R v QX (No 6)
[2021] ACTSC 248
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v QX (No 6) |
Citation: | [2021] ACTSC 248 |
Hearing Date: | 13 August 2021 |
Submissions Last Received: | 17 August 2021 |
DecisionDate: | 6 October 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [53] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Ground Rules Hearing – intermediary appointed for “prescribed witness” – consideration of intermediary report and recommendations – directions made pursuant to s 4AF Evidence (Miscellaneous Provisions) Act 1991 (ACT) |
Legislation Cited: | Crimes Act 1900 (ACT) s 55, 61, 66 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 4AA, 4AB, 4AC, 4AD, 4AE, 4AF, 4AK, 4AM, 4A, 42 |
Cases Cited: | R v QX (No 2) [2021] ACTSC 244 R v QX [2021] ACTSC 187 Ward (a pseudonym) v The Queen [2017] VSCA 37; 54 VR 68 |
Texts Cited: | John Henry Wigmore, Evidence in Trials at Common Law (Little, Brown and Company, 3rd ed, 1974) vol 5 |
Parties: | The Queen (Crown) QX ( Accused) |
Representation: | Counsel S Jerome ( Crown) J Pappas ( Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Accused) | |
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 pursuant to s 4AK of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act): R v QX (No 2) [2021] ACTSC 244 (R v QX (No 2)). The complainant is a “prescribed witness” within the meaning of reg 3B(1)(a) of the Evidence (Miscellaneous Provisions) Regulation 2009 (ACT) and s 42(c) of the EMP Act. On 3 June 2021, the Registrar directed that a ground rules hearing be held for the complainant pursuant to s 4AB(2) of the EMP Act on 13 August 2021. The ground rules hearing proceeded before me on that day and parties provided written submissions thereafter. I reserved my decision as to the directions to be made pursuant to s 4AF of the EMP Act. Orders and reasons now follow.
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:
(a) 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);
(b) 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
(c) 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
Chapter 1A of the EMP Act establishes the regime for ground rules hearings in criminal proceedings. It was established by the Evidence (Miscellaneous Provisions) Amendment Act 2019 (ACT). The definition of a “ground rules hearing” is contained within s 4AA of the EMP Act as follows:
4AADefinitions—ch 1A
In this chapter:
ground rules hearing means a hearing for a witness in a criminal proceeding, where the court—
(a)considers the communication, support or other needs of the witness; and
(b)decides how the proceeding must be conducted to fairly and effectively meet those needs.
Subsequent to my ordering of the appointment of an intermediary for the complainant, the Registrar directed that a ground rules hearing be held for the complainant pursuant to s 4AB(2) of the EMP Act. Section 4AB relevantly provides:
4ABDirection to hold ground rules hearing
(1)A court may, at any time, if satisfied that it is in the interests of justice, direct that a ground rules hearing be held for a witness in a criminal proceeding.
(2)However, if an intermediary is appointed for a witness in a criminal proceeding, the court must direct that a ground rules hearing be held for the witness.
(3)The court may make a direction—
(a)on its own initiative; or
(b)on the application of—
(i)the DPP; or
(ii)the witness; or
(iii)the accused person.
(4)An application may be made orally or in writing.
Where a Court directs that a ground rules hearing is to be held for a witness in a criminal hearing, the ground rules hearing must be held prior to the witness giving evidence in the proceeding. However, the Court may extend the time for holding a ground rules hearing if the Court considers that it is in the interests of justice to do so: s 4AC EMP Act.
Section 4AD sets out who must attend a ground rules hearing:
4ADGround rules hearings—who must attend
(1)The following people must attend a ground rules hearing for a witness in a criminal proceeding:
(a)the DPP;
(b)the lawyer representing the accused person or, if the accused person is not represented by a lawyer in the proceeding, the accused person;
(c)any intermediary appointed for the witness.
(2)The witness is not required to attend a ground rules hearing.
(3)If an intermediary is appointed for the witness, the court may make an order that the witness not attend a ground rules hearing.
Section 4AE establishes that if an intermediary is appointed for a witness before a ground rules hearing, the intermediary must prepare a written report about the communication needs of the witness and give the report to the court before a ground rules hearing.
Section 4AF provides for the directions that the Court may make at a ground rules hearing if the Court considers it in the interests of justice:
4AFGround rules hearings—directions
(1)At a ground rules hearing for a witness in a criminal proceeding, the court may make any direction the court considers is in the interests of justice, including any of the following:
(a)a direction about how a witness may be questioned;
(b)a direction about how long a witness may be questioned;
(c)a direction about the questions that may or may not be asked of a witness;
(d)if there is more than 1 accused—a direction about the allocation among the accused of the topics about which a witness may be asked;
(e)a direction about the use of models, plans, body maps or other aids to help communicate a question or an answer;
(f)a direction about the use of a support animal by the witness;
(g)a direction that if a party intends to give evidence that contradicts or challenges the evidence of a witness or that otherwise discredits a witness, the party is not obliged to put that evidence in its entirety to the witness in cross-examination.
