R v QX (No 2)
[2021] ACTSC 244
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v QX (No 2) |
Citation: | [2021] ACTSC 244 |
Hearing Dates: | 19 August 2020, 2 November 2020 and 18 December 2020 |
DecisionDate: | 18 December 2020 |
ReasonsDate: | 1 October 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [157]-[158] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – pre-trial application – application to not appoint intermediary for a prescribed witness – whether prescribed witness must have a “communication difficulty” to warrant appointment of intermediary – whether it is “not in the interests of justice” to appoint intermediary – whether complainant has a “communication difficulty” – whether appointment of intermediary would breach or limit right to fair trial – where prescribed witness is a child complainant in a sexual offence proceeding |
Legislation Cited: | Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 6 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 3 Victorian Charter of Human Rights and Responsibilities Act 2016 (Vic) ss 7, 8 |
Cases Cited: | Aigner v Austria (European Court of Human Rights, Application No 28328/03, 10 May 2012) Al-Khawaja and Tahery v the United Kingdom (European Court of Human Rights, Applications Nos 26766/05 and 22228/060, 15 December 2011) XYZ v Commonwealth [2006] HCA 25; 227 CLR 532 |
Texts Cited: | ACT Human Rights Commission, ACT Intermediary Program, Procedural Guidance Manual: Intermediary Program (February 2020) Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 24 September 2019 United Nations Human Rights Committee, General Comment No 32, Article 14, Right to equality before Courts and Tribunals and to a Fair Trial, 90th sess, UN Doc CCPR/C/GC/32 (23 August 2007) |
Parties: | The Queen (Crown) QX (Accused) Attorney-General of the ACT (Intervenor) ACT Human Rights Commissioner (Intervenor) |
Representation: | Counsel S Jerome (Crown) J Pappas (Accused) P Garrison SC (Intervenor) S Fitzgerald (Intervenor) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Accused) ACT Government Solicitor (Intervenor) ACT Human Rights Commission (Intervenor) | |
File Number: | SCC 58 of 2020 |
LOUKAS-KARLSSON J:
Introduction
On 18 December 2020, I ordered the appointment of an intermediary for the complainant (BM) in this case. I was not satisfied in accordance with s 4AK(2)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) that “it is not in the interests of justice to appoint an intermediary”. Reasons were reserved. My reasons follow.
On 28 May 2020, QX (the accused) filed an application in proceeding seeking an order pursuant to s 4AK(2)(b) of the EMP Act that a witness intermediary not be appointed for the complainant in this matter.
On 27 November 2020, the ACT Human Rights Commissioner (the Human Rights Commissioner) sought leave to intervene in the proceeding pursuant to s 36 of the Human Rights Act2004 (ACT) (Human Rights Act). On 16 December 2020, the Attorney-General of the ACT intervened in the proceeding pursuant to s 35 of the Human Rights Act 2004 (ACT). I granted the Human Rights Commissioner leave to intervene in the proceeding on 18 December 2020.
Background of Matter
On 30 October 2020, the prosecution filed a fresh indictment in this matter after a stay application advanced by the accused was refused by me on 19 August 2020: R v QX [2021] ACTSC 187. The indictment against the accused contains the following offences:
· 18 counts of sexual intercourse with a person between the age of 10 and 16 years, contrary to s 55(2) of the Crimes Act 1900 (ACT) (Crimes Act) (Count 2-11, 13-20);
· One count of committing an act of indecency on a young person between the ages of 10 and 16 years, contrary to s 61(2) of the Crimes Act (Count 1); and
· One count of grooming a young person by engaging in conduct with another person who has a relationship with the young person with the intention of making it more likely that the young person would take part in an act of a sexual nature, contrary to s 66(1)(c) of the Crimes Act (Count 12).
The charges of sexual intercourse with a person between the age of 10 and 16 years and the charge of committing an act of indecency on a person between the ages of 10 and 16 years all relate to the same complainant, BM. The charge of grooming a young person through a third-party relationship has been particularised as the accused communicating with the complainant’s mother (GM) to persuade her that he was a good influence on the complainant and that time spent with him would help the complainant mature.
The prosecution’s case is that the accused engaged in various frequent sexual intercourse with the complainant, who was between 14 and 15 years at the time, for an eleven month period whilst she lived with his family and up until the AFP were alerted and commenced an investigation on 19 June 2019.
Legislative Regime Establishing the ACT Intermediary Program
The legislative framework for the ACT Intermediary Program was introduced into the EMP Act in January 2020 by the Evidence (Miscellaneous Provisions) Amendment Act 2019 (ACT) (EMP Amendment Act). The program was designed to implement recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse (The Royal Commission) by assisting vulnerable witnesses in communicating with police and the Court. Chapter 1A and 1B of the EMP Act contain the relevant provisions governing ground rules hearings and intermediaries respectively.
Section 4AK of the EMP Act provides as follows:
4AKAppointment of witness intermediary—prescribed witnesses
(1)A court must appoint an intermediary in a criminal proceeding for a witness prescribed by regulation.
(2)However, the court need not appoint an intermediary for a witness under this section if—
(a)there is no‑one available who—
(i)meets the needs of the witness; and
(ii)satisfies the requirements in section 4AL; or
(b)it is not in the interests of justice to appoint an intermediary.
(3)Also, the court must not appoint an intermediary for a witness under this section if satisfied that the witness—
(a)is aware of their right to an intermediary; and
(b)is able to, and wishes to, give evidence without the assistance of an intermediary.
(4)In making a decision under subsection (2) or (3), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
(emphasis added)
Regulation 3B of the Evidence (Miscellaneous Provisions) Regulation 2009 (EMP Regulation) provides the definition of a “prescribed witness” for the purpose of s 4AK of the EMP Act:
3BPrescribed witnesses—Act, s 4AK (1)
(1)The following witnesses are prescribed:
(a)a child complainant in a sexual offence proceeding;
(b)a child in a serious violent offence proceeding involving the death of a person.
(2)In this section:
child, in a proceeding, see the Act, section 42.
complainant, in relation to a proceeding for an offence—see the Act, section 42.
serious violent offence proceeding––see the Act, section 40.
sexual offence proceeding––see the Act, section 41.
Section 42 of the EMP Act defines a “child” for the purpose of the EMP Act as follows:
42Definitions—pt 4.2
In this part:
child, in a proceeding, means a witness (including a complainant or similar act witness) who was a child—
(a)at the time the proceeding started; or
(b)if the witness gives evidence in an audiovisual recording—at the time the recording was made; or
(c)for a complainant in a sexual offence proceeding—at the time of the offence the subject of the proceeding.
(emphasis added)
A “sexual offence proceeding” is defined in s 41 of the EMP Act to mean a proceeding for a sexual offence against parts 3 to 5 of the Crimes Act. The present matter is a “sexual offence proceeding”.
Section 4AJ of the EMP Act provides for the appointment of an intermediary generally for a witness who is not a “prescribed witness” but has a “communication difficulty”. It states:
4AJAppointment of witness intermediary—generally
(1)A court may appoint an intermediary in a criminal proceeding for a witness with a communication difficulty—
(a)on its own initiative; or
(b)on the application of—
(i)the DPP; or
(ii)the witness; or
(iii)the accused person.
Example—communication difficulty
a mental or physical disability that impedes speech
(2)A court must not appoint an intermediary for a witness under this section if satisfied that the witness—
(a)is aware of their right to make an application for an intermediary to be appointed; and
(b)is able to, and wishes to, give evidence without the assistance of an intermediary.
(3)In making a decision under this section, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
Under Chapter 1B of the EMP Act as outlined above, the Court may appoint a witness intermediary in a criminal proceeding. There are two key provisions governing such an appointment:
(a)The first relates to the appointment of an intermediary “generally”. In this case, the Court has the discretion to appoint an intermediary for a witness with a “communication difficulty”. This appointment may be made on the Court’s own initiative or on the application of the DPP, the witness or the accused person: s 4AJ.
(b)The second relates to the appointment of an intermediary for a “prescribed witness”. If a witness falls within two categories prescribed the EMP Regulation, the Court must appoint an intermediary: s 4AK. There are several exceptions to this rule. If there is no suitable intermediary or it is not in the interests of justice to appoint an intermediary, then the court need not appoint an intermediary. If the witness is willing and able to give evidence without an intermediary, then the court must not appoint an intermediary. A child complainant in a sexual offence proceeding is a prescribed witness for the purpose of s 4AK: reg 3B(1)(a). Section 42(c) of the EMP Act defines a “child” in a sexual offence proceeding as a witness who was a child at the time of the alleged offences. A “child” is an individual under the age of 18 years: Legislation Act 2001 (ACT) dictionary.
In making a decision as to the appointment of a witness intermediary, the Court is not bound by the rules of evidence and may inform itself as it considers appropriate: ss 4AJ(3) and 4AK(4).
Under Chapter 1A of the EMP Act, if an intermediary is appointed, the court must direct that a “ground rules hearing” is held for the witness: s 4AB(2). The intermediary must prepare a written report about the communication needs of the witness which is provided to the court before the ground rules hearing: s 4AE. The hearing occurs prior to the witness giving evidence and at the hearing the court may make any direction it considers is in the “interests of justice”. This may include directions about how a witness may be questioned, the content of questions asked, the use of communication aids or support animals, and the conditions in which the witness gives evidence: s 4AF.
The witness must give their evidence in the presence of the intermediary and the Court and lawyers must be able to communicate with the intermediary: s 4AM. The functions of an intermediary include communicating to the witness questions put to the witness to the extent necessary to understand them, communicating the witnesses’ answers to the extent necessary to be understood, and otherwise assisting the Court and any lawyers in the proceeding to communicate with the witness. Importantly, once appointed, the intermediary is an officer of the Court and must act impartially: s 4AI.
