R v Meredith (No 3)

[2024] NSWDC 248

District Court

New South Wales

Medium Neutral Citation:	R v Meredith (No 3) [2024] NSWDC 248
Hearing dates:	27 June 2024
Decision date:	27 June 2024
Jurisdiction:	Criminal
Before:	Bennett ADCJ
Decision:	Application for Witness Intermediary
Legislation Cited:	S 306ZK Criminal Procedure Act 1986
Category:	Procedural rulings
Parties:	Rex (Crown) Timothy William Meredith (Accused)
Representation:	Counsel: Crown Prosecutor Michelle Swift Defence Counsel Linda McSpedden
File Number(s):	2022/00143438 2022/00280631

JUDGMENT

Introduction

1. Timothy William Meredith appears for trial upon an indictment reference 202205730_52.2 charged with 24 counts for offences of Indecent assault contrary to s 61M(2) Crimes Act 1900, observing a person engaged in a private act to obtain sexual arousal contrary to s 91J(3) Crimes Act 1900, sexual intercourse contrary to s 66C(1) and s 61J(1) Crimes Act 1900, assault contrary to s 61 Crimes Act 1900, sexual touching contrary to s. 66DB(a) Crimes Act 1900, assault with intent to have sexual intercourse contrary to s 66D Crimes Act 1900, attempted sexual touching contrary to s 66DB(a) in conjunction with s 344A(1) Crimes Act 1900, and sexual touching contrary to s 66DA(a) Crimes Act 1900.

2. All complainants were children at the specified times of the alleged offences except for one of them who might have been aged 18 years. All suffered limitations which as between them varied in their significance. The Crown case includes the direct evidence of the offence anticipated from the complainants, complaint evidence, and evidence of tendency for which the Crown contends relying upon each of the 24 counts on the indictment.

3. This is the second trial to be faced by the accused with the first commenced on 11 June 2024 before me and a jury. The first trial concluded on Monday 27 June 2024 when the jury returned with verdicts of guilty in respect of three counts, but not guilty of all remaining counts brought upon allegations by another complainant.

4. The accused’s second trial upon the charges summarised above was listed to commence on 8 July 2024 when a jury was to be empanelled. The estimated time for the trial before a judge sitting with a jury was five weeks. The early conclusion of the first trial meant that the proceedings for the second trial could commence within the three weeks estimated for the first trial, and thus initial steps were undertaken when the jury were deliberating on Friday 21 and Monday 24 June 2024.

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

5. The court is presently engaged upon a voir dire hearing determining preliminary questions including the Crown’s application for a support person to be present with three of the complainants in the remote location from which they will give evidence, and to function as witness intermediary for each of them. This decision is necessary so that when the proceedings resume before me on 8 July 2024, with the assistance of the proposed witness intermediary I may hear and determine the accused’s application that the evidence of W.A. and N.R. be excluded upon the grounds that they are incompetent to give evidence because of their lack of capacity: s 13 Evidence Act1995.

6. The Crown filed a Notice of Motion specifying the orders which it seeks and reads the affidavit of Kathryn White and annexures thereto in support.

7. At this point, the court has the benefit of the electronic recording of the interviews by the Joint Investigation Response Team of two complainants, W.A. and N.R. and has been provided with the transcript of an interview of K.C. These are all exhibits on the voir dire.

8. There is another complainant, D.C. in respect of whom the Crown seeks orders, but there the Court has not had the opportunity to assess recordings or transcripts provided by him.

9. The material annexed to the affidavit includes reports from the proposed support person and witness intermediary, Lenore Scali, a speech pathologist, upon her assessment of W.A., D.C., K.C., and N.R. and she provides tables with guidance upon the approach to be taken when formulating questions for each of them.

10. Ms. Scali does not offer diagnoses of the children for the conditions afflicting them but provides her observations of their presentation exhibiting symptoms which provide compelling evidence that they are vulnerable witnesses.

11. The orders sought by the Crown are 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.

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

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

13. S 306ZK is found in Part 6 of Chapter 6 of the Act, which deals with the giving of evidence by vulnerable people. S 306M also within Part 6 includes

(1)    In this Part—

“cognitively impaired person” means a person who has a cognitive impairment.

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

(2)    For the purposes of this Part, a “cognitive impairment” includes any of the following—

(a)  an intellectual disability,

(b)  a developmental disorder (including an autistic spectrum disorder),

(c)  a neurological disorder,

(d)  dementia,

(e)  a severe mental illness,

(f)  a brain injury.

14. 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.

(2)    To the extent that this Part applies to cognitively impaired persons, this Part applies (unless a contrary intention is shown) in relation to evidence given by a cognitively impaired person in the manner provided by this Part only if the court is satisfied that the facts of the case may be better ascertained if the person’s evidence is given in such a manner

15. All the complainants are vulnerable persons for the purpose of these proceedings, being under the age of 18 years, except for W.A. who is about 29 years of age but profoundly limited by the Downes Syndrome with which he is unfortunately afflicted. The children also have limitations which impact upon them.

16. On 27 June 2024 Ms. Scali gave evidence on the voir dire for the purposes of what is now referred to as a ground rules hearing for the conduct of the trial including voir dire proceedings in which the complainants will be called.

17. The accused does not oppose the orders sought by the Crown by way of the Notice of Motion. There is ample evidence for the proposition that these complainants are vulnerable persons and need support in the course of their evidence including by way of the witness intermediary, to be in this instance Ms. Scali.

18. I indicated at the commencement of the ground rules hearing that I intended to make orders sought in the Notice of Motion, a course that was not opposed by the accused.

Orders

19. In respect of complainant W. A., that:

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

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

3. When advocates are questioning W. A. they adhere to recommendations 1 to 10 at pages 14 to 18 of the Communication Assessment Report of Ms Scali, dated 2 April 2024.

20. In respect of complainant D. C. that:

1. Pursuant to s.306ZK (2) Criminal Procedure Act 1986, witness Intermediary Lenore Scali be present in the remote witness room with D. C. for the duration of his evidence.

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

3. When advocates are questioning D. C. they adhere to recommendations 1 to 7 at pages 14 to 18 of the Communication Assessment Report of Ms Scali, dated 24 March 2024.

21. In respect of complainant K. C. that:

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

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

3. When advocates are questioning K. C. they adhere to recommendations 1 to 9 at pages 14 to 17 of the Communication Assessment Report of Ms Scali, dated 25 March 2024.

22. In respect of complainant N. R. that:

1. Pursuant to s.306ZK (2) Criminal Procedure Act 1986, witness Intermediary Lenore Scali be present in the remote witness room with N. R. for the duration of his evidence.

2. Pursuant to s.306ZK(3)(b) Criminal Procedure Act 1986, Ms Scali may assist with communication of questions to N. R. and any answers given on account of a communication difficulty on his part.

3. When advocates are questioning N.R. they adhere to recommendations 1 to 11 at pages 15 to 21 of the Communication Assessment Report of Ms Scali, dated 25 March 2024.

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Decision last updated: 28 June 2024