Citation: R v Meredith (No 3) [2024] NSWDC 248
Court: District Court of New South Wales
Date: 27 June 2024
Judge(s): Bennett ADCJ
Background
The accused faced a second trial on 24 counts involving a range of sexual and other offences against multiple complainants, all of whom were children at the time of the alleged offences except for one complainant who may have been 18 years old. A first trial on related charges had just concluded on the same day this decision was delivered, with the jury returning verdicts on those counts. The second trial was listed to commence on 8 July 2024 before a judge and jury, with an estimated duration of five weeks.
The Crown brought a Notice of Motion seeking orders under s 306ZK of the Criminal Procedure Act 1986 to appoint a witness intermediary and support person for four of the complainants. The proposed intermediary was Lenore Scali, a speech pathologist who had assessed each complainant and prepared communication assessment reports.
The court was also conducting a voir dire to determine preliminary questions, including the competence of two of the complainants, W.A. and N.R., to give evidence at all. This decision addressed only the witness intermediary application, which the accused did not oppose.
Legal Issues
- Whether the four complainants qualified as vulnerable persons under the Criminal Procedure Act 1986 for the purpose of obtaining witness intermediary orders under s 306ZK
- Whether a witness intermediary should be permitted to be present with each complainant during their evidence and to assist with communication of questions and answers
Decision
Issue: Vulnerable Person Status and Intermediary Orders
The court was satisfied that all four complainants were vulnerable persons for the purposes of these proceedings (at [15]). Three complainants were children, and the fourth, W.A., was approximately 29 years old but had Down Syndrome, which the court described as profoundly limiting (at [15]).
Ms. Scali gave evidence on the voir dire at a ground rules hearing and provided communication assessment reports for each complainant, including tables setting out recommended approaches to questioning (at [9], [16]). The court noted that her reports provided compelling evidence that the complainants were vulnerable witnesses, and she detailed the symptoms she observed in each of them (at [10]).
The accused did not oppose the orders, and the court found there was ample evidence supporting both the vulnerable person status of the complainants and their need for witness intermediary support (at [17]). The court indicated at the outset of the ground rules hearing that it intended to make the orders sought (at [18]).
Orders Made
The Crown's application for witness intermediary orders was granted in respect of each of the four complainants. In respect of N.R. (and by the same structure for the others), the court ordered:
- Pursuant to s 306ZK(2) of the Criminal Procedure Act 1986, Lenore Scali be present in the remote witness room with N.R. for the duration of his evidence
- Pursuant to s 306ZK(3)(b) of the Criminal Procedure Act 1986, Ms Scali may assist with communication of questions to N.R. and any answers given, on account of a communication difficulty on his part
- When questioning N.R., advocates must adhere to recommendations 1 to 11 at pages 15 to 21 of Ms Scali's Communication Assessment Report dated 25 March 2024
Similar orders were made in respect of complainants W.A., D.C., and K.C.
Key Takeaways
- The District Court confirmed that an adult complainant with Down Syndrome can qualify as a vulnerable person under the Criminal Procedure Act 1986, alongside child complainants who have other limitations affecting their capacity to give evidence (at [15]).
- Under s 306ZK of the Criminal Procedure Act 1986, a court may appoint a witness intermediary to be present with a vulnerable person during their evidence and to assist in communicating questions and answers where a communication difficulty exists (at [11], [17]).
- A speech pathologist acting as witness intermediary can provide guidance to the court on recommended questioning approaches for each complainant, and those recommendations can be incorporated into binding orders at a ground rules hearing (at [9], [16]).
- Where the accused does not oppose witness intermediary orders and evidence of vulnerability is substantial, the court will grant the orders at the commencement of the ground rules hearing rather than reserving the decision (at [17], [18]).
- Ground rules hearings in complex multi-complainant matters may commence during jury deliberations in a concurrent trial, allowing the second set of proceedings to begin efficiently (at [4], [16]).
Legislation and Cases Referenced
Legislation
- S 306ZK Criminal Procedure Act 1986
Cases
- Not stated