R v Manikam[2024] QDCPR 74

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   By way of application filed on 19 July 2024, the applicant seeks the following order:

“That witness SY is not competent to give evidence in this criminal proceeding.”

Relevant background

2. [2]
   The applicant is charged that on a date unknown between 31 December 2021 and 20 April 2021 he unlawfully and indecently dealt with SY, a child under 16 years, and she was under 12 years.
3. [3]
   SY was interviewed by police on 22 June 2021.  The recording of that interview was tendered on the pre-trial hearing.
4. [4]
   In brief, it is alleged that the applicant was a friend of the complainant’s mother, and he would come over and visit.  It is alleged that while the complainant was sitting in front of the applicant watching television, he touched her “where you do your wee” on the inside of her clothing.  The complainant’s mother was also in the loungeroom watching television at the time that occurred.
5. [5]
   SY has an intellectual impairment, and the prosecution sought an expert report on her capacity to give evidence.

Report of Dr Michelle Livock

6. [6]
   The report of Dr Livock was disclosed to the defence, and it is attached to the affidavit of Kristy Adele Bell, filed on 10 July 2024.  Dr Livock is a clinical neuropsychologist.
7. [7]
   Dr Livock assessed SY on 18 January 2024.  At the time SY was 11 years and 11 months old.  At the time of the assessment SY had completed Grade 6 at her local primary school.  She was supported in primary school by the special education unit. She also received speech pathology support in the early years of primary school.

8. [8]
   At 4.2, Dr Livock said this:

“Significant speech articulation problems were evident, consistent with her diagnosis of speech apraxia, and it could be difficult to understand her speech.  Immature grammatical construction was also evident in her speech.  [SY] often spoke in an overly loud voice, particularly when excited.  She frequently used gestures to supplement her verbal communication.  [SY] frequently chatted, with a ‘stream of consciousness’ quality to her speech.  Engagement in reciprocal, back-and-forth conversation required frequent scaffolding from the examiner to support [SY] in staying on track and to provide topic – relevant information, as she typically followed her own train of thought.”

9. [9]
   At 5.1, Dr Livock said this:

“[SY’s] overall level of intellectual ability is well below expectations for her age (FSIQ equals 65, first percentile, extremely low range), consistent with her diagnosis of an intellectual disability.  The majority of [SY’s] discrete areas of cognitive functioning were consistent with his overall score (i.e. below expectations for her age, first – fifth percentiles), including aspects of her verbal thinking skills (i.e. ability to make links between verbal ideas, verbal inferential reasoning, stored verbal knowledge, receptive and expressive vocabulary), her visual spatial skills (i.e. ability to see how visual-spatial information fits together), her fluid reasoning (i.e. non-verbal reasoning, ability to generalise previously rules across context, ability to solve novel problems), and her working memory (i.e. ability to hold information in mind in the short term while mentally working with it).”

10. [10]
    Dr Livock said the following at 5.3:

“[SY’s] performance on listening comprehension tasks was well below expectations for age (first percentile).  Her performance was driven by reduced vocabulary knowledge relative to age expectations, difficulty holding multiple clauses of verbal information in her mind at once (related to poor working memory), and difficulty sustaining focus on paragraphs of spoken information (due to attentional fatigue).  [SY’s] listening comprehension skills are currently at the level of a typically developing 5-year-old child.”

11. [11]
    At 5.5 this was said:

“Her verbal fluency (i.e. strategic retrieval of verbal information) was well below expectations for age (first percentile).  However, her performance improved significantly when she was provided with some external structure to direct her to the type of information she needed to locate (50 percentile, average range).  This suggests that [SY] has significant difficulty organising verbal information in mind for efficient retrieval, but she benefits from an external prompt to support language retrieval.”

12. [12]
    At 6.5 this was said:

“On review of [SY’s] police interview transcript, dated 22.06.2021, [SY] had difficulty spontaneously recalling information about the alleged offending, and anxiety appeared to be impacting her verbal fluency.  She was better able to provide details of her experience when scaffolded with direct questioning, and this improved as the interview progressed.  Consistent with observations in the current assessment, [SY] used developmentally immature syntax and grammar, and she often provides extraneous, contextually irrelevant information.  Positively, [SY] was able to freely and spontaneously correct any misunderstandings of her descriptions”.

