R v Porter
[2021] ACTSC 266
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Porter |
Citation: | [2021] ACTSC 266 |
Hearing Date: | 5 October 2021 |
DecisionDate: | 14 October 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [39] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Ground Rules Hearing – intermediary appointed for “prescribed witness” – consideration of intermediary report and recommendations – directions made pursuant to s 4AF Evidence (Miscellaneous Provisions) Act 1991 (ACT) |
Legislation Cited: | Crimes Act 1900 (ACT) ss 56, 64, 65, 66 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 4AA, 4AB, 4AC, 4AD, 4AE, 4AF, 4AK, 4AM, 42, 74 Evidence Act 2011 (ACT) ss 26, 29, 41 |
Cases Cited: | R v QX (No 6) [2021] ACTSC 248 |
Parties: | The Queen ( Crown) Stephen James Porter ( Offender) |
Representation: | Counsel A Chatterton ( Crown) J Pappas ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Hugo Law Group ( Offender) | |
File Number: | SCC 40 of 2021 |
LOUKAS-KARLSSON J:
Introduction
On 27 May 2021, the Registrar directed that a ground rules hearing be held for Wesley Mason (the victim) pursuant to s 4AB of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act). The name Wesley Mason is a pseudonym. It is not permissible to refer to the victim’s real name: s 74 EMP Act. The victim is a “prescribed witness” within the meaning of reg 3B(1)(a) of the Evidence (Miscellaneous Provisions) Regulation 2009 (ACT) and s 42(c) of the EMP Act. On 2 September 2021, McWilliam AJ appointed an intermediary for the victim pursuant to s 4AK of the EMP Act and confirmed the ground rules hearing date. The ground rules hearing proceeded before me on 5 October 2021, and I reserved my decision as to the directions to be made pursuant to s 4AF of the EMP Act. Orders and reasons now follow.
of MatterBackground
On 2 September 2021, Stephen Porter (the offender) was arraigned and entered pleas of guilty to the following offences:
(a) Count 1: Use child under 12 years of age to produce child exploitation material, contrary to s 64(1) of the Crimes Act 1900 (ACT) (Crimes Act). Count 1 is in respect of the victim Alexander Goodwin.
(b) Count 2: Engage in a sexual relationship with a child under special care, contrary to s 56(1) of the Crimes Act. Count 2 is in respect of the victim Wesley Mason.
(c) Count 3: Engage in conduct with a young person with the intention of making it more likely that the young person would commit or take part in an act of a sexual nature (grooming), contrary to s 66(1)(b) of the Crimes Act. Count 3 is in respect of the victim Riley Priestley.
(d) Count 4: Possess child exploitation material, contrary to s 65(1) of the Crimes Act.
Pursuant to s 74 of the EMP Act, the victims have been anonymised by the substitution of different names in this judgment. The key to the anonymisation is contained in a schedule to these reasons, which will be provided to the parties, kept on the court file, and not published on the internet.
The ground rules hearing is only in respect of the victim of Count 2 and as such, this judgment will refer to Wesley Mason as the victim notwithstanding the overall proceeding involves three separate victims. While the offender entered pleas of guilty to all counts on the indictment, there is a factual dispute in relation to Count 2, concerning the number of occasions of sexual activity. The matter is currently listed for a disputed facts hearing on 21 and 22 October 2021 where the victim will give evidence.
Legislative Regime
Chapter 1A of the EMP Act establishes the regime for ground rules hearings in criminal proceedings. It was established by the Evidence (Miscellaneous Provisions) Amendment Act 2019 (ACT). The definition of a “ground rules hearing” is contained within s 4AA of the EMP Act as follows:
4AADefinitions—ch 1A
In this chapter:
ground rules hearing means a hearing for a witness in a criminal proceeding, where the court—
(a)considers the communication, support or other needs of the witness; and
(b)decides how the proceeding must be conducted to fairly and effectively meet those needs.
The Registrar listed this matter for a ground rules hearing pursuant to s 4AB of the EMP Act. Section 4AB relevantly provides:
4ABDirection to hold ground rules hearing
(1)A court may, at any time, if satisfied that it is in the interests of justice, direct that a ground rules hearing be held for a witness in a criminal proceeding.
(2)However, if an intermediary is appointed for a witness in a criminal proceeding, the court must direct that a ground rules hearing be held for the witness.
(3)The court may make a direction—
(a)on its own initiative; or
(b)on the application of—
(i)the DPP; or
(ii)the witness; or
(iii)the accused person.
(4)An application may be made orally or in writing.
