SC v R

Court of Criminal Appeal (NSW)|2020-11-09|Before: Meagher JA, Walton J, Beech-Jones J

Solicitors: Legal Aid NSW (Applicant) Solicitor of Public Prosecutions (Crown) File Number(s): 2018/303573 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 24 June 2020 Before: Shead SC DCJ File Number(s): 2018/303573

Judgment

THE COURT: This is an application for leave to appeal from a decision of Shead SC DCJ refusing to revoke the appointment of a "children's champion" otherwise known as a "witness intermediary", in respect of a child witness (and victim), "MC", for the applicant's trial on 17 charges of sexual offences against children.

Background

On 5 October 2018, the applicant was arrested and charged. Of the 17 sexual offences he is accused of committing, 16 concern GC and one concerns MC. They consist of ten counts of aggravated sexual assault against GC contrary to s 61J of the Crimes Act 1900, two charges in the alternative under s 66C in respect of GC, four charges under s 61M(1) in respect of GC and one charge under s 66A in respect of MC.
The offences are alleged to have been committed between July 2015 and April 2018. GC was aged between 14 and 17 years when she is said to have been sexually assaulted by the applicant. MC was aged six at the time she is said to have been sexually assaulted by the applicant.
According to the trial judge, GC has been diagnosed with autism spectrum disorder and a moderate intellectual disability and MC was diagnosed with autism and is selectively mute.
According to the trial judge, the applicant's offending was disclosed by JC and then MC and GC to an adult family friend on 28 April 2018. Their mother then recorded conversations with the children in which they repeated the complaints. She reported the matter to the police on 30 April 2018. At various times between June and October 2018, all three children participated in Joint Investigation Response Team ("JIRT") interviews. On a number of occasions, Ms Hind attended those interviews to assist GC, MC and JC. As explained below, Ms Hind had previously had contact with MC.
These proceedings are taking part in what the trial judge described as the "Child Sexual Offence Evidence Program", whereby the evidence of each of JC, GC and MC is to be recorded in advance of the trial. This appears to be a reference to the Child Sexual Offence Evidence Pilot Scheme explained below. One part of the scheme is the potential for the appointment of a "witness intermediary" to assist vulnerable witnesses in giving evidence.
To that end, on 19 August 2019 the applicant was arraigned before Trail DCJ in the District Court. He pleaded not guilty to all the offences. On the same day her Honour made the following orders: "9. Appoint a Witness Intermediary for [JC] and [MC] pursuant to cl 89B of Schedule 2 of the Criminal Procedure Act. If possible [Ms Julia Hind] to be appointed for both witnesses, as well as for [GC]. … 14. Direct that the witness intermediary report be provided to the parties and the Court no later than 25 November 2019."
The operation of Part 29 of Schedule 2 to the CPA ("Part 29") is explained below. At this point, it suffices to observe that the form of orders appears irregular in that a particular person must be appointed a witness intermediary and in respect of a particular witness. In any event, these orders are to be taken as the appointment of Ms Hind as a witness intermediary under cl 89(3) in respect of JC, GC and MC.
On 24 November 2019, Ms Hind provided a report under cl 89(6) of Part 29 in respect of each of GC and MC's communication needs.
On or about 17 June 2020, a number of pre‑trial applications were made to Shead SC DCJ. Her Honour was advised that the defence objected to Ms Hind continuing as a witness intermediary. Three bases of objection were raised, namely, an alleged "professional connection" between Ms Hind and MC and GC that predated her appointment, an allegation that Ms Hind "abandoned her independence" during the JIRT interviews and a supposed likelihood that Ms Hind would be called as a witness.
On 24 June 2020, her Honour refused the application concerning Ms Hind. The Court record notes that her Honour "[d]irect[ed] that Ms Julia Hind be appointed as the witness intermediary for the witnesses GC, MC and JC". Her Honour published reasons on 26 August 2020 which described her Honour as having "declined to order that Ms Hind's appointment as the witness intermediary for the witnesses in the pre-recorded hearing be revoked". Given that Ms Hind had already been appointed in August 2019, and provided a report in November 2019, that is to be taken as the correct description of the ruling or order that her Honour made.
Subject to intervention by this Court, a "ground rules hearing" for the pre‑trial hearing was listed to commence on 30 November 2020 and the pre‑recorded hearings are listed between 7 and 12 December 2020. The applicant's trial is listed to commence on 15 February 2021.