13. [13]
    At 6.6 Dr Livock considered that while SY was able to encode and recall her past experiences, she had to place them within time, she currently required a “very high level of external support to verbally describe the details of these experiences in an organised and sequential manner.”
14. [14]
    At 6.8 the following was said:

“[SY] was not able to spontaneously explain the difference between truth or lies or provide definitions for these concepts.  She was able to correctly identify and generate true and untrue statements about the here-and-now, but not about past experiences.  This suggests that [SY] has a basic understanding of the difference between truth and lies as ‘not made up’ and ‘made up’ information.  [SY] is not yet able to demonstrate a deeper conceptual understanding of these concepts.  This likely relates to her development delays in verbal conceptional thinking and verbal expressive skills.”

15. [15]
    At 6.9 Dr Livock asked SY to whom it was important to tell the truth.  SY said it was important to tell the truth to “adults, mum, dad, teachers, people you know”.  Dr Livock asked if it was important to tell the truth to police, and SY said, “Yes … [because] they will put you in jail] if you don’t]”.  Dr Livock considered these responses indicated that she had a real-based understanding of truth telling.  She knew that truth telling was expected by adults and that she may be punished if she did not tell the truth.  Dr Livock did not consider that she had insight into the moral importance of truth telling in certain contexts or into the broader consequential implications of truth telling.
16. [16]
    At Part 7.0 of her report, Dr Livock expressed opinions on the overall competency of the complainant.  She said:

1. "7.1
   Overall, [SY] is a young girl demonstrating reduced cognitive ability and developmental immaturity relative to expectations for her age, caused by a genetic chromosomal deletion and duplication syndrome (16p 11.2 deletion and 11p 15 duplication).  Consistent with this genetic syndrome, [SY] has diagnoses of intellectual disability (mild) and childhood apraxia of speech.  [SY’s] performance on cognitive testing means that she needs significantly more help compared to most children her age across most aspects of her thinking, processing, reasoning, and communication skills.  At this point in her development [SY] shows better ability to accurately and efficiently process and work with visual information compared to verbal information.

1. 7.2While a diagnosis of intellectual disability (mild) does not automatically preclude children from competently acting as a witness in a criminal prosecution, there are several factors in [SY’s] profile that negatively impact her ability to provide an intelligible account of events which she has observed or experienced, and to respond to questions about events she has observed and experienced in a court setting (i.e. s 9A of the Evidence Act 1977).  Firstly, [SY’s] expressive language skills and her speech apraxia mean that she is demonstrating particular weakness in her ability to clearly describe her experiences in a sequential and organised manner.  While she benefits from direct questions (to support her access to relevant information) and external scaffolding (to ensure she stays on topic, doesn’t mix up details from multiple events/experiences, and sequences her narrative in a comprehensible manner), the level of support [SY] needs in this area is at frequency and intensity that is not practicable in a court setting.
2. 7.3Secondly, while she demonstrates a basic understanding of the distinction between truth and lies, her understanding is currently not robust enough to demonstrate that she understands the importance of truth telling in a legal context.  Finally, [SY’s] ability to access and retrieve verbal information was observed to decline when discussing stressful or emotionally arousing topics.  While this is not unusual, in the context of [SY’s] baseline verbal fluency skills (which are well below expectations for her age), anxiety is highly functionally impactful for her communication.
3. 7.4These factors together mean that [SY] is a vulnerable witness.  The level of accommodation she would need, at this point in her development, to be able to participate in the evidence giving process and cross-examination is not practicable in a court setting.  As such, it is my opinion that [SY] is not demonstrating competency to act as a witness in a criminal prosecution, at this point in her development.”

