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 and depression.
The second letter, dated 2 February 2022 says:
Ms [X] is suffering from Anxiety Disorder and Social Phobia. She has trouble with communication in a public place, like an open court.
The third letter, dated 18 February 2022, states:
Ms [X] is suffering from General Anxiety and Depression disorder. Because of her acute anxiety, she gets panic attacks if she has to speak in public places, like giving evidence in an open court.
An intermediary assigned to Ms [X] on the day would be very helpful for her anxiety/panic attacks, and would reduce her communication difficulty.
Dr Yeung was not required for cross-examination.
The only submission made on behalf of the accused supporting a refusal of the application was that the witness seems to do well in the recorded records of interview. I listened to excerpts from Exhibit C. [X] seemed to understand and respond to the questions, albeit in a somewhat slow and halting manner.
As I pointed out in discussion, however, it must be remembered that a record of interview conducted by the police in circumstances such as those concerning this witness, will be a “sympathetic” interview. Although a witness giving evidence in a trial may be in a remote room, that evidence, in particular during cross-examination, will occur within a very different atmosphere.
I cannot ignore the unchallenged views of Dr Yeung. He states, in terms, that she is susceptible to panic attacks in certain situations and he specifically includes an open court. Further he says that she does have a communication difficulty and he recommends an intermediary to tackle this condition.
I am satisfied that the requirements of s 4AJ have been met and that the order sought by the Crown should be made.
The application also seeks an order that the witness be permitted to give evidence at a pre-trial hearing. This order was not opposed.
Accordingly, I make Orders 1, 2 and 3 in the application in proceeding filed on 24 February 2022.
The complainant’s cousin, to be referred to as [Y]
This application was also filed on 24 February 2022, and is also supported by an affidavit of Mr Balog, affirmed on the same date.
The affidavit attaches an Intermediary Court Report and Recommendations prepared by Ms Natalie Billings, an accredited intermediary. The report is dated 21 January 2022.
The affidavit also attaches a medical certificate from Dr Aster Lau, dated 22 February 2022, which states, quoting precisely:
Ms [Y] has suffered from anxiety problem.
She could become shaky, very anxious and emotional, having difficulty to get the words out and brain became blocked under stressful situation.
In addition, the Crown tendered the clinical notes from the practice where Dr Lau is located (Exhibit A). A good deal of the notes has been redacted. However they unquestionably show a consistent pattern of consultations for mental health issues, including depression and anxiety. There are also references to low self-esteem, insomnia and panic attacks. As recently as 23 March 2022 a clinical note indicates that the witness has been seeing a psychologist for anxiety and depression and, although there has been some improvement, there is a need to provide a referral for further sessions.
Ms Billings’ report was prepared in respect of a separate matter in which the witness is a complainant. Originally the two matters were to be heard together but I severed them following an application for that purpose in February of this year (R v Malone [2022] ACTSC 23).
One of the questions put to Ms Billings for the preparation of her report was “whether or not the witness has the ability to communicate and, if so, how”.
By way of general observations Ms Billings said that the witness “displayed some behaviours which may indicate she experienced a degree of stress or anxiety during her evidence-in-chief interview”.
On closer examination of the evidence in chief interview Ms Billings noticed indications of stress or anxiety.
When commenting on the witness’ spoken expression Ms Billings observed:
[Y] demonstrated the ability to answer and ask questions, describe events, and retell narratives. [Y] spoke using sentences as well as single words to answer questions or to complete activities
Ms Billings, amongst other conclusions, stated:
4.1.2In respect of expressive communication (the ability to express and articulate information, ideas, and concepts to others), [Y] was able to provide appropriate verbal responses to questions in short sentences and required adequate processing time (five seconds in between questions) to give her answers.
4.1.3Regarding her comprehension of spoken language, [Y] had difficulty comprehending tag questions during the assessment. When instructions were delivered at a rapid rate [Y] required increased processing and response time and was not able to follow instructions containing three or more elements.
4.1.4Careful preparation is recommended for counsel seeking to ensure that questioning is appropriate for [Y] regarding her specific communication needs such as ensuring regular breaks are taken, signposting topics, avoiding non-literal language and tag questions and ensuring [Y] is provided with adequate time to commence and complete her responses to questions.
4.1.5It is my opinion that [Y] has the necessary skills to communicate her evidence if appropriately supported and where appropriate questioning techniques are used as recommended in this report.
Ms Billings was questioned, on behalf of the accused, about her report.
Ultimately it was submitted that the communication difficulties that had been identified by Ms Billings could be managed by the normal court processes, which would include careful cross-examination of the accused and the capacity of the Crown to object to questions and the Court to control the nature of the questions being asked of the witness.
There are of course safeguards in the normal course of the running of the trial. But as pointed out by the Crown, it is sometimes only the intermediary who is able to assess the often subtle indications of a communication difficulty.
In this case I would not envisage the intermediary frequently intervening in the questioning of the witness. But the intermediary would be able to notify the Court, and the questioner, when a communication difficulty became evident.
Ms Billings’ evidence and her report are a patently clear statement that [Y] has communication difficulties justifying the making of an order under s 4AJ.
As with the application in respect of [X], an order is sought that the witness give evidence at a pre-trial hearing. Once again this order was not opposed.
I make Orders 1, 2 and 3 the application in proceeding filed on 24 February 2022.
I will hear the parties on arrangements for ground rules hearings.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 7 November 2023 |