(2)If an intermediary’s report has been given to the court under section 4AE, the court must consider the matters mentioned in the report in making the direction.
Chapter 1B of the EMP Act establishes the regime for the appointment of intermediaries and the functions of intermediaries when appointed for a witness in a criminal proceeding. Section 4AM sets out the requirements of what must occur when the witness who the Court has appointed an intermediary for gives evidence in the proceeding. It provides as follows:
4AMWitness to give evidence in presence of intermediary
(1)If a court appoints an intermediary for a witness in a criminal proceeding, the witness must give their evidence in the presence of the intermediary.
(2)Evidence of a witness given in the presence of an intermediary must be given in circumstances in which—
(a)the court and any lawyer appearing in the proceeding are able to—
(i)see and hear the witness giving evidence; and
(ii)communicate with the intermediary; and
(b)the jury (if any) is able to see and hear the witness giving evidence, including any assistance given by the intermediary.
NoteA person must take an oath or make an affirmation before acting as an intermediary in a proceeding (see Evidence Act 2011, s 22).
(3)If the proceeding is a trial by jury, the court must tell the jury that—
(a)a witness giving evidence in the presence of an intermediary is a usual practice; and
(b)the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the intermediary is present.
(4)An order that the court be closed to the public does not stop an intermediary for a witness being in court while the witness gives evidence.
Chapter 2 of the EMP Act deals with the evidence of children. Section 4A states:
4APrinciples for dealing with child witnesses
The following general principles apply when dealing with a child witness in a proceeding:
(a)the child must be treated with dignity, respect and compassion;
(b)measures should be taken to limit, to the greatest practical extent, the distress and trauma suffered by the child when giving evidence;
(c)the child should not be intimidated in cross-examination;
(d)the proceeding should be resolved as quickly as possible.
(emphasis added)
It is important in this context to set out s 41 of the Evidence Act 2011 (ACT) (Evidence Act). Section 41 provides:
41Improper questions
(1)The court must disallow a question put to a witness in cross‑examination, or tell the witness that it need not be answered, if the court is of the opinion that the question (a disallowable question)—
(a)is misleading or confusing; or
(b)is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or
(c)is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or
(d)has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).
(2)Without limiting the matters the court may take into account for subsection (1), it must take into account—
(a)any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and
(b)any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and
(c)the context in which the question is put, including—
(i)the nature of the proceeding; and
(ii)in a criminal proceeding—the nature of the offence to which the proceeding relates; and
(iii)the relationship (if any) between the witness and any other party to the proceeding.
(3)A question is not a disallowable question only because—
(a)the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or
(b)the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.
(4)A party may object to a question put to a witness on the ground that it is a disallowable question.
(5)However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.
(6)A failure by the court to disallow a question under this section, or to tell the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.
NoteA person must not, without the express permission of the court, print or publish any question that the court has disallowed under this section (see s 195).
(emphasis added)
The Intermediary Report
Ms Sarah Cocco is the intermediary appointed for the complainant in this matter (the intermediary). The intermediary prepared an intermediary report dated 13 July 2021 (the intermediary report) pursuant to s 4AE of the EMP Act. The report was received by the Court and provided to the parties prior to the ground rules hearing.
The intermediary report makes recommendations as to adjustments to enable the best communication with the complainant when she is to give evidence.
On 5 July 2021, the intermediary spent approximately one hour conducting a communication assessment with the complainant. At the time of the assessment, the complainant was 17 years of age. The complainant’s mother, GM, and a friend were present for the entirety of the assessment. The intermediary’s assessment was based on spoken conversation, questioning, and engagement in tasks.
On 7 July 2021, the intermediary also viewed approximately 45 minutes of an evidence in chief interview conducted with the complainant by police on 18 June 2019. At the time of this interview, the complainant was 15 years of age. The total length of that evidence in chief interview was 114 minutes. It is important to note at this juncture that the complainant in this matter has partaken in eight evidence in chief interviews spanning from 17 June 2019 to 9 April 2020. The evidence in chief interview viewed by the intermediary is the second evidence in chief interview that the complainant has participated in. It will be referred to as the second evidence in chief interview throughout this judgment.
The intermediary observed that during the second evidence in chief interview, the complainant appeared to maintain focus on questioning and answered all questions asked of her. The intermediary noted that as she did not view the second evidence in chief interview in its entirety, she was not aware if the complainant requested or took any breaks during parts of the interview that was not viewed. The complainant was able to follow dialogue and demonstrate an understanding of open and closed question forms, a diverse range of prepositions and pronouns, the concepts of “first” and “last”, as well as “before” and after”. The complainant was able to describe events in order from beginning to end, ask for clarification from the interviewing officer if she did not understand questions, provide descriptions and narratives, elaborate on her responses, refuse information she believed was incorrect, and identify emotions.
During the portion of the second evidence in chief interview viewed, the complainant used ‘vagina’ and ‘dick’ to identify body parts. The intermediary notes in the intermediary report that as she did not watch the interview in its entirety or the remaining interviews, she acknowledged that the complainant may have made further reference to different body parts.
At the commencement of the communication assessment, the complainant had advised the intermediary that she was eager to complete the assessment in totality without a break. The complainant did not request or take a break. The intermediary report notes that the complainant regularly shifted her physical positioning in her chair in the latter part of the assessment (from approximately 50 minutes onward) and she appeared visibly fatigued at the end of the assessment.
The intermediary advised the complainant each time a new activity would commence, when an activity had concluded, and when her comprehension was being assessed (signposting). The intermediary report notes that the complainant demonstrated the ability to follow questions and task requests when signposting was used. It was also noted that the complainant initially presented with lowered eye contact during the assessment. However, this did not impact upon the complainant’s ability to follow instructions.
The intermediary assessed the complainant’s understanding of non-literal language and idioms. The intermediary report notes that the complainant was familiar with some idioms but unfamiliar with others. The complainant was able to follow concrete, contextual commands containing up to four elements in an instruction when a slow speaking pace was used by the intermediary. However, when commands were given at a rapid rate, the complainant required increased processing and response time and was unable to follow commands containing two to four elements in an instruction. The complainant also provided inconsistent responses to tag questions and required increased time to process and respond to questions posed in that form, even when the content was well known to her. The complainant was able to use “agree” or “disagree” to answer questions that required an affirmative or negative response.
The complainant was able to independently read aloud from a written passage suitable for adults which was five short paragraphs in length. The complainant was then able to provide a summary of the messages of the written passage and recall straightforward facts from the passage. The complainant also advised during the assessment that she is confident in her writing ability.
The intermediary referral provided to the ACT Intermediary Program prior to the assessment indicated that the complainant has attention deficit hyperactivity disorder, post-traumatic stress disorder, anxiety, and emotional dysregulation for which she is prescribed and takes regular medication. The complainant stated during the assessment that she was worried about giving evidence and expressed concern that her ability to communicate may be impacted by stress and anxiety in court. During the assessment the complainant advised that she would be assisted in verbalising the need for a break during her evidence by having access to a visual communication aid to indicate if she needs a break. It was noted that the complainant fidgeted with a distractor item both in the second evidence in chief interview and the assessment.
The intermediary report contained the following recommendations at 4.2 for questioning:
Questioning Recommendation Advice for Questioner Rationale 1. For the complainant to have a short break at least every 50 minutes, with the possibility of additional breaks if necessary. The intermediary can provide advice about the precise length of break required. The complainant may require breaks to avoid fatigue, and in the event she begins to display signs of stress or anxiety when communicating at court. 2. Signposting topics and question forms during questioning. Say, ‘[BM], now I am going to talk to you about…’
Alert the complainant to propositional questions before they are asked and the required responses (agree or disagree) to be used to affirm or disaffirm information.
This will assist the complainant to remain focused on the topic of questioning and transition to new topics of questioning and question forms. 3. Parties should state their name prior to the commencement of their questioning. For example, say ‘[BM], it is Ms/ Mr X talking now’. The complainant will be clear about who is speaking with her. 4. Avoid use of figurative language and idioms. Do not use terms such as, ‘hit it off’ or ‘ring a bell’. The complainant may resort to literal understanding. 5. Ask one question containing one idea at a time, avoiding multi-part questions and preamble. For example, ask, ‘what time did you get to school on Wednesday?’ rather than, ‘when you went to school on Wednesday, what time did you get there and who was there when you arrived?’. The complainant may experience difficulty processing complicated or lengthy questions in a court context. 6. Ask questions at a slow speaking pace and pause between questions. Ask questions at a slow pace to allow the complainant time to process the information and ensure a clear pause is taken between questions. The complainant requires extra time to process spoken language, especially when under stress. 7. Avoid use of ‘tag’ questions. Instead of saying, ‘you left the room, didn’t you?’, say ‘did you leave the room?’. Tag questions are linguistically complex, can cause confusion and increase the possibility of unintentional inaccurate responses.
8. To put an argument, use a short, simple statement followed by the question, ‘do you agree or disagree?’ For example, say, ‘you went to the zoo yesterday. Do you agree or disagree?’
The complainant is able to provide a response when an argument is presented in a short statement followed by a question which requires her to affirm or disaffirm her statement. 9. For the complainant to be able to utilise ‘agree’ and ‘disagree’ visual communication aids when answering propositional questions.
The intermediary can arrange for ‘agree’ and ‘disagree’ cards to be available for the complainant.
The complainant can point and refer to these aids as required, which may assist her provision of verbal responses.
10. If references to clock time are required during questioning, use digital time and include ‘AM’ or ‘PM’. For example, say, ‘4:50pm’ rather than ‘ten minutes to five’.
The complainant’s understanding of timelines and events in a court context will be aided. 11. Use references to the complainant’s routine or events of significance, if required.
Link time/events to the complainant’s daily routine (for example, mealtimes) or events of significance in her life (for example, birthdays or school holidays) should clarity be required regarding timelines during questioning.
The complainant was able to use references to her routine to clarify timelines during the evidence in chief interview and the assessment.