Intermediary assessment report

17. [17]
    At the initial hearing of this matter on 8 August 2024, I decided that further evidence was required in respect of Dr Livock’s conclusion at 7.4 that the level of accommodation required to allow SY to participate in the evidence process was not practical in a court setting.  Following discussion with counsel the matter was transferred to Brisbane to allow an intermediary assessment report to be conducted.  The assessment was done and the report was completed by Jeanne Cox, a speech pathologist who has been a fulltime, inhouse intermediary for three years and four months at the date of her report.  Ms Cox conducted an assessment of SY on 3 October 2024.
18. [18]
    It stated that SY had difficulty responding to broad open questions.  She was able to accurately understand a range of question styles and language which included direct questioned words, yes/no questions, true/false questions, negative tag questions, multipart questions or instructions and passive sentence forms.^[1]
19. [19]
    It was observed that SY had difficulty in responding to more complex questions and sentence forms, such as being asked to explain why something happened.  For example, she could not explain why pets that were at her home were given away, or why an elephant in a picture she was shown was standing on its hind legs.
20. [20]
    It was observed that SY showed some difficulty estimating with confidence how long something had taken, for example that she had brushed her teeth for five minutes, five minutes on one side and five minutes on the other.  She was more accurate in estimating how long a short video went for, saying “two minutes”, though she was hesitant about that.
21. [21]
    It was observed that SY has a low level of understanding of vocabulary.  She was presented with a number of less common words during the assessment, such as “lawyer, court, evidence, initially, adjacent, relationship, elephant’s tusk”, none of which she understood.  Nor did she understand figures of speech, like “he hit the roof” or “it’s a piece of cake”.
22. [22]
    SY was able to refute information that was incorrect, in particular when it was suggested that she was either in Grade 6 or Grade 8, when in fact she was in Grade 7.
23. [23]
    At Part 4 of the intermediary report, the following conclusions were reached:

1. “4.1
   SY is a 12 year old girl (at the time of the assessment), with a pleasant demeanour, who has the ability to communicate with the court when language used is simple, direct and appropriate for a witness with intellectual impairment and difficulties in verbal communication.  SY has a good understanding of the difference between a truth and a lie and the consequences of telling a lie.  While she may at times know what she wants to say, she may have difficulty finding the correct words to verbalise her response, subsequently resorting to a, ‘I don’t know’, or ‘I don’t remember’ reply.  She is able to refute incorrect information if the language used is prepared in a simple manner in order to meet her understanding.  Complex and figurative language should be avoided for SY to give her most accurate answer.  Visual communication aids should be used to support SY in responding accurately to cross-examination.  SY may at times be difficult to understand due to her diagnosed apraxia of speech, so that requests for repetition of SY’s responses may be necessary in order for the court to understand some of her words.

1. 4.2
   Assessment shows that SY will require certain communication and behavioural adaptations that will enable response to questions so that she can give her best evidence.  The assistance of an intermediary during SY’s pre-recording of evidence in any relevant proceedings where she will be required to engage with the court is recommended and detailed in s 4.3.”

24. [24]
    4.3 of the report sets out 19 recommendations for questioning. It is further recommended that the prosecutor and defence barrister introduce themselves to SY before proceedings, giving a clear explanation in simple terms as to their individual roles. Wigs should not be worn in court.  It is further recommended that the prosecutor and defence barrister seek advice from Ms Cox about the wording of the proposed questions in advance of any schedule pre-recording and cross-examination.
25. [25]
    Appendix 1 gives examples of visual reminders that can be used.  They are very childlike and simplistic.

Further evidence of Dr Livock

26. [26]
    Dr Livock gave evidence on the resumed pre-trial hearing on 28 November 2024.  She had read the intermediary assessment report.  In evidence-in-chief she was asked if the report had any impact on her opinion regarding SY’s competency.  She said:

