The Victorian Government started a program on 1 July this year to help vulnerable witnesses, including children and adults with intellectual disability, to give evidence in criminal cases. The Intermediaries Pilot Program is based on similar programs from England and Wales and will run for two years.
An intermediary’s role is to help witnesses understand and communicate during police interviews and court proceedings. They are neutral and their main responsibility is to the court. Intermediaries assess the witnesses’ communication style and the communication help they need, and report on the witness’ communication needs, including strategies to manage these needs. They can also make recommendations to the person questioning the witness and the court on how to pose a question to get the most reliable evidence. They can also interpret questions and replies as necessary to make sure the witness understands the questions and the witness is understood.
Under the pilot, intermediaries are available for victims who are:
- children under 16 years
- children over 16, if applied for or if the court decides an intermediary is needed
- adults with an intellectual disability or cognitive impairment, if applied for or if the court decides an intermediary is needed.
Intermediaries will support witnesses from the initial police interview right through to the end of a court hearing – if it goes that far. The pilot is focusing on homicides and sexual offences and will start with Melbourne based courts and four police stations – Frankston, Fawkner, Box Hill and Geelong.
Who are intermediaries?
In England and Wales, intermediaries can be speech pathologists, occupational therapists, psychologists, social workers, nurses and teachers.
For the Victorian pilot, intermediaries will be from a range of professions with a range of skills, experience and qualifications, and from a range of cultural backgrounds. Ideally, Aboriginal and Torres Strait Islander victims of crime will be able to access the services of an Aboriginal and Torres Strait Islander intermediary.
In England and Wales, an intermediaries scheme was piloted in 2004 and then rolled out in 2008 for child witnesses and other vulnerable witnesses. Police can ask for intermediaries, who are then matched to the witness according to the skills and location of the intermediary and the needs of the witness. The intermediary will also gather other information about the witness from parents, teachers, speech and language reports and psychologist reports.
Intermediaries are allowed to intervene in court if they believe that a question is too complicated or a witness has not understood it. The lawyer must be given a chance to rephrase the question before the judge can ask the intermediary to put the question to the witness.
New South Wales started a three-year pilot in March 2016, using ‘children’s champions’ and pre-recordings of examination for a pilot witness intermediary program for child witnesses of sexual offences. The key objective of the pilot was to reduce the stress and length of court proceedings for child witnesses without unfairly impacting the defendant’s right to a fair trial.
In July 2017, the University of New South Wales released a process evaluation report on the pilot titled Evaluation of the Child Sexual Offence Evidence Pilot. This report found that there has been wide support for the program and that it is being well implemented. The report also found that witness intermediaries have played an important role in supporting the delivery of evidence by child complainants and child witnesses.
Rikki Mawad worked as the Assistant Director at the Tasmania Law Reform Institute at the University of Tasmania. In 2017, she co-authored Facilitating Equal Access to Justice: An Intermediary/Communication Assistant Scheme for Tasmania? This report provided recommendations from the consultation around the feasibility of using intermediaries to support people with complex communication needs in Tasmania’s criminal justice system.
Rikki says these programs are important because they support vulnerable victims, witnesses, suspects and defendants who have trouble communicating to give accurate evidence to the police and to the court.
"The legal system is difficult to understand and navigate for most people, however, it’s particularly difficult for people who have communication needs. People with communication needs should have access to an intermediary or communication assistant when interacting with police, lawyers and the courts. Intermediary schemes are a step forward to ensuring people with communication needs have equal access to justice. Communication assistance should be available at every stage to anyone who needs it."
You can find out more about the Victorian intermediaries program on the Supreme Court of Victoria website.