12. Avoid use of pronouns and other descriptors when identifying people or events and confirm who or what the complainant is referring to, if required.
Use people’s names during questioning and confirm with the complainant who or what she is referring to should she use pronouns or other descriptors.
The complainant will be clear about who or what is being referred to in questioning and her answers will be understood by the court. 13. Use the complainant’s own vocabulary for body parts during questioning and clarify her meaning of words for body parts where required.
The complainant used the following words for body parts during her evidence-in-chief interview: ‘vagina’ and ‘dick’.
The complainant will be clear about what is being asked.
14. For the complainant to be given a copy of her transcribed evidence-in-chief interview.
Offer the complainant a copy of her transcribed evidence-in-chief interview to follow along with during questioning, as appropriate.
The complainant’s recollection may be aided when answering questions. 15. References or quotations from the complainant’s transcribed evidence-in-chief interviews be limited in length.
Limit references or quotations to 3 sentences in length and use a slow speaking pace.
The complainant’s recollection may be aided when answering questions. 16. Drawing and writing materials should be available for the complainant during provision of her evidence.
The intermediary can arrange for the materials to be available for the complainant when she attends court to give her evidence and hold up documents to the camera as directed by the court.
This will assist the complainant to clarify any information she provides verbally during her evidence, via drawing or writing.
17. Remind the complainant of communication rules.
Parties should inform the complainant of any communication rules prior to and during questioning, such as using words to respond to questions rather than pointing or gesturing.
The complainant will be clear about communication expectations at court.
18. For the complainant to have access to a visual communication aid to indicate if she needs a break.
The intermediary can arrange for the break card to be available for the complainant, advise the court should the complainant use the communication aid at any time and request a break as needed.
This will assist the complainant to have additional ways to alert the court should she experience fatigue or feelings of stress or anxiety and require a break.
19. For the complainant to have access to a distractor item during questioning.
The intermediary can arrange for a distractor item to be available, as directed by the court.
A distractor item may assist the complainant to reduce feelings of stress and assist her focus. She utilised a distractor item throughout the assessment.
The intermediary report also contained further ‘other’ recommendations at 4.3:
(a) It is recommended the parties share their proposed draft questions with the intermediary to seek advice about the wording of questions in relation to the complainant’s communication needs;
(b) It is recommended the intermediary sit near the complainant at all times during her provision of evidence so as to assist and be visible to the court;
(c) It is recommended the intermediary raise their hand and say, ‘Your Honour’ to indicate that a communication need or issue has arisen for the complainant;
(d) It is recommended the complainant participate in a pre-hearing visit to court to practice using video-link facilities and ask questions she may have with regard to court processes
(e) It is recommended that a therapy dog from the ACT Canine Court Companion Program be present at court on the day/s the complainant is required for questioning.
Ground Rules Hearing
During the ground rules hearing, the intermediary was called by the prosecution to give evidence. The intermediary report was tendered during the intermediary’s evidence and became Exhibit 1 in the proceedings. The qualifications of the intermediary were accepted by counsel for the accused.
When asked by the prosecutor whether there was a reason that the second evidence in chief interview was not watched in its entirety, the intermediary stated that the intermediaries “only need to view as much of the interview as to inform the court report”. The intermediary also confirmed that she was advised that the complainant had participated in other evidence in chief interviews, although she was not certain of the exact details as to how many interviews there were in total.
In cross-examination, the intermediary was asked whether GM, the complainant’s mother, was in any involved or in any way informed the completion of the communication assessment with the complainant. The intermediary stated that she had asked GM not to answer any questions on behalf of the complainant nor intervene, and that she did not speak to GM prior to or after the communication assessment to inform the report.
During the course of cross-examination, the intermediary produced her handwritten contemporaneous notes taken during the communication assessment. The notes became Exhibit 3 in the proceedings.
Counsel for the accused asked the intermediary how she had determined that watching 45 minutes of the second evidence in chief interview was sufficient. The intermediary gave evidence that she watched that portion as she had made enough of an assessment to make particular observations of the complainant’s communication and would be able to make a recommendation in terms of facilitating effective communication. The intermediary was then provided an affidavit of the instructing prosecutor Ms Tahlia Drumgold affirmed on 21 June 2021 which contained the transcripts of all eight evidence in chief interviews, which became Exhibit 2 in the proceedings.
Counsel for the accused proceeded to take the intermediary to discrete aspects of the various evidence in chief interview transcripts in reliance of submitting that the interviews pointed away from the assistance that the intermediary report suggested the complainant requires. The intermediary continually noted that she was not in a position to comment on the portions of the second evidence in chief interview she had not seen, nor the remaining interviews that she had also not viewed. The intermediary also continually stated that she could not comment on a transcript itself, in light of not having viewed the relevant interview. Counsel for the accused asked the intermediary whether she was being “deliberately evasive”. The intermediary reiterated that the questions were difficult for her to answer and that the intermediary report is largely based off of the communication assessment because it was conducted more recently.
