3.14.1 - Charge: Explaining intermediaries and adaptations

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I now want to direct you about the evidence of NOC.

Before NOC gave evidence, NOI was sworn / took an affirmation. NOI is an intermediary. Because NOC [was a child / had a cognitive impairment], the law allows an intermediary to be appointed to help the parties question NOC. NOI is an independent person who was here to assist the court by providing advice on how NOC should be questioned.

As a [child / person with a cognitive impairment], NOC’s language skills are not as developed as those of many other witnesses.

NOI’s role was to ensure NOC was questioned using language that [he/she] could understand. Giving evidence in court can be a stressful process, especially for a [child / person with a cognitive impairment]. At an earlier hearing, NOI, [name of prosecution counsel] and [name of defence counsel] and I discussed how NOC would be asked questions.

[If necessary, give an example of how questioning was adapted]

This was to ensure the questions were formulated in such a way that NOC could understand what was being asked of him/her.

[If the judge or intermediary interrupted to reinforce ground rules, add the following shaded section]

As part of this, NOI / I interrupted the barristers a few times during the questioning to make sure the barristers framed their question in language that NOC could understand.

[Identify interventions by the intermediary, such as: This included:

• suggesting the barrister rephrase questions;
• asking the witness whether [he/she] understood the question;
• asking the witness whether [he/she] needed a break.]

You would appreciate that, as a matter of fairness, these adjustments [and interruptions] were necessary to ensure that NOC was able to understand the questions and that NOC was able to answer those questions without being overwhelmed by complex language or by other stressors or pressures that might affect his/her evidence.

It is also important to understand that ordinarily cross examination is the method that lawyers use to test evidence. However in the case of a [child/person with cognitive impairment] cross-examination cannot proceed in the same robust manner that it might for an adult witness. The form of questions, the tone of the questions and the content of the questions must be adapted to accommodate the age and understanding of the child. The law requires that this be done.

Taking those matters into account, you must not form the view that because a less confrontational approach was taken in the cross examination of NOC, that the allegations are any less challenged or less strenuously denied.

Ultimately, it is for you to decide what parts of NOC’s evidence you accept, if any, and whether the prosecution has proved its case beyond reasonable doubt. You must base your decision on the evidence you hear in court and must not allow a different process of questioning witnesses to distract you from the issues in the case and the need to assess the evidence.

Notes

[1] - Name of Intermediary

Last updated: 23 October 2019

See Also

3.14 - Intermediaries and ground rules explained

3.14.2 – Charge: Adaptations at ground rules hearings