The Application
The complainant, the subject of the sexual intercourse and act of indecency charges, is currently a child. The accused seeks that the Court exercises its discretion not to appoint an intermediary for the complainant under s 4AK(2)(b) of the EMP Act on the basis that it is not in the interests of justice to do so.
The application was made on the following grounds:
1. It would not be in the interests of justice to appoint a witness intermediary for the complainant.
2. The complainant has participated in eight evidence in chief interviews with the AFP relating to this matter. Each of those interviews have been lengthy, and there has been no suggestion, at any time, that the complainant is a witness who has difficulty understanding questions which are put to her, or in answering those questions.
3. There is no evidence that the complainant has suffered from any particular distress when discussing the allegations with the AFP, or with any other witness in the proceedings.
4. There is no evidence that the complainant suffers from an intellectual or mental impediment which would prevent her from understanding questions put to her, or necessitate the need for her to be assisted by a witness intermediary at trial.
5. The evidence in chief interviews conducted with the AFP to date reveal that the complainant:
a.Has well-developed vocabulary and expresses herself without apparent difficulty or confusion;
b.Has no apparent difficulty in resisting police questioning when she does not wish to answer;
c.Readily asks questions and seeks clarification of the reason or questions from time-to-time;
d.Expresses herself in robust terms and without any apparent reservation or timidity; and
e.Purports to have a good memory in that she relates words or sentences spoken verbatim despite the passage of months;
6. The appointment of a witness intermediary for the complainant is likely to have the effect of unfairly and irreparably prejudicing the accused’s right to a fair trial.
As made clear by the accused’s written submissions, the grounds of the application centre on the assertion of the complainant’s lack of a communication difficulty. In reference to s 4AK(2)(b) of the EMP Act, the appointment of an intermediary in these circumstances is said to be “not in the interests of justice”.
Key Issues
It is not disputed by the accused that the complainant in question is a “prescribed witness” for the purpose of s 4AK of the EMP Act. The accused sought a construction of Chapter 1B of the EMP Act in which, notwithstanding a witness falling within the meaning of a “prescribed witness”, the absence of an established communication difficulty necessarily enlivens the Court’s discretion to not appoint an intermediary because it is not in the “interests of justice”. The accused submitted that this construction of the EMP Act is mandated by s 22(2)(g) of the Human Rights Act, which entitles an accused person to the “minimum guarantee” of examining prosecution witnesses and having their witnesses examined under the same conditions.
The primary argument advanced by the prosecution is that, as the complainant is a “prescribed witness”, consideration of any “communication difficulty” is not relevant. In the alternative, the prosecution submitted that the complainant does in fact have a “communication difficulty” within the meaning of s 4AJ of the EMP Act.
The Attorney-General and the Human Rights Commissioner, as intervenors, also provided submissions designed to assist in the construction of the relevant provisions of the EMP Act and the Human Rights Act.
The key issues may therefore be summarised as follows:
· Is the appointment of an intermediary pursuant to s 4AK limited to circumstances where the prescribed witness has a “communication difficulty”?
· What is the meaning of “the interests of justice” for the purpose of s 4AK of the EMP Act? In the current matter is it not in the interests of justice to appoint an intermediary for the complainant?
· What is a “communication difficulty” for the purpose of Chapter 1B of the EMP Act?
· If a construction of the legislation requires its consideration, does the evidence establish whether the complainant has a “communication difficulty”?
· Does s 4AK of the EMP Act breach or limit the content of the right in s 22(2)(g) of the Human Rights Act?
· Does the appointment of an intermediary otherwise affect an accused person’s right to a fair trial?
· If a right of an accused is limited by the appointment of an intermediary for a prescribed witness without a “communication difficulty”, is it a reasonable limit pursuant to s 28 of the Human Rights Act?
Hearing
The application was heard on 19 August 2020, 2 November 2020, and 18 December 2020. On 2 November 2020, the prosecution called three witnesses in support of the proposition that the complainant did have a “communication difficulty”. The prosecution called Miss Lauren Clarke, the complainant’s treating counsellor from Canberra Rape Crisis Centre; Dr James Oldham, a child psychiatrist who had prepared a letter in relation the complainant; and Dr Brenton McKewin, a further child psychiatrist who had been treating the complainant. Final submissions were made by the parties and the intervenors on 18 December 2020.
Ms Clarke gave evidence that the complainant may become significantly upset and distressed when having to discuss the subject matter of the proceeding. Ms Clarke also stated that the complainant may be unable to communicate due to being extremely upset.
Dr Oldham gave evidence that the complainant had been admitted to the inpatient adolescent unit located at Shellharbour hospital in NSW from 24 June 2020 to 3 July 2020. Dr Oldham’s evidence was that the complainant’s suicidality at the time was triggered by the ongoing court proceedings pertaining to this matter. At the time of admission, the complainant was assessed as a high risk of completed suicide. Dr Oldham advised that the complainant has episodes of dissociation when discussing the alleged offences and may move into a “deep psychological freeze or fight reaction” and require someone to request a break on her behalf. Dr Oldham stated that during such episodes of dissociation, the complainant may become mute and be unable to communicate for a period of time.
Dr Oldham also gave evidence that in his opinion, the complainant is on the autism spectrum and has a pragmatic communication disorder or features of it. Dr Oldham’s opinion was based on the complainant at times being very direct and having odd communication. Dr Oldham stated that as his opinion is that the complainant is on the autism spectrum, she needs to make sure that someone can assist her to make sense of what is occurring in some of the court processes.
Dr McEwin’s evidence was also that the complainant was very distressed when discussing the alleged offences and when distressed, the complainant has difficulty attempting to communicate verbally.
Accused Submissions
The accused sought an order pursuant to s 4AK(2)(b) of the EMP Act that “it is not in the interests of justice” to appoint an intermediary. Counsel for the accused submitted as follows:
· The accused accepts that he bears the evidentiary onus in establishing that the appointment of an intermediary “not in the interests of justice”.
· The default position of s 4AK(1) is that the Court must appoint an intermediary in a criminal proceeding for a witness prescribed by regulation.
· Regulation 3B of the EMP Regulation provides that a child complainant in a sexual offence proceeding is a prescribed witness. At the time of the initial complaints to police, the complainant was, and remains at present, a child.
Counsel for the accused referred to the following matters concerning “communication difficulties” in the context of the ACT Legislative Assembly’s intention:
· When introducing the amendments to the EMP Act into the Legislative Assembly, the then Attorney-General Gordon Ramsay emphasised that an intermediary “is an independent communication specialist whose role is to assist a person with communication difficulties to communicate with police and the court”.
· The then Attorney-General’s presentation speech says nothing about relieving the stress, fear or trauma of giving evidence and, the EMP Act is silent as to such matters. In further Legislative Assembly debate on 24 October 2019, the opposition party announced their support for the Evidence (Miscellaneous Provisions) Bill 2019 (ACT) (EMP Bill) and Ms Caroline Le Couteur spoke in support of the EMP Bill and emphasised the intention that by the introduction of intermediaries, the EMP Act would allow “for all people with communication difficulties… to be assisted to communicate in a safe way that is heard and understood”. Counsel submitted that the emphasis was entirely upon the facilitation of the giving of evidence by those with a “communication difficulty”.
· The Explanatory Statement which accompanied the EMP Bill echoed all of that in these terms:
“An intermediary is an independent communication specialist whose role is to assist the person with communication difficulties to communicate their best evidence to police and the court”.
· The repeated reference to communication specialists is therefore telling according to the submission of counsel for the accused.
· The issue of “the interests of justice” in relation to the non-appointment of an intermediary should be guided by s 4AJ EMP Act which provides for the discretionary appointment of an intermediary in a criminal proceeding for a witness with a “communication difficulty”.
· If the complainant is shown by the evidence to have no “communication difficulty”, notwithstanding the other emotional, psychological or psychiatric conditions that may affect her, counsel for the accused submitted that it is not in the interests of justice that an intermediary be appointed.
Counsel for the accused made further submissions in relation to the interaction of the EMP Act with the Human Rights Act:
· Section 22(2)(g) of the Human Rights Act mandates the construction of the EMP Act whereby the interests of justice favour the non-appointment of an intermediary absent a “communication difficulty” for a prescribed witness. Section 22(2)(g) provides that everyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:
“to examine prosecution witnesses, or have them examined, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as prosecution witnesses.”
· Pursuant to s 4AB(2) of the EMP Act, the appointment of a witness intermediary results in a ground rules hearing. Section 4AD of the EMP Act requires the prosecution, the accused’s legal representative and any intermediary appointed to attend the ground rules hearing. The intermediary must prepare a written report about the communication needs of the witness and provide that report to the Court before the ground rules hearing: s 4AE EMP Act. At the ground rules hearing, the Court may make any direction that the Court considers is in the interests of justice, not limited to those set out in s 4AF of the EMP Act. It was submitted that the directions available in s 4AF of the EMP Act would have the effect of infringing the minimum guarantee found in s 22(2)(g) of the Human Rights Act.
· Pursuant to s 4AM of the EMP Act, once an intermediary is appointed the evidence of the witness must be given in the presence of an intermediary and the jury must be able to see and hear the witness giving the evidence, including any assistance given by the intermediary. It was submitted that notwithstanding the caveat contained within s 4AM(3), the involvement of an intermediary when the witness gives evidence also offends the minimum guarantees in s 22(2)(g) of the Human Rights Act.
· Counsel for the accused emphasised s 30 of the Human Rights Act which provides that “so far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights”.