In reference to the recommendation as to using ‘AM’ and ‘PM’ time, counsel for the accused stated that being prevented from asking the complainant about time in military time, such as 0700 instead of 7AM was likely to impede the way in which the complainant was cross-examined. The intermediary stated that consistency should be preferred throughout the cross-examination.
Counsel for the accused continued to refer the intermediary to the various evidence in chief interview transcripts. Counsel for the prosecution objected noting that the intermediary had stated on numerous occasions during her evidence that her comments were limited to what the transcript reads as she has not seen the recording of the interviews themselves and could not comment beyond that. Counsel for the accused proceeded to refer the intermediary to points across the transcripts and The intermediary continued to state that she could not comment as she had not viewed the recordings.
In re-examination, the intermediary was asked by counsel for the prosecution if the time lapse between the second evidence in chief interview in 2019 and the communication assessment had any bearing on the recommendations. The intermediary confirmed that she placed more weight on the assessment because it happens closer to the point in time of a ground rules hearing than does the evidence in chief interview.
After the intermediary was excused, the parties indicated that they wished to provide written submissions and have the directions to be made pursuant to s 4AF of the EMP Act determined on the papers.
Submissions
Prosecution Submissions
Counsel for the prosecution sought for the recommendations at 4.2 and 4.3 of the intermediary report to be ordered by the Court pursuant to s 4AF of the EMP Act. It was submitted that counsel for the accused had not articulated sufficient reasons for the Court to reject the recommendations made by the intermediary.
It was submitted that the recommendations at 4.2 and 4.3 were made to ensure that the best evidence can be given by the complainant, who is a prescribed witness. Counsel for the prosecution noted that the complainant lives with severe mental health conditions and has a medication regime.
Counsel noted that this Court had previously heard evidence about the complainant’s mental health conditions and significantly adverse impacts that these proceeding have had on the complainant already: see R v QX (No 2). It was noted that the estimate for the cross-examination of the complainant will occur over a number of days. Counsel submitted that it is in the interests of justice for the complainant to give her best evidence consistently during cross-examination.
The prosecution submitted that the complainant is a particularly vulnerable young woman and that communication measures ought to be put in place to ensure that her vulnerabilities are not exploited or triggered during evidence. It was submitted that if a particular recommendation was to become too burdensome for counsel during the pre-trial hearing, the Court or intermediary ought to be consulted at that point. Consideration of that issue could be given at such a juncture.
Accused Submissions
Counsel for the accused submitted that most of the recommendations contained within the intermediary report either “do not accord with common sense” or a fair reading of the content of the transcripts of the eight evidence in chief interviews. It was submitted that the Court should not give more weight to the intermediary’s assessment in July 2021 than to the complainant’s demonstrated capacity to understand questions and respond to questions in a police interview situation over an extended period two years previously.
It was submitted that in light of the complainant being almost two years older, the expectation would be that the complainant was a more mature and articulate individual at the time of the assessment. Counsel submitted that it was contrary to common sense for the intermediary to afford less weight to the complainant’s comprehension and verbal acuity during the 45 minutes of the second evidence in chief interview she watched. It was submitted that the complainant’s performance in the evidence in chief interviews strongly suggest that many of the recommendations in the intermediary report were unnecessary in the interests of justice. Counsel was also critical of the intermediary being aware that further evidence in chief interviews existed but that she did not view the further interviews nor make enquiries as to the duration or nature of its contents.
Counsel submitted that the intermediary’s inability in cross-examination to comment on the complainant’s responses during the evidence in chief interviews demonstrated an ineffective review of the complainant’s prior evidence. It was submitted that notwithstanding counsel directing the intermediary to points of transcripts containing tagged questions, compound and complex questions, seeking clarification, and ability to give sophisticated responses, all without confusion or difficulty, the intermediary had been unable to say whether the complainant’s responses were indicative of her ability to respond to such questions.
It was submitted that Exhibit 3, the contemporaneous notes, demonstrated that the assessment was of a “superficial nature”. Counsel emphasised that the testing that was undertaken during the assessment should not be given preference over a proper analysis of the complainant’s performance when interviewed by police. Counsel noted that Exhibit 3 informed the Court that during the assessment the complainant was able to provide detailed answers conveying multiple ideas by a combination of multiple sentences and that the complainant did not use a communication aid to convey the fact that she did not know the answer.
Counsel for the accused took particular issue with recommendation 7 in 4.2, the avoidance of tag questions. Counsel submitted that the tag questions used in the assessment were artificial. It was submitted that as the intermediary was unable to identify a tagged question in the 45 minutes of the second evidence in chief interview she had viewed, the Court should have pause in accepting recommendation 7 and the other recommendations that the accused took issue with.
Counsel submitted that it is not the function of an intermediary to anticipate the degree of stress which a particular witness might experience whilst giving evidence and to make recommendations based on that perception. It was submitted that the recommendations in the intermediary report went beyond those legitimately required to address any communication difficulty.
Counsel emphasised the performance of the complainant during the eight evidence in chief interviews with police. It was submitted that the interviews are more likely predictive of her performance in court than the assessment with the intermediary. Reference was made to the associated stress of having multiple officers present and recording equipment running in submitting that the interview setting is more akin to court than the assessment process.
