2016 Victims and Justice National Conference Ameliorating Comprehension and Communication Barriers for People with Complex communication Needs in Criminal Trials.

Critical Measures for Witnesses with Complex Communication Needs Advance Directives Communication Assistants Pre-recorded testimony

Human Rights Framework Article 12 of the Convention on the Rights of the Child Article 13 of the Convention on the Rights of Persons with Disabilities Right to a Fair Trial Right to be Treated with Dignity and Humanity Right to Equality before the Law Right not to be Discriminated Against

Control of Cross-Examination Uniform Evidence Acts s 41

Ground Rules Hearings Uniform Evidence Acts, ss 192A and 193(2) (NSW; Vic: ACT; Tas; NT; Cth; Norfolk Island) Criminal Procedure Act 2009 (Vic), ss 179, 181 & 199 Evidence Act 1977 (Qd), s 21A(3)(f); Criminal Code 1899 (Qd), s 590AA, Justices Act 1886 (Qd), s 83A Justices Act (NT), s 201A, Supreme Court Rules (NT) r 81A.1 Criminal Procedure Act 1986 (NSW), ss 130, 136, 139, 140, 247D, 247G & 247H; Schedule 2, cls 84 & 89; District Court Rules 1973 (NSW) rr 53.10 and 53.11 Criminal Procedure Act 2004 (WA), ss 64 & 98; Evidence Act 1906 (WA), s 106S Criminal Law Consolidation Act 1935 (SA), s 285A; Supreme Court Act 1929 (SA), s 72 Criminal Code 1924 (Tas), s 361A; Criminal Rules 2006 (Tas), Part 1A; Evidence (Children and Special Witnesses) Act 2001 (Tas), s 9.

Setting Ground Rules: Judicial College of England and Wales obtaining information about the development/ health/ concentration span of the witness; determining whether the witness is likely to recognise a problematic question or tell the questioner that (s)he has not understood; giving directions to counsel about: Adapting questions to the witness’s developmental level, enabling the ‘best evidence’ to be obtained; Asking short, simple questions (one idea at a time); Avoiding particular question types that may produce unreliable answers. For example, ‘Tag’ questions such as, ‘He didn’t touch you, did he?’ are particularly problematic for cognitively immature witnesses and should be put more directly - ‘Did Jim touch you?’ and if the answer is ‘yes’: ‘How did Jim touch you?’ Avoiding allegations of misconduct without reasonable grounds. Being accused of lying, particularly if repeated, may cause a child or witness with a mental impairment to give inaccurate answers or to agree simply to bring questioning to an end; Determining how the defence case is to be put. For witnesses with immature levels of cognitive development, it may be appropriate to inform the jury of evidence believed to undermine the witness’s credibility, without necessarily addressing the matter in detailed cross-examination.

Communication Assistants Evidence Act 1906 (WA), s 106F; Criminal Procedure Act 1986 (NSW), ss 275B & 306ZK & Schedule 2, cl 88-90; Evidence Act 1929 (SA) s 13A (special arrangements for vulnerable witnesses) and s 14A (entitlement to communication assistance) as amended by the Statutes Amendment (Vulnerable Witnesses) Act 2015 ss 8 & 12.

Communication Assistants Advise Translate Monitor and Intercede

Communication Assistants - Evaluation Where utilised – well regarded Under-utilisation Early disposal of cases Over-reliance by judges on communicators to intervene Communicators’ reluctance to intervene Persistence of adversarial questioning techniques

Pre-recording of the Entirety of Testimony Evidence Act 1929 (SA) ss 12AB & s 13A; Evidence Act 1977 (Qld) ss 21A, 21AI–21AO; Criminal Procedure Act 2009 (Vic) s 370; Evidence Act 1906 (WA) s 106HB; Evidence (Miscellaneous Provisions) Act 1991 (ACT) Div 4.2B; Evidence Act 1939 (NT) s 21E; Evidence (Children and Special Witnesses) Act 2001 (Tas), ss 6 and 6A; Criminal Procedure Act 1986 (NSW), Schedule 2, cls 84-87.

Benefits of Pre-recording Reduced delays; reduced stress; Earlier release of witnesses from the stress of testifying; Improvements in the quality of testimony because it is given closer in time to the events in question; details are not lost through delay and stress of waiting; Better quality evidence improves decision making; Any inadmissible evidence can be edited from the recording; Greater flexibility in taking the evidence – an increased number of breaks can be accommodated, for example, where the witness is tiring; The recording can be re-used if, for any reason, there is a retrial so that the witness is not required to testify and submit to cross-examination on multiple occasions; Assists jurors’ assessment of witnesses’ credibility and their level of understanding by enabling a first-hand account of the events in issue to be given close in time to those events so that jurors can observe the witness in giving that account; Enables the defence to prepare the rest of its case knowing exactly what are the strengths and weaknesses of the primary prosecution witness and on that basis as well, Encourages early pleas; Enabling the prosecution to amend the indictments and adjust its opening address.

Traditional Concerns about Pre-recording Defendants’ loss of opportunity to tailor questions to jurors’ reactions Timely disclosure of the Crown case Requirement to cross-examine principal prosecution witness before the formal trial has begun Early disclosure of defence case Fiscal concerns

UK Advocates’ Gateway Website: http://www.theadvocatesgateway.org/ Toolkits for: Case management in cases involving vulnerable witnesses Ground rules hearings General principles from research re vulnerable witnesses Planning to question vulnerable witnesses and witnesses with specific impairments The effective participation of young defendants

Useful Resources and Sites Equality Before the Law Bench Book (WA) Judicial Commission of New South Wales Equality Before the Law Bench Book, Sydney Australian Institute of Judicial Administration Incorporated Bench Book for Children Giving Evidence in Australian Courts, Melbourne Judicial College of England and Wales Checklist:http://www.judiciary.gov.uk/publications-and-reports/guidance/2012/jc-bench-checklist-young-wit-cases Judicial Commission of New South Wales: www.judcom.nsw.gov.au Judicial College of Victoria: www.judicial.vic.edu.au