Where a Court directs that a ground rules hearing is to be held for a witness in a criminal hearing, the ground rules hearing must be held prior to the witness giving evidence in the proceeding. However, the Court may extend the time for holding a ground rules hearing if the Court considers that it is in the interests of justice to do so: s 4AC EMP Act.
Section 4AD sets out who must attend a ground rules hearing:
4ADGround rules hearings—who must attend
(1)The following people must attend a ground rules hearing for a witness in a criminal proceeding:
(a)the DPP;
(b)the lawyer representing the accused person or, if the accused person is not represented by a lawyer in the proceeding, the accused person;
(c)any intermediary appointed for the witness.
(2)The witness is not required to attend a ground rules hearing.
(3)If an intermediary is appointed for the witness, the court may make an order that the witness not attend a ground rules hearing.
Section 4AE establishes that if an intermediary is appointed for a witness before a ground rules hearing, the intermediary must prepare a written report about the communication needs of the witness and give the report to the court before a ground rules hearing.
Section 4AF provides for the directions that the Court may make at a ground rules hearing if the Court considers it in the interests of justice:
4AFGround rules hearings—directions
(1)At a ground rules hearing for a witness in a criminal proceeding, the court may make any direction the court considers is in the interests of justice, including any of the following:
(a)a direction about how a witness may be questioned;
(b)a direction about how long a witness may be questioned;
(c)a direction about the questions that may or may not be asked of a witness;
(d)if there is more than 1 accused—a direction about the allocation among the accused of the topics about which a witness may be asked;
(e)a direction about the use of models, plans, body maps or other aids to help communicate a question or an answer;
(f)a direction about the use of a support animal by the witness;
(g)a direction that if a party intends to give evidence that contradicts or challenges the evidence of a witness or that otherwise discredits a witness, the party is not obliged to put that evidence in its entirety to the witness in cross-examination.
(2)If an intermediary’s report has been given to the court under section 4AE, the court must consider the matters mentioned in the report in making the direction.
Chapter 1B of the EMP Act establishes the regime for the appointment of intermediaries and the functions of intermediaries when appointed for a witness in a criminal proceeding. Section 4AM sets out the requirements of what must occur when the witness who the Court has appointed an intermediary for gives evidence in the proceeding. It provides as follows:
4AMWitness to give evidence in presence of intermediary
(1)If a court appoints an intermediary for a witness in a criminal proceeding, the witness must give their evidence in the presence of the intermediary.
(2)Evidence of a witness given in the presence of an intermediary must be given in circumstances in which—
(a)the court and any lawyer appearing in the proceeding are able to—
(i)see and hear the witness giving evidence; and
(ii)communicate with the intermediary; and
(b)the jury (if any) is able to see and hear the witness giving evidence, including any assistance given by the intermediary.
NoteA person must take an oath or make an affirmation before acting as an intermediary in a proceeding (see Evidence Act 2011, s 22).
(3)If the proceeding is a trial by jury, the court must tell the jury that—
(a)a witness giving evidence in the presence of an intermediary is a usual practice; and
(b)the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the intermediary is present.
(4)An order that the court be closed to the public does not stop an intermediary for a witness being in court while the witness gives evidence.
It is important in this context to set out s 41 of the Evidence Act 2011 (ACT) (Evidence Act). Section 41 provides:
41Improper questions
(1)The court must disallow a question put to a witness in cross‑examination, or tell the witness that it need not be answered, if the court is of the opinion that the question (a disallowable question)—
(a)is misleading or confusing; or
(b)is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or
(c)is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or
(d)has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).
(2)Without limiting the matters the court may take into account for subsection (1), it must take into account—
(a)any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and
(b)any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and
(c)the context in which the question is put, including—
(i)the nature of the proceeding; and
(ii)in a criminal proceeding—the nature of the offence to which the proceeding relates; and
(iii)the relationship (if any) between the witness and any other party to the proceeding.
(3)A question is not a disallowable question only because—
(a)the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or
(b)the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.
(4)A party may object to a question put to a witness on the ground that it is a disallowable question.
(5)However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.
(6)A failure by the court to disallow a question under this section, or to tell the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.
NoteA person must not, without the express permission of the court, print or publish any question that the court has disallowed under this section (see s 195).
(emphasis added)
The Intermediary Report
Ms Sarah Cocco is the intermediary appointed for the victim in this matter (the intermediary). The intermediary prepared an intermediary report dated 22 September 2021 (the intermediary report) pursuant to s 4AE of the EMP Act. The report was received by the Court and provided to the parties prior to the ground rules hearing.
