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 Crimes Act 1900 (ACT) ss 55, 61, 66 Criminal Code 2002 (ACT) s 702 Equal Opportunity Act 2010 (Vic) Evidence (Miscellaneous Provisions) Act 1991 (ACT) chs 1A and 1B, ss 4AB, 4AD, 4AE, 4AF, 4AI, 4AJ, 4AK, 4AM, 41, 42, 47, 48, 49 Evidence (Miscellaneous Provisions) Amendment Act 2019 (ACT) Evidence (Miscellaneous Provisions) Regulation 2009 (ACT) reg 3B Evidence Act 2011 (ACT) ss 26, 29, 41 Human Rights Act 2004 (ACT) pt 3, ss 8, 11, 21, 22, 28, 30, 31, 35, 36 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Legislation Act 2001 (ACT) ss 132, 142, dictionary
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v QX (No 2) [2021] ACTSC 244
Case
[2021] ACTSC 244
Decision Date
CaseChat Overview and Summary
The case of R v QX (No 2) is a decision of the Supreme Court of the Australian Capital Territory, delivered on 1 October 2021. The case involved an application by the accused, QX, to not appoint an intermediary for the complainant, a child, in a sexual offence proceeding. The court was required to determine whether the appointment of an intermediary for a prescribed witness must be limited to cases where the prescribed witness has a "communication difficulty" and whether the appointment of an intermediary would breach or limit the accused's right to a fair trial. The court found that the appointment of an intermediary was not limited to cases where the prescribed witness has a "communication difficulty" and that the appointment of an intermediary did not breach or limit the accused's right to a fair trial. The court ultimately ordered the appointment of an intermediary for the complainant, dismissing the accused's application.