19 January 2022, is a statement of the witness’ past history. The witness has a complex medical history which is wide-ranging but, more relevant to the current application, includes paranoid schizophrenia, a minor stroke in 2020…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Malone (No 2)

Details

AGLC: R v Malone (No 2) [2022] ACTSC 59
Case: [2022] ACTSC 59
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Justice Elkaim heard an application by the Crown under s 4AJ of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to appoint an intermediary for three witnesses in the case of R v Malone (No 2). The accused, Kevin Malone, has pleaded not guilty to two counts of sexual intercourse upon a child under the age of 10 years. The Crown intends to call evidence from the child complainant, the child's mother, and the child's cousin. The accused does not oppose the appointment of an intermediary for the complainant, who is a prescribed witness under s 4AK of the Act, but does oppose the appointment for the other two witnesses.

The court needed to decide whether the mother and the cousin of the complainant have communication difficulties that would justify the appointment of an intermediary. The relevant provision, s 4AJ, requires that the witness has a communication difficulty, defined as a mental or physical disability that impedes speech. The court considered the evidence provided by the Crown, including medical reports and an Intermediary Court Report, and heard submissions from both parties. The court found that the mother and the cousin both have communication difficulties that would benefit from the appointment of an intermediary.

The mother, referred to as [X], has a history of paranoid schizophrenia, a minor stroke, and depression, and suffers from anxiety disorder and social phobia. The court accepted the unchallenged evidence of Dr. Michael Yeung, who stated that [X] is susceptible to panic attacks in certain situations, including giving evidence in an open court. The court also noted that [X] had trouble with communication in a public place like an open court and that an intermediary would be helpful for her anxiety and panic attacks.

The cousin, referred to as [Y], has a history of anxiety problems, low self-esteem, insomnia, and panic attacks. The Intermediary Court Report by Ms. Natalie Billings noted that [Y] demonstrated some behaviours indicating stress or anxiety during her interview, had difficulty comprehending tag questions and instructions delivered at a rapid rate, and required adequate processing time to give her answers. The court accepted Ms. Billings' evidence and report, which clearly stated that [Y] has communication difficulties justifying the making of an order under s 4AJ.

The court made orders appointing an intermediary for both [X] and [Y] and permitting them to give evidence at a pre-trial hearing. The parties will be heard on arrangements for ground rules hearings.

Orders