The Pilot Scheme

Part 29 contains various provisions relating to the Child Sexual Offence Evidence Pilot Scheme. It was inserted by the Crimes Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015. Clause 81 specified that the pilot scheme operated from 31 March 2016 until 31 March 2019 or such later date as prescribed. That period was extended to 30 June 2022 by reg 108A of the Criminal Procedure Regulation 2017..
Division 2 of Part 29 provides a scheme for witnesses to give evidence via pre-recorded hearings. It applies to all witnesses in proceedings in the District Court in relation to a "prescribed sexual offence" who are less than 16 years of age at the time the accused is committed (cl 84(1)) and other witnesses in such proceedings the subject of a court order (cl 84(2)). A "prescribed sexual offence" is defined in s 3 of the CPA. It suffices to note that it includes serious sexual offences, including all the offences the applicant is accused of committing. The hearings are held in advance of the trial in the presence of the legal representatives but in the absence of the jury. The evidence is then played at the trial at a later time (cl 85(3), (4)). The division contemplates the witness being examined and cross‑examined during the special hearing. They may only give further evidence with leave and, as far as practicable, that should be given via another pre-recorded hearing (cl 87).
These provisions are to be read with s 306U of the CPA which enables a "vulnerable person", that is a child or a person suffering a cognitive impairment, to give evidence in chief via a recording "made by an investigating official of [their] interview". Under s 306U, such a witness must be made available for cross‑examination and re‑examination either in the courtroom or via arrangements made under s 306W. Division 2 enables such a witness who also falls within Part 29 to utilise s 306U to give their evidence in chief (cl 85(2)(a)) and be cross‑examined and re‑examined in a pre‑recorded hearing.
Division 3 of Part 29 deals with "Children's champions" or witness intermediaries. Clause 88 describes their role and obligations. It provides: (1) A person appointed as a children's champion (who may also be called a witness intermediary) for a witness is to communicate - (a) to the witness, questions put to the witness, and (b) to any person asking such a question, the answers given by the witness in replying to them, and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question. (2) A children's champion for a witness is an officer of the Court and has a duty to impartially facilitate the communication of, and with, the witness so the witness can provide the witness's best evidence.
On its face, cl 88(1) prescribes a role for a witness intermediary that involves them being interposed between the questioner and the witness and conveying information from one to the other, as well as to the Court. Read in that way, the provision appears to modify the means of eliciting evidence from a witness provided for in the Evidence Act 1995, especially s 29(1) which provides that a "party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court". At the hearing of the appeal, the Court was informed that, at least in practice, witness intermediaries do not usually interpose themselves between the questioner and witness, but more commonly inform the parties and the Court of any particular interpretative difficulties that arise from the questions being posed or the witness' answers.
Clause 88(2) imposes on the witness intermediary a duty of impartiality in facilitating the communication of the witness' best evidence. It also designates them as an "officer of the Court". The effect of this provision was not an issue that arose on this application.
Clause 90 addresses the consequence for the taking of evidence if a witness intermediary is appointed. It provides: (1) Subject to the rules of court and any practice direction, in a proceeding to which this Part applies, the evidence of a witness for whom a children's champion has been appointed is to be given in the presence of the children's champion. (2) The evidence is to be given in circumstances in which - (a) the Court and any Australian legal practitioner acting in the proceedings are able to see and hear the giving of the evidence and are able to communicate with the children's champion, and (b) except in the case of evidence given under Part 6 of Chapter 6 or this Part by a recording, the jury are able to see and hear the giving of the evidence. (3) During any part of the proceedings to which this Part applies in which a children's champion for a witness is present, the children's champion is exempt from any requirement or direction under this Act that requires the proceedings or part of the proceedings to be heard in camera. (4) The provisions of the Evidence Act 1995 apply to and in respect of a person who acts as a children's champion for a witness in the same way as they apply to and in respect of an interpreter under that Act. (5) The regulations may prescribe the form of oath or affirmation to be taken by the children's champion for the purposes of subclause (4).
No District Court rule or practice note has been specified that would affect cl 90(1). This means that the effect of the appointment of a witness intermediary for a particular witness is that their evidence cannot be given in their absence and otherwise must be given in conformity with cl 90(2).