“Yeah.  Yeah, absolutely.  So look, I guess for me the – the kind of main issues that – that came out of my assessment and that I saw as a stack of incompetencies for [SY], um, was firstly her, you know fairly significant language impairment, which is also discussed in, uh, the intermediary report.  Um, and then, secondly, the impact of that stress – uh, of stress and emotional arousal on her expressive language abilities.  So in, kind of, reading the, um – and I can go into further detail of that if that’s required, um, but in reading through the intermediary report, you know, overall I think the suggestions are really helpful, um, particularly the visual aids and incorporating the intermediary in the planning of some of the questions, um, because, you know, I think it’d be really difficult and feel a bit unnatural, um, to simplify communication to the degree that [SY] would need, um, you know, if you’re just doing that on the fly.  So working that out ahead of time and with the intermediary I think, uh, is a particularly useful suggestion.  Um, overall, I guess, the impact of – of that report and my opinion is that, you know, I think the ideal situation for [SY], you know, someone with their level of language impairment to share her story is really in a supportive, highly scaffolded kind of good faith context rather than necessarily an adversarial context, and you know, I feel like that is going to affect [SY’s] evidence – giving capabilities more than – than most kids her age.  So if the court’s able to offer that – you know, that highly supportive, highly scaffolded kind of good faith context, uh, based on the recommendation to the intermediary report, that I don’t have any objections.”

27. [27]
    The prosecutor asked Dr Livock that if the specific measures were implemented, whether that would impact her assessment of SY’s ability to give intelligible and reliable evidence.  Dr Livock said:

“So I guess it’s a bit more of a complex question, and you know, ultimately, obviously that – that’s for the court to decide, but you know, for me I think the – the key issue with [SY] – and – and I’m just going to backtrack here a little bit – like, go back a little bit to explain some of my reasoning and then I’ll – I’ll jump into, um, a response to that question, but you know, the reason that I see – or – I – my opinion at the time of the report was that ultimately [SY], you know, didn’t have capability to – to give evidence in a court setting was really, um, I guess, the intricacies of her language impairment.  So as we all know, she has an intellectual disability, but you know, that in and of itself doesn’t preclude, you know, someone from giving evidence, but for [SY] the effect of her language impairment is that because language is such a highly organising skill – you know, in the context of memory it helps us to organise and structure our experiences, if you have developmental language delays, this really impacts your ability to mentally organise your experiences and also to organise incoming information in general.  So you know, consistent with this, across my assessment, intermediary assessments, um, you know, [SY] had a lot of difficulty with tasks that required her to retrieve verbal information from mind, right, and we can think about that like a messy library.  So in terms of if the information – sorry, if the recommendations of the intermediary report are implemented, how does that affect her ability to provide an intelligible account of events?  Well, I think it means that she’s going to be able to provide an account of events to the best of her abilities, which will mean, for [SY], being able to provide like the gist points, right?  Like the general things that she recalls and remembers.  We know that because of, you know, her broader cognitive profile, she doesn’t encode details as efficiently, you know, as – as typically-developing kids her age, and so that’s going to impact, you know, her ability to respond to questions about details of her experience.  Um, but I guess, you know, it depends on the implementation of the recommendations and the effect that will have on her ability to provide an intelligible account of events.  It kind of depends on whether or not the best that [SY] can do is considered an ability to provide an intelligible account of events.”^[2]

28. [28]
    Dr Livock was asked about whether she had the same opinion about SY’s reliability.  Dr Livock asked what reliability meant.  I explained that it meant the ability to give accurate evidence, to be accurate about facts.  Dr Livock said:

“I know that seems like a very simple question, but I guess for me when I think about giving accurate evidence, again, it – it might be accurate to the best of [SY’s] abilities, but whether or not she is – is giving kind of an accurate, um, account of her events, like objectively, I think, given her really low ability, for – the bar is a little bit lower for her essentially.”^[3]

29. [29]
    In cross-examination Dr Livock was asked about her opinion that SY would not be able to correctly identify true and untrue statements about past experiences. 

