Yates (a pseudonym) v The Queen
[2021] VSCA 190
•29 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0048
| ARNOLD YATES (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To prevent any risk of prejudice in the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGE: | PRIEST, SIFRIS and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 June 2021 |
| DATE OF JUDGMENT: | 29 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 190 |
| JUDGMENT APPEALED FROM: | [2021] VCC 530; [2021] VCC 425 (Judge Cannon) |
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CRIMINAL LAW — Interlocutory appeal — Application for review of refusal to certify — Complainant with intellectual disability — Whether judge erred in finding complainant competent to give unsworn evidence — Application for review refused — Evidence Act 2008 ss 12 and 13 — Seymour (a pseudonym) v The Queen [2020] VSCA 113; Gray v The Queen [2020] NSWCCA 240 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr R Nathwani and Ms J Willard | Sarah Pratt & Associates |
| For the Respondent: | Mr C B Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
SIFRIS JA
KENNEDY JA:
Introduction
On 22 February 2021, the applicant pleaded not guilty in the County Court pre-empanelment to aggravated burglary (charge 1), rape (charges 2 and 3) and sexual assault (charge 4).
The prosecution alleges that on 27 August 2019 the applicant vaginally and anally raped the female complainant, ‘HK’, with his penis, and sexually assaulted her by grabbing her breast, having unlawfully entered her bedroom. HK’s account of the alleged offending is contained in a VARE[2] interview conducted by police on 28 August 2019 in the presence of an intermediary.[3]
[2]Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367 (‘CPA’); and Criminal Procedure Regulations 2020, pt 2.
[3]See CPA, s 389I; and Criminal Procedure Regulations 2020, reg 6.
HK was aged 21 years at the time of the alleged offending.[4] She has an intellectual disability, her intellectual capacity being equivalent to a child of about seven years of age. At the time of the alleged offending she was under the care of her aunt, ‘LD’, and her cousin, ‘HC’.
[4]She was born in early 1998.
For present purposes, it is unnecessary to set out in much detail the case that the prosecution will seek to make at trial. It is enough to say that the prosecution will allege that, at about 7.30 pm on 27 August 2019, HK was in bed when the applicant placed a chair outside her bedroom window and used it to climb in. The applicant then removed HK’s pyjama pants and underwear, pulled down his own pants and penetrated HK’s vagina with his penis. HK also alleged that the applicant penetrated her ‘bottom’ with his penis and grabbed her breast. As the applicant was penetrating HK, LD came into the bedroom to tell HK to turn her music down. LD saw the applicant on top of HK ‘moving up and down on her’.
Very early the next morning, on 28 August 2019 between 12.49 am and 3.54 am, Dr Raymun Ghumman, a forensic medical officer, examined HK and observed a ‘tender, actively bleeding 0.5 cm triangular laceration … on the posterior fourchette, immediately to the left of the midline’ of HK’s vagina. Dr Ghumman said that the ‘laceration on the posterior fourchette was caused by penetration of a blunt instrument or body part such as a penis or similar object’, and that such an injury ‘may occur after either consensual or assaultive vaginal penetration’. Blunt trauma, she said, ‘refers to a mechanism of injury caused by forcible contact with an object or surface that does not have a sharp, cutting edge’.
The applicant does not dispute that he penetrated HK vaginally with his penis. His ‘defence’ is that the sex was consensual. When interviewed by police on 31 August 2019, he said that it was HK’s idea that he climb through her window. He asserted that he had asked for, and received, HK’s permission prior to penetrating her. The prosecution case is that HK did not consent to any sexual act or acts. Nor did the applicant reasonably believe that there was consent.
In relation to the proposed trial, an issue arose as to HK’s competence to give evidence — including under cross-examination — at a special hearing.[5] HK’s VARE will be admissible at the special hearing only if she ‘attests to the truthfulness of [its] contents’ and ‘is available for cross-examination and re-examination’.[6]
[5]See CPA, s 370.