The intermediary report makes recommendations as to adjustments to enable the best communication with the victim when he is to give evidence at the disputed facts hearing.
On 27 May 2021, the Intermediary Program received an intermediary referral regarding the victim from the prosecution. The referral indicated dyslexia, attention deficit disorder, oppositional defiance disorder, post-traumatic stress disorder, and anxiety as being issues which impact the victim’s communication.
On 27 July 2021, the intermediary viewed approximately 105 minutes of the evidence in chief interview conducted with the victim by police on 19 June 2020. At the time of the interview, the victim was 17 years of age. The total length of the evidence in chief interview was 168 minutes.
During the evidence in chief interview, the victim demonstrated the ability to answer ‘yes’ and ‘no’, describe events in order of sequence, provide descriptions and narratives, ask for clarification if he did not understand, advise if he did not know the answer to questions or recall details, refute information he believed to be incorrect, identify and articulate emotions, and use a variety of prepositions and pronouns.
The intermediary observed that the victim took prolonged pauses before responding to questions, advised he needed time to think about his response or took a pause during a response during the evidence in chief interview. The victim used the following names for anatomical body parts during the interview: ‘down below’, ‘genital area’, ‘bum’, ‘penis’, ‘dick’, and ‘balls’. The victim also used drawing when requested by interviewing officers to supplement his verbal responses and labelled aspects of his drawing with words.
The intermediary also noted that the presentation of the victim during the evidence in chief interview indicated he was experiencing stress or anxiety. During the interview, the victim advised the police that he gets shaky hands and will sit on his hands to prevent this, that the police may feel uncomfortable about hearing the details of his evidence, and exhibiting what appeared to be nervous or embarrassed laughter. The intermediary also observed that the victim paused before commencing a response at points and advised he needed time to consider his response before answering, as well as pausing after he had commenced some responses.
On 11 August 2021, the intermediary spent approximately 90 minutes conducting a communication assessment with the victim in the presence of the Assistant Director of the Intermediary Program at the remote witness suites located at the court. At the time of the assessment, the victim was 18 years of age. The intermediary’s assessment was based on spoken conversation, questioning, and engagement in tasks. The victim’s evidence was not discussed during the assessment.
The intermediary report notes that the assessment activities were designed to assess the victim’s communication needs, receptive and expressive language, understanding of different question forms, ability to engage in a narrative, describe sequences of events, and refute inaccurate suggestions. The victim’s ability to concentrate and attend to spoken conversation and activities as well as his ability to identify and manage his arousal levels were also assessed, in addition to the exploration of strategies to keep him composed.
At the commencement of the assessment, the intermediary advised the victim that he could take a break at any time. At approximately 60 minutes into the assessment, the victim appeared to be fatigued as his eyes were glazing over and he was yawning. The intermediary offered the victim a break at this point, but this was initially declined. The victim accepted the offer for a break when the intermediary advised him it was important to do so when he felt fatigued. The victim was able to continue with the assessment after a break of approximately 15 minutes.
During the assessment, the intermediary advised the victim each time a new activity would commence and when an activity had concluded (signposting). The intermediary report notes that the victim demonstrated the capacity to follow task requests and questions when signposting was used. The victim’s understanding of non-literal language and idioms was explored during the assessment, through conversation and an activity requiring him to match written idioms with their definitions. Whilst the victim was familiar with and able to provide basic definitions for a number of well-known idioms, he was unfamiliar with some less common idioms.
The victim was able to follow concrete, contextual commands containing up to four elements in an instruction when a slow speaking pace was used. When commands were given by the intermediary at a rapid rate, the victim required increased processing and response time and was unable to follow commands containing three or four elements in an instruction.
In response to the use of tag questions by the intermediary, the victim provided an initial response which he then reconsidered and changed after seeking clarification about what the question was asking of him and being advised that he could use any words he wanted to respond. The victim advised that he found the question form confusing and at one point asked the intermediary whether the questions were being put to him in a way that was designed to ‘trick’ him or elicit an erroneous response.
The victim was able to use ‘agree’ and ‘disagree’ to answer questions requiring an affirmative or negative response. He was also able to articulate words and ideas clearly, using conjoined sentences. The victim gave responses comprised of multiple ideas during the assessment. It was noted that the victim was unable to consistently link months of the year with seasons of spring, summer, autumn, and winter.
In respect of his reading ability, the victim advised during the assessment that he has dyslexia but that it does not usually prevent him from reading and comprehending written information. The victim informed the intermediary that he would prefer to follow along written text at court. The victim also noted that he occasionally mixes up letters and numbers and reads things slowly to ensure he has understood information.