Within Division 3, cl 89 concerns the appointment of the witness intermediary. It is at the heart of this application and relevantly provides as follows: (1) Victims Services in the Department of Justice (or another agency nominated by the Attorney General) is to establish a panel of persons who are suitable persons to be appointed as children's champions. (2) A person must not be included on a panel unless the person has a tertiary qualification in Psychology, Social Work, Speech Pathology, Teaching or Occupational Therapy or such other qualifications, training, experience or skills as may be prescribed by the regulations (or both). (3) For the purposes of proceedings to which this Part applies, the Court - (a) must (except as provided by subclause (4)) appoint a children's champion for a witness who is less than 16 years of age, and (b) may, on its own motion or the application of a party to the proceedings, appoint a children's champion for a witness who is 16 or more years of age if satisfied that the witness has difficulty communicating. (4) The Court is not required to appoint a children's champion if it considers - (a) there is no person on the panel established under this clause available to meet the needs of the witness, or (b) it is otherwise not practical to appoint a children's champion, or (c) it is unnecessary or inappropriate to appoint a children's champion, or (d) it is not otherwise in the interests of justice to appoint a children's champion. (5) A person must not be appointed as a children's champion for a witness if the person - (a) is a relative, friend or acquaintance of the witness, or (b) has assisted the witness in a professional capacity (otherwise than as a children's champion), or (c) is a party or potential witness in the proceedings concerned. … (6) The children's champion appointed for a witness must, if requested by the Court, provide a written report, on the communication needs of the witness. (7) A copy of any such report is to be provided to the parties to the proceedings concerned before the witness gives evidence in the proceedings.
The power to "appoint" a witness intermediary for a particular witness is conferred by cl 89(3)(a) and (b). Although not expressly stated, it appears implicit or at least contemplated that the appointee will be included on the panel established under cl 89(1). Further, it was common ground on the appeal that the power conferred on the District Court to appoint a witness intermediary includes a power to revoke such an appointment. It was that power which the applicant sought to have exercised by Shead SC DCJ.
Three related issues of construction arose in relation to cl 89. The first concerns whether the three disqualifying conditions in cl 89(5)(a), (b) and (c) continue to operate upon the appointment of a witness intermediary after they are appointed. In this case, the applicant contended that, by reason of events occurring after Ms Hind was appointed a witness intermediary, it became clear that she was a potential witness. The applicant contended that this meant that Ms Hind necessarily ceased to be qualified as a witness intermediary such that Shead SC DCJ was obliged to revoke her appointment. The second and related issue concerns the scope of the power to revoke. The Crown contended that the power was discretionary. It submitted that the exercise of the power was informed by the matters specified in cl 89(5)(a), (b) and (c) but the Court was not obliged to exercise the power if the witness intermediary acquired any of the statuses referred to in cl 89(5) after their appointment. The third issue concerned the scope of the phrase "assisted the witness in a professional capacity"; specifically, whether that referred only to some form of direct professional assistance provided in a clinical environment, or involving a therapeutic component, and otherwise whether it required some assessment of the extent of a proposed appointee's prior involvement with the witness such that it was likely to compromise their impartiality.
Section 33 of the Interpretation Act 1987 obliges the Court to prefer a construction that would promote the purpose or object underlying the Act, as opposed to a construction that would not promote that purpose or object. Otherwise the following statement from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47] per Hayne, Heydon, Crennan and Kiefel JJ) ("Alcan") is relevantly authoritative: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy." (footnotes omitted)
To the extent that this passage from Alcan refers to the "text itself", that is a reference to the whole of the text of the statute including any statement of statutory objects and purposes.
The structure of Division 3 is that it contemplates firstly the selection and appointment of the witness intermediary, secondly the provision, on request by the court, of a written report on the communication needs of the witness under cl 89(6) and thirdly the exercise by the witness intermediary of the role specified in cl 88(1) during the pre-recorded evidence hearing conducted pursuant to Division 2.
There is nothing in the text of cl 89(5) to suggest that the provision operates on events and circumstances arising after the appointment of a witness intermediary. At the very least cl 89(5)(a), (b) and, to an extent (c), preclude the appointment of a witness intermediary who has had previous personal (cl 89(5)(a)) or professional (cl 89(5)(b)) dealings with the witness. In relation to the former, the concept of an "acquaintance" in cl 89(5)(a) is clearly a wide one, being some form of personal interaction that falls short of making a person a friend.
