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)

1. 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.

2. 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.

3. 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.

4. 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.

5. The Crown opposes the use of a witness intermediary for any of the accused persons. Mr Crown submits while s 26(d) would allow for an order to be made as to how Ms Stein might be present and how she might behave, that is she might intervene, it does not allow Ms Stein to control how a witness must be questioned.

6. I accept that however Ms Stein would not be the person with ultimate control over the way in which each accused person as a witness might be questioned. The role of the witness intermediary is simply to assist with communication and, if necessary, to communicate to the Court if there is a question asked that the witness intermediary believes the witness would not be able to understand. Ultimately the Court retains the power to require the question to be answered irrespective of what assistance Ms Stein might provide to the Court.

7. In circumstances where the Court must have a concern that the best evidence of a witness be presented to the Court, in my view, both ss 26(a) and/or 26(d) permit me to make an order allowing Ms Stein to sit beside each witness should he in fact choose to give evidence and, if required, to communicate to the Court if she believes the witness is not able to understand the question due to its form, content or for any other reason.

8. In my view, it is far less prejudicial to have her there from the start rather than to have her come midway through the evidence, which if it occurred, might suggest that the Crown was doing something wrong in the questions he asks such that Ms Stein was needed.

9. Furthermore, I consider that the fair way to proceed for both parties is that Ms Stein be present with each accused person should he elect to give evidence. Her opinion is that all accused persons have, to varying extents, impairments in communication and would be assisted by her services.

10. Accordingly, I make an order that Ms Stein sit beside each accused person and assist, if required, in accordance with her role.

11. As to the direction, in my view, it would simply be that it is standard procedure in trials of this sort that a person such as Ms Stein be used to assist in communicating with the witness. Unless someone is suggesting the reason or the issues that relate to an accused persons particular impairment should be disclosed to the jury, I consider the direction about Ms Stein should be as benign as possible.

**********

Addendum: By way of note, after this judgment was delivered, in consultation with the parties, it was agreed that the direction to the jury would be along the following lines: Ms Stein is an independent person and a communication specialist. She is present with the witness while he gives evidence, and if required will assist with communication. It is standard procedure that a person such as Ms Stein be used to assist the witness with communication and no inference from the presence of Ms Stein should be drawn, nor should the evidence be attributed any greater or lesser weight (see Trial TS 630.30-44).