· It was submitted that an intermediary is a statutory impediment to the normal taking and testing of evidence, which is to be ordered or tolerated only in limited circumstances. Namely, where on proper evidence it is established that a witness has a “communication difficulty” of the sort referred to in the EMP Act, referred to in the presentation speech and in the Legislative Assembly debates.
· Counsel submitted that the interpretation requiring a prescribed witness to have a “communication difficulty” was to be favoured over any other because of the minimum human right guarantee set out in s 22(2)(g) of the Human Rights Act. It was submitted that to allow the appointment of an intermediary so to ameliorate stress, fear, anxiety or indeed potential aggravation of suicidal ideation would result in the Court falling into error.
· Counsel noted that the then Attorney-General had described the provision of the EMP Bill as the “least restrictive means possible” to achieve the express purpose: s 28(2)(e) Human Rights Act. It was submitted that the expressed purpose was to assist witnesses who have a “communication difficulty”.
In respect of the witnesses called by the prosecution in support of the proposition that the complainant has a “communication difficulty”, counsel for the accused made the following submissions:
· Submissions were made in relation to the qualifications of Ms Clarke. It was clear that Ms Clarke had some “counselling” interaction with the complainant from about June 2019 and that she had sat in on seven of the eight evidence in chief interviews. Ms Clarke was able to speak first hand of the way in which the complainant had performed during those interviews.
· Ms Clarke had accepted under cross-examination that the complainant had answered all of the police questions; that she had no obvious difficulty in understanding questions and that from time-to-time the complainant sought clarification as to relevance or other aspects of police questioning.
· Ms Clarke could point to no instance of the complainant apparently being unable to distinguish between the here and now or the experiencing of what Ms Clarke described as a flashback.
· Ms Clarke described the complainant as being emotionally labile from time-to-time, suffering from anxiety and anger, as well as depression. Ms Clarke also said the complainant was at risk of suicide.
· Dr Oldham also thought the complainant might be at risk of suicide. Counsel for the accused submitted that the risk of suicide is not a reason for the assistance of an intermediary and to approach the EMP Act in that way would be wrong.
· Dr Oldham stated that the complainant required the following assistance: a support person to be with her in the remote facility when giving evidence, the ability of the support person to ask for a break in court proceedings as appropriate and someone with Dr Oldham’s skills who might be able to discern the onset of a state of disassociation and seek a halt in the proceedings to allow the complainant to compose herself. It was submitted that a support person would be the appropriate person to undertake these tasks.
· Dr Oldham expressed the view that the complainant was “on the autism spectrum” without explaining what that meant in terms of any communication difficulty, apart from saying it was likely to make her “very direct” in her answers and not good at lying. Dr Oldham felt that the complainant would be upset and “nauseated” by the requirement to relive the experience of “doing stuff she did not want to do” in the court environment but that is a very long way from any assertion that she suffers from a “communication difficulty” which would justify the appointment of an intermediary.
· Dr Oldham’s evidence illustrates no more than the complainant dissociating from time-to-time when talking about the subject matter of the charges and the complainant may need time to compose herself to “take a breath”.
· Dr Oldham did not agree with Ms Clarke that from time-to-time the complainant is “unable to determine if she is in the here and now or experiencing a flashback” or alternatively, that intrusive thoughts of past trauma may make “it difficult to distinguish events that are happening now or then”.
· Counsel submitted that the evidence of Dr McEwin did not assist the Court as he had certified that his opinion was that the complainant “does not have the ability to give evidence in court proceedings at length without the assistance of an intermediary”’. It was submitted that Dr McEwin did not have an understanding of what an intermediary did, was intended to do, nor the circumstances in which an intermediary might be appointed. Counsel submitted that Dr McEwin effectively advocated what he thought the complainant’s “legal representatives” thought would be helpful to her. It was presumed that Dr McEwin regarded the police informant or the prosecution to be acting in that role.
· Dr McEwin’s position was that giving evidence was likely to be stressful for the complainant and support which the Court might be able to offer the complainant would be a positive thing. Counsel submitted that such support is already mandated by the EMP Act, namely that the complainant will give her evidence via audio-visual link from a remote facility and that she is entitled to have the assistance of a support person at that time.
· Counsel for the accused submitted that there is no reason why such a support person should not have qualifications similar to Dr Oldham if that is what is considered appropriate and be able to ask for a break in proceedings if he or she perceives a so-called episode of disassociation taking hold.
As to whether the complainant had a “communication difficulty” counsel for the accused additionally submitted:
· It would be incorrect to assume that someone, such as the complainant described as being “on the autism spectrum” has or is likely to have a “communication difficulty” without there being expert evidence to support that proposition.
· Counsel referred to the transcripts of the complainant’s eight evidence in chief interviews and particular portions of those interviews were referred to demonstrate that the complainant gave an articulate, comprehensible, and comprehensive account of what she alleges happened to her. The transcripts also show that the complainant is able to account the circumstances in which the alleged offending happened, including first person narrative conversation and descriptions of clothing, places, and times. It was submitted that the transcripts supported the proposition that the complainant does not suffer from a “communication difficulty”.
· It was accepted that cross examination may pose a different problem for the complainant as the state of the evidence is that she is likely to be emotionally upset and distressed in the court environment. It was however submitted that the complainant would be able to comprehend and answer questions adequately if given appropriate breaks from time-to-time and if giving evidence in the presence of a support person.
Counsel for the accused ultimately submitted that the construction of s 4AK(2) advanced by the accused must be preferred to any other interpretation. That is, if a child complainant in a sexual offence proceeding is shown to have no “communication difficulty”, then it will not be in the interests of justice to appoint an intermediary. It was also submitted that if any alleged “communication difficulty” can be shown to be minor or inconsequential, it would also not be in the interests of justice to appoint an intermediary. It was noted that the sole determinant for the appointment of an intermediary for s 4AJ is the existence of a “communication difficulty”. It was submitted that the urged mirrored interpretation of “the interests of justice” in ss 4AK and 4AJ of the EMP Act is the only ‘sensible’ way to interpret s 4AK(2)(b) with the stated purposes of Chapters 1A and 1B of the EMP Act and the human rights guaranteed under s 22(2)(g) of the Human Rights Act.
Statutory Construction
The principles regarding statutory construction were usefully summarised in Director of Public Prosecutions (ACT) v Graham [2018] ACTCA 23; 13 ACTLR 280 at [25]-[28]:
A recent concise statement of the proper approach to the construction of a statute is found in the judgment of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 as follows:
14. The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its wildest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if is ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
(footnotes omitted)
Their Honours drew on the judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 which included the following:
69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
(footnotes omitted)
In the ACT the role which consideration of the purpose of a provision is to play is governed by s 139 of the Legislation Act 2001 (ACT) (the Legislation Act) which provides:
(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2) This section applies whether or not the Act’s purpose is expressly stated in the Act.
Section 138 of the Legislation Act defines what is meant by the working out of the meaning of an act as follows:
In this part:
“working out the meaning of an Act” means –
(a) resolving an ambiguous or obscure provision of the Act; or
(b) confirming or displacing the apparent meaning of the Act; or
(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the Act in any other case.
A similar approach has been adopted in KN v The Queen [2019] ACTCA 37; 14 ACTLR 289 at [23]. See also: Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50 at [116]-[125].
Consideration
Background to intermediaries and s 4AK
The Royal Commission Criminal Justice Report underlined that child victims and adult survivors found engaging with the criminal justice system to be daunting and that the “process of giving evidence was particularly difficult”.[1]
[1]Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, August 2017) Parts VII to X and Appendices, 3.
The Criminal Justice Report recommended the implementation of intermediary schemes, in conjunction with ground rules hearings, to ensure that complainants can give their “best evidence”.[2] Recommendation 59 of the Criminal Justice Report proposed that each state and territory should establish intermediary schemes “which are available to any prosecution witness with a communication difficulty in a child sexual abuse prosecution”. The prosecution submitted that the EMP Bill went beyond Recommendation 59 as it provided that categories of witnesses may be prescribed such that certain witnesses have an entitlement to the appointment of an intermediary, unless there is no suitable intermediary available or it would not be in the interests of justice to have an intermediary appointed.
[2] Ibid 82.
In order to properly determine the content of the right in s 22(2)(g) of the Human Rights Act and whether that right is engaged or limited by s 4AK of the EMP Act, it is first necessary to address the proper construction of the relevant provisions of the EMP Act.
In construing the meaning of the EMP Act, the Explanatory Statement for the EMP Bill may be considered: s 142 Legislation Act. The EMP Bill amended the EMP Act to facilitate the giving of evidence by vulnerable witnesses through intermediaries, in response to a recommendation made by the Royal Commission.
As stated in the Explanatory Statement to the EMP Bill, in broad terms, the purpose of the amendments was “to improve the experience of victims of child sexual abuse in the criminal justice system” and to address the particular difficulties faced by child victims in relation to access to justice in the criminal justice system.
Importantly, the requirement to appoint a witness intermediary for a prescribed witness under s 4AK of the EMP Act is not qualified by the requirement that the witness also must have a “communication difficulty”. As the Explanatory Statement to the EMP Bill states:
…The Criminal Justice Report of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) emphasised that child victims face particular difficulties in accessing justice through the criminal justice system. The Royal Commission heard examples of many child complainants breaking down during cross-examination due to the stress and trauma associated with giving their evidence. The Criminal Justice Report noted that vulnerable witnesses may not have the language to describe what happened, and that even if they can articulate that something happened, they struggle to disclose accurately to strangers in unfamiliar settings…
At the most fundamental level, in order to participate in the criminal justice process, children must be able to give a comprehensible account of what happened, understand the questions being asked of them, and provide a comprehensible response. Without this, evidence of any criminal acts perpetrated against them cannot be heard and considered by the criminal justice system.