However, from the time of their appointment, it can be expected that the witness intermediary will have substantial ongoing contact with the witness. This will be necessary for the purpose of preparing the report under cl 89(6). It will also be necessary in order to establish a sufficient understanding of the witness' ability to communicate and to establish sufficient rapport to facilitate that communication in order to perform their function under cl 88(1). It is at least reasonably possible that through that process the witness intermediary would come to answer the description of at least being an "acquaintance" of the witness, although that phrase might be confined to an acquaintance arising from personal interactions. It also may, as was suggested in this case, result in the witness intermediary acquiring such an understanding of the witness' communicative ability that there exists the potential for them to be called as a witness depending on the issues that arise and how the trial unfolds. To suggest that any of these circumstances would necessarily render the appointee disqualified from performing the role of a witness intermediary would substantially undermine the statutory scheme.
Any relevant doubt about that is extinguished by considering the extrinsic materials. Section 34(1) of the Interpretation Act enables recourse to be had to the extrinsic materials to, inter alia, confirm the ordinary meaning conveyed by the text of the provision. In the second reading speech to the Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Bill 2015, the then Attorney-General described Part 29 as "being focused on intending to reduce the re‑traumatisation of child victims in court … without compromising the fundamental elements of a fair trial". The Attorney‑General described the children's champion as "a neutral and impartial communication specialist who will not have any prior association with the witness", that is, association prior to their appointment. Thus, cl 89(5) is directed to "prior" appointment association and not post‑appointment association.
Accordingly, we do not accept that cl 89(5) imposes ongoing qualifications on the appointment of a witness intermediary after the time of their appointment. Instead, we accept the Crown's contention that there exists a power in the District Court to revoke an appointment. Where the evidence confirms that, by reason of events occurring prior to the person's appointment, they were disqualified under cl 89(5)(a), (b) or (c) at the time of their appointment then that power has to be exercised. Otherwise the power is discretionary.
The applicant's alternative submission was that, even if the conditions specified in cl 89(5) were not ongoing qualifications for a witness intermediary, nevertheless the discretion to revoke had to be exercised when those conditions were satisfied by reason of events occurring after their appointment, especially the realistic prospect that the intermediary would be a witness at the trial. We do not agree. It can be accepted that the exercise of that discretion is informed by the matters identified in cl 89(5)(a), (b) or (c), but only in the context of considering the witness intermediary's capacity to perform their functions under cl 88(1) consistently with the duty imposed by cl 88(2) and the accused's right to a fair trial. It may be that by reason of their contact with the witness in the period after their appointment there is the potential for the witness intermediary to become a witness at the trial on some issue of fact. The mere potential for that to occur does not necessarily require the revocation of their appointment. Instead, a determination of whether their appointment should be revoked (and when) would appear to depend on, inter alia, the extent to which the circumstance that they might be a witness affects their capacity to perform their functions under cl 88(1) and duty under cl 88(2). In turn, this would appear to require an assessment of the likelihood that they will be called as a witness, the nature and importance of the issue of fact that their evidence is said to be relevant to and the nature of the evidence that it is said the intermediary can give.
In light of the above, the third issue of construction noted does not require a lengthy exposition. There is no reason not to interpret cl 89(5)(b) according to its plain terms. The reference by the Attorney‑General in her second reading speech to having no "prior" association with the witness confirms that (Interpretation Act, s 34(1)). Clause 89(5)(a) is directed to avoiding the appointment of witness intermediaries with prior personal associations with the witness and cl 89(5)(b) is direct to avoiding the appointment of witness intermediaries with prior professional associations with the witness. There is nothing in the text of cl 89(5) or the balance of the Division that warrants interpreting cl 89(5)(b) as only precluding professionals with prior associations whose partiality was compromised and every reason not to. To require the District Court, when contemplating the appointment of a witness intermediary who has previously proffered some professional assistance to a witness, to embark on an inquiry as whether that has compromised the witness intermediary's impartiality is likely to be costly and time consuming, as well as counter‑productive in terms of maintaining trust between the legal representatives and the intermediary. An inquiry into simply whether or not any prior professional assistance has been provided is unlikely to have any of those qualities.
Similarly, there is nothing in the statutory provisions or the secondary materials that warrants construing the form of assistance the professional has provided to only therapeutic assistance or direct assistance in a clinical setting. As this case illustrates there are numerous factual circumstances whereby one person's dealing with another person in a professional capacity may satisfy cl 89(5)(b). The word "professional" is an ordinary English word (Electricity Supply Professional Officers Association [1978] AR (NSW) 283 at 303 per Beattie P, Watson and Dey JJ) as is the word "assisted". Their exposition is best undertaken on a case by case basis without attempting to exhaustively describe them or imposing limits on them by reference to words that are not found in the statutory provisions.

