R v Mr, JB and CS (young persons) (No 4)

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.