…
The purpose of prescribing certain witnesses as having a default ‘entitlement’ to an intermediary is to ensure that those who are most vulnerable do not miss out on the assistance they need. The Royal Commission provided ample evidence as to why child complainants in sexual offence proceedings should have access to an intermediary as a matter of course.
…
This default entitlement has been extended to child witnesses in homicide proceedings in recognition of the severe trauma children can experience when witnessing homicides. It is difficult to conceptualise a situation in which a child complainant in a sexual offence proceeding or a child witness in a homicide proceeding would not benefit from an intermediary.
(emphasis added)
In the presentation speech on 24 September 2019 to the Legislative Assembly for the EMP Amendment Act, the then Attorney-General noted the following at 3747-3748:
An intermediary is an independent communication specialist whose role is to assist a person with communication difficulties to communicate their best evidence to police and to the Court. The bill requires intermediaries to be appointed for all child complainants in sexual offence proceedings and all child witnesses in homicide proceedings, subject to some exceptions. The bill also provides the court with a discretion to appoint intermediaries for other witnesses, including defendants, who have a communication difficulty.
…
The royal commission recommended that state and territory governments ensure that ground rules hearings are held in child sexual abuse proceedings because they improve the trial process for all parties, but particularly for complainants. For the complainant, they provide an opportunity to have their needs considered and to make adjustments to the trial process that might help them to give evidence.
…
The Criminal Justice Report told us that vulnerable witnesses may not have the language to describe what happened and that, even if they can articulate that something happened, they struggle to disclose this accurately to strangers in unfamiliar settings.
…
While the bill is primarily concerned with improving the experience of victims in the criminal justice system, it will also deliver clear benefits to the accused, the justice system and the broader society. For the accused the bill provides the court with a broad discretion to order a ground rules hearing or appoint an intermediary for any witness with a communication difficulty, including an accused person. This allows both defendants and victims to benefit from the scheme. In addition, high quality communication with witnesses and obtaining accurate and complete testimony can ensure that not only the complainant but also the accused experiences a fair trial.
For the justice system, obtaining clear, accurate testimony improves the court’s ability to deliver justice more effectively. This has been shown to be the case in other jurisdictions where similar legislation has been implemented, such as in New South Wales, Victoria and elsewhere.
…
(emphasis added)
Accordingly, s 4AK(1) of the EMP Act creates a presumption that a prescribed witness, including a child complainant in a sexual offence proceeding, is inherently vulnerable and necessitates the appointment of an intermediary. No further vulnerability needs to be identified in order to justify the appointment of an intermediary. In other words, where a witness is a prescribed witness within the meaning of reg 3B(1) of the EMP Regulation, the witness does not need to also demonstrate a “communication difficulty” in order for the Court to appoint an intermediary for that witness.
That presumption may be rebutted where the Court is satisfied that the witness understands that an intermediary may be appointed and indicates they wish to give evidence without one: s 4AK(3) EMP Act. The presumption may also be rebutted where the Court determines it is not in the interests of justice to appoint an intermediary: s 4AK(2)(b) EMP Act.
The Human Rights Commissioner made reference to the ACT Intermediary Program Procedural Guidance Manual (February 2020) (the Intermediary Guidance Manual) in its submissions. The Intermediary Guidance Manual states:
The Intermediary Program’s overarching objective is to provide skilled intermediaries to the criminal justice so vulnerable witnesses (primarily children) communicate their best evidence at police interview and trial, thereby reducing vulnerable witnesses’ trauma and assisting justice processes.
It is noted that pursuant to s 702(3) of the Criminal Code 2002 (ACT) an intermediary commits the offence of aggravated perjury if they make false or misleading statements or improperly assists a witness’ communication. Intermediaries are also required to abide by the Code of Conduct set out in the Intermediary Guidance Manual, which provides, amongst other matters, that:
(a) An intermediary has an overriding duty as an officer, to assist impartially. An intermediary’s paramount duty is to the court, and not to any other stakeholder engaged in the case or court proceeding.
(b) An intermediary is not to present themselves as an advocate, witness or expert witness.
(c) An intermediary must not discuss evidence with the witness or any other person. If a witness, or person associated with them, discloses evidence during a communication assessment or otherwise, the intermediary must inform the police officer in charge of the case (or their delegate). Immediately after attempting to inform the police, the intermediary must inform the Intermediary Team of the incident.
(d) An intermediary must never be alone with a witness. If this occurs the intermediary must immediately inform the Intermediary Program Team.
The provisions of the EMP Act and the Code of Conduct make it clear that the role of an intermediary is to impartially assist those involved in the court process to communicate with the relevant witness. The Intermediary Guidance Manual indicates that the goal of this impartial assistance is to allow a witness to communicate their best evidence without being traumatised by the process of giving evidence.
The inclusion of the word “must” in s 4AK(1) of the EMP Act imposes a mandatory requirement. It was submitted by the Human Rights Commissioner that “must” in this section should be interpreted as a mandatory requirement because the appointment of an intermediary in all cases involving prescribed witnesses accommodates the rights in ss 8, 11 and 21 and does not limit the rights contained within s 22(2)(g) of the Human Rights Act.
As a matter of statutory construction, the Court should not impute a requirement of a prescribed witness having a “communication difficulty” to warrant the application of s 4AK of the EMP Act. The legislature has not elected to utilise the concept of “communication difficulty” to limit the scope of s 4AK and the words in the section are clear. The Human Rights Commissioner correctly accepted that whether a prescribed witness has a “communication difficulty” within the meaning of s 4AJ may be a relevant consideration but was not determinative.
In respect of the Explanatory Statement to the EMP Bill as emphasised by counsel for the accused, notwithstanding the statements relating to “communication difficulties”, the legislature did not intend that only children who have a “communication difficulty” should have the benefit of an intermediary pursuant to s 4AK in a relevant proceeding. This is clear from the drafting of the legislation.
The Human Rights Commissioner correctly submitted that the interpretation urged by the accused placed a gloss on the language of s 4AK and confined its intended use. It was highlighted that s 4AJ of the EMP Act already provides the Court with a discretion to appoint an intermediary where a witness has a “communication difficulty”. To read down s 4AK by reference to the existence of a “communication difficulty” is contrary to the clear legislative purpose or intent.
In my view, the words of s 4AK of the EMP Act are clear and may be given their plain meaning:
(a) An intermediary must be appointed for a prescribed witness;
(b) The complainant child is a prescribed witness;
(c) Relevantly, the court may decline to appoint a witness intermediary if it is not, in this case, in the interests of justice to do so.
Not in the Interests of Justice
The term “interests of justice” is not defined for the purposes of s 4AK(2)(b) of the EMP Act. It is for the accused to satisfy the Court that it is in the interests of justice that an intermediary not be appointed. In the absence of the Court being so satisfied, an intermediary must be appointed.
In Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601 at 613 Kirby P observed:
Those words “in the interests of justice” are plainly words of the widest possible reference. Indeed, there could scarcely be a wider judicial remit.
At common law, the term encompasses competing considerations of fairness to the parties involved in the proceeding and the public interest in the administration of justice, having regard to all the particular circumstances in each case: see BHP Billiton v Schultz [2004] HCA 61; 221 CLR 400 (BHP Billiton) at [15] (Gleeson CJ, McHugh and Heydon JJ). See also: R v Ali (No 3) [2020] ACTSC 103; 15 ACTLR 161 at [94]-[103] (Murrell CJ).
It is not possible to provide a definitive list of the factors that may be considered in determining whether it would be in the interests of justice not to appoint an intermediary. Having regard to the object, scope and purpose of s 4AK of the EMP Act, as well as the principles from BHP Billiton, the following are relevant considerations for the exercise of that discretion:
(a) Any unfairness or prejudice to the accused or prosecution that may be occasioned by the appointment of an intermediary;
(b) Any likely harm or difficulty that may be caused to the witness if an intermediary were not appointed, having regard to their inherent vulnerability as a prescribed witness, any evidence of that witness’ specific vulnerabilities, and the particular circumstances of the trial;
(c) Whether the witness’ best evidence is likely to be given without the input or facilitation of an intermediary; and
(d) Whether the proper conduct of the proceeding can be managed without the use of an intermediary, such as in the exercise of the Court’s statutory and inherent power to control proceedings: see for example ss 26, 29 and 41 Evidence Act 2011 (ACT).
In response to the accused’s submission that the intermediary being present with the complainant during evidence would prejudice the accused, the prosecution submitted that this ignored the requirement that a trial judge issues the warning pursuant to s 4AM(3) of the EMP Act. That subsection provides as follows:
(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.
In my view, it would be inconsistent with the text and purpose of s 4AK of the EMP Act as a whole, to construe the phrase “interests of justice” in s 4AK(2)(b) as confined to the question whether the prescribed witness has a “communication difficulty”.
Further, in exercising the Court’s discretion under s 4AK(2)(b) of the EMP Act, whether a prescribed witness has a “communication difficulty” may be a relevant consideration but is not determinative.
The accused has failed to establish that it is “not in the interests of justice” to appoint an intermediary for the complainant, as a prescribed witness pursuant to s 4AK(2)(b) of the EMP Act.
Communication Difficulties
Section 4AJ(1) of the EMP Act provides that, for witnesses other than prescribed witnesses, the Court may appoint an intermediary for a witness with a “communication difficulty’.
The appointment of an intermediary is additional to a range of other special requirements available under pt 4.3 of the EMP Act to assist certain categories of witnesses. A Court may order in a relevant proceeding, inter alia, the accused be screened from a witness in Court, a witness not be cross-examined personally by the accused, and that the witness have a support person in an appropriate case: ss 47, 48, 49 EMP Act.