Consideration and Rulings
The intermediary addressed the recommendations in 4.2 in a table. Counsel for the accused also addressed the recommendations in a table. Therefore, it is convenient for the Court to address the recommendations in 4.2 in a table. The following table is divided into three parts. The first column contains the recommendation and if the recommendation is opposed by the accused, the rationale from the intermediary report is also included. The second column contains the accused’s response to the recommendation. The third column contains the Court ruling on the recommendation where it is not agreed to by the accused.
Questioning Recommendation and Rationale for Matters Not Agreed Accused Response Court Ruling 1. For the complainant to have a short break at least every 50 minutes, with the possibility of additional breaks if necessary. The accused does not oppose this recommendation, subject to the court's control over the frequency of breaks and the editing of the recorded evidence to exclude any request for a break; the break itself or any exchange on resumption after a break conveying that the break has occurred. Not opposed by the accused and it is an appropriate recommendation from the Court’s perspective. 2. Signposting topics and question forms during questioning.
This will assist the complainant to remain focused on the topic of questioning and transition to new topics of questioning and question forms.
This recommendation is opposed as the accused submits it is completely unnecessary. The evidence in chief interview transcripts indicate the complainant answered very many and varied questions by police without the assistance of “signposting” and, further, that she was willing and obviously able to seek clarification both during the evidence in chief interviews and, in fact, during the assessment.
In the Court’s view, the recommendation concerning signposting is soundly based and forensically useful. 3. Parties should state their name prior to the commencement of their questioning. The accused took no objection to this recommendation. Not opposed by the accused and it is an appropriate recommendation from the Court’s perspective.
Questioning Recommendation and Rationale for Matters Not Agreed Accused Response Court Ruling 4. Avoid use of figurative language and idioms.
The complainant may resort to literal understanding.
It was submitted that the complainant had a demonstrated ready willingness to seek clarification, rendering this recommendation unnecessary. Counsel noted an idiom was included in an evidence in chief interview where the complainant corrected the officer’s misconception about who “broke the news” to her about a particular matter. Avoiding the use of figurative language and idioms does not cause prejudice to the accused. From the Court’s perspective nothing is lost from not using figurative language. It is more precise not to use such language. 5. Ask one question containing one idea at a time, avoiding multi-part questions and preamble.
The complainant may experience difficulty processing complicated or lengthy questions in a court context.
This recommendation was also submitted to be unnecessary. Counsel noted that the complainant had been able to answer multi-part questions during the evidence in chief interviews. It was submitted that the complainant was able to answer these questions and also displayed the ability to defer answering one part before returning to answer it later on.
Counsel instead relied on ss 26, 29 and 41 of the Evidence Act to correct any perceived unfairness in the manner of questioning. It was submitted this a matter that ought to be left to the trial judge.
The recommendation has considerable force. Nevertheless this recommendation itself counts within it a number of different concepts that in this context is best left to the trial Judge and the application of s 41 of the Evidence Act, particularly (1)(a) which requires the Court to disallow questions that are misleading or confusing.
Additionally, it is noted that a preamble can serve as a signpost.
6. Ask questions at a slow speaking pace and pause between questions.
The complainant requires extra time to process spoken language, especially when under stress.
Counsel opposed this recommendation and submitted that the pace of questioning cannot be mandated by a direction. It was noted that a slow speaking pace is subjective and ought to be controlled pursuant to ss 26, 29 and 41 of the Evidence Act.
In the Court’s view this recommendation is appropriate. It is not prejudicial to the accused. It is advisable in court proceedings not to speak quickly. This is a common sense recommendation. Questioning Recommendation and Rationale for Matters Not Agreed Accused Response Court Ruling 7. Avoid use of ‘tag’ questions.
Tag questions are linguistically complex, can cause confusion and increase the possibility of unintentional inaccurate responses.
Counsel also submitted that a direction on this issue is unnecessary. It was submitted that any perceived issue could be rectified by the complainant’s demonstrated willingness to seek clarification. In the Court’s view, tag questions can be confusing and are best avoided if possible. There is no demonstrated prejudice in avoiding insofar as possible. If it cannot be avoided, flexibility from Court and counsel is required. This is an appropriate recommendation. 8. To put an argument, use a short, simple statement followed by the question, ‘do you agree or disagree?’
The complainant is able to provide a response when an argument is presented in a short statement followed by a question which requires her to affirm or disaffirm her statement.
Counsel opposed this recommendation and submitted there was no basis for the recommendation to be made. Counsel asserted that the recommendation appears to be a “gratuitous addition”.
In the Court’s view this is a forensically useful recommendation and soundly based. Questioning Recommendation and Rationale for Matters Not Agreed
Accused Response Court Ruling 9. For the complainant to be able to utilise ‘agree’ and ‘disagree’ visual communication aids when answering propositional questions.
The complainant can point and refer to these aids as required, which may assist her provision of verbal responses
Counsel opposed this recommendation and submitted it was unnecessary, as well as potentially significantly prejudicial.
The notion that the complainant requires so- called “visual communication aids” when responding to propositions is a nonsense. The Intermediary’s notes suggest that she had no difficulty responding without aids and she certainly demonstrated no difficulty during any of the evidence in chief interviews when she was two years younger.
To allow the use of so-called “visual communication aids” would not be in the interests of justice as their use would invariably, in the case of an adult witness (as she will be in late October), convey to a jury some level of intellectual disability and thus colour, artificially, the jury's perception of her performance under cross-examination and, perhaps, cause the jury to react emotionally in favour of the complainant and against the accused.
In the Court’s view this recommendation should not be proceeded with. It is not forensically useful in this case. Questioning Recommendation and Rationale for Matters Not Agreed
Accused Response
Court Ruling
10. If references to clock time are required during questioning, use digital time and include ‘AM’ or ‘PM’.
The complainant’s understanding of timelines and events in a court context will be aided.
These recommendations were dealt with simultaneously by counsel for the accused. Both were opposed as it was submitted they were unnecessary and not adequately assessed during the assessment process. Counsel submitted there was no support for this recommendation.
In the Court’s view it is useful to refer to ‘AM’ or ‘PM’.
11. Use references to the complainant’s routine or events of significance, if required.
The complainant was able to use references to her routine to clarify timelines during the evidence in chief interview and the assessment.
This recommendation is appropriate but in the Court’s view flexibility will be required in the implementation of this recommendation, which is indicated by the rider in the recommendation “if required”. 12. Avoid use of pronouns and other descriptors when identifying people or events and confirm who or what the complainant is referring to, if required.
The complainant will be clear about who or what is being referred to in questioning and her answers will be understood by the court.
Counsel opposed the need to avoid the use of pronouns altogether and submitted to do so would be unnecessarily restrictive. It was agreed that counsel would first identify the person by name but that thereafter, he should be free to refer to the relevant person as ‘he’ or ‘she’. It was submitted that if the complainant had difficulty, she would be able to seek clarification.
In the Court’s view the approach outlined by counsel of identifying the name first and then proceeding with pronouns is a sensible course. The recommendation need not be applied in an artificial manner.
13. Use the complainant’s own vocabulary for body parts during questioning and clarify her meaning of words for body parts where required.
The complainant will be clear about what is being asked.
It was submitted that this recommendation was unnecessary and could not be supported as the intermediary had only viewed 45 minutes of the second evidence in chief interviews. Counsel also noted that the complainant was not asked during the assessment process whether she understood other terms for those body parts.
In the Court’s view this recommendation is forensically sensible and not prejudicial.
Questioning Recommendation and Rationale for Matters Not Agreed Accused Response Court Ruling 14. For the complainant to be given a copy of her transcribed evidence-in-chief interview.
This recommendation was agreed to.
Agreed by the accused and it is an appropriate recommendation from the Court’s perspective. 15. References or quotations from the complainant’s transcribed evidence-in-chief interviews be limited in length.
The complainant’s recollection may be aided when answering questions.
Counsel submitted that this recommendation was unnecessary in light of recommendation 14. It was submitted that this was a proper matter for the trial judge and the application of ss 26, 29 and 41 of the Evidence Act.
From the Court’s perspective, this recommendation is unnecessary in light of the acceptance by the accused of recommendation 14. 16. Drawing and writing materials should be available for the complainant during provision of her evidence.
This recommendation was agreed to.
Agreed by the accused and an appropriate recommendation from the Court’s perspective. 17. Remind the complainant of communication rules.
This recommendation was not opposed.
Not opposed by the accused and an appropriate recommendation from the Court’s perspective.
18. For the complainant to have access to a visual communication aid to indicate if she needs a break.
This will assist the complainant to have additional ways to alert the court should she experience fatigue or feelings of stress or anxiety and require a break.
It was submitted that this recommendation was unnecessary and potentially prejudicial. Counsel noted that the complainant did not exhibit any incapacity to request a break during the evidence in chief interviews.
In the Court’s view a visual communication aid is not demonstrably necessary. 19. For the complainant to have access to a distractor item during questioning.
This recommendation was not opposed.
Not opposed by the accused and an appropriate recommendation from the Court’s perspective.
Counsel for the accused addressed the additional recommendations in 4.3 as follows:
Other Recommendations Accused Response Court Ruling (a) It is recommended the parties share their proposed draft questions with the intermediary to seek advice about the wording of questions in relation to the complainant’s communication needs. Counsel for the accused opposed this recommendation and submitted it was unnecessary and highly restrictive of an overly complex process. In the Court’s view, the sharing of proposed draft questions should not be mandatory. (b) It is recommended the intermediary sit near the complainant at all times during her provision of evidence so as to assist and be visible to the court. This recommendation was not opposed by the accused. However, counsel for the accused stated the intermediary is not captured on the recording of the complainant’s pre-trial evidence. No issue was taken as to where the intermediary sits relative to the complainant. The Court notes s 4AM(2)(b) of the EMP Act which provides that where a witness gives evidence in the presence of the intermediary, the jury must able to see and hear the witness giving evidence, including any assistance given by the intermediary. (c) It is recommended the intermediary raise their hand and say, ‘Your Honour’ to indicate that a communication need or issue has arisen for the complainant. Counsel did not object to this recommendation, as along as any gesture and any words accompanying the gesture are subsequently edited out of the recorded evidence of the pre-trial hearing. See 4AM(2)(b) of the EMP Act as outlined above. (d) It is recommended the complainant participate in a pre-hearing visit to court to practice using video-link facilities and ask questions she may have with regard to court processes. This recommendation was not opposed by the accused. In the Court’s view this is an appropriate recommendation. (e) It is recommended that a therapy dog from the ACT Canine Court Companion Program be present at court on the day/s the complainant is required for questioning. This recommendation was not opposed by the accused. In the Court’s view this is an appropriate recommendation. It is noted that currently due to COVID-19 restrictions a dog may not be available.
