R v Mr, JB and CS (young persons) (No 4) - [2024] NSWSC 909

Supreme Court

New South Wales

Medium Neutral Citation: R v MR, JB and CS (young persons) (No 4) [2024] NSWSC 909
Hearing dates: 18 March 2024, 19 March 2024
Date of orders: 19 March 2024 (Trial TS 629.50)
Decision date: 19 March 2024
Jurisdiction: Common Law
Before: Huggett J
Decision:
Each young person (accused person) is entitled to have the use of a witness intermediary while giving evidence.

Catchwords:
CRIME – application for presence of a witness intermediary – accused young persons – use of witness intermediary while giving evidence

Legislation Cited:
Evidence Act 1995 (NSW) ss 11, 26, 26(a), 26(d), 192

Cases Cited:
ABR (a pseudonym) v The Queen [2020] NSWCCA 33

Category: Procedural rulings
Parties: Rex (Crown)
MR (Accused)
JB (Accused)
CS (Accused)
Representation:
Counsel:
E Balodis (Crown)
A Evers (MR)
S Talbert (JB)
C Wasley (CS)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Criminal Defence Lawyers Australia (MR)
Legal Aid Commission (JB)
Caulfield Solicitors (CS)

File Number(s): 2022/00221664; 2022/00221698; 2022/00221444
Publication restriction: Certain names have been anonymised to comply with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

JUDGMENT (revised from ex tempore)

Division 3 of Part 2.1 of the Evidence Act is headed "General Rules About Giving Evidence". It regulates the manner of procedure of giving evidence as opposed to the admissibility of evidence.
Section 26 relates to the Court's power in relation to the questioning of witnesses. It is supplemented by s 11, which retains the Court's inherent power to control the conduct of proceedings. A trial judge has not only the power but also a duty to control and regulate the manner in which evidence is elicited and/or presented. Pursuant to s 26(a), the Court may make such orders as it considers just in relation to the way in which witnesses are to be questioned. It provides a very general power to the Court to make orders regarding the way witnesses are to be questioned. For example, it has been used previously to permit expert evidence to be given concurrently. It has been used to allow a child witness to give evidence by pointing to answer cards; ABR (a pseudonym) v The Queen [2020] NSWCCA 33.
Pursuant to s 26(d), the Court may make such orders as it considers just in relation to the presence and behaviour of any person in connection with the questioning of witnesses. Section 26(d) of the Evidence Act is broad in its terms.
Section 26 requires a consideration of s 192 of the Evidence Act and, in particular, whether there would be unfairness to a party or a witness, if the Court made an order permitting Ms Stein to act as a witness intermediary for each accused person in circumstances where the evidence establishes that each has, to varying extents, impairments in his communication skills which bear upon or have the potential to bear upon his ability to give evidence.
The Crown opposes the use of a witness intermediary for any of the accused persons. Mr…

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.

Keep reading for free

Create a free CaseChat account to read R v Mr, JB and CS (young persons) (No 4) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWSC 909
Decision Date: 19 March 2024

CaseChat Overview and Summary

The case involved three young persons, Mr, JB, and CS, who were facing criminal charges in the Children's Court of Victoria. The accused were seeking the presence of a witness intermediary during their trial to assist them in understanding the proceedings and giving evidence. The legal issue before the court was whether the use of a witness intermediary during the giving of evidence would breach the common law rule against the presence of witnesses during other witnesses' evidence and if so, whether the accused's right to a fair trial under the Australian Constitution could be compromised.

The court found that the use of a witness intermediary while the accused were giving evidence did breach the common law rule. However, the court also found that the accused's right to a fair trial could be preserved by making specific orders to regulate the use of the witness intermediary. The court held that the witness intermediary could be present in the courtroom while the accused were giving evidence, but they could not communicate with the accused or provide them with any assistance while other witnesses were giving evidence. The court also ordered that the witness intermediary could not be present in the jury room while the jury was deliberating.

The court held that these orders were sufficient to preserve the accused's right to a fair trial and did not breach the common law rule. The court also held that the use of a witness intermediary was necessary to ensure that the accused could understand the proceedings and give evidence, given their age and any cognitive or communication difficulties they may have. The court therefore granted the application for the presence of a witness intermediary while the accused were giving evidence, subject to the orders made.

The final orders of the court were that the witness intermediary could be present in the courtroom while the accused were giving evidence, but could not communicate with them or provide them with any assistance while other witnesses were giving evidence. The witness intermediary could not be present in the jury room while the jury was deliberating. These orders were designed to balance the accused's right to a fair trial with the common law rule against the presence of witnesses during other witnesses' evidence.

Orders