Case management hearing is the first part of a trial process. It involves setting a schedule for proceedings involved in the matter.
As you might be aware, litigation can have several stages depending on the nature of the case. For example, if you lodge a complaint with the court, the Judge or Magistrate will set a timeframe for you to file your arguments, for the defense to file their response, a deadline for evidence to be submitted or even a timeframe for interrogations. In short, the case has a strict schedule which must be followed so that the case can be completed in an effective manner.
In the Magistrates’ Court, case management may be dealt with at the first hearing without the requirement for a specific case management hearing.
In the High Court, the case management process begins at arraignment and may involve, thereafter, a specific case management hearing, or several after arraignment, to give specific directions for how the trial will follow, especially directions in regard to vulnerable witnesses.
Where applicable, the parties are required to complete and submit the case management forms prior to the date being set for the proceedings. Applications at the case management are then heard in the High Court for directions to be given on the following:
a. Attendance of a support person with the complainant at the trial.
b. Questioning of the complainant through the use of an intermediary or other communications specialist.
c. Arrangements for the complainant or other vulnerable witness to access the court building through a private entrance.
d. Restrictions on disclosure.
e. Use of video link facilities, if appropriate.
f. Directions for restriction on certain lines of questioning, such as previous sexual history.
g. Directions for concurrent family proceedings.
h. Other special arrangements, such as an interpreter, need for breaks, etc., as may be needed to facilitate the trial process.
The Magistrates’ Court can make directions on the same issues in summary jurisdiction offence cases where application is made by the prosecution.
In addition, both the Magistrates’ Court and the High Court can hear applications by the prosecution for the complainant or another witness to be considered a vulnerable witness.
In determining whether the complainant or another witness is to be considered a vulnerable witness, the court gives regard to the following:
a. The age of the complainant or witness and whether, because of age, he or she may need special assistance or facilities to be able to give evidence in court. In regard to the age of a child, the court may also give directions for a voir dire to determine competence.
b. The presence of any disability that may impair the complainant or other witness in giving evidence and what facilities will be needed to ensure that they are able to give the best evidence possible.
c. The presence of any adverse or traumatic experience that may cause emotional or psychological distress to the complainant or witness. In the case of sexual offences, there is a likelihood that the sexual violence incident alleged has caused psychological and emotional trauma and that having to re-tell the intimate details of the event in court may cause psychological distress to the complainant that may impair his or her ability to give
evidence.
In regards to persons from indigenous communities, the court is mindful that experiences of trauma will not just be based on the impact of the sexual assault on the complainant but on such issues as: loss of identity, where the complainant is blamed or rejected by the community; significant stress from having to come outside the community to interact with police, court officials and other agencies in structures that may oppose male/female interaction established by the indigenous community; and loss of spiritual or social support due to separation from traditional cultural norms during the trial period and the realization that the decision to report the abuse may have altered those norms in the community as well as changed family and community dynamics. These issues require specialist interventions and counseling and Magistrates and Judges are often alerted to their manifestation.
Furthermore, where the Magistrates’ Court or High Court determines that the complainant or other witness is a vulnerable witness, the court considers what special measures will be required to be used to facilitate the complainant or witness giving evidence.
Special measures may include:
a. Screens – so that the witness does not have to see the defendant in the courtroom.
b. Live link – allowing a witness to give evidence from a facility outside the courtroom.
c. Supporter – there may be a designated supporter for the witness in the live link room or in the court room.
d. Video-recorded examination-in-chief – allowing a previously recorded interview with the vulnerable witness being admitted in court as the examination-in-chief.
e. In-camera proceedings – where this is not automatically provided for, both the Magistrates’ Court and the High Court must consider whether to clear the court of members of the public and other witnesses before the evidence of a vulnerable witness is taken.
f. Removal of wigs and gowns by judges and advocates.
g. Intermediary – allowing an approved intermediary (a communications specialist) to help a vulnerable adult or child witness to communicate with the police, legal representatives and the court.
h. Aids to communication – allowing a witness to use communication aids, such as a symbol book or alphabet boards.
i. Use of anatomically correct dolls – consideration must be given as to what specialist assistance will be needed for dolls to be used.
j. Use of interpreters – where the complainant or witness has language barriers, an interpreter must be provided. The court also gives directions in case management on
what time of day would be best for particular witnesses to give evidence; how much time the witness will need on the
stand; how an intermediary will be used and what lines of questioning will not be permitted.
Where a sexual assault case is considered high-profile, the court considers whether there is a need to change the venue for the hearing and what arrangements would be needed to effect a change of venue or whether press prohibition orders will be issued.
The court also gives directions for the protection of any witness deemed particularly vulnerable to threats or intimidation, especially where their testimony is likely to be diminished by reason of fear or distress. The factors considered by the court in determining the levels of fear or distress include:
a. The nature and circumstances of the offence.
b. The age and circumstances of the witness.
c. The behaviour of the defendant or their family and associates.
d. Any known threats or intimidation tactics used against the witness.
The directions given for protection of the witness
may include protection orders, orders prohibiting contact, relocation of the witness or other measures as requested by the prosecutor.
In some instances, the local courts deem it necessary to address safety and protection issues in an ex parte application or in an application in chambers where it is felt that the disclosure of the need for protection may lead to the defendant or persons connected to the defendant interfering with or threatening the witness.