During the assessment the victim was able to independently read aloud from a written passage suitable for adults which was three short paragraphs in length. After reading through the passage, the victim was able to provide a basic summary of the messages the writer was attempting to convey and recall straightforward facts about the passage. The victim was able to read both analogue and digital clock faces accurately during the assessment but required increased processing time to read analogue clock faces.
The intermediary report noted that the victim had expressed during the assessment that he was concerned about attending court to give his evidence and how stress in the court context may affect his ability to communicate clearly. The victim expressed during the assessment that he would be assisted in verbalising the need for a break by having access to a communication aid which he could look at and point to when requesting breaks. This was the only communication aid that the victim identified for potential use during the assessment. The victim advised the intermediary that he does not want to utilise a distractor item at court.
The intermediary report contained the following recommendations at 4.2 for the questioning of the victim at the disputed facts hearing:
Questioning Recommendation Advice for Questioner Rationale 1. For the victim to have a short break at least every 60 minutes, with the possibility of additional breaks if necessary. The intermediary can provide advice about the precise length of break required. The victim may require breaks to avoid fatigue, and in the event he begins to display signs of stress or anxiety when communicating at court. 2. Signposting topics during questioning. Say, ‘Wesley, now I am going to talk to you about…’ This will assist the victim to remain focused on the topic of questioning and transition to different topics. 3. Avoid use of figurative language and idioms. Do not use terms such as, ‘hit it off’ or ‘ring a bell’. The victim may resort to literal understanding of statements and concepts, and such questioning may not elicit accurate responses. 4. Ask one question containing one idea at a time, avoiding multi-part questions and preamble. For example, ask, ‘what time did you get to the shop on Wednesday?’ rather than, ‘when you went to the shop on Wednesday, what time did you arrive and how long were you there for?’. The victim may experience difficulty processing complicated or lengthy questions in a court context. 5. Ask questions at a slow speaking pace and pause between questions. Ask questions at a slow pace to allow the victim time to process the information and ensure a clear pause is taken between questions. The victim requires extra time to process spoken language, especially when under stress. 6. Avoid use of ‘tag’ questions. Instead of saying, ‘you left the room, didn’t you?’, say ‘did you leave the room?’. Tag questions are linguistically complex, can cause confusion, and increase the possibility of unintentional inaccurate responses.
7. Remind the victim of communication rules. Inform the victim of any communication rules prior to questioning, after breaks and during questioning as required, such as being able to clarify his responses as required and advising the court if his response to a question has been misunderstood. The victim will be clear about communication expectations at court. 8. To put an argument, use a short, simple statement followed by the question, ‘do you agree or disagree?’ For example, say, ‘you went to work yesterday. Do you agree or disagree?’
The victim is able to provide a response when an argument is presented in a short statement followed by a question which requires him to affirm or disaffirm his statement. 9. For the victim to be able to utilise ‘agree’ and ‘disagree’ visual communication aids when answering propositional questions.
The intermediary can arrange for ‘agree’ and ‘disagree’ cards to be available for the victim.
The victim can point and refer to these aids as required, which may assist his provision of verbal responses.
10. Avoid references to seasons of the year (spring, summer, autumn and winter) during questioning.
Utilise other temporal markers to clarify timelines, if required, such as references to the victim’s routine or events of significance (for example, school holidays or birthdays).
The victim’s recall may be assisted and this may reduce the possibility of unintentional inaccurate responses.
11. Allow the victim adequate time to commence and complete his responses to questions.
If the victim takes a protracted pause after being asked a question, counsel should count to five silently. If his silence continues, give the victim an appropriate prompt such as, ‘Wesley, is there any response you would like to give to this question?’.
The victim may need time to consider his answers and to process stress or anxiety responses in a court context.
12. Clarify the victim’s references to body parts if required and use consistent language for body parts during questioning.
The victim used the following words for body parts during his evidence in chief interview: ‘down below’, ‘genital area’, ‘bum’, ‘penis’, ‘dick’, and ‘balls’.
The victim will be clear about what is being asked.
13. For the victim to be given a copy of his transcribed evidence in chief interview.
Offer the victim a copy of the transcript to follow along with during questioning, as appropriate.
The victim’s recollection may be aided when answering questions.
14. References or quotations from the evidence in chief interview by parties during questioning should be limited in length.
Limit references or quotations to 3 sentences in length and use a slow speaking pace.