The accused contends that, as the complainant has not demonstrated “communication difficulties” in other contexts, it is not in the interests of justice that an intermediary be appointed. In my view, this conflates and confuses the power of the Court in s 4AK with the power of the Court to appoint an intermediary in s 4AJ of the EMP Act.
The discretion in s 4AK(2)(b) not to appoint an intermediary is to be guided by the factors referred to above concerning the interests of justice. The question of whether a non-prescribed witness should have an intermediary appointed under s 4AJ of the EMP Act is a separate power.
That is of course not to say that communication difficulties, or their absence, are not properly a matter to be taken into account more broadly when considering, or weighing up, the interests of justice in s 4AK of the EMP Act.
The prosecution additionally submitted that the complainant has a “communication difficulty” and may have an intermediary appointed even on the accused’s construction of s 4AK of the EMP Act. Nevertheless, s 4AJ(1) of the EMP Act provides that the Court may appoint an intermediary in a criminal proceeding for a witness with a “communication difficulty”.
The phrase “communication difficulty” is not defined, however s 4AJ provides an example of a “communication difficulty” as “a mental or physical disability that impedes speech. An example in an Act is not exhaustive and does not limit the meaning of the Act or the particular provision as to which it relates: s 132(1) Legislation Act.
“Communication difficulty” does not appear in any other provision of the EMP Act apart from s 4AJ. However, s 4AI(1)(a) provides that the functions of an intermediary include preparation and provision of reports about the witness’ “communication needs”.
Neither the Explanatory Statement to the EMP Bill nor the Criminal Justice Report elaborate on the meaning of “communication difficulty” or “communication needs”.
There are limitations in construing a composite phrase by reference to the meaning of the individual words: XYZ v Commonwealth [2006] HCA 25; 227 CLR 532 at [19]. Nevertheless, the Macquarie Dictionary defines “difficulty” as:
1. The fact or condition of being difficult.
2. (Often plural) an embarrassing situation, especially of financial affairs.
3. A trouble.
4. A cause of trouble or embarrassment.
5. Reluctance; unwillingness.
6. A Demur; objection.
7. That which is hard to do, understand, or surmount.
Having regard to the ordinary meaning of “difficulty”, the phrase “communication difficulty” is of wide import that would include:
· A tendency to dissociate when discussing a particular subject matter;
· Autism spectrum disorder, with features of a pragmatic communication disorder; and
· Difficulties discussing a particular subject due to distress and/ or anxiety.
In support of the appointment of an intermediary, the prosecution called three witnesses: Ms Clarke, Dr Oldham and Dr McKewin. It was submitted that the purpose of the evidence of the three witnesses was not to promulgate the intermediary’s assessment and recommendations, but to establish the mental health condition and any “communication difficulty” experienced by the complainant.
The prosecution submitted that the complainant’s tendency to dissociate when communicating about the alleged offences is a “communication difficulty”. It was highlighted that during periods of dissociation, the complainant may be unable to advise the court that she requires a break.
The prosecution further submitted that the complainant’s autism spectrum disorder as opined by Dr Oldham, is also a “communication difficulty”, as the complainant will require assistance in understanding and appropriately interacting in the court process.
In reference to the evidence given by all three witnesses as to the complainant’s anxiety and distress, the prosecution submitted that the anxiety and distress amounted to a “communication difficulty”. It was submitted that the complainant may experience difficulty in responding to questions when in a heightened state.
In relation to the meaning of a “communication difficulty”, the Human Rights Commissioner correctly submitted that “difficulty” should not be read down to only being a medically diagnosed difficulty or a difficulty of a particular severity. It was emphasised that the legislature has deliberately omitted to use the words “disability” or “impairment” within the relevant threshold for the Court to apply its discretion in s 4AJ.
The prosecution ultimately submitted that the complainant does have a “communication difficulty” and is therefore entitled to the appointment of an intermediary.
In my view, the complainant would be entitled to the appointment of an intermediary under both ss 4AK and 4AJ of the EMP Act.
Section 4AF
Once appointed, the intermediary must also attend a “ground rules hearing”, unless ordered by the Court not to attend. The intermediary must prepare a report for the ground rules hearing about the witness’ communication needs: ss 4AD(1)(c) and (3), 4AE.
A “ground rules hearing” is a hearing in a criminal proceeding where the Court considers the communication, support or other needs of a witness and decides how the proceeding must be conducted to fairly and effectively meet those needs. While the Court may, on its own initiative, direct that a ground rules hearing be held, a ground rules hearing must be held if an intermediary is appointed: s 4AB(2) EMP Act. At a ground rules hearing, the Court can make a range of directions about the conduct of the proceeding, which may include a direction about how a witness may be questioned and a direction about the questions that may or may not be asked of a witness: ss 4AF(1)(a) and (c) EMP Act. The Court must consider any report of the appointed intermediary in considering what directions to make at the ground rules hearing: s 4AF(2).
It is noted that counsel for the accused submitted in oral submissions that interruptions by an intermediary would result in disadvantage to the accused. It is important to emphasise at this juncture that counsel for the accused and counsel for the prosecution can only be interrupted by the intermediary if either counsel fails to observe the court ordered recommendations. The appropriate forum to debate the recommendations of the intermediary is the ground rules hearing itself.
The Human Rights Commissioner correctly submitted that “in the interests of justice” also forms part of s 4AF of EMP Act, which deals with the directions the Court may make at a ground rules hearing. It is noted that that the reference to “in the interests of justice” in s 4AK(2)(b) operates as a negative assessment whereas the test in s 4AF is a positive power.
Support Person
In respect of the accused’s submission that a support person could intervene on behalf of the complainant to request a break or alert the Court if the complainant began to dissociate, the prosecution submitted that the accused had misconceived the role of a support person. I concur with this submission as it accords with my view for the following reasons.
Section 49(1) of the EMP Act provides that in a relevant proceeding, the court must order that a witness have a support person close to the witness, within the witness’ sight, while the witness gives evidence. A support person must be ordered by the court on application by the party who intends to call the relevant witness. An important caveat to a witness having a support person is contained within s 49(3) and reads:
(3)The support person must not—
(a)speak for the witness during the relevant proceeding; or
(b)otherwise interfere in the proceeding.
It is important to record that a support person may be unable to identify periods of dissociation. In any event, speaking for the complainant or identifying when the complainant may require a break or is dissociating is not the role of a support person.
Human Rights Act
Section 31(1) of the Human Rights Act provides that international law, and foreign and international judgments relevant to a discrete human right may be considered in interpreting the human right contained within the Human Rights Act. International law, and the judgments of foreign and international courts and tribunals, relevant to a human right, may be considered in interpreting a human right. Any use of such material must, however, be subject to consideration as to the particular contexts in which those judgments are made: Re Application for Bail by Islam [2010] ACTSC 147; 4 ACTLR 235 at [25] (Re Application for Bail by Islam). Penfold J observed:
Counsel for the Attorney-General pointed out that the Human Rights Act permits, or even encourages, the consideration of relevant international law and the judgments of foreign and international courts and tribunals in the interpretation of human rights. She also emphasised, however, that any use of such material needed to be made very carefully and to take full account of the differences in the way human rights are described in different instruments and different jurisdictions, and also of the form and content of challenged provisions and their counterparts in other jurisdictions.
…
(emphasis added)
In Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48; 4 ACTLR 127 at [71], Refshauge J confirmed that when interpreting the rights pursuant to the Human Rights Act, international cases that consider the same or relevantly similar rights found in instruments similar to the Human Rights Act are relevant. His Honour stated:
Thus, the process of identification of the content of rights enshrined in the Human Rights Act is properly to be assisted by the jurisprudence of international courts and tribunals, which consider the same or relevantly similar rights expressed in instruments similar to the Human Rights Act.
In Nona v The Queen [2012] ACTCA 55 at [36] Refshauge J sitting as the Court of Appeal affirmed the relevance of international case law pursuant to s 31 of the Human Rights Act and noted that this case law was “highly persuasive”.
In Andrews v Thomson [2018] ACTCA 53; 275 A Crim R 386 (Andrews v Thomson) at [45] the Court of Appeal, in discussing the High Court decision of Momcilovic v the Queen [2011] HCA 34; 245 CLR 1 (Momcilovic v The Queen), considered that the Human Rights Act may be interpreted in a similar manner as relevantly similar provisions of the Victorian Charter of Human Rights and Responsibilities Act 2016 (Vic) (Victorian Charter of Human Rights).
As noted in the Explanatory Statement to the Human Rights Bill 2003 (ACT), the primary source of the rights protected in pt 3 of the Human Rights Act is the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (ICCPR):
Clauses 8 to 27 give express recognition to civil and political rights enshrined in international human rights law. The primary source of the International Covenant on Civil and Political Rights (the Covenant).
…
The rights are generally expressed in the same terms as the Covenant except where some adjustments to language were necessary to improve the drafting or to clarify the application of a right in the context of the Territory.
…
This Bill recognises that civil and political rights have been expressed in the core human rights treaties and customary international law. These sources are relevant for the purpose of interpreting the scope and application of a Part 3 right. For example, the International Covenant on Civil and Political Rights and the European Convention on Human Rights and Fundamental Freedoms were drafted to elaborate and implement the principles of the 1948 Universal Declaration of Human Rights.
…
The Human Rights Act protects a broad range of right to fair trial and the rights of persons in criminal proceedings: ss 21 and 22 Human Rights Act respectively. None of the rights protected by the Human Rights Act are absolute. They may be subject to reasonable limits set by laws that can be demonstrably justified in a free and democratic society: s 28(1) Human Rights Act. In determining whether a limit is reasonable, all relevant factors will be considered, including the nature of the right affected, the extent and purpose of the limitation and whether any less restrictive means is available to achieve the purpose of the limitation: s 28(2) Human Rights Act.