[6]CPA, s 368(1)(c).
By a ruling dated 19 April 2021, a judge of the County Court held that HK was not competent to give sworn or affirmed evidence, but found that she was competent to give unsworn evidence (‘the ruling’ or ‘the interlocutory decision’).
Subsequently, on 23 April 2021, the judge declined to certify under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’) (‘the certification decision’).
Pursuant to s 296 of the CPA, the applicant seeks to review the judge’s certification decision; and, if successful in that application, seeks leave to appeal against the interlocutory decision, relying on a ground that contends that the judge ‘erred in ruling that the complainant was competent to give unsworn evidence’.
For the reasons that follow, we would refuse the application to review the judge’s certification decision.
The legislative regime governing the applications in this Court
So far as the present applications are concerned, s 295(2) of the CPA provides that a party to a proceeding in the County Court for the prosecution of an indictable offence may only appeal to the Court of Appeal against an interlocutory decision by leave. If, as in the instant case, the interlocutory decision concerns the admissibility of evidence, s 295(3)(a) provides that a party may not seek leave to appeal unless the judge who made the interlocutory decision certifies (among other things) ‘that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case’.
If the judge refuses to certify under s 295(3), s 296 provides a mechanism by which the party who requested certification may apply for a review of that decision. On such a review, s 296(4) requires the Court to ’consider the matters referred to in section 295(3)’; and ’if satisfied as required by section 297, [the Court] may give the applicant leave to appeal against the interlocutory decision’.
Section 297 allows the Court to give leave if ‘satisfied that it is in the interests of justice to do so’ having regard to several enumerated criteria, including whether the determination of the appeal against the interlocutory decision may ‘resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial’ or ‘reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial’, and ‘any other matter that the court considers relevant’.
Background
As we have indicated, on 22 February 2021 the applicant was arraigned before a judge in the County Court. Pursuant to s 198 of the CPA, the judge then took evidence pre-trial from a number of witnesses, including: Dr Raymun Ghumman, the forensic medical officer who had conducted a forensic medical examination of HK on 27 August 2019;[7] Dr Lorraine Robb, HK’s former treating psychiatrist, who said that HK suffered from schizophrenia, and had ‘a cognitive age of approximately seven years’; and Detective Leading Senior Constable Stephen Harvey, the informant.
[7]See [5] above.
The next day, 23 February 2021, the judge conducted a ‘ground rules’ hearing,[8] in the course of which she received evidence from an intermediary, Janet Wilson, including a report prepared by Ms Wilson dated 5 February 2021 (Exhibit A). In the course of her evidence, Ms Wilson was asked (among other things) to address a number of issues that had been raised by Dr Evrim March, a neuropsychologist, in a report dated 21 January 2021, and to provide ‘strategies or techniques’ that would best enable the court to deal with HK’s ‘ability to understand truth and the concept of telling the truth’.
[8]See CPA, pt 8.2A.
We pause to note that the prosecution had commissioned the report from Dr March (which became Exhibit B). Among other things, Dr March expressed the following opinions:
33 Premorbid intellect was estimated to fall within the extremely low range based on account of educational attainment and attendance to disability school. Current overall level of intellect fell comfortably within the extremely low level (Full scale IQ = 51; 0.1st %le; 95% confidence intervals = extremely low range); this level is within the moderate intellectual disability level (i.e., Full Scale IQ of 69 and below).
…
54 In my opinion, [HK] does not have the ability to understand the concept of truth at a level that would be required by the Court. I am not convinced that she has the ability to know the difference between telling the truth vs lying. Further, cognitively, [HK] is unable to discriminate if she is providing correct vs incorrect information. She appears to form fixed ideas and devise explanations of events, and then stick to these.
55 Even with very concrete illustration of the term ‘truth’, if she were to understand it at a basic level, [HK] will be unable to apply it in practice. Her poor memory and very concrete thinking result in forming the stories that make most sense to her. She has her own way of understanding the world, and if an idea is soothing or helpful for her, she appears to stick to it ...