The victim’s recollection will be aided when answering questions. 15. If references to clock time are required during questioning, use digital time and include a reference to ‘AM’ or ‘PM’ as appropriate.
For example, say ‘4:50PM’ rather than ‘10 minutes to five’.
The victim will be clear about what is being asked.
16. Drawing and writing materials should be available for the victim during provision of his evidence.
The intermediary can arrange for the materials to be available for the victim when he attends court to give his evidence and hold up documents to the camera as directed by the court.
This will assist the victim to clarify any information he provides verbally during his evidence, via drawing or writing.
17. For the victim to have access to a visual communication aid to indicate if he needs a break.
The intermediary can arrange for the break card to be available for the victim, advise the court should the victim use the communication aid at any time and request a break as needed.
This will assist the victim to have additional ways to alert the court should he experience fatigue or feelings of stress or anxiety and require a break.
The intermediary report also contained further ‘other’ recommendations at 4.3:
(a) It is recommended the parties share their proposed draft questions with the intermediary to seek advice about the wording of questions in relation to the victim’s communication needs;
(b) It is recommended the intermediary sit near the victim at all times during his provision of evidence so as to assist and be visible to the court;
(c) It is recommended the intermediary raise their hand and say, ‘Your Honour’ to indicate that a communication need or issue has arisen for the victim;
(d) It is recommended the victim participate in a pre-hearing visit to court to practice using video-link facilities and ask questions he may have with regard to court processes, if possible.
Ground Rules Hearing
During the ground rules hearing, the intermediary was called by the prosecution to give evidence. The following exhibits were tendered through the intermediary during her evidence:
(a) Exhibit 1: the intermediary report.
(b) Exhibit 2: the contemporaneous handwritten notes taken by the intermediary during the communication assessment.
(c) Exhibit 3: an email dated 2 August 2021 sent by the Assistant Director of the Intermediary Program to the intermediary confirming the time and date that the communication assessment was to take place. In the email, there is an outline of the victim’s communication needs that reads as follows: ‘According to the referral, Wesley is dyslexic, has trouble comprehending information (what is said and what he hears may be different), ADD, ODD, PTSD and anxiety (which manifest physically such as an upset stomach and diarrhea).
(d) Exhibit 4: the intermediary referral form completed by the prosecution sent on 27 May 2021. The referral form allows the person completing it to tick boxes that are applicable. Under the heading ‘Mental Health Needs’ the boxes for ‘Mental Health Issues’ and ‘Trauma’ are ticked. In a box that allows for the input of further information titled ‘OTHER (additional information to assist with matching a witness intermediary)’, the following is written: ‘potentially dyslexic, didn’t get it officially diagnosed. Has trouble comprehending – what is said and what he hears can be different. ADD – not diagnosed but mum thinks he has some tendencies. ODD – not diagnosed but mum states he can be quite argumentative and defensive. Sees a PTSD doctor – on the cusp. Anxiety which manifests physically such as an upset stomach, diarrhea.’
In cross-examination, the intermediary confirmed that she had only ever seen Exhibit 3 and had not seen Exhibit 4 prior to the ground rules hearing. The intermediary stated that she understood that Exhibit 3 contains a summary of Exhibit 4.
Counsel for the accused referred the intermediary to Exhibit 2. It was noted that in a row titled ‘propositional statements: true/ false, yes/ no, agree/ disagree and correct/ not correct’, the answers to the questions where agree/ disagree had two large square brackets around them. When asked what the square brackets denoted, the intermediary stated that using agree/ disagree worked best in facilitating communication with the victim for propositional statements or questions. While the victim was able to correctly answer the questions with the different expressions, the intermediary noted that the answers to those questions involved longer processing and response time.
Consideration and Rulings
The recommendations in 4.2 of the intermediary report are in a table. During the ground rules hearing, counsel for the accused went through each recommendation indicating whether that recommendation was agreed to, not opposed, or opposed. Where the recommendation was opposed, counsel for the accused made submissions as to why that recommendation ought not to be adopted by the Court. Counsel for the prosecution then had the opportunity to make submissions on the recommendations that were opposed by the accused. The Court will also address the recommendations in 4.2 in a table. The following table is divided into four parts. The first column contains the recommendation and if the recommendation is opposed by the accused, the rationale from the intermediary report is also included. The second column contains the accused’s response to the recommendation. The third column contains the prosecution’s response where a recommendation is opposed. The fourth column contains the Court ruling on the recommendation where there is disagreement as to whether the recommendation should be adopted.