Judgment Appealed From

The trial judge summarised the evidence concerning Ms Hind, including her prior involvement with MC and to a lesser extent, JC and GC, as well as the circumstances of the JIRT interviews. Her Honour then surveyed the legislative provisions, including their history. After summarising the parties' submissions her Honour then addressed and rejected each of the three bases for the application to revoke Ms Hind's appointment. The findings and reasons in respect of Ms Hind's professional connection with MC, and her potential to be a witness, are set out below in relation to each ground of this application. In relation to her conduct during the JIRT interview, the trial judge rejected any suggestion that Ms Hind had "abandoned her independence". Instead, her Honour found that she "maintained her neutrality and performed the role required of her". As noted, there was no challenge to those findings on appeal and this basis for revocation was not pursued in this Court.
A further difference between the applications made to this Court and to the trial judge, concerns the scope of the relief sought. The application made to the trial judge concerned the revocation of the appointment of Ms Hind as a witness intermediary for each of GC, MC and JC. However, at the commencement of the hearing of the application, Senior Counsel for the applicant, Mr Johnston SC, confirmed that the application was limited to seeking a revocation of Ms Hind's appointment as a witness intermediary in respect of MC only.

Section 5F(3): Interlocutory Judgment or Order

The Crown contended the refusal of Shead SC DCJ to exercise the power to revoke Ms Hind's appointment did not amount to an "interlocutory judgment or order" sufficient to ground an application for leave to appeal under s 5F(3) of the Criminal Appeal Act 1912.
In particular, the Crown contended (correctly) that whether a decision or determination by a trial judge amounts to an interlocutory "order" capable of grounding an appeal under ss 5F(2) or (3) requires a consideration of the "character and [legal] effect of the decision" rather than the precise words used by the judicial officer (R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 at 304 per Gleeson CJ; Nicholson v The Queen [2017] NSWCCA 38 at [49]).
It has long been accepted that a ruling on evidence made during the course of a trial is not considered to be an order or judgment of the Court (R v Steffan (1993) 30 NSWLR 633). The Crown submitted that an order appointing a witness intermediary was akin to an evidentiary ruling. In particular, it contended that the effect of an order appointing the intermediary only concerns the manner in which the relevant vulnerable witness will give evidence. The Crown relied on the decision of this Court in AF v R [2015] NSWCCA 35 ("AF") in which leave to appeal was sought from a determination by the trial judge that a Crown witness who was a "vulnerable person" could give evidence of a previous representation in the manner provided for in s 306S(1)(a), namely by playing a "recording of the previous representation made by an investigating official of the interview in the course of which the previous representation was made" (at [8]). This Court held that the ruling was "not concerned with the admissibility of evidence but with the manner in which evidence may be given" and had "very much the same character as a procedural matter that does not finally dispose of any discrete part of the proceedings" (at [32] per R A Hulme J with whom Hoeben CJ at CL and Harrison J agreed). The Crown submitted that the trial judge's rulings were to similar effect in this case.
Both the Crown in its submissions and the decision in AF placed particular reliance on the following passage from the judgment of Wood CJ at CL in R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126 at [11] where his Honour stated in respect of the distinction between orders that can be the subject of an appeal under s 5F and rulings which cannot: "The distinction, it seems, depends in the case of a judgment, upon it determining the proceedings, or at least an identifiable part of them, and being capable of entry in the records of the Court: R v Steffan at 636; or in the case of an order, upon it amounting to a command that something be done or not done: The King v Snow (1915) 20 CLR 315 at 324, 361, and Steffan at 636. In Steffan it was said that it was not immediately self-evident how a ruling upon the admissibility of evidence could answer either description. Additionally it was noted that an evidentiary ruling lacks finality, in that it can be changed in the course of the trial."
It is important to place the reference to "finality" in this and similar passages in their context. It is not an essential feature of an interlocutory order that it is final in the sense of incapable of being revisited or revoked. Section 5F(3) is concerned with interlocutory orders, not final orders. Interlocutory injunctions are forms of interlocutory orders that can ground an application for leave to appeal under s 101(2)(e) of the Supreme Court Act 1970. They can be varied or set aside by judges at first instance on cause being shown. In this context, "final" simply means that, without anything further, the decision has operative effect in the sense of amounting to the command referred to in the above passage. Hence, in R v RAG [2006] NSWCCA 343 ("RAG") this Court held that a trial judge's decision that a complainant was not competent to give unsworn evidence was an order capable of being appealed under s 5F(2) (by the Crown). Latham J observed that the trial judge's determination was a "judicial act that determined an identifiable or separate part of the proceedings, namely the competency of the complainant" and it was final, "in the sense that it was not subject to review in the course of those proceedings, unlike rulings on the admissibility of evidence" (at [15] McClellan CJ at CL and Johnson J agreeing).
The statutory provisions considered in AF did not make express provision for any order, designation or appointment by the trial judge. Instead, upon the statutory definition of "vulnerable person" being satisfied, s 306S of the CPA was permissive, simply permitting that person to give evidence by various means (subject to a contrary determination under s 306Y). The regulations surrounding the appointment of a witness intermediary are outlined above. Unlike the regime considered in AF, the regulatory scheme confers a specific power on a court, namely the power of appointment conferred by cl 89(3). It follows from cl 90(1) that the practical legal effect of the appointment of a witness intermediary is that the evidence of the vulnerable witness cannot be taken in their absence and must be given in the manner provided for in cl 90(2). In that sense, the substantive effect of the appointment of a witness intermediary is that it is not merely facultative as in AF, but instead operates as a form of "command that something be done or not done". Like the determination of competency in RAG, it has the necessary degree of finality in that it is not reviewed in the proceedings but instead operates of its own force under cl 90 unless and until the appointment is revoked. A decision to refuse to revoke an appointment has the same characteristics. Accordingly, the Court was satisfied that the relevant order of Shead SC DCJ was capable of being subject to an appeal under s 5F(3) of the Criminal Appeal Act.

Should Leave be Granted?

