Citation: R v DL [2024] NSWDC 340
Court: District Court of NSW
Date: 12 August 2024
Judge(s): Bennett SC ADCJ
Background
The accused, referred to as DL, was arraigned on an indictment containing ten counts of sexual offences against a child. The charges included sexual touching, sexual intercourse with a child under ten years, and sexual intercourse with a child under 14 years, all contrary to the Crimes Act 1900. DL pleaded not guilty to each charge.
Two child witnesses were involved in the proceedings: the complainant and a second witness who had evidence of complaint. Both were under 18 years of age at the relevant times, making them vulnerable persons for the purposes of the Criminal Procedure Act 1986.
Before the court commenced receiving evidence under Chapter 6, Part 6 of the Criminal Procedure Act 1986, the Crown applied for a witness intermediary to be present with each child witness in the remote location from which they would give evidence.
Legal Issues
- Whether the court should order the presence of a witness intermediary with each child witness during the giving of evidence, pursuant to s 306ZK of the Criminal Procedure Act 1986
- Whether the recommendations of the witness intermediary regarding question formulation should be binding on advocates during examination
Decision
Issue 1: Eligibility for witness intermediary orders
The court found that both witnesses were vulnerable persons within the meaning of the Criminal Procedure Act 1986, being under 18 years of age (at [11]). This satisfied the threshold requirement for the making of orders under s 306ZK of the Act.
Issue 2: Appointment and role of the witness intermediary
Speech pathologist Danielle Chytra appeared via audio-visual link and confirmed her qualifications, experience, and the assessments she had conducted of each child (at [5]). Her reports set out observations of each child's communication presentation and included tables guiding question formulation for advocates (at [6]). The accused did not oppose either the appointment or the recommendations (at [12]).
Issue 3: Orders in respect of each witness
The court made orders in respect of both the witness ZB and the complainant AA. For the complainant AA, the court ordered that Ms Chytra be present in the remote witness room for the duration of her evidence and authorised her to assist with communication of questions and answers where communication difficulty arose, pursuant to s 306ZK(2) and s 306ZK(3)(b) (at [13]-[14]). Advocates questioning AA were required to adhere to recommendations 1 to 10, and an additional recommendation, set out in Ms Chytra's Communication Assessment Report dated 1 August 2024.
Orders Made
- The witness intermediary is permitted to be present with, and to assist, the complainant and the witness during the giving of evidence.
- The witness intermediary's recommendations are to be followed by advocates when questioning the witnesses.
Key Takeaways
- Under s 306ZK of the Criminal Procedure Act 1986, a court may order that a witness intermediary be present with a vulnerable witness in a remote witness room and may authorise that intermediary to assist in communicating questions and answers where communication difficulty arises (at [7]).
- Both witnesses qualified as vulnerable persons by reason of being under 18 years of age, satisfying the precondition for intermediary orders under the Act (at [11]).
- A qualified speech pathologist's communication assessment report, setting out recommendations for question formulation, formed the foundation for the court's orders governing how advocates were to examine each child witness (at [5]-[6]).
- The absence of opposition from the accused did not diminish the court's obligation to make formal orders under the relevant provisions; the application proceeded and orders were granted on the evidence presented (at [12]).
- Where a witness intermediary is appointed, the court's orders may extend to requiring advocates to follow specific communication recommendations tailored to each individual witness's assessed needs.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 s3, 306M, 306P,306ZK.
Cases
- Not stated