56 It is my opinion that [HK] does not have the capacity to deal with cross-examination. Any evidence obtained from her, given the passage of time since the alleged incident (27/8/2019), will likely be unreliable. I also consider that [HK] is highly suggestible, and unable to discriminate irrelevant information. She is likely to endorse yes/no questions with relative ease, and she will be unaware of doing so.
On 24 February 2021, the judge took further evidence under s 198 of the CPA from Detective Senior Constable Jodie Donegan, who had commenced the initial crime-scene investigation. Having done so, the judge next conducted a competence hearing — to determine ‘whether the complainant is competent to give evidence at all, and if competent to give evidence, whether it should be sworn or unsworn’ — in the course of which she directed a number of questions to HK (who had the assistance of the intermediary, Janet Wilson). The judge then entertained brief submissions on the issue of HK’s competence to give evidence, before resolving to adjourn the matter for further hearing. She indicated that she would view the VARE in the interim.
By the time the matter came back before her on 19 March 2021, the judge had received written submissions concerning HK’s competence from the prosecutor and from the applicant’s counsel. Both counsel also made oral submissions.
The prosecutor submitted that HK was competent to give sworn evidence. Acknowledging the opinion of Dr March, the prosecutor submitted that it ‘is just one piece of evidence to be considered’. Ultimately, the prosecutor submitted ‘that the complainant’s evidence of the 24 February 2021, should satisfy the Court of the complainant’s competence’.
On the other hand, counsel for the applicant — placing substantial reliance on the report of Dr March — contended that HK was not competent to give evidence. Counsel submitted that the presumption of competency was rebutted. HK was not competent to give evidence, whether sworn or unsworn, due to the considerations set out in Dr March’s report. Alternatively, since HK is unable to tell the difference between the truth and a lie, and is unable to distinguish correct from incorrect information, she is incapable of giving sworn or affirmed evidence.
Further, the applicant’s counsel submitted that, pursuant to s 368(1)(c) of the CPA, HK’s VARE can only be played if she attests to the truthfulness of the VARE and is available for cross-examination and re-examination. Counsel submitted that HK will not be able to attest to the truthfulness of the VARE and objected to its tender. Moreover, Dr March’s report makes it plain that HK cannot be effectively cross-examined. Dr March made it clear that HK ‘does not have the capacity to deal with cross-examination’; that any evidence obtained from her ‘will likely be unreliable’; and that she is ‘unable to discriminate irrelevant information’. HK therefore is not ‘available for cross-examination’ within the meaning of s 368(1)(c), thus rendering the VARE inadmissible.[9]
[9]R v NRC [1999] 3 VR 537, 551–2 [34] (Winneke P).
The ruling
By a ruling dated 19 April 2021, the judge determined that HK was not incompetent to give evidence, but was not competent to give sworn or affirmed evidence.
The judge had regard to various sources of evidence to determine the issue of competence, including: the neuropsychological report of Dr March; the intermediary assessment and recommendation report prepared by Janet Wilson; the ‘ground rules’ hearing; the VARE; the competence hearing on 24 February 2021; and other materials (including psychiatric reports).
After a comprehensive review of the opinions expressed in Dr March’s report, the judge said
it seems to me that Dr March has somewhat conflated the complainant’s capacity to understand questions and to intelligibly answer them with the reliability of the answers that the complainant might give.
The judge then discussed the findings in the intermediary assessment report, and the opinions of two psychiatrists.
Next, the judge turned to the VARE, about which she made the following observations:
The complainant was responsive to questions, even though her responses were tangential on a number of occasions. However, she was able to be understood, and with redirection was able to understand the questions she was being asked. She repeatedly gave some detail as to what she said had occurred at the time of the alleged offending, and she repeated other details which, as I understand it, are consistent with evidence from other sources. I note that from all reports the complainant’s mental health has deteriorated since the alleged offending; however, I thought it important to see how she responded at the time that she gave the VARE as part of my enquiry into her competence. It was evident that she did have the capacity to understand questions she was asked about the alleged offending, with a degree of redirection at times. Further, she had the capacity to answer questions in a way that could be understood.