As for whether leave should be granted, ordinarily this Court is reluctant to grant leave to appeal so as to avoid the fragmentation of the process of criminal justice (Einfeld v R (2008) 71 NSWLR 31; [2008] NSWCCA 215 at [23]). Nevertheless, the combination of three factors warranted the grant of leave. The first was that the application raised issues of construction about Part 29 that have not arisen before in this Court and are of general importance. Second, notwithstanding the careful and comprehensive reasons of the trial judge, the Court was satisfied that a clear case of error had been established. Third, a determination after a trial has concluded of the consequences of the appointment of a witness intermediary who was not qualified to be appointed under cl 89(5) is not straightforward. In this case, the interests of justice warranted that position being addressed before MC's evidence was taken in accordance with Part 29 with Ms Hind as a witness intermediary. Doing so was not likely to delay either the scheduled pre‑recorded hearings or the commencement of the trial in February next year.

Ground 1: Potential Witness

It was contended to the trial judge that Ms Hind was a potential witness in relation to MC because of the contents of the report she prepared concerning MC under cl 89(6). Unlike ground 2, this ground concerns matters affecting Ms Hind after she was appointed as a witness intermediary in respect of MC.
In part of Ms Hind's report concerning MC that was provided under cl 89(6), she opined that MC "uses specific vocabulary for naming parts of the body" such as "[b]rains for head" and "butt for bottom". Ms Hind added that MC "does not use any name for vagina and does not known this word". Before the trial judge and in this Court, the defence pointed to various parts of the Crown case statement which summarised the contents of recordings taken by MC's mother in which MC referred to the applicant placing his penis inside her vagina. At the hearing of the application, an affidavit was read attaching the transcript of a recording between MC and her mother in which MC uses the word "vagina".
The defence contended that this material was suggestive of MC either having been coached prior to the recorded sessions, or that her evidence was otherwise contaminated because in accusing the applicant in the recorded conversations she used vocabulary that Ms Hind opined she was not capable of. In her oral evidence before the trial judge, Ms Hind stated that she "would definitely expect [MC's] vocabulary to be very different" in her home environment than in the more formal context of a JIRT interview.
The trial judge concluded as follows: 89 Further, I am satisfied that Ms Hind is not a potential witness in the proceedings. Her witness intermediary report was not prepared to express an expert opinion in anticipation of giving evidence. Further, the limitations to the use of Ms Hind's reports are plainly set out in the reports themselves. 90 I am also not satisfied that the evidence is not otherwise available to the accused such that he cannot get a fair trial. It is open to the accused to call expert evidence from an appropriately qualified expert. An expert could watch the recordings and form an opinion in relation to the communication issues that arise. It remains open to the accused to pursue this avenue of inquiry. The approach urged by the accused is not consistent with the purpose or objectives of the Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015. That is because, if the accused's contention was accepted, then on every occasion where a witness intermediary gleaned information about a witness's capacity to communicate during the assessment process and reported upon it (as is required), it could be posited on behalf of the accused that that was relevant evidence and that the witness intermediary is a potential witness in the proceedings. The inevitable consequence would be the need to appoint a second witness intermediary ... 91 Where an accused wishes to call such evidence, it must be sought from a relevant expert and not the witness intermediary…."
A significant part of the applicant's attack on this reasoning in relation to this ground has already been addressed and rejected, namely that cl 89(5)(c) operates as a continuing condition of a witness intermediary's appointment such that if it becomes apparent that a witness intermediary has a realistic prospect of becoming a witness then their appointment must or should be revoked. Nevertheless, the applicant also contended that the trial judge's findings in [89] and [91] of this extract reveal that her Honour wrongly assumed that there was "some blanket prohibition on a witness intermediary being a witness in the proceedings". As to why that assumption was wrong, the applicant posited an example of a witness intermediary who hears a "child witness spontaneously retract … allegations" as an occasion where a witness intermediary would clearly be a witness in the substantive proceedings. Consistent with its submissions noted above, the Crown accepted that a witness intermediary might become a witness and that something disclosed in a report prepared under cl 89(6) might give rise to that circumstance, but submitted that would not necessarily require the revocation of the appointment of the witness intermediary. It was submitted that this is especially so in this case where there were a number of issues that had to be addressed before a determination could be made as to the potential for Ms Hind to be called.
In considering these complaints, three matters must be noted. First, nothing in Part 29 precludes a person who is appointed as a witness intermediary from also being a compellable witness. Second, there is no form of privilege that attaches to a report prepared under cl 89(6). Nothing in Part 29 makes the contents of such a report inadmissible per se. However, if they are to be used as the basis for seeking the discretionary revocation of a witness intermediary's appointment on the basis of an asserted incompatibility between the role of witness and witness intermediary then close attention will need to be given to the asserted relevance of the report, its admissibility, the extent to which the relevant part is truly in issue and other potential sources of the same evidence. Third, for the reasons given above, the fact that an intermediary may become a witness by reason of events occurring after their appointment, including the contents of their report, does not necessarily preclude them from continuing as an intermediary. Whether it does or not will depend on the circumstances.
It follows from our conclusions on the proper construction of cl 89(5) that the applicant's submissions were flawed in assuming there was a necessary dichotomy between a person having the status of a witness intermediary and being a possible witness. However, we also consider that the trial judge wrongly made the reverse assumption, that is, her Honour assumed that if a person was appointed a witness intermediary, then they could not be a witness in the proceedings, their report prepared under cl 89(6) was not capable of being evidence and thus a basis for the revocation of their appointment based on the contexts of their report could never arise. Nothing in the text of Part 29 supports that approach either.
If this had been the only ground raised, we would have granted leave to appeal, allowed the appeal but only remitted the matter for the trial judge to reconsider in accordance with these reasons. This is so because we accept the Crown's submission that a determination of whether Ms Hind's appointment should be revoked on this basis requires a number of further issues to be addressed, specifically whether Ms Hind is truly a potential witness, whether that matter, if established, warranted the revocation of her appointment and when that should occur. For example, the Crown noted that there are outstanding challenges to the admissibility of the recordings made by MC's mother, as well as parts of her JIRT interviews which have not been ruled upon. If some or all of those challenges are upheld then the suggested basis for Ms Hind to give evidence would fall away. Also, it is not known whether MC will be able to provide any verbal evidence. Further, despite the applicant's protestations to the contrary, it may be that he can secure evidence about MC's communicative abilities from another source as contemplated by the trial judge.