| Questioning Recommendation | Accused Response | Prosecution Response | Court Ruling |
| 1. For the victim to have a short break at least every 60 minutes, with the possibility of additional breaks if necessary. | Counsel for the accused did not oppose this recommendation. | Not applicable. | Not opposed by the accused and it is an appropriate recommendation from the Court’s perspective. |
| 2. Signposting topics during questioning. This will assist the victim to remain focused on the topic of questioning and transition to different topics. | Counsel for the accused submitted that this recommendation was unnecessary. It was submitted that there was no suggestion that the victim required topics to be signposted. Rather, the intermediary had simply elected to adopt this practice during the assessment. It was submitted that this recommendation would be a constraint upon the proper exercise of cross-examination. Counsel stated that the presiding judge would be able to address inappropriate cross-examination pursuant to ss 26, 29 and 41 of the Evidence Act. It was emphasised that the victim at hand was now 18 years of age. | Counsel for the prosecution submitted that while the victim was now 18 years of age, it did not necessarily mean he was a fully matured adult. Counsel submitted that the Court should take into account the relatively young age of the victim and the implication that he will be answering questions about events that took place when he was a child. It was noted that the recounting of such evidence was likely to be traumatic. Counsel also noted that as the disputed fact was the number of incidents of sexual activity, there would be movement between various episodes in the victim’s young life that would be assisted by signposting. | In the Court’s view, the recommendation concerning signposting is soundly based and forensically useful. This is especially so in this case concerning the number of incidents. |
| Questioning Recommendation | Accused Response | Prosecution Response | Court Ruling |
| 3. Avoid use of figurative language and idioms. The victim may resort to literal understanding of statements and concepts, and such questioning may not elicit accurate responses. | Counsel for the accused opposed this recommendation, while noting that the use of figurative language and idioms would be unlikely to arise. It was submitted that the use of such language could be controlled by reference to ss 26, 29 and 41 of the Evidence Act. It was submitted that a blanket constraint against such terms does not comply with the requirements of the witness intermediary process. | Counsel for the prosecution again highlighted the relative young of the victim and a lack of life experience in submitting that this recommendation should be adopted by the court. | Avoiding the use of figurative language and idioms does not cause prejudice to the accused. From the Court’s perspective, nothing is lost from not using figurative language. It is more precise not to use such language. There are often generational gaps in such language. |
| 4. Ask one question containing one idea at a time, avoiding multi-part questions and preamble. The victim may experience difficulty processing complicated or lengthy questions in a court context. | Counsel for the accused submitted that this recommendation was unnecessary and unsubstantiated from the assessment. It was submitted that the acceptance of this recommendation could result in a stilted form of cross-examination that would prolong the proceeding. | Counsel for the prosecution submitted that this recommendation was “imposing on the territory of s 41 of the Evidence Act” and such questions could be adequately controlled by the Court under that provision, rather than it be a recommendation that is accepted as a direction. | Both the prosecution and defence submitted that this was an area that was best left to the Judge presiding over the disputed facts hearing and the flexibility of s 41 of the Evidence Act. I agree that this is the best course. |
| 5. Ask questions at a slow speaking pace and pause between questions. The victim requires extra time to process spoken language, especially when under stress. | Counsel for the accused opposed this recommendation in submitting that there was no indication of what a slow speaking pace might be. It was noted that the presiding judge had the ability to control this issue if it were to arise. | Counsel for the prosecution submitted that a slow speaking pace is merely a matter of common sense and that the recommendation should be adopted. | In the Court’s view, this recommendation is appropriate. It is not prejudicial to the accused. It is obviously advisable in court proceedings not to speak quickly. This is a common sense recommendation. |
| Questioning Recommendation | Accused Response | Prosecution Response | Court Ruling |
| 6. Avoid use of ‘tag’ questions. Tag questions are linguistically complex, can cause confusion and increase the possibility of unintentional inaccurate responses. | Counsel for the accused opposed this recommendation and submitted that it was another unnecessary recommendation. It was submitted that it had not been demonstrated that the victim could not comprehend tag questions. | Counsel for the prosecution sought for this recommendation to be adopted in light of the potential for tag questions to cause confusion. | In the Court’s view, tag questions can be confusing and are best avoided if possible. There is no demonstrated prejudice in avoiding tag questions. If it cannot be avoided, flexibility from the Court and counsel is required. This is a clearly appropriate recommendation on the basis of the intermediary report. |