The judge then discussed the evidence given in the ‘competency inquiry’ held on 24 February 2021, before canvassing the submissions made by both the prosecution and defence.
Ultimately, the judge observed:[10]
Having closely considered all of the relevant information and evidence to which I have previously referred, I am not satisfied on the balance of probabilities that the complainant lacks the competence to give evidence about a fact in either of the ways set out in s13(1)(a) and (b), especially in circumstances where she will have the assistance of an intermediary in giving her evidence. Although her answers at times are tangential and not responsive or may even be conflicting with other answers, in my view, she does have the capacity to understand a question and to intelligibly convey the answer — that is, the presumption as to her capacities in these respects have not been rebutted. Her capacity, in these respects, was especially evident in the enquiry that I conducted and in her VARE, albeit that she often needed redirection in respect of the matters she was being asked about. She also demonstrated this capacity, albeit in a somewhat limited way, in her dealings with the intermediary, and, as I have tried to point out earlier stages in this judgement, with some of the questions asked of her by Dr March — for example, the various illnesses from which she suffered, even if she was not entirely accurate about all of these. The point is that she was able to understand the question about this and to give an answer which could be understood.
...
The second question is whether the presumption of the complainant’s ability to give sworn evidence has been rebutted. From all of the information and evidence before me, I am satisfied on the balance of probabilities that the complainant does not have the capacity to understand that in giving evidence she is under an obligation to give truthful evidence. In my view, it is apparent from the materials, especially the neuropsychological report and the inquiry that I made of her, that she does not have the capacity to understand such an obligation. In that event, she may give unsworn evidence as long as the matters set out in sub-s (5) are explained to her. ...
Insofar as the submission made by defence that the VARE could not be admissible as it can only be played after the complainant identifies herself and attests to the truthfulness of the VARE and is available for cross-examination and re-examination, this is a separate question and relates to the admissibility of the VARE rather than competency of the witness to give sworn evidence. While I am satisfied that the complainant does not have the capacity to understand the obligation to tell the truth, this is not the same concept as her ability to tell the truth — the latter is relevant to her credibility and reliability not her competence to give evidence. For her VARE to be admissible, all that is required is that she attests to the truthfulness of the recording, in words that she would understand … Dr March’s assertion that she is unable to distinguish between truth and a lie does not mean that she could not attest to the truthfulness of the recording. I should say that the VARE recording and the inquiries that I have made of the complainant reveal an ability on her part to tell the difference in any event, especially if she is asked about things that she has actually experienced rather than hypothetical questions which she struggles with.
In any event, she is yet to be asked whether she attests to the truthfulness of the VARE, so this is a matter that need not be ruled on at this stage. The question of whether she can distinguish between a truth and a lie is ultimately a matter for the jury and may be a question going to her credibility and reliability but not to her competence or the admissibility of the VARE. It remains to be seen as to whether the complainant can be effectively cross-examined and re-examined but it would be premature at this stage to canvass such matters in my view.
[10]Emphasis added.
The certification decision
As we have indicated, upon receipt of the ruling the applicant’s counsel asked the judge to certify under s 295(3) of the CPA.
The judge accepted that in the absence of HK’s evidence the prosecution case ‘would be substantially weakened to the point that they may well not have a case’. She said that the ‘next consideration is whether I am of the view that my ruling is attended with sufficient doubt so as to warrant an appeal’,[11] then observed:
In view of the applicable principles in respect of competency as set out in my ruling, as contained in ss 12 and 13 of the Evidence Act 2008 and in keeping with the authority of R v GW [(2016) 258 CLR 108], and in view of the extensive enquiry and the analysis of the evidence and materials that I have conducted in the course of that ruling, I am satisfied that my decision is not attended with sufficient doubt so as to warrant certification for an interlocutory appeal. Therefore defence’s application for certification is refused.