Right to a fair trial
The common law protects the right to a fair trial. It is well understood that the right to a fair trial did not emerge fully formed from the Human Rights Act in a manner akin to Athena emerging from the head of Zeus. In Dietrich v The Queen (1992) 177 CLR 292 (Dietrich v The Queen) it was underlined that the right to a fair trial is a “central pillar of our criminal justice system” at 298 (Mason CJ and McHugh J), a “fundamental prescript of the criminal law” at 326 (Deane J), one that is “engrained in our legal system” at 353 (Toohey J) and is “fundamental to our system of justice” at 362 (Gaudron J).
In Barton v The Queen (1980) 147 CLR 75 (Barton v The Queen) at 111, Wilson J observed that an unfair trial will occur where there “is a fundamental defect which goes to the root of the trial, of such a nature that nothing that the trial judge can do in the conduct of the trial can relieve against its unfair consequences’”.
Gleeson CJ also observed in Nudd v The Queen [2006] HCA 9; 225 ALR 161 at [6] that an unfair trial may arise “if there has been a failure to observe the conditions which are essential to a satisfactory trial and, as a result, it appears unjust or unsafe to allow a conviction to stand”.
Section 21(1) of the Human Rights Act protects the right to fair trial in terms drawn from art 14 of the ICCPR and mirroring, in substance, art 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (also referred to as the European Convention on Human Rights).
It is appropriate at this juncture to set out ss 21 and 22 of the Human Rights Act. Section 21 of the Human Rights Act provides as follows:
21 Fair trial
(1)Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
(2)However, the press and public may be excluded from all or part of a trial—
(a)to protect morals, public order or national security in a democratic society; or
(b)if the interest of the private lives of the parties require the exclusion; or
(c)if, and to the extent that, the exclusion is strictly necessary, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice.
(3)But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public.
Section 22 of the Human Rights Act states the following:
22Rights in criminal proceedings
(1)Everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
(2)Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:
(a)to be told promptly and in detail, in a language that he or she understands, about the nature and reason for the charge;
(b)to have adequate time and facilities to prepare his or her defence and to communicate with lawyers or advisors chosen by him or her;
(c)to be tried without unreasonable delay;
(d)to be tried in person, and to defend himself or herself personally, or through legal assistance chosen by him or her;
(e)to be told, if he or she does not have legal assistance, about the right to legal assistance chosen by him or her;
(f)to have legal assistance provided to him or her, if the interests of justice require that the assistance be provided, and to have the legal assistance provided without payment if he or she cannot afford to pay for the assistance;
(g)to examine prosecution witnesses, or have them examined, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as prosecution witnesses;
(h)to have the free assistance of an interpreter if he or she cannot understand or speak the language used in court;
(i)not to be compelled to testify against himself or herself or to confess guilt.
(3)A child who is charged with a criminal offence has the right to a procedure that takes account of the child’s age and the desirability of promoting the child’s rehabilitation.
(4)Anyone convicted of a criminal offence has the right to have the conviction and sentence reviewed by a higher court in accordance with law.
In broad terms, the procedural rights in criminal proceedings set out in s 22(2) of the Human Rights Act form a subset of the overarching substantive right contained in s 21 of the Human Rights Act. If the procedural rights of an accused are met this will, in the ordinary course of a proceeding, also ensure that the right to a fair trial is satisfied.
Section 22(2) of the Human Rights Act does, however, serve more particular aims or objectives than the overarching right in s 21.
The Court’s overarching capacity to control its process and procedures assists the Court in remedying or ameliorating any procedural gaps.
Australian courts have acknowledged that the right to a fair trial extends beyond the rights of the accused to include the interests of the community.
In Barton v The Queen at 101, Gibbs CJ and Mason J observed “we must have regard to the interests of the Crown acting on behalf of the community as well as to the interests of the accused”.
In Dietrich v The Queen at 335, Deane J endorsed the above statement from Barton v The Queen stating that “in determining the practical content of the requirement that a criminal trial be fair”, regard must be had “to the interests of the Crown acting on behalf of the community as well as the interests of the accused”.
Further, in Jago v District Court of New South Wales (1989) 168 CLR 23 at 33, Mason CJ stated:
The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial… At the same time, it should not be overlooked that the community expects trials to be fair.
(citations omitted)
This longstanding Australian approach is consistent with the United Kingdom’s more recent formulation of the right to a fair trial as a “triangulation of interests”: Attorney General’s Reference (No 3 of 1999) [2001] 2 AC 91 at 118 (Attorney General’s Reference (No 3 of 1999)).
The Human Rights Act was considered in the Explanatory Statement for the EMP Bill. At 9-10, the Explanatory Statement addressed s 22(2)(g) of the Human Rights Act:
The provisions also limit the right to examine witnesses. At the ground rules hearing, a court may make a range of directions about how a witness can be questioned and what they can and cannot be asked. In addition, the intermediary may ask questions in certain ways.
The purpose of the limitations is to ensure witnesses are able to give their best evidence, which in turn, enhances the fairness of the trial. It also serves to reduce the trauma associated with giving evidence.
The provisions in the Bill are the least restrictive means possible to achieve this purpose. The Royal Commission considered a broad range of options for ensuring witnesses are able to give their best evidence in a manner that reduces the trauma associated with providing evidence. In its comprehensive assessment it considered that this purpose could not be adequately met without implementing ground rules hearings and an intermediary scheme. While implementation of these is necessary to achieve the purpose, the extent of the limitations have been restricted insofar as possible through the following:
The Court can make a direction at a ground rules hearing only where it considers it in the interests of justice to do so;
Intermediaries are independent officers of the Court who have a legislated duty to act impartially when assisting communication with the witness;
Evidence of a witness given in the presence of an intermediary must be given in circumstances in which the Court and any lawyer appearing in the proceeding are able to see and hear the witness giving evidence and communicate with the intermediary; and
The Court has a discretion to not appoint an intermediary where it is not in the interests of justice to do so.
These features serve to ensure that the least restrictive approach possible has been taken to allow witnesses to benefit from ground rules hearings and intermediaries, and consequently, enabling witnesses to provide their best evidence in a manner that reduces trauma.
(emphasis added)
The Explanatory Statement and presentation speech established that the Legislative Assembly considered that to the extent that the provisions would limit the right in s 22(2)(g) to examine prosecution witnesses, such limitation was appropriate as it was the least restrictive means possible to ensure that witnesses are able to give their best evidence.
It was submitted by the Human Rights Commissioner that the appointment of an intermediary does not affect the fairness of a trial or prevent an accused from receiving a fair trial. The Human Rights Commissioner submitted that the appointment of an intermediary will not undermine the fairness of a trial, where it occurs in accordance with the EMP Act and can ensure that vulnerable witnesses are treated fairly. In my view, the Court may ensure both outcomes by putting in place ground rules for the involvement of the intermediary at the ground rules hearing.
The Human Rights Commissioner submitted that the right to a fair hearing in s 21 is closely related to the right to equality before the law in s 8 of the Human Rights Act. In respect of the equivalent Victorian Charter of Human Rights provision, in Pham v Drakopoulos [2013] VSCA 43 at [65] the Victorian Court of Appeal observed that neither of these rights “focus on single issues, but rather consist of a complex set of rules and practices”. The rules and practices developed to ensure a fair hearing and equality before the law also facilitate the proper administration of justice.
Relevantly, in R v GZ [2012] ACTSC 183; 229 A Crim R 1 (R v GZ) at [31] Refshauge ACJ, as his Honour then was, observed that:
[T]he Court bears the responsibility of controlling proceedings and ensuring that fairness to all, the accused, the witnesses, especially the complainant, the Crown, other litigants and the community is ensured and to preserve the integrity of the trial process.
This passage from R v GZ is consistent with the statement of the House of Lords in Attorney General’s Reference (No 3 of 1999) at 118 that a fair trial involves a “triangulation of interests” of taking into account the position of the accused, the victim, and the public: see also R v H [2004] 2 AC 134 at [12]-[13].
The “triangulation of interests” has been adopted by the Supreme Court of Victoria in Ragg v Magistrates’ Court of Victoria [2008] VSC 1 at [77] (Ragg v Magistrates’ Court of Victoria) when discussing the contents of the right to a fair trial under the Victorian Charter of Human Rights. Bell J stated at [77]:
The limits on the scope of the duty may be drawn out of the same well of fairness from which the duty itself comes. One eminent English judge, writing at different stages of his judicial career, has identified the two considerations to be balanced. On the one hand, “in our adversarial system, in which the police and prosecution control the investigatory process, an accused’s right to fair disclosure is an inseparable part of his right to a fair trial”. Those words were spoken by Steyn LJ in the Court of Appeal in R v Brown. As we have seen, that fundamental principle is the basis of the duty to disclose. On the other hand, the right to a fair trial is one aspect of the administration of criminal justice, whose principal objective is the protection of society. As was said by Lord Steyn in the House of Lords in Attorney General’s Reference (No 3 of 1999):
The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.
…
(citations omitted)
The Human Rights Commissioner submitted that the assessment of what s 21 of the Human Rights Act requires for a fair hearing also involves the same triangulation of interests.
The Human Rights Commissioner made further reference to alternative procedures that are utilised for vulnerable witnesses. In R v Lubemba [2014] EWCA Crim 2064 at [45] the England and Wales Court of Appeal observed:
It is now generally accepted that if justice is to be done to the vulnerable witness and also to the accused, a radical departure from the traditional style of advocacy will be necessary. Advocates must adapt to the witness, not the other way round. They cannot insist upon any supposed right “to put one’s case” or previous inconsistent statements to a vulnerable witness. If there is a right to “put one’s case” (about which we have our doubts) it must be modified for young or vulnerable witnesses. It is perfectly possible to ensure the jury are made aware of the defence case and of significant inconsistencies without intimidation or distressing a witness.
