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ACT Intermediary Program

Thursday, 12 March 2020

ACT Intermediary Program

The ACT Intermediary Program (‘the Program’) was introduced as a response to the Royal Commission into Institutional Responses to Child Sexual Abuse.

Objective and implementation

The Program aims to provide intermediaries to the criminal justice system so vulnerable witnesses (primarily children) communicate their best evidence at police interviews and trials. The Program may:

  • Better facilitate communication between witnesses and police, counsel and court;
  • Contribute to a reduction in vulnerable witnesses’ trauma;
  • Improve witnesses’ engagement in the criminal justice system; and
  • Improve access to justice for vulnerable witnesses.

The implementation of the Program is reflected in the Evidence (Miscellaneous Provisions) Amendment Act 2019 (ACT), which commenced on 9 March 2020.

Who are intermediaries?

Intermediaries are accredited officers of the court, who are mostly from allied health professionals such as speech pathology, social work, psychology, and occupational therapy.

Who may need an intermediary?

A witness (including the complainant and defendant) may require an intermediary if they have a communication difficulty that will impact on their ability to participate in the justice process. This can include:

  • Children and young people;
  • Aboriginal and Torres Strait Islander people and their communities;
  • Culturally and linguistically diverse people and their communities;
  • Lesbian, gay, bisexual, transsexual, queer and intersex people and their communities;
  • People living with disability; or
  • People impacted by trauma or mental health issues.

At police interviews

At police interviews, an intermediary:

  • Rapidly assesses the witness’s ability to communicate;
  • Debriefs/advises the interview officer on the communication needs of the witness;
  • Sits in on interviews and further advises the interview officer regarding breakdowns in communication.

In court

In court, an intermediary:

  • Undertakes a rigorous assessment to determine all communication needs;
  • Produces a diagnostic report regarding the witness’s communication needs arising from the assessment;
  • Sits in the pre-trial/trial hearings and intervenes should there be a breakdown in communication due to the lack of adherence to ground rules (see Ground Rules Hearing below); and
  • Assists the court and relevant legal practitioners in communicating with the witness (see s 4AI).

Limitations

An intermediary must act impartially when assisting communication with the witness. Intermediaries are NOT advocates, witnesses or expert witnesses and they do NOT:

  • Engage on:
    • The content of the elicited evidence;
    • The issue of whether the evidence elicited assists the witnesses’ case, or otherwise;
  • Provide opinion regarding:
    • The reliability or credibility of any witness;
    • The accuracy of a witness’s recall of facts; or
  • Discuss case merits.

Appointment in court

A court may appoint an intermediary in a criminal proceeding for a witness with a communication difficulty on its own initiative or on the application of:

  • The ACT Director of Public Prosecutions;
  • The witness; or
  • The accused person.

If a court appoints an intermediary for a witness in a criminal proceeding, the witness must give their evidence in the presence of the intermediary. In certain circumstances, a court need not appoint an intermediary, such as when it is not in the interests of justice to do so (see s 4AJ).

Ground Rules Hearing

A court may, at any time, direct that a ground rules hearing be held for a witness in a criminal proceeding. However, if an intermediary is appointed, the court must direct that a ground rules hearing be held for the witness.

The ground rules hearing is where the court:

  • Considers the communication, support or other needs of the witness; and
  • Decides how the proceeding must be conducted to fairly and effectively meet those needs.

The ground rules hearings are usually overseen by the Associate Judges. Appointed intermediary will intervene if the established ground rules are not adhered to during cross examinations.

See ss 4AA, 4AB, 4AD and 4AF for further information relating to ground rules hearing.

Administration

The Program is administered by the ACT Human Rights Commission. The Intermediary Program Team centrally manages case referrals regarding both police and court matters and is the first point of contact for stakeholders and intermediaries. For further information, email intermediaryprogram@act.gov.au or use the hotline 0434 855 030.

Further reading

Evidence (Miscellaneous Provisions) Amendment Act 2019 (ACT)

Which amended:

Consequential amendments: