R v Smith

[2022] ACTSC 12

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Smith
Citation:	[2022] ACTSC 12
Hearing Date:	2 February 2022
Decision Date:	2 February 2022
Before:	Mossop J
Decision:	See [7]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Ground rules hearing – consideration of intermediary report and recommendations – directions made as
to manner of questioning the complainant
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 4AB(2), 4AJ(1) Crimes Act 1900 (ACT), ss 24, 30, 34, 54(1), 60(1)
Cases Cited:	Browne v Dunn (1893) 6 R 67
Parties:	The Queen (Crown)
Mark Smith (Accused)
Representation:	Counsel
A Chatterton (Crown)
S McLaughlin (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Numbers:	SCC 177 of 2021
SCC 178 of 2021
MOSSOP J:
Introduction

1. On 26 November 2021, pursuant to s 4AJ(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), the court ordered the appointment of an intermediary for the complainant, SH. The Court also directed that a ground rules hearing be held for SH pursuant to s 4AB(2) of the Evidence (Miscellaneous Provisions) Act. The ground rules hearing proceeded before me today.

2.    By way of background, the accused, Mark Smith, is charged with the following offences:

(a)	two counts of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT);
(b)	one count of threat to kill, contrary to s 30 of the Crimes Act;
(c)	one count of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act;
(d)	one count of act of indecency without consent, contrary to s 60(1) of the Crimes Act; and
(e)	one count of forcible confinement, contrary to s 34 of the Crimes Act.

These offences are alleged to have been committed against SH on or about 10 January
2021.

3.   Ms Natalie Billings is the intermediary appointed for SH. Ms Billings prepared an intermediary report dated 10 January 2022. The report makes recommendations as to the adjustments and questioning techniques that will best support SH in giving her evidence for the purposes of the trial of the accused.

4.   The Crown sought that I make directions consistent with the recommendations of the intermediary report. Counsel for the accused objected to the recommendation against the use of tag questions. This objection was put on the basis that the recommendation for the use of non-tag questions is a routine one and there was no specifically expressed difficulty for SH in answering tag questions. Counsel for the accused submitted that the approach that should be adopted was not a blanket prohibition on tag questions but rather consideration on a question-by-question basis as to whether a proposition was unduly confusing.

Consideration

5.    In my view, it is generally appropriate to make orders or directions consistent with [4.2] and [4.3] of the report of Ms Billings, subject to certain variations. I do not accept the submission which was put in relation to tag questions. There was no basis for challenge to the expertise of the witness in relation to tag questions. The fact that a recommendation against tag questions is a routine one does not demonstrate that it is an inaccurate or inappropriate one.

6.   In my view, competent counsel can properly formulate questions consistent with their obligations to their client, including the obligation to put matters for Browne v Dunn (1893) 6 R 67 purposes quite readily if they put sufficient time and effort into the formulation of the questions. The requirement for some additional time and effort on the part of cross-examining counsel is a cost that needs to be incurred in order to ensure fair and appropriate questioning of a witness with a communication difficulty.

Orders

7.    The directions that I will make are as follows:

1.       I direct that the witness [SH] be questioned in a manner consistent with the recommendations in column 1 of the table in paragraph 4.2 of the report of Natalie Billings dated 10 January 2022, subject to the following:

(a)	The recommendation 2 on page 15 does not preclude the witness being referred to as 'Madam' or ['Ms H'].
(b)	The last recommendation on page 15 [being the recommendation to remind the witness of the communication rules] is a recommendation to be implemented by the witness intermediary in the first instance and not a mandatory obligation upon counsel.

2.       I direct that the intermediary be permitted to sit next to the witness during her evidence to assist and be visible to the court.

3.       I direct that the intermediary raises her hand and says 'Your Honour' to indicate that a communication need or issue has arisen for the witness.

4.       I direct that the Director of Public Prosecutions provide an opportunity for the witness to participate in a pre-hearing visit to the court to practice using video facilities and ask questions she may have relating to court processes.

5.       I direct that the parties are encouraged but not required to seek advice from the witness intermediary about the wording of questions to be put to the witness having regard to her communication needs.

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 31 March 2022