AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 2 December 2020

SC v R

[2020] NSWCCA 314

Also reported as (2020) 104 NSWLR 257
Sexual offences
CRIMINAL LAW CRIMINAL APPEAL ACT, S 5F (3) LEAVE TO APPEAL GRANTED APPEAL ALLOWED

Citation: SC v R [2020] NSWCCA 314
Court: NSW Court of Criminal Appeal
Date: 2 December 2020
Judge(s): Meagher JA, Walton J, Beech-Jones J

Background

The applicant faced trial in the District Court on 17 charges of sexual offences against children, including charges involving two young victims (GC and MC) and a child Crown witness (JC). The victims included a teenager diagnosed with autism spectrum disorder and a moderate intellectual disability, and a six-year-old diagnosed with autism who was selectively mute.

In August 2019, Ms Julia Hind, a qualified speech pathologist, was appointed as a "witness intermediary" (also called a "children's champion") under Part 29 of Schedule 2 to the Criminal Procedure Act 1986 (CPA) for all three children. A witness intermediary's role is to communicate questions and answers between the court and a vulnerable witness, impartially facilitating the witness's best evidence. Ms Hind had previously had contact with one of the child witnesses, MC, before her appointment.

The defence applied to revoke Ms Hind's appointment on three grounds: an alleged prior professional connection with MC and GC, concerns about her impartiality during Joint Investigation Response Team (JIRT) interviews, and a likelihood she would be called as a witness herself. The trial judge refused the application in June 2020, prompting the applicant to seek leave to appeal to the Court of Criminal Appeal under s 5F(3) of the Criminal Appeal Act 1912.

  • Whether the trial judge's refusal to revoke the witness intermediary's appointment was an "interlocutory judgment or order" capable of grounding leave to appeal under s 5F(3) of the Criminal Appeal Act 1912
  • Whether clause 89(5) of Part 29 of Schedule 2 to the CPA operates as a continuing condition on a witness intermediary's appointment, not merely a threshold eligibility requirement at the time of appointment
  • Whether a witness intermediary can also be a witness in the same proceedings
  • What constitutes having assisted a person in a "professional capacity" for the purposes of cl 89(5)(b)
  • Whether cl 89(5)(b) required the trial judge to determine whether the witness intermediary's impartiality was actually compromised, or whether prior professional assistance alone was disqualifying

Decision

The Court granted leave to appeal in respect of witness MC. It held that the trial judge's refusal to revoke the appointment was an interlocutory order capable of grounding an appeal under s 5F(3). The Court distinguished earlier authority on evidentiary rulings, reasoning that the appointment of a witness intermediary amounts to a command with operative effect, not merely a ruling on the manner in which evidence may be given. It also noted that the appointment had a separate and identifiable character distinct from routine evidentiary rulings.

On the substantive question, the Court construed cl 89(5)(b) as establishing a categorical disqualification: a person who has previously assisted a witness in a professional capacity before the appointment is ineligible, regardless of whether that prior contact has actually compromised their impartiality. The provision does not require proof of actual bias or partiality. Once prior professional assistance is established, the person cannot be appointed.

The Court found that Ms Hind had assisted MC in a professional capacity prior to her appointment. Although Ms Hind had not directly treated MC after an initial period, her supervision of speech pathology students who were providing clinical assistance to MC most likely constituted professional assistance to MC within the meaning of the clause. The Court emphasised that if the supervision was purely administrative, that conclusion might not follow, but the clinical nature of the arrangement made it probable that it crossed that threshold.

The Court expressly stated that its findings reflected no criticism of Ms Hind's qualifications or impartiality. The appeal was allowed and Ms Hind's appointment as witness intermediary in relation to MC was set aside. A recently enacted provision, cl 89(5A), which clarifies that performing witness intermediary functions during a criminal investigation does not itself disqualify appointment, did not affect the outcome because the disqualifying contact in this case was the prior professional relationship, not Ms Hind's role in the JIRT interviews.

Orders Made

  • Leave to appeal granted in respect of so much of the order made by Shead SC DCJ on 24 June 2020 as concerns witness MC
  • Appeal allowed
  • The order made by Shead SC DCJ on 24 June 2020 in respect of witness MC set aside and, in lieu thereof, the appointment of Ms Julia Hind as witness intermediary in relation to witness MC under cl 89(3)(a) of Schedule 2 to the Criminal Procedure Act 1986 set aside

Key Takeaways

  • Clause 89(5)(b) of Part 29 of Schedule 2 to the CPA operates as a categorical eligibility bar: a person who has previously assisted a witness in a professional capacity before appointment as a witness intermediary is disqualified, without any need to prove that impartiality was actually compromised.
  • The Court of Criminal Appeal held that the refusal to revoke a witness intermediary appointment is an interlocutory order capable of grounding an appeal under s 5F(3) of the Criminal Appeal Act 1912, distinguishing it from rulings on the manner of giving evidence, which are generally not appealable in this way.
  • "Professional capacity" assistance extends beyond direct therapeutic treatment. Supervision of students who provided clinical assistance to a witness, in a context where clinical feedback and guidance were likely exchanged, may satisfy the disqualifying threshold under cl 89(5)(b).
  • Purely administrative functions, such as matching clinicians with patients with no clinical oversight component, are unlikely to constitute assistance in a "professional capacity" within the meaning of cl 89(5)(b).
  • The newly inserted cl 89(5A), which permits appointment where the person has already acted as witness intermediary during the criminal investigation, did not bear on the outcome here because the disqualifying contact arose from a prior professional relationship, not from the JIRT interview process.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), Part 29 of Schedule 2 (particularly cl 88, cl 89)
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015
- Criminal Procedure Regulation 2017 (NSW)
- Stronger Communities Amendment (Miscellaneous) Act 2020
- Crimes Act 1900 (NSW), ss 61J, 61M, 66A, 66C
- Evidence Act 1995 (NSW)
- Supreme Court Act 1970 (NSW)
- Interpretation Act 1987 (NSW)

Cases:
- AF v R [2015] NSWCCA 35
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
- Einfeld v R (2008) 71 NSWLR 31
- Nicholson v The Queen [2017] NSWCCA 38
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- R v Bozatsis & Spanakakis (1997) 97 A Crim R 296
- R v F [2002] NSWCCA 125
- R v RAG [2006] NSWCCA 343
- R v Steffan (1993) 30 NSWLR 633