SC v R [2020] NSWCCA 314

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: SC v R [2020] NSWCCA 314 Hearing dates: 9 November 2020 Date of orders: 9 November 2020 Decision date: 02 December 2020 Before: Meagher JA Walton J Beech-Jones J Decision: (1) Grant leave to appeal in respect of so much of order 1 made by Shead SC DCJ on 24 June 2020 that concerns witness MC; (2) Appeal allowed; (3) Set aside order 1 made by Shead SC DCJ on 24 June 2020 in respect of witness MC and, in lieu thereof, set aside the appointment under clause 89(3)(a) of Schedule 2 to the Criminal Procedure Act 1986 of Ms Julia Hind as a witness intermediary in relation to witness MC. Catchwords: CRIMINAL LAW – Criminal Appeal Act, s 5F(3) - application for leave to appeal against interlocutory judgment or order – whether the refusal of the trial judge to revoke the appointment of a "children's champion" or witness intermediary is an interlocutory judgment or order – interpretation of Part 29 of Schedule 2 to the Criminal Procedure Act 1986 – whether clause 89(5) operates as a continuing condition of a witness intermediary's appointment – whether a witness intermediary can be a witness in the proceedings – meaning of assisted in a "professional capacity" – whether clause 89(5)(b) requires determination of whether a witness intermediary's impartiality compromised – whether assistance restricted to therapeutic assistance – leave to appeal granted – appeal allowed – appointment of witness intermediary set aside Legislation Cited: Crimes Act 1900 Crimes Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Bill 2015 Criminal Procedure Regulation 2017 Evidence Act 1995 Interpretation Act 1987 Stronger Communities Amendment (Miscellaneous) Act 2020 Supreme Court Act 1970 Cases Cited: AF v R [2015] NSWCCA 35 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Einfeld v R (2008) 71 NSWLR 31; [2008] NSWCCA 215 Electricity Supply Professional Officers Association [1978] AR (NSW) 283 Nicholson v The Queen [2017] NSWCCA 38 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126 R v RAG [2006] NSWCCA 343 R v Steffan (1993) 30 NSWLR 633 Robbins Herbal Institute v Federal Commissioner of Taxation (1923) 32 CLR 457; [1923] HCA 28 Category: Principal judgment Parties: SC (Applicant) Regina (Crown) Representation: Counsel: Mr M Johnston SC; Ms G Lewer (Applicant) Ms H Roberts (Crown)