[11]The judge cited: MA v The Queen (2011) 31 VR 203; McDonald v Director of Public Prosecutions (2010) 26 VR 242; and Wells v The Queen(No 2) [2010] VSCA 294.
Discussion
As we have indicated, the proposed ground of appeal is that the judge ‘erred in ruling that the complainant was competent to give unsworn evidence’. In oral submissions in this Court, counsel leading for the applicant submitted that
the point is fairly straightforward. It is simply this, that the evidence before the [County] Court was such that her Honour erred in concluding that the complainant was indeed capable and competent under the test under s 13 of the Evidence Act of providing unsworn evidence.
I say that in particular by reference to the neuropsychological assessment report of Dr March …
The starting point of any analysis in this case must be s 12 of the Evidence Act 2008 (‘the Act’), which provides that, except as otherwise provided by the Act, ‘every person is competent to give evidence’.
Competence is dealt with in s 13:
13 Competence—lack of capacity
(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability)—
(a) the person does not have the capacity to understand a question about the fact; or
(b) the person does not have the capacity to give an answer that can be understood to a question about the fact—
and that incapacity cannot be overcome.
Note
See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.
(2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.
(3) A person who is competent to give evidence about a fact is not competent to give sworn or affirmed evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
(4) A person who is not competent to give sworn or affirmed evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence or evidence that is not affirmed about the fact.
(5) A person who, because of subsection (3), is not competent to give sworn or affirmed evidence is competent to give unsworn evidence or evidence that is not affirmed if the court has told the person—
(a) that it is important to tell the truth; and
(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and
(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.
(6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
(7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.
(8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience.
The following may be drawn from s 13:
· first, it is presumed that a person is not incompetent to give evidence unless the contrary is proved;
· secondly, a person is not competent to give evidence about a ‘fact’ if for any reason — including, relevantly, a mental or intellectual disability — he or she does not have the capacity either to understand a question about ‘the fact’, or to give an answer that can be understood to a question about ‘the fact’ (and that incapacity cannot be overcome);
· thirdly, a person who is not competent to give evidence about ‘a fact’ may be competent to give evidence about ‘other facts’;
· fourthly, a person who is competent to give evidence about ‘a fact’ is not competent to give sworn or affirmed evidence about ‘the fact’ if he or she does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence;
· fifthly, a person who cannot understand that, in giving evidence, he or she is under an obligation to give truthful evidence, is nonetheless competent to give unsworn evidence (or evidence that is not affirmed) if the court has told the person that:
(a) it is important to tell the truth; and
(b) the person may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and
(c) the person may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue;
· sixthly, for the purposes of determining questions of competence under the section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on that person’s training, study or experience.
In Seymour, Kaye and Weinberg JJA explained the structure of s 13 as follows:[12]
The structure of s 13 is relevant to the correct construction of its provisions. Sub-section (1) is directed to the capacity of a person to understand a question about a particular fact, and to give a comprehensible answer to a question about that fact. Sub-section (3) is directed to a different issue, namely, the competence of a person to give sworn evidence, that is, evidence given under oath or affirmation. Sub-sections (4) and (5) provide that if a person is not competent to give sworn evidence, about a fact, that person may be competent to give unsworn evidence about that fact, provided that the three preconditions, specified in sub-section (5), have been complied with.
The presumption, contained in sub-section (6), that a person is not incompetent, applies both to sub-sections (1) and (3).[13] In determining whether a person has the requisite capacity, under either sub-section, that presumption is only displaced if the court is satisfied, on the balance of probabilities, that the witness lacks that particular capacity.[14]
[12]Seymour (a pseudonym) v The Queen [2020] VSCA 113, [47]–[48] (‘Seymour’) (citations as in original).