Ground 2: Assisted the Witness in a Professional Capacity

Ground 2 of the appeal challenges the trial judge's failure to revoke Ms Hind's appointment on the basis that she had, prior to her appointment, assisted MC in a professional capacity.
As noted, Ms Hind is a qualified speech pathologist. She has a Masters of Applied Linguistics and a Bachelor of Applied Science in speech pathology. The trial judge found that she conducts her own private speech pathology practice but is also a "Clinical Educator" with a major university. In this role she teaches clinical skills to student speech pathologists. She is a clearly a professional who assists people "in a professional capacity".
The trial judge found that Ms Hind first met MC at her school on 14 March 2018. Ms Hind attended the school to facilitate student placements with speech pathology students under her supervision and, according to the trial judge, "not to conduct therapy".
Ms Hind noted that MC was "selectively mute" and her academic and social development was significantly compromised. The trial judge also found: "After [their] initial meeting with MC, Ms Hind volunteered to spend half an hour with her the following week to see if MC would be willing to speak to her or her cohort of students. Ms Hind said, 'I have many years of experience working with children with communication disorders and I perceived that she felt safe with me. This is demonstrated by the fact that she allowed me to speak to her and joined in the conversation with me about her school.' Ms Hind introduced MC to one of her students. That student was assigned to work with MC for a period of nine weeks. MC said 'hello' to Ms Hind each week, and there was also a few moments of small talk associated with greeting each other once per week for each of those nine weeks." (emphasis added)
Ms Hind said she met MC again at the police "Child Abuse office" on 7 June 2018. The trial judge found that MC recognised Ms Hind and "appeared happy to see her".
Given that ground 1, if upheld, requires that this Court address the question of whether Ms Hind had assisted MC in a "professional capacity", it is necessary to note some uncontested aspects of Ms Hind's evidence that supplement the above findings.
First, although it is implicit in the above extract, in her statement Ms Hind confirmed that she conducted a "session" with MC a week after first meeting with her, that is on 21 March 2018 ("I did not work with [MC] as a clinician following my first and only session with her on 21.3.2018" [emphasis added]).
Second, on that day, that is 21 March 2018, Ms Hind assigned a student to work with MC to "further develop her communication skills" and they worked together for nine weeks. From that time until June 2018, Ms Hind said that her direct contact with MC was limited to "shared public spaces within the school and surrounded by my students".
Third, Ms Hind described the goals of the therapy provided to MC by the students under her supervision as being to improve MC's "conversational style" and her "intelligibility". In cross‑examination on the voir dire, Ms Hind agreed that she had professional involvement with MC but added that "I would like to stipulate that [it was] a professional involvement in a supervisory capacity, not in a therapeutic capacity".
In her judgment, the trial judge referred to the dictionary meaning of "assist" as being "to give aid or help" or to "act as an assistant". Her Honour then cited a passage from Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] as support for the proposition that there "may be differences between the literal and legal meaning of a statutory provision", before finding as follows: "83 In my view, in the context of the amending legislation as a whole, and in particular given the proximity to the words 'professional capacity', the word 'assisted' necessarily comprehends contact between a potential witness intermediary and a witness in the proceedings, such that it could be said that the potential witness intermediary is thereby no longer neutral or impartial. For instance, a potential witness intermediary might have had a pre-existing professional counselling relationship and be privy to confidential information, such that they could not be impartial. This may be distinguished from contact that is relatively anodyne. Contact that comprises courteous greetings or that does not involve a therapeutic component does not mean that a potential witness intermediary has 'assisted the witness in a professional capacity'. … 85 For any prior association to have the effect of disqualifying the witness intermediary in question from fulfilling that role during the pre-recorded hearing, it must be an association of a kind that would affect the witness intermediary's neutrality and impartiality. 86 In the circumstances here, I am satisfied that the contact between Ms Hind and the witness was limited, that there was no therapeutic component to it, further, that there was no transfer of information such that the communication that did occur could be thought to compromise the independent role of the witness intermediary. I am satisfied that Ms Hind was, and is, a neutral and impartial communication specialist. Whilst she had some contact with the witness MC prior to the JIRT interviews, that nature of the contact was not therapeutic. It is not the form of 'assistance' that parliament would have intended should disqualify Ms Hind from continuing in the role of witness intermediary. I find that Ms Hind did not assist the witness in a professional capacity." (emphasis added)