| 7. Remind the victim of communication rules. | Counsel for the accused did not oppose this recommendation. | Not applicable. | Not opposed by the accused and it is an appropriate recommendation from the Court’s perspective. |
| 8. To put an argument, use a short, simple statement followed by the question, ‘do you agree or disagree?’ The victim is able to provide a response when an argument is presented in a short statement followed by a question which requires him to affirm or disaffirm his statement. | Counsel for the accused opposed this recommendation in submitting that there was nothing in Exhibit 2 or the intermediary report to justify this recommendation. It was noted that the victim was able to answer questions with ‘true’/ ‘not true’, ‘true’ / ‘false’, and ‘correct’ / ‘not correct’ in addition to ‘agree’/ ‘disagree’. It was submitted that only using questions followed by ‘agree or disagree?’ was artificial and unnecessary. | Counsel for the prosecution submitted that there was a basis for the intermediary making this recommendation, as her evidence was that this particular formulation was the most successful with the victim. The intermediary had stated that there were not pauses in processing when questions concluded with ‘do you agree or disagree?’. | In the Court’s view, this is a forensically useful recommendation and soundly based on the intermediary report and the intermediary’s evidence. |
| 9. For the victim to be able to utilise ‘agree’ and ‘disagree’ visual communication aids when answering propositional questions. The victim can point and refer to these aids as required, which may assist his provision of verbal responses. | Counsel for the accused submitted that it did not appear that the victim asked for such visual aids and opposed this recommendation. | Counsel for the prosecution noted that this recommendation was not pressed. | In the Court’s view, it is not appropriate to proceed with this recommendation. |
| Questioning Recommendation | Accused Response | Prosecution Response | Court Ruling |
| 10. Avoid references to seasons of the year (spring, summer, autumn and winter) during questioning. The victim’s recall may be assisted and this may reduce the possibility of unintentional inaccurate responses. | Counsel noted that while he did not know whether he would need to refer to seasons of the year, it would be necessary to refer to events that occur in summer and winter, or events such as a football season. | Counsel for the prosecution submitted that it may be unavoidable to avoid references to seasons of the year in light of the particular circumstances of this matter. | In the Court’s view, it is not appropriate to proceed with this recommendation. |
| 11. Allow the victim adequate time to commence and complete his responses to questions. | Counsel for the accused did not wish to be heard against this recommendation and confirmed he had no intention of causing the victim to be hurried along in his evidence. | Not applicable. | Not opposed by the accused and it is an appropriate recommendation from the Court’s perspective. |
| 12. Clarify the victim’s references to body parts if required and use consistent language for body parts during questioning. | Counsel for the accused did not oppose this recommendation. Counsel noted that his preference would be to ask the victim whether he understood that testicle was the correct anatomical description for the expression ‘balls’ and if the victim understood, to use the word testicles throughout cross-examination. | Not applicable. | Not opposed by the accused and it is an appropriate recommendation from the Court’s perspective. |
| 13. For the victim to be given a copy of his transcribed evidence in chief interview. | Counsel for the accused did not object to this recommendation. | Not applicable. | Not opposed by the accused and it is an appropriate recommendation from the Court’s perspective. |
| Questioning Recommendation | Accused Response | Prosecution Response | Court Ruling |
| 14. References or quotations from the evidence in chief interview by parties during questioning should be limited in length. The victim’s recollection will be aided when answering questions. | Counsel for the accused objected to this recommendation insofar as three sentences in length was not a realistic limit. | Counsel for the prosecution agreed that this recommendation was unnecessary in light of recommendation 13 not being opposed to by the accused. | From the Court’s perspective, this recommendation is unnecessary in light of the accused not opposing recommendation 13. |
| 15. If references to clock time are required during questioning, use digital time and include a reference to ‘AM’ or ‘PM’ as appropriate. | Counsel for the accused accepted this recommendation. | Not applicable. | Accepted by the accused and it is an appropriate recommendation from the Court’s perspective. |
| 16. Drawing and writing materials should be available for the victim during provision of his evidence. | Counsel for the accused accepted this recommendation. | Not applicable. | Accepted by the accused and it is an appropriate recommendation from the Court’s perspective. |
| 17. For the victim to have access to a visual communication aid to indicate if he needs a break. This will assist the victim to have additional ways to alert the court should he experience fatigue or feelings of stress or anxiety and require a break. | Counsel for the accused opposed this recommendation on the same grounds as the opposition to recommendation 9. | Counsel for the prosecution agreed that this recommendation was not necessary. | In the Court’s view, a visual communication aid is not demonstrably necessary. |