[13][GW v The Queen (2016) 258 CLR 108 (‘GW’)] 118 [14] (French CJ, Bell, Gageler, Keane and Nettle JJ); RJ v The Queen [2010] NSWCCA 263, [16] (Campbell JA, with whom Latham and Price JJ agreed) (‘RJ’).
[14]GW (2016) 258 CLR 108, 118 [14].
Put a little differently, sub-s (1) contemplates that, if a person does not have the capacity to understand a question about ‘a fact’, or to give an answer that can be understood to a question about ‘the fact’ — and that incapacity cannot be overcome — he or she simply cannot give evidence. Sub-section (3) contemplates that a person who is otherwise competent to give evidence about ‘a fact’ is not competent to give sworn (or affirmed) evidence about ‘the fact’ if he or she does not have the capacity to understand that he or she is under an obligation to give truthful evidence. And sub-s (5) contemplates that a person who is competent to give evidence about a fact, but is not competent to give sworn (or affirmed) evidence about that fact, may nonetheless give unsworn evidence if the court informs the person of the things enumerated in paragraphs (a), (b) and (c), including ‘that it is important to tell the truth’.
Since s 13(1) directs attention to whether a person is competent to give evidence about ‘a fact’, it is perhaps curious that counsel for the applicant — who bore the onus of persuasion — did not attempt to identify any particular fact in relation to which HK lacked the capacity to understand a question or give a comprehensible answer. Indeed, it is clear that counsel at both ends of the Bar table, and the judge, were content to deal with the issue — as counsel for the respondent in this Court described it — ‘holistically … not by reference to individual facts’. Counsel for the applicant explained that
a global view was taken simply on the basis of the neuropsychological report [of Dr March] that this witness was just not competent on any fact.[15]
[15]Emphasis added.
As we have indicated, the applicant did not seek to impugn the judge’s finding that HK was not competent to give sworn evidence. Hence, although it may be unnecessary to say so, we consider that the judge was undoubtedly correct to find that HK was not competent to give sworn or affirmed evidence, given that she does not have the capacity to understand that she is under an obligation to give truthful evidence.[16] As the judge made clear in her ruling, she was ‘satisfied on the balance of probabilities that the complainant does not have the capacity to understand that in giving evidence she is under an obligation to give truthful evidence’. In the judge’s view, ‘it is apparent from the materials, especially the neuropsychological report and the inquiry that [she] made of her, that [HK] does not have the capacity to understand such an obligation’.[17]
[16]See Seymour, [51]–[53].
[17]See [29] above.
In contending that the judge erred in finding that HK was competent to give unsworn evidence, one of the principal criticisms levelled by counsel for the applicant was that the judge ‘missed … one of the main factors that gave rise to Dr March’s report’, that being ‘a significant mental deterioration of the complainant’ in the period ‘between the VARE and the point of assessment by Dr March’. We consider that criticism to ignore, however, the judge’s observation that ‘from all reports the complainant’s mental health has deteriorated since the alleged offending’, and her opinion that it was ‘important to see how [HK] responded at the time that she gave the VARE as part of [her] enquiry into her competence’.[18] Plainly, the judge was aware of, and took into account, the suggested deterioration in HK’s mental health prior to the judge being called upon to assess her competence.
[18]See [27] above.
We consider it to be clear that, by viewing the VARE, the judge was concerned to inform herself of the way in which HK responded to questions at the time that she was interviewed by police, before proceeding to assess her capacity to understand and answer questions at the time when the competence hearing was conducted. Hence, it is plain that, in determining the issue of competence, the judge took the VARE into account against the backdrop of an asserted supervening deterioration of HK’s mental health. That was, in our view, an entirely proper course to adopt, particularly given that — unless ruled to be inadmissible[19] — the VARE would constitute HK’s evidence-in-chief at any trial of the applicant.[20]
[19]CPA, s 368(3).
[20]CPA, s 367.
