Citation: R v MR, JB and CS (young persons) (No 4) [2024] NSWSC 909
Court: Supreme Court of New South Wales
Date: 19 March 2024
Judge(s): Huggett J
Background
Three young persons faced criminal proceedings in the Supreme Court. Each had, to varying extents, impairments in communication skills that bore upon, or had the potential to bear upon, their ability to give evidence.
An application was made to allow a named witness intermediary, Ms Stein, to sit beside each accused person if they elected to give evidence. Her role would be to assist with communication and to alert the Court if she believed a question was beyond a witness's comprehension.
The Crown opposed the application, arguing that while the court could regulate the presence and behaviour of a person during questioning, it could not permit that person to control how a witness was questioned.
Legal Issues
- Whether sections 26(a) and 26(d) of the Evidence Act 1995 (NSW) confer power on the Court to permit a witness intermediary to assist accused persons while they give evidence
- Whether permitting a witness intermediary would cause unfairness to any party or witness, having regard to section 192 of the Evidence Act 1995 (NSW)
- What direction, if any, should be given to the jury about the intermediary's presence
Decision
Issue 1: Statutory Power
Huggett J held that both sections 26(a) and 26(d) of the Evidence Act 1995 (NSW) are broad enough to authorise the appointment of a witness intermediary (at [7]). Section 26(a) empowers the Court to make orders regarding the way witnesses are to be questioned, and has previously been used to allow child witnesses to give evidence by pointing to answer cards (at [2]). Section 26(d) permits orders as to the presence and behaviour of any person in connection with the questioning of witnesses, and is broad in its terms (at [3]).
Issue 2: Unfairness and the Crown's Objection
The Crown submitted that an intermediary would effectively control the questioning of witnesses. Huggett J rejected this concern, noting that the intermediary's role is limited to assisting with communication and alerting the Court to comprehension difficulties (at [6]). The Court retains ultimate control over whether a question must be answered, regardless of any intervention by the intermediary (at [6]). Given each accused person's communication impairments, permitting the intermediary served the Court's interest in receiving the best evidence available (at [7]).
Issue 3: Timing and Jury Direction
Huggett J considered it less prejudicial to have the intermediary present from the outset rather than introducing her partway through evidence, which might suggest improper questioning by the Crown (at [8]). On the jury direction, the Court indicated it should be as neutral as possible, describing the intermediary's presence as standard procedure in trials of this kind, without disclosing the specific nature of any accused person's impairment unless the parties otherwise agreed (at [11]).
Orders Made
- Each young person (accused person) is entitled to have the use of a witness intermediary while giving evidence.
Key Takeaways
- Sections 26(a) and 26(d) of the Evidence Act 1995 (NSW) confer broad power on the Court to permit a witness intermediary to assist accused persons while they give evidence, provided any order is just and consistent with section 192 (at [7]).
- A witness intermediary does not displace the Court's ultimate control over the questioning of witnesses; the intermediary's function is limited to facilitating communication and flagging comprehension difficulties (at [6]).
- Under section 26(a), the Court's power to regulate the manner of questioning is not confined to prosecution witnesses and extends to accused persons who elect to give evidence (at [2], [7]).
- Introducing a witness intermediary from the commencement of a witness's evidence, rather than mid-testimony, avoids any inference that the opposing party's questioning was deficient (at [8]).
- Jury directions about a witness intermediary's presence should be framed in neutral terms, describing the arrangement as standard procedure, without reference to the specific impairments of the accused unless the parties specifically address that question (at [11]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 11, 26, 26(a), 26(d), 192
Cases
- ABR (a pseudonym) v The Queen [2020] NSWCCA 33