The Crown submitted that this reasoning does not demonstrate any error of principle. It was submitted that this approach to the construction of cl 89(5)(b) was consistent with the language and purpose of the statutory provisions, namely the avoidance of the appointment of a partial or biased witness intermediary. The Crown submitted that whether the test was satisfied was question of "fact and degree" and the trial judge's conclusion was "well open".
It is correct that whether cl 89(5)(b) is satisfied in a given case is ultimately a question of fact and degree (Robbins Herbal Institute v Federal Commissioner of Taxation (1923) 32 CLR 457; [1923] HCA 28 at 461), however that presupposes the provision has been correctly construed. While the last sentence of [86] purports to address the statutory test, the emphasised passages which precede it reveal that the trial judge misconstrued cl 89(5)(b) in two related aspects. First, her Honour imported a requirement that any assistance that was provided to the vulnerable witness must have been of such a kind that would warrant a conclusion that the intermediary is no longer neutral or impartial. That is not what the plain words of the clause describe. As explained above, this aspect of Part 29 simply imposes a prohibition on the appointment of an intermediary with a prior professional association. The prohibition is expressed in straight forward terms so as to avoid, not encourage, subjective inquiries about whether the intermediary is impartial or not.
Second, her Honour limited the form of professional assistance to which cl 89(5)(b) refers to only direct assistance that had a therapeutic component or function (that being a form of assistance that might result in the transfer of information and compromise the intermediary's impartiality). Again, nothing in the text or structure of Part 29 provides any support for such a restrictive interpretation. It can be accepted that the fact that there may have been direct dealings between a vulnerable witness and a professional in a therapeutic or consultative session will often mean that cl 89(5)(b) is satisfied. However, the types of assistance that might be provided by a professional to a vulnerable person beyond direct therapeutic assistance of the kind envisaged are myriad and many of them are likely to amount to the very form of disqualifying prior association that cl 89(5)(b) precludes. In this case, it is very likely that the initial consultation between MC and Ms Hind was in some sense therapeutic. However, at the very least it was diagnostic and certainly must have involved either an exchange of information or the making of observations by Ms Hind in a professional capacity which were undertaken in an endeavour to assist MC. That was sufficient to satisfy cl 89(5)(b).
Before the trial judge, the applicant did not contend that Ms Hind's supervision of speech pathology students assisting MC satisfied cl 89(5)(b). However leave having been granted and error found, this Court can consider that contention as part of its own assessment of whether Ms Hind was disqualified from being appointed. In that regard, even though Ms Hind did not have direct dealings with MC thereafter, her supervision of students who assisted her most likely amounted to a form professional assistance provided to MC by Ms Hind. Although it was not explored on the voir dire, given that Ms Hind was supervising students who were seeing clients, including MC, in a clinical style setting, it seems likely that those students were providing feedback on their sessions with the clients and seeking assistance going forward. If, on the other hand, all that Ms Hind was performing was a purely administrative task of matching clinicians with patients and documenting the time spent that would be unlikely to warrant a finding that Ms Hind had assisted MC in a professional capacity prior to her appointment.
In this case, based on the trial judge's findings and the uncontested evidence, it was clear that Ms Hind had so assisted MC prior to her appointment as a witness intermediary on 19 August 2019. Accordingly, Ms Hind was not eligible to be appointed and it was necessary for this Court to revoke her appointment.

Clause 89(5A)

One further matter should be noted about cl 89. Since the events the subject of this application, Parliament has passed the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 which inserts cl 89(5A) into Part 29 as follows: "Subclause (5) does not prevent a person from being appointed as a children's champion for a witness merely because the person carries on the functions of a children's champion for the witness during a criminal investigation that takes place before or after the commencement of proceedings to which this Part applies."
This provision came into force on 27 October 2020. It suffices to state that, on this application, it was not contended that any aspect of Ms Hind's dealing with MC (GC or JC) during the JIRT interviews was said to give rise to a circumstance that precluded her appointment by the operation of cl 89(5). In light of our findings about cl 89(5)(b) no such issue arose in relation to MC.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 April 2021

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