In the course of submissions, counsel for the applicant drew attention to the fact that a number of answers given by HK to questions asked of her during the competence hearing were unreliable. It also seems clear that a number of her answers in the VARE are unreliable. (By way of example, at various points throughout the VARE HK asserted that she was caused injury when the applicant penetrated her vagina with a cutting instrument,[21] that evidence on its face being inconsistent with Dr Ghumman’s findings on examination.[22]) The reliability of answers given by a witness about a fact is, however, different to the capacity of that witness to understand, and respond to, questions he or she might be asked. For the purposes of s 13 of the Act, no assessment of reliability is required. Section 13 is directed to whether a proposed witness can understand a question about a fact, and provide an answer about the fact that can be understood, not to the reliability of the answer. Thus, Lonergan J (with whom Hoeben CJ at CL and Johnson J agreed) observed in Gray:[23]
What s 13 requires to establish competency is simply an examination of whether the witness has the basic comprehension skills to understand a question and provide an intelligible answer to it. It is in no way an examination of the question of whether a witness’s evidence is credible or reliable.
[21]An example is provided by the following questions and answers:
Q 412Yep.
AThat’s bad though, he’s broken into my room.
Q 413Mm. So, yeah, tell – tell me from when the man came into your room, … what’s happened from there?
AHe had something really sharp in my – my – my vagina. You know the scarring part, he’s deep cut it.
Q 414Mm’hm.
AThat’s why the doctor gave me the two tablets - - -
Q 415To make – make – so you don’t - - -
A- - - for the infection, ‘cause my diabetes – ‘cause that could get me sick.
Q 416O.K.
AHe’s actually – it’s – that got – girl had cotton buds of all the blind [sic].
[22]See [5] above.
[23]Gray v The Queen [2020] NSWCCA 240, [88] (‘Gray’). See also [35](vi), [98].
As we have said, the submissions of the applicant’s counsel to the judge, and in this Court, largely depended on the opinions expressed by Dr March in her report.[24] It seems to us, however, that those aspects of Dr March’s opinions relied upon by the applicant’s counsel were to an extent qualified by later aspects. Indeed, we consider Dr March to have recognised that HK was capable of giving evidence if appropriate mechanisms were put in place. By way of example, she said:
[24]See [17] above.
57 [HK’]s cognitive impairment and memory will have significant impact on her ability to:
a. Comprehend questions: [HK] needs basic, simple and concrete questions, and despite this, she can miss the meaning of a question, picking up a couple of words instead, and ending up responding to a different question. During clinical interview, [HK] often required rephrasing, simplifying, redirection and repetition. I believe that [HK] will not be able to cope with cross-examination questions.
b. Express responses: Even if a question is provided at a very basic level and [HK] grasps it, [HK] may respond unreliably. She tends to form stories and ideas that make sense to her, and she is unable to discriminate true from untrue, and evaluate the accuracy of her responses.
c. Recollect events and give reliable evidence: [HK] has poor verbal memory and limited verbal understanding of the world. With regard to the Court hearing, given passage of time since the incident, there is a strong likelihood that [HK] has a restricted recall of the events of the alleged incident, and has a very fixed way of explaining what happened, unable to hold onto or identify small details. Any current evidence obtained from [HK] will likely lack the details and level of recall noted in the initial Police statement (dated 28/2/2019). Given her verbosity, she also risks providing unreliable in order to fill in gaps.
…
62 If pre-recorded interview is undertaken, [HK] will require provision of significant support with regard to the manner in which questions are posed. Her ability to understand questions appropriately will require clarification, simplification or repetition at times. Further, she will benefit from a non-threatening environment, so she can respond to questions in a safe manner.