(emphasis added)
In Le Brocq v The Liverpool Crown Court [2019] EWCA Crim 1398 at [63] the England and Wales Court of Appeal confirmed that it is improper to imply to a jury that an accused’s defence has been “emasculated” by rules designed to protect vulnerable witnesses from a form of cross-examination that is intimidating and confusing.
The use of intermediaries has been considered by the South African Courts. In DPP v Minister of Justice [2009] ZACC 8 at [168], the South African Constitutional Court that the use of intermediaries actually goes to ensuring that the accused receives a fair trial:
As pointed out earlier, questioning a child requires a special skill. Not many judicial officers have this skill, although there are some who, over the years and because of their constant contact with child witnesses, have developed a particular skill in questioning children. This illustrates the importance of using intermediaries where young children are called upon to testify. They have particular skills in questioning and communicating with children. Counsel for the Centre for Child Law and Childline was quite correct when, in her reply, she submitted that everything seems to turn upon the need for intermediaries when young children testify in court. Properly trained intermediaries are key to ensuring the fairness of the trial. Their integrity and skill will be vital in ensuring both that innocent people are not wrongly convicted and that guilty people are properly held to account.
(emphasis added)
In R v BNS [2016] ACTSC 51 (R v BNS), Refshauge J dealt with rules that allow the cross examination of a witness by video link. At [15] his Honour observed:
…s 22 of the Human Rights Act 2004 (ACT) does not, in terms, require that an accused have the right to confront his or her accuser but establishes the right to have prosecution witnesses examined.
The right in s 22 of the Human Rights Act does not, in terms, require that an accused have the right to cross-examine without the presence of an intermediary. Section 22(2)(g) specifically requires that an accused be able to “examine prosecution witnesses” and to call witnesses “under the same conditions as prosecution witnesses”. The intermediary provisions contained within the EMP Act do not prevent an accused from examining the relevant witness and the provisions apply to both prosecution and defence witnesses.
It is appropriate to make reference to authorities derived from the European Court of Human Rights, which have considered the equivalent right to s 22(2)(g) of the Human Rights Act: Schatschaschwili v Germany (European Court of Human Rights, Application No 9154/10, 15 December 2015); Al-Khawaja and Tahery v the United Kingdom (European Court of Human Rights, Applications Nos 26766/05 and 22228/060, 15 December 2011); Aigner v Austria (European Court of Human Rights, Application No 28328/03, 10 May 2012). The case law derived from the European Court of Human rights demonstrates that the appointment of an intermediary does not affect the overall fairness of a trial in light of the safeguards that accompany their appointment. Further, the appointment of an intermediary can assist in ensuring that vulnerable witnesses are treated fairly. If there are particular features of the use of an intermediary that might result in unfairness to an accused in any particular case, the Court is able to ensure the trial is fair for all participants through the mechanism of the ground rules hearing.
The accused has raised the question of the application of s 22(2)(g) of the Human Rights Act. It is not necessarily obvious from the matters relied upon by the accused how the right in s 22(2)(g) is limited.
Notwithstanding that, it is proper to determine the content of the right.
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights: s 30 Human Rights Act. The High Court indicated in Momcilovic v The Queen at [18], [50]-[51] (French CJ), [170]-[171] (Gummow J), [565]-[566] (Crennan and Kiefel JJ) and [684] (Bell J) in relation to the equivalent provision in the Victorian Charter of Rights and Responsibilities 2006 (Vic), s 30 is an ordinary rule of statutory interpretation that refers to no more than the ordinary judicial task of statutory interpretation; that is, consideration of a provision’s terms, context, and purpose.
The varying distinctions between the judgments in Momcilovic were reconciled in a pragmatic manner by the Victorian Court of Appeal in Slaveski v Smith [2012] VSCA 25; 34 VR 206 at [20]-[24]. At [24] the Court stated:
…if the words of a statu[t]e are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human rights in question. Exceptionally, a court may depart from grammatical rules to give unusual or strained meaning to a provision if the grammatical construction would contradict the apparent purpose of the enactment. Even if, however, it is not otherwise possible to ensure that the enjoyment of the human right in question is not defeated or diminished, it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical the grammatical meaning and apparent purpose of the enactment.
As noted above, s 22 of the Human Rights Act mirrors, to a substantial extent, Article 14 of the ICCPR. The United Nations Human Rights Committee General Comment No 32, Article 14, Right to equality before courts and tribunals and to a fair trial (General Comment No 32) indicates that the equivalent right in the ICCPR is intended to ensure “an effective defence by the accused and their counsel and thus guarantee the accused the same legal powers of compelling the attendance of witnesses and of examining and cross-examining any witnesses as are available to the prosecution” as an application of the principle of “equality of aims”: General Comment No 32 at [39].
The right does not, however, “provide an unlimited right of any witness requested by the accused or their counsel”: General Comment No 32 at [39]. Measures may be imposed which limit s 22(2)(g) “to protect vulnerable witnesses, as in the case of informers”: R v BNS at [15]-[17] (Refshauge J); see also: SN v Sweden (European Court of Human Rights, Application No 3420996, 2 October 2002) at [44], [47], [52]. Further s 22(2)(g) is properly characterised as a right that witnesses be examined in court, rather than a right of confrontation per se: R v Zuber [2010] ACTSC 107; 17 ACTR 1 at [54] (Refshauge J) citing R v Horncastle [2010] 2 AC 373.
In my view, the appointment of an intermediary does not engage the right in s 22(2)(g) of the Human Rights Act because:
(a) The ability of an accused person to call witnesses in their case is not affected;
(b) The ability of an accused person, or their legal representative, to cross-examine a witness is not limited by the appointment of an intermediary. The role of the intermediary is primarily to communicate to the Court the communication needs of the witness; and
(c) To the extent the intermediary may be required to facilitate communication between the witness and lawyers appearing for the prosecution and defence during the course of examination and cross-examination, the same rules apply to both sides. Accordingly, there is no inherent prejudice or unfairness to an accused person caused by the appointment of an intermediary.
Section 22(2)(g) of the Human Rights Act protects the right of an accused to call witnesses in aid of their defence, and to examine, or have examined, witnesses called by the prosecution.
The appointment of an intermediary, in and of itself, does not engage the right in s 22(2)(g) because the appointment of an intermediary does not prevent the accused person from examining the witness on the same terms as the prosecution.
Accordingly, in my view, the appointment of an intermediary, in and of itself, cannot result in a breach of the right in s 22(2)(g) of the Human Rights Act.
Section 28
While the appointment of an intermediary in my view does not of itself engage the right in s 22(2)(g) of the Human Rights Act, it is theoretically possible that the making of a specific direction at a ground rules hearing held under s 4AB of the EMP Act, may engage, or indeed, limit this right.
The matters which must be considered by a Court in considering that issue and in determining the reasonableness of any limit are set out in s 28(2) of the Human Rights Act, namely;
(a) The nature of the right affected;
(b) The importance of the purpose of the limitation;
(c) The nature and extent of the limitation;
(d) The relationship between the limitation and its purpose; and
(e) Any less restrictive means reasonably available to achieve the purpose of the limitation.
The purpose of any limitation is to protect vulnerable persons when giving evidence and the restrictions will apply equally to both sides. Any supposed forensic advantage to the defence by, for example, inappropriate cross-examination may be the subject of control by the Court in any event. Relevantly s 41 of the Evidence Act 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)
At the time of the hearing of this application, a ground rules hearing had not been held. No specific directions had yet been made under s 4AF(1) of the EMP Act. Therefore, it is not possible to pre-emptively conclude that the accused’s right under s 22(2)(g) of the Human Rights Act will be limited by the making of any directions, nor whether those limitations are reasonable.
Section 30
Section 30 of the Human Rights Act provides that a Territory law must be interpreted in a way that is compatible with human rights, so far is possible to do so consistently with the purpose of the law. Section 30 of the Human Rights Act was wholly replaced in 2008. The Explanatory Statement for the Human Rights Amendment Bill 2007 (ACT) introducing the current s 30 stated:
Clause 5 replaces the existing interpretative provision in the Human Rights Act 2004. It clarifies the interaction between the interpretive rule and the purposive rule such that as far as it is possible a human rights consistent interpretation is to be taken to all provisions in Territory laws. This means that unless the law is intended to operate in a way that is inconsistent with the right in question, the interpretation that is most consistent with human rights must prevail. This is consistent with the Victorian approach contained in subsection 32(1) of the Charter of Human Rights and Responsibilities Act 2006.
The Explanatory Statement makes clear that s 30, like the equivalent provision of the Victorian Charter of Human Rights, is an interpretation provision. The Human Rights Commissioner submitted that the Explanatory Statement also suggests that s 30 will result in varying levels of consistency with human rights depending on the purpose of the particular legislation, and on what interpretations are available in any particular case.
In accordance with Momcilovic v The Queen at [51] (Kiefel J); [146], [170] (Gummow J with Hayne J agreeing at [280]), [545]-[546], [565], [574] (Crennan and Kiefel JJ) and [684] (Bell J) s 30 of the Human Rights Act should be applied as part of the ordinary interpretive process by:
(a) Considering interpretations available consistent with the ordinary principles of statutory construction; and
(b) Choosing the interpretation that is compatible, or “most consistent”, with human rights, unless the Court concludes that the section was intended to operate in a way that is inconsistent with the human rights in question.