Dr Livock said:

“So when we’re kind of looking at truth/lie competency, um, there’s a bit of a – I guess, a hierarchical kind of process where, you know, the most robust level of truth/lie competency would be, you know, someone whose able to spontaneously articulate like, ‘this is what it means for something to be true, this is what it means for something to be a lie,’ you know, etcetera.  Um, given [SY’s] language capabilities, she wasn’t able to do that, so then we go to the next layer, which is really providing, um, I guess a scaffolded way to look at truth and lie.  So firstly we’re looking at things in the here and now.  So things like, you know, is it true that this room has pink walls?  Is it true – is it a lie that I have brown hair, you know, that type of thing.  Um, then we go a little bit further where we’re looking at reall her ability to make judgments about, um, you know, incorporating, like what she knows about truth and lies with her conceptual understanding of previous experiences.  So an example of that would be, um, you know, could you tell me something true about your classroom at school?  Is it true that, um, you ate such and such for lunch, you know, two weeks ago or – or whatever.  So that’s a much more complex skill because it kind of requires integration of what she knows about – like, her – her knowledge of truth and lies, but also her ability to then apply that judgment to things that have happened in the past or experiences that have happened in the past.  And that’s where she sort of hit a roadblock.  She wasn’t really able to do that.”^[4]

30. [30]
    There was this exchange between defence counsel and Dr Livock: 

1. “Q
   So in the intermediary report there’s a section that talks about – and for the record, it’s page 14, the number 16 in the box – and it talks about where various things would have to be put to [SY] and ordinarily we’d say ‘I put to you that Michael did this’, and the intermediary has suggested that we say – tell her that we’re going to say some statements and she says true or false and then we have to say a statement about something that happened quite some time ago?

1. A
   Yeah.

1. Q
   Is that would encounter difficulties for [SY], wouldn’t it?

1. A
   I think she would struggle with that, yes.

1. Q
   All right.  So the evidence or the answers that she may give to those questions is unlikely to be accurate?

1. A
   Well, can’t speak to whether its likely to be accurate or not, but I can say she would struggle to, um, yeah, apply that – you know, engage in a complex cognitive process of certainly understanding, like, what does it mean to be true or false and then apply that.

1. Q
   And presumably, you spoke before about her – with her language difficulties it being like a bit of a jumbled library sometimes when she’s recalling past experiences.  Would that library get more jumbled the further we’re asking her to go back?  So if we start with two weeks then we say two years would it become more and more difficult for her?

1. A
   Uh, look, not necessarily.  Um, you know, it’s a pretty – it – the way that you know we encode and organise memories is, you know, there’s a lot of information and research around that and – sometimes you know, some research found that people’s memories tend to become more organised with time, you know, an increasing language ability, um, but that’s definitely not to say that my opinion is also the reverse of what you said, which is I think she’ll be better able.  I just don’t think we can make a call on the length of time and the effect of that on her organisation of experiences.

1. Q
   But certainly if something is put to her in that context – a statement about the past – and asking her whether it’s a truth – whether it’s true or false, you’d think she would have difficulties with that?

1. A
   Yeah, I think she would struggle with that.^[5]

31. [31]
    Dr Livock was asked about SY’s ability to answer questions in an adversarial context. 

She said the following:

“So, um, I – I guess kind of, we can – we can see, huh, this when we look at the police interview as well – um, her – her original , uh – police interview, you know, when [SY] is given lots of questions, lots of structure.  And then when I say good faith, they – I mean, you know, essentially being asked questions by someone who is genuinely trying to uncover or help her explain, you know, her story, um, that’s when she does best.  Um, the adversarial side of it is, uh, you know, I guess, comes into the cross-examination element of a court setting where the intent, um, isn’t necessarily to really support [SY] to explain her story in the best way that she can.  You know, the intent is  –  and forgive me if I’m getting this wrong, but the intent, my understanding, is to kind of figure out if there’s any inconsistencies or holes or issues with her testimony, um, and she’s particularly vulnerable, I think, to that kind of questioning or that kind of um environment.  Vulnerable in a number of ways.  Firstly, the emotional arousal side of it, which the intermediary report does go some way to addressing that, um, but secondly, even just the language content.  But again, the intermediary report – it does go some way to addressing that.  I guess that statement is really about saying if everything – all the recommendations in the intermediary report are able to be put in place and [SY] is able to be really highly scaffolded in the way that’s she’s asked questions and supported.  Her response is you know the intelligibility – you know what I mean … the ability to understand her responses is supported as well, um, then I think, you know, as I said, I don’t have any objections, but in a classic, you know, cross-examination environment, I think that would be really challenging for her.”^[6]

32. [32]
    The following exchange took place between defence counsel and Dr Livock:

1. “Q
   But even with those things in place, Dr, you agree that there’s some concern if she’s challenged at all and she’ll not cope well with that?