63 Following are some recommendations:
…
• Asking a single question at a time
• Strictly avoiding questions requiring simple yes/no responses; Rather, asking open-ended questions, and seeing how she responds; Elaborating later on as needed
• Avoiding long, inconsistent or confusing statements, and keeping statements basic
• Avoiding double negatives in a sentence
• Avoiding any abstract terms – using a very concrete language
• Being mindful of [HK’s] limited vocabulary knowledge; she only has a basic vocabulary, and will miss somewhat common words. She may not understand a term, even when it is explained to her, especially if the explanation includes words unrecognised by her
• Ensuring that [HK] has taken in the question before responding; if she appears confused or in doubt, it will help to ask her to repeat the question in her own words
• Repeating questions, clarifying and simplifying, if she appears uncertain
• Reminding her to ask when she needs clarification or repetition
• Reminding her to state clearly if she is unable to remember or does not know the answer
• Providing her time to process, when questions require information about time and duration of events
Hence, Dr March seemed to accept that HK may be capable of understanding simple questions that do not involve complex propositions, and that she will be able to comprehend questions that are framed in a particular way.
Of course, competence does not depend on a particular question asked, but on a consideration of a witness’s capacity to understand a question about a particular fact, and give a comprehensible answer about that fact. Section 13 may require a fact by fact determination of competence. Thus, in Gray, in a passage immediately succeeding that set out above,[25] Lonergan J said:[26]
It is purely a question about capacity, not whether a witness has the capacity to understand a particular question that may have been framed in a particular way.
If there is indeed an issue to be taken about whether a question is confusing or misleading, s 41 of the Evidence Act is available to deal with that. The question of competence is not dependent on any particular question asked.
The proper consideration of s 13 issues may involve consideration on a fact by fact basis, but not on a question by question approach. A witness does not become incompetent because of a question asked and a response to it ...
[25]At [42] above.
[26]Gray, [89]–[91].
Importantly, in the present case it is plain that the judge did not regard HK’s competence to give evidence as static or immutable, and certainly did not foreclose the possibility of HK relevantly being found to be non-competent at some future time in relation to a particular fact (or facts). In that regard, it is significant that counsel for the respondent conceded that, since the judge had approached the issue of HK’s competence ‘holistically’, the prosecution ‘could not resist’ the proposition that ‘it would still be open to the judge to rule in relation to a particular fact or facts that [HK] was not competent to give evidence’.
Ultimately, we are not persuaded that the judge’s ruling was attended by vitiating error. More particularly, the judge made no error in failing to find that HK was not competent to give evidence ‘on any [unidentified] fact’ at the time she did, and on the evidence before her.
For these reasons, the application to review the judge’s certification decision must be refused.
There is one final matter we should mention. In the present case, the judge took into account opinions expressed by the intermediary. Neither party suggested that it was inappropriate to do so. The functions of an intermediary are set out in s 389I of the CPA. Section 389H of the CPA requires intermediaries to have a tertiary qualification in psychology, social work, speech pathology or occupational therapy, or to have other prescribed qualifications, training, experience or skills. In this case, the intermediary, Ms Wilson, was a registered speech pathologist. By s 13(8) of the Act, in determining competence — which may involve whether or not a person is non-competent due to ‘mental, intellectual or physical disability’ — a court ‘may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience’.
It must be borne in mind, that when it is asserted that a person is not competent by reason of intellectual disability, the court must only obtain information on that issue from persons possessing relevant specialised knowledge with respect to intellectual disability, based on training, study or experience. Although Ms Wilson may have had relevant specialised knowledge, so much was not perspicuous from her curriculum vitae, which recorded that she had worked ‘with adults with a range of neurogenic acquired or developmental complex communication needs’, and that her experience in that capacity included ‘assessing communication needs and providing treatment recommendations for people of all ages’. In that regard, we note that her report included the following:
The intermediary assessment findings were consistent with those in Dr March’s neuropsychology report, which indicated that [HK] has a moderate intellectual disability with a Full Scale Intelligence Quotient of 51 with impairment consistent across the domains of verbal comprehension, perceptual reasoning, working memory and processing speed.[27]
[27]See [16] above.
Conclusion
The application for review of the judge’s refusal to certify should be refused.
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