This interpretive process as outlined by the High Court in Momcilovic v The Queen, and later applied by the Victorian Court of Appeal in Gebrehiwot v State of Victoria [2020] VSCA 315; 287 A Crim R 226, is the proper approach to be taken to the interpretation of the relevant provisions of the EMP Act using s 30 of the Human Rights Act. See also: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [78].
It must be said that the submissions of the Attorney-General and the Human Rights Commissioner were broadly aligned in this matter concerning generally s 4AK of the EMP Act and s 22(2)(g) of the Human Rights Act. Nevertheless, there was a nuanced distinction in the position as between the submissions of counsel for the Attorney-General and the submissions of the Human Rights Commissioner with respect to the relationship between ss 28 and 30 of the Human Rights Act.
In oral submissions, the Human Rights Commissioner (while underlining that there is no one “right way”) approached the interpretative process in s 30 of the Human Rights Act “slightly differently”. It was submitted that there is no “formal role” for the reasonable limits provision in s 28 in the manner submitted for counsel for the Attorney-General. The submission of the Human Rights Commissioner is that “reasonable limits are imported into s 30 by the words ‘so far as possible’”.
In Momcilovic v The Queen, French CJ, Crennan and Kiefel JJ held that the justification process in s 7 of the Victorian Charter of Human Rights, the equivalent of our s 28, does not inform the interpretive process. Gummow, Hayne and Bell JJ held that the equivalent of s 28 could inform the interpretive process under the equivalent of our s 30. In view of the singular approach adopted by Heydon J, there was no majority as to whether the equivalent of s 28 should be considered as part of the interpretative process under the equivalent of s 30.
Divining a ratio on this issue from the various judgments of the High Court is not without its difficulties: see Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc [2012] VSCA 91; 38 VR 569, in particular Nettle JA at [140]-[142] and Warren CJ and Cavanough AJA at [27]-[29].
Varying approaches have been adopted in this jurisdiction concerning the interpretive process and the relationship between ss 28 and 30: see R v Fearnside [2009] ACTCA 3; 3 ACTLR 25; Re Application for Bail by Islam; Andrews v Thomson; Islam v Director-General, Department of Justice and Community Safety Directorate [2018] ACTSC 322.[3]
[3] See also: Scott Calnan, ‘Codification and Innovation in the Queensland Human Rights Act: Have Human Rights Been Furthered?’ (2020) 26 James Cook University Law Review 141.
The view that s 28 is to be considered after a statutory provision has been interpreted in accordance with s 30 carries considerable force. Nevertheless, in my view, nothing turns on this particular distinction in this case.
Further Human Rights Jurisprudence
The Human Rights Commissioner submitted that in addition to ss 21 and 22(2)(g), ss 8 and 11(2) of the Human Rights Act are also relevant to the use of intermediaries for criminal trials and to the interpretation to the provisions of the EMP Act. Those sections may be summarised as follows:
(a) Section 8 which provides for equality before the law, enjoyment of human rights without discrimination and the equal protection of the law from discrimination (the equality right).
(b) Section 11(2) provides that every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind (rights of the child).
The right to equality
Section 8 of the Human Rights Act is worded similarly to s 8 of the Victorian Charter of Human Rights includes a further subsection expressly dealing with positive discrimination.
However some care must be taken when applying the Victorian case law on s 8 of the Victorian Charter of Human Rights because the word “discrimination” in that section is confined by the definition of “discrimination” in the Equal Opportunity Act 2010 (Vic). It was submitted by the Human Rights Commissioner that the same did not apply to the Human Rights Act provision.
The Victorian jurisprudence makes it clear that the principle of equality reflected in the equivalent of s 8 of the Victorian Charter of Human Rights is concerned with both formal and substantive equality and may require differential treatment of persons whose situations are relevantly different. In Victoria Police Toll Enforcement v Taha [2013] VSCA 37; 49 VR 1 at [210] Tate JA observed:
The second limb of s 8(3) protects substantive equality, one that accommodates difference. This is a principle of equality that recognises that uniformity of treatment between different persons may not be appropriate or adequate but that disadvantaged or vulnerable persons may need to be treated differently to ensure they are treated equally.
The Victorian Supreme Court has also held that the Victorian Charter of Human Rights equality right requires courts to make reasonable adjustments to its procedures to ensure that all parties are able to effectively participate in a hearing: Matsoukatidou v Yarra Ranges Council [2017] VSC 61; 51 VR 624 at [108].
The Human Rights Commissioner also referred to the right of equality in the Victorian Charter of Human Rights as a requirement that the state of Victoria establishes special mechanisms, by way of legislative scheme addressing the special needs of particular parts of the community. Reference was made to Cemino v Cannon [2018] VSC 535; 56 VR 480 at [143] where the Supreme Court of Victoria considered that the Koori Court was a measure to address discrimination and promote the right in s 8(3).
The Human Rights Commissioner submitted that the appointment of an intermediary for children and people who have difficulty communicating in the criminal justice context protects and promotes the right to equality in s 8 of the Human Rights Act by making reasonable adjustments to the court processes to allow them to effectively communicate and participate in the proceedings on an equal basis with others who do not have that disability. Although the equal participation principles have traditionally been applied to the parties to a proceeding, the Human Rights Commissioner submitted that it is consistent with the recognition that non-parties also have a legitimate interest in the proper functioning of the justice system. It is also consistent with recognising that some non-parties may require assistance in their engagement with the justice system so as to participate equally, consistent with s 8 of the Human Rights Act.
The rights of children to protection
The Human Rights Commissioner made reference to Australia being a signatory to the Convention on the Rights of the Child. It was submitted that Courts considering the contents of the rights of the child ought to be informed by the United Nations Convention: Certain Children v Minister for Families and Children [2016] VSC 769; 51 VR 473 at [146].
The Committee on the Rights of the Child observed:
A child cannot be heard effectively where the environment is intimidating, hostile, insensitive or inappropriate for her or his age. Proceedings must be both accessible and child-appropriate. Particular attention needs to be paid to the provision and delivery of child-friendly information, adequate support for self-advocacy, appropriately trained staff, design of court rooms, clothing of judges and lawyers, sight screens, and separate waiting rooms.
It was submitted that the rights of the child pursuant to s 11(2) of the Human Rights Act requires special procedures to be adopted in court proceedings involving child witnesses The Human Rights Commissioner also addressed the special needs of child defendants and accused young people, which has been given close consideration in the Australian jurisprudence: DPP v SL [2016] VSC 714; 263 A Crim R 193 at [12]. It was submitted that the rights of a child complainant to protection from intimidation by adults during the court process are the same as those of a child defendant, noting that both types of witness are likely to be key witnesses in any hearing. Reference was also made to R v YL [2004] ACTSC 115; 187 FLR 84 where Crispin J declined to grant an order compelling a seven year old child complainant to attend for cross examination because it would have limited the rights of that child under s 11(2) of the Human Rights Act.
The Human Rights Commissioner submitted that the appointment of an intermediary for children in the criminal justice context would protect and promote the bests interests of the child as outlined in s 11(2) of the Human Rights Act, by making reasonable adjustments to the court processes to allow them to effectively participate without avoidable intimidation, humiliation, and distress.
The additional submissions made by the Human Rights Commission in relation to ss 8 and 11 of the Human Rights Act carry some considerable force and have been set out above for completeness. Nevertheless, the question concerning s 22(2)(g) can be determined without recourse to ss 8 and 11 of the Human Rights Act.
Conclusion
The answers to the key issues are as follows:
· Is the appointment of an intermediary pursuant to s 4AK limited to circumstances where the prescribed witness has a “communication difficulty”?
Answer: No. This is discussed at paragraphs [37] to [53] of this judgment.
· What is the meaning of “the interests of justice” for the purpose of s 4AK of the EMP Act? In the current matter is it “not in the interests of justice” to appoint an intermediary for the complainant?
Answer: the accused has not established that it is “not in the interests of justice” to appoint an intermediary for the complainant. “The interests of justice” is discussed at paragraphs [54] to [61].
· What is a “communication difficulty” for the purpose of Chapter 1B of the EMP Act?
Answer: the legislature has not used terms such as “disability” or “impairment”. It is a phrase of wider import than a medically diagnosed disability or impairment. The meaning of “communication difficulty” under s 4AK is discussed at paragraphs [62] to [72].
· If a construction of the legislation requires its consideration, does the evidence establish whether the complainant has a “communication difficulty”?
Answer: It is not correct to import a requirement that a “prescribed witness” must have a “communication difficulty” under s 4AK. Nevertheless, in this case the complainant does have a “communication difficulty” on the evidence and an intermediary could have been appointed under s 4AJ. This is discussed at [73] to [79].
· Does s 4AK of the EMP Act breach or limit the content of the right in s 22(2)(g) of the Human Rights Act?
Answer: Section 4AK does not breach or limit s 22(2)(g) of the Human Rights Act. This is discussed at [97] to [130].
· Does the appointment of an intermediary otherwise affect an accused person’s right to a fair trial?
Answer: No, the appointment of an intermediary does not affect an accused’s right to a fair trial in and of itself. This is discussed at [93] to [130].
· If a right of an accused is limited by the appointment of an intermediary for a prescribed witness without a “communication difficulty”, is it a reasonable limit pursuant to s 28 of the Human Rights Act?
Answer: Section 22(2)(g) is not engaged. No recommendations or directions had been made at the time of hearing of this application. This is discussed at [131]-[144].
Orders
On 18 December 2020, I made the following orders:
(a) Under s 4AK of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), the Court appoints an intermediary for the complainant as a prescribed witness.
(b) The accused’s application in proceeding dated 28 May 2020 is dismissed.
| I certify that the preceding one hundred and fifty-eight [158] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson J Associate: Rhiannon McGlinn Date: 1 October 2021 |
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