1. A
   Well I don’t necessarily think if she’s challenged at all, but it – I think you know, the, like it’s a stressful environment right?  You know, when someone’s giving evidence and they’re being cross-examined.  Um, and giving her underlying capacity and – sorry – let me change that wording.  I don’t mean capacity in a legal context.  Um, given her underlying capabilities, um, and the level of her language skills, um, you know, she hasn’t really got much window, right, to play with there in terms of finding things challenging or dropping down.  So it’s a bit of how long is a piece of string kind of question because, as we discussed before, you know, the supports, I think, are really excellent and can support her to participate to the best of her abilities, but whether or not those abilities are sufficient, um, in this context is, yeah, up to the court.^[7]

Relevant law

1. [33]
   Section 9A Evidence Act 1977 reads as follows:

“9A  Competency to give evidence

1. This section applies if, in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness in the proceeding to give evidence.
2. The person is competent to give evidence in the proceeding if, in the court’s opinion, the person is able to give an intelligible account of events which he or she has observed or experienced.
3. Subsection (2) applies even though the evidence is not given on oath.”

34. [34]
    The Oxford dictionary of English, 3^rd ed, defines “intelligible” as able to be understood, comprehensible.
35. [35]
    In R v Williams [1989] 1 Qd R 601, Williams J, as his Honour then was, considered the precursor to s 9A(1), of the Evidence Act, s 9(1) which read:

“Where in any proceeding a child called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, though not given upon oath, if in the opinion of the court he is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.”

36. [36]
    Williams J said the following at 602-603:

“When the section refers to the ‘reception of the evidence’ it is referring to the evidence to be given by the child in the context of the trial.  As has been said more than once, the evidence in question here would be the only evidence against the accused and that fact cannot be ignored when its reception on an unsworn basis is being considered.

From the depositions and the opening it appears that the critical statement would be to the effect that he saw the accused lying on top of the complainant in the bushes, that the accused’s bum was bare, and that the complainant’s knickers were down her legs, and the accused was going up and down.  Even if all that was accepted, it will still not necessarily establish rape, because it does not necessarily

establish penetration.  That indicates the importance of accuracy and detail in the evidence of the child.  Though Lord Goddard CJ speaking for the Court of Criminal Appeal in R v Reynolds [1950] 1 Q.B. 606 at 609 said:

‘Then you may have to go on and consider whether, if the child does not possess sufficient intelligence to understand the nature of an oath, he is possessed of sufficient intelligence to justify the reception of his unsworn evidence on the ground that he understands the duty of speaking the truth.’

I do not regard that passage as limiting the judge’s consideration of the sufficiency of the intelligence of a prospective witness to his understanding of his obligation to speak the truth.  The child may now understand the duty of speaking the truth whilst in the witness box, but even that is by no means clear.  But in my view his power of recollection and capacity to express himself accurately and precisely in giving an account of an alleged incident are such that he does not have ‘sufficient intelligence to justify reception of the evidence’ not under oath.  Though it is not directly relevant to the matter now under consideration, I record that there is no evidence capable of corroborating the evidence of his child.”

37. [37]
    Williams J considered that as the child witness was unable to recall the name of the street in which he lived, nor could he recall the name of his teachers in Grades 1 and 2 when the alleged incident was said to have happened, nor could he display any real understanding of sexual matters, he was not satisfied that the witness had such accurate and precise powers of recollection to give evidence.
38. [38]
    There was a discussion of division 1A Evidence Act 1977 in R v Chalmers [2013] 2 Qd R 175, in the judgments of McMurdo P and Chesterman JA.