The additional ‘other’ recommendations contained in 4.3 of the intermediary report are set out in an identical table:
| Questioning Recommendation | Accused Response | Prosecution Response | Court Ruling |
| (a) It is recommended the parties share their proposed draft questions with the intermediary to seek advice about the wording of questions in relation to the victim’s communication needs. | Counsel for the accused opposed this recommendation and submitted there was no need for this recommendation to be accepted. | Counsel for the prosecution did not press this recommendation. | In the Court’s view, the sharing of proposed draft questions should not be mandatory. |
| Questioning Recommendation | Accused Response | Prosecution Response | Court Ruling |
| (b) It is recommended the intermediary sit near the victim at all times during his provision of evidence so as to assist and be visible to the court. | Counsel for the accused did not opposed this recommendation. | N/A | Not opposed by the accused and it is an appropriate recommendation from the Court’s perspective. |
| (c) It is recommended the intermediary raise their hand and say, ‘Your Honour’ to indicate that a communication need or issue has arisen for the victim. | Counsel for the accused did not opposed this recommendation. | N/A | Not opposed by the accused and it is an appropriate recommendation from the Court’s perspective. |
| (d) It is recommended the victim participate in a pre-hearing visit to court to practice using video-link facilities and ask questions he may have with regard to court processes, if possible. | Counsel for the accused did not opposed this recommendation. | N/A | Not opposed by the accused and it is an appropriate recommendation from the Court’s perspective. |
Conclusion
As I underlined in R v QX (No 6) [2021] ACTSC 248 at [50]-[51]:
It has often been stated that cross-examination is the engine of truth. Nevertheless, the engine of truth can be fine-tuned. The engine of truth may be brought into the 21st century without any compromise as to its effectiveness. This is true for both the questioning by counsel for the prosecution and questioning by counsel for the accused.
It is useful at this juncture to note Ward (a pseudonym) v The Queen [2017] VSCA 37; 54 VR 68. This case discussed intermediaries and ground rules hearings in other jurisdictions at [104]-[108]. The following passages from Maxwell P and Redlich JA in at [11], [12] and [16] address the cross-examination of a child complainant:
The first challenge is to formulate questions which are age-appropriate. This is necessary as a matter of basic fairness to the child witness, so that he or she can understand the questions and respond. But it is equally important in the interests of the accused.
…
The second challenge is that, so far as practicable in the circumstances, the child witness must be given the opportunity to say whether something they have said, and which the accused disputes, is true. This is the obligation of fairness to which expression is given in the rule in Browne v Dunn.
…
We also refer to the obligation of the trial judge to ensure that the cross-examination is fair to the witness, and to the powers available for that purpose under ss 41 and 42 of the Evidence Act 2008. The judge’s overriding obligation, of course, is to ensure that the accused is not exposed to the risk of an unfair trial.
(citations omitted)
(citations and footnotes omitted)
Therefore, it is important to emphasise that the Court, through the ground rules hearing, must strive to ensure that a witness is able to give their best evidence, while at the same time ensuring a fair trial.
Orders
Pursuant to s 4AF of the EMP Act, I make the following directions for the giving of the victim’s evidence at the disputed facts hearing:
1. The victim should have a short break during the disputed facts hearing at least every 60 minutes, with the possibility of additional breaks if necessary.
2. Counsel are to signpost topics to the victim during questioning.
3. Counsel are to avoid use of figurative language and idioms.
4. Counsel are to ask questions at a slow speaking pace and pause between questions.
5. Counsel are to avoid use of ‘tag’ questions.
6. The Judge presiding over the disputed facts hearing and counsel may remind the victim of communication rules.
7. To put an argument, counsel are to use a short, simple statement followed by the question, ‘do you agree or disagree?’.
8. Counsel are to allow the victim adequate time to commence and complete his responses to questions.
9. Counsel are to clarify the victim’s references to body parts if required and use consistent language for body parts during questioning.
10. The victim is to be given a copy of the transcript of his evidence in chief interview.
11. If references to clock time are required during questioning, counsel are to use digital time and include a reference to ‘AM’ or ‘PM’ as appropriate.
12. Drawing and writing materials should be available for the victim for the provision of his evidence.
13. The intermediary, Ms Sarah Cocco, is to sit near the victim at all times during the provision of his evidence so as to assist and be visible to the court.
14. The intermediary is to raise their hand and say, ‘Your Honour’ to indicate that a communication need or issue has arisen for the complainant.
15. It is recommended the victim participate in a pre-hearing visit to court to practice using video-link facilities and ask questions he may have with regard to court processes, if possible.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 14 October 2021 |
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