Conclusion
It has often been stated that cross-examination is the engine of truth.[1] Nevertheless, the engine of truth can be fine-tuned. The engine of truth may be brought into the 21st century without any compromise as to its effectiveness. This is true for both the questioning by counsel for the prosecution and questioning by counsel for the accused.
[1] John Henry Wigmore, Evidence in Trials at Common Law (Little, Brown and Company, 3rd ed, 1974) vol 5, 32:
Not even the abuses, the mishandlings, and the puerilities which are so often found associated with cross-examination have availed to nullify its value. It may be that in more than one sense it takes the place in our system which torture occupied in the mediaeval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented for the discovery of truth. However difficult it may be for the layman, the scientist, or the foreign jurist to appreciate this its wonderful power, there has probably never been a moment’s doubt upon this point in the mind of a lawyer with experience. “You can do anything,” said Wendell Phillips, “with a bayonet – except sit upon it”. A lawyer can do anything with a cross-examination – if he is skilful enough not to impale his own cause upon it.
It is useful at this juncture to note Ward (a pseudonym) v The Queen [2017] VSCA 37; 54 VR 68. This case discussed intermediaries and ground rules hearings in other jurisdictions at [104]-[108]. The following passages from Maxwell P and Redlich JA in at [11], [12] and [16] address the cross-examination of a child complainant:
The first challenge is to formulate questions which are age-appropriate. This is necessary as a matter of basic fairness to the child witness, so that he or she can understand the questions and respond. But it is equally important in the interests of the accused.
…
The second challenge is that, so far as practicable in the circumstances, the child witness must be given the opportunity to say whether something they have said, and which the accused disputes, is true. This is the obligation of fairness to which expression is given in the rule in Browne v Dunn.
…
We also refer to the obligation of the trial judge to ensure that the cross-examination is fair to the witness, and to the powers available for that purpose under ss 41 and 42 of the Evidence Act 2008. The judge’s overriding obligation, of course, is to ensure that the accused is not exposed to the risk of an unfair trial.
(citations omitted)
Finally, therefore, it is important to underline that the Court, through the ground rules hearing, must strive to ensure that witnesses are able to give their best evidence, while at the same time ensuring a fair trial to the accused.
Orders
Pursuant to s 4AF of the EMP Act, I make the following directions for the complainant’s pre-trial hearing:
1. The complainant should have a short break during the pre-trial hearing at least every 50 minutes, with the possibility of additional breaks if necessary.
2. Counsel are to signpost topics to the complainant.
3. Counsel should state their name prior to the commencement of their questioning.
4. Counsel are to avoid use of figurative language and idioms.
5. Counsel are to ask questions at a slow speaking pace and pause between questions.
6. Counsel are to avoid the use of ‘tag’ questions.
7.To put an argument, counsel are to use a short, simple statement followed by the question, ‘do you agree or disagree?’
8. If references to clock time are required during questioning, counsel are to use digital time and include ‘AM’ or ‘PM’.
9. Counsel are to use references to the complainant’s routine or events of significance, if required.
10. Counsel must first identify a person by name to the complainant but are then able to use pronouns to refer to the relevant person as ‘he’ or ‘she’.
11. Counsel are to use the complainant’s own vocabulary for body parts during questioning and clarify her meaning of words for body parts where required.
12. The complainant is to be given a copy of the transcript of each of her eight evidence in chief interviews.
13. Drawing and writing materials should be available for the complainant during provision of her evidence.
14. The Judge presiding over the pre-trial hearing and counsel may remind the complainant of communication rules if necessary. That is, verbalising responses rather than nodding, pointing, or gesturing.
15. The complainant is to have access to a distractor item during questioning.
16. The intermediary, Ms Sarah Cocco, is to sit near the complainant at all times during her provision of evidence so as to assist and be visible to the court.
17. The intermediary is to raise their hand and say, ‘Your Honour’ to indicate that a communication need or issue has arisen for the complainant.
18. It is recommended that the complainant participate in a pre-hearing visit to court to practice using video-link facilities and ask questions she may have with regard to court processes.
19. A therapy dog from the ACT Canine Court Companion Program be present at court on the days the complainant is required for questioning, if available.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 6 October 2021 |
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