Consideration

39. [39]
    It was agreed on the pre-trial hearing that I should watch the police interview with SY, conducted on 22 June 2021.  It was obvious watching the video that SY was very vague about details, she was easily distracted and it took effort on the part of the interviewing police to keep her attention on their questions.
40. [40]
    At the beginning of the interview after telling SY that it was important that she only tell the police about things that really happened, that she had heard and that she had seen, she was asked what she had come to the police to talk about.  The following exchange took place:

1. “Q
   So, SY, tell me what you’ve come here to tell me about today.

1. A
   I keep forgetting.

1. Q
   You keep forgetting?  Okay.  Um, tell me everything about Big Mike.

1. A
   I had it on the way, in my head on the way here but I keep, I forgot it.^[8]

41. [41]
    Later SY said that “Big Mike” was a friend of her mother’s, but the children can’t see him anymore “because my brother said he touched his …”.  The police asked further questions about that:

1. “Q
   So [J] said Mike touched his, and you pointed to which part?  Remember, Masina said you can use any words in this room you like.  You will not get in trouble.

1. A
   I keep forgetting what I’m going to say.

1. Q
   Do you know which part he touched?

1. A
   Yes, but um I had it in my head here before but I forget.

1. Q
   That’s okay.  So when you said he touched here and pointed there …

1. A
   Yeah.

1. Q
   What do you do with that part where you pointed?  What do you use that part for?

1. A
   Weeing.

1. Q
   Weeing.

1. A
   He also does that to mine too.

1. Q
   He does that to you too?

1. A
   Yes, and my sister.

1. Q
   All right.  So tell me all about him in doing that part to you.

1. A
   I keep forgetting.

1. Q
   Oh. When did this happen?

1. A
   Um, when he was coming over to see me and my sister.

1. Q
   Okay.  And do you remember the last time that this happened?

1. A
   No.^[9]

42. [42]
    Further in the interview SY said that she was awake on the lounge with her sister and they were taking turns sitting next to the applicant.  There was then this exchange: 

1. “Q
   In a loungeroom as well, okay, and then when you sit next to Michael, what happened then?

1. A
   Um, I keep forgetting.

1. Q
   Oh my goodness.  Remember?

1. A
   No.

1. Q
   Do you remember what Big Michael said?

1. A
   Mm-mm.

1. Q
   Nup?  And what happened when your sister sat next to big Mike?

1. A
   We sat, we sat in front of him.

1. Q
   Yeah.

1. A
   Um I forget.

1. Q
   That’s all right.  Tell us everything about sitting in front of big Michael.

1. A
   I keep forgetting.

1. Q
   Okay.

1. A
   I was about to say it before but I forget.

1. Q
   Oh okay.

1. A
   When I take my glasses off I can’t see that well.^[10]

43. [43]
    SY went on to say that they were watching television, with their mother.  She could not remember what she was wearing when she was sitting with Michael, nor could she remember what he was wearing.  The following exchange took place:

1. “Q
   And when he touched where you do your wee, do you remember if he touched on the inside of your clothing or the outside?

1. A
   Inside.

1. Q
   Inside, and were you, do you remember if you were wearing, ‘cause you’re wearing shorts just now yeah?

1. A
   Yeah.

1. Q
   Do you have any undies?

1. A
   Yeah.

1. Q
   Do you wear undies every day?

1. A
   Yes.

1. Q
   Thank goodness.

1. A
   [Indistinct].  I had undies on when he was doing it.

1. Q
   Okay, and did he touch you on the outside of your undies or on the inside of your undies?

1. A
   Inside.

1. Q
   Inside okay, and what did he say when he did this?

1. A
   Um he was watching the TV too.

1. Q
   He was watching TV too?

1. A
   Mmm.

1. Q
   And did you say anything to him?

1. A
   No.

1. Q
   No, and how long did this happen for?

1. A
   Um, I don’t know.  I think [indistinct] when he did it.”^[11]

44. [44]
    The complainant was asked how she felt when she was touched on the inside of her underpants.  She said that it felt “weird”.  She was asked if she could remember when this happened.  She thought may be a few months ago, may be four months ago. When asked why she thought that, she said “I don’t know why”.^[12]

45. [45]
    SY went on to say that she saw Mike do the same thing to her sister at the same time.  She said that he put his hand inside her sister’s clothing.  While that occurred, the mother was sitting on her seat in the lounge watching TV.^[13]
46. [46]
    SY could not remember any other time that this happened.^[14]
47. [47]
    Towards the end of the interview there was the following exchange:

1. “Q
   … you said it felt weird when big Michael touched you?

1. A
   Yeah.

1. Q
   There?

1. A
   Yeah.

1. Q
   Where you wee, did it feel anything else?  Did you feel anything else darling?

1. A
   Um, no.

1. Q
   No.  Did it feel sore?

1. A
   No.

1. Q
   No, okay.  [Other Officer] I’m just checking, [SY].  When big Michael touched you down there, what was he using to touch you with?

1. A
   His hand.

1. Q
   His hand, okay.  What was he doing with his hand?

1. A
   Um, he was putting it down my pants.

1. Q
   What did he do with his hand when it was down, down your pants?

1. A
   Um, he was touching my private part.^[15]

48. [48]
    It is clear from the above that SY had difficulty remembering the events in question, and needed direction and prompting by the interviewing police to reveal details of the alleged offending.
49. [49]
    In respect of SY’s ability to understand the difference between the truth and a lie, the court should act on the evidence of the clinical neuropsychologist rather than the opinion of the speech pathologist who did the intermediary assessment report.
50. [50]
    I was impressed by Dr Livock as a witness. She made some sensible comments in the light of the intermediary assessment report.  She acknowledged that the ability of SY to give an intelligible account depends largely on the implementation of the recommendations in the intermediary assessment report.
51. [51]
    Critically, Dr Livock in her evidence said that SY would struggle having to comment about whether an incident that occurred sometime in the past happened, that is to say whether an account was true or false.  She also repeated her opinion that the nature and content of the questions could be “emotionally arousing for her and could cause her problems with her ability to give evidence.” She added that in a classic crossexamination environment, that would be really challenging for her.  
52. [52]
    It is important to note the test under s 9A of the Act.  The test is whether the court has the opinion that the witness is able to give an intelligible account of events which she has observed or experienced. It is different from the previous s 9(1). Reliability is not a consideration.  
53. [53]
    The supports required for SY to give evidence as set out in the intermediary assessment report are significant.  It is difficult to know on an application such as this whether they will be sufficient.  This is a finely balanced matter.  There is a clear difference between whether a witness is able to give an intelligible account of events, and whether that witness is reliable such that they should be accepted by a trier of facts.  Having regard to all the matters I have reached the conclusion that SY is competent to give evidence, within the terms of s 9A of the Act.
54. [54]
    A separate assessment has to be done whether SY is competent to give evidence on oath, under s 9B of the Act. On the evidence before me it is difficult to conclude that SY has sufficient understanding of the matters set out in s 9B(2).
55. [55]
    R v Chalmers, supra, made it clear that the trial judge has to make the assessment required under s 9B(2) (see McMurdo P at [4]). Cullinan J agreed with her analysis of s 9B. Chesterman JA at [49] said this:

“There may be occasions where it is appropriate for prosecutor and defence to agree that a witness is not competent to give evidence on oath by reference to the statutory test. It may not in every case be necessary for the trial judge himself or herself to undertake an inquiry as to competence though it is the usual responsibility of the judge to determine whether a witness is competent.”

56. [56]
    The courts should follow the analysis of McMurdo P. Consequently, it is a matter for the judge presiding at the pre-trial hearing to make the assessment. 
57. [57]
    If the only evidence against the applicant is the evidence of SY, the prosecution should think carefully as to whether it is in the interests of the complainant, and the interests of justice generally, to proceed to a pre-trial hearing. 
58. [58]
    The indictment is transferred to Brisbane where the intermediary scheme is in operation.