QIS frequently asked questions
The following questions are frequently asked of the Queensland Intermediary Scheme (QIS).
What is an intermediary?
Intermediaries facilitate communication between vulnerable witnesses, and police and/or witnesses and courts in order to get the best possible evidence. They assist the witness understand and be understood.
In Queensland, intermediaries must have qualifications in speech pathology, psychology, occupational therapy or social work.
What do intermediaries do?
- undertakes an assessment to identify if a vulnerable witness requires communication assistance
- writes reports explaining the witness’ communication needs and how best to communicate with the witness
- provides recommendations and strategies to questioners (police or court) about how to best communicate with the witness
- during a police interview or court proceeding, ensures the witness understands the questions asked and that the questioner understands the witness’ reply.
Who can use an intermediary?
In Queensland, an intermediary may be appointed for any prosecution witness in child sexual offence investigations and prosecutions. Under s 21AZL, Evidence Act 1977 (Qld), to be eligible for an intermediary a witness must be either:
- a child under 16 years, or
- a person with an impairment of the mind as defined under the Criminal Code (regardless of age), or
- a person who has difficulty communicating (regardless of age).
- of a class prescribed by regulation (no additional classes have been prescribed by regulation at this stage)
Do you have to be a victim of a crime to use an intermediary?
No, you can be eligible for an intermediary if you are a prosecution witness in a child sexual offence matter and fall under any of the above categories.
Are intermediaries available to accused people?
No, the QIS is not available to those accused of committing a crime. Consideration will be given to the future direction of the QIS following the evaluation of the pilot program.
What are some examples of things an intermediary must not do?
Intermediaries must not:
- advocate for the witness
- examine or cross-examine the witness
- answer questions on the witness’ behalf or coach the witness in how to answer questions
- act as a support person to the witness—noting that the witness may also have a support person present when giving evidence, though this cannot be the intermediary—refer to ss 21AV, 21A(2)(d), Evidence Act 1977 (Qld).
- develop a therapeutic relationship with the witness, for example by treating, or offering to treat, the witness
- enter into discussions, give advice or express opinions concerning the evidence the witness is to present
- act as an expert witness, including providing their opinion on a witness’ capacity or competency to give evidence
- ordinarily act as an interpreter
- be alone with the witness.
Is an intermediary different to a support person?
An intermediary is different to a support person. Where a support person offers emotional support to a witness, an intermediary is appointed to provide communication assistance. Another difference between the two is that support persons may be a family member or friend, as opposed to intermediaries who are qualified professionals who are independent and impartial.
Fundamentally, intermediaries are officers of the court; they hold a duty to the court and the proper administration of justice.
Who are officers of the court?
Officers of the court are those who play a role in the justice system. Intermediaries are officers of the court because they have a fundamental role in assisting the court to obtain the best evidence from witnesses (s 21AZM(3)(a), Evidence Act 1977 (Qld)).
Officers of the court have legal and ethical obligations. Their paramount duty is to the administration of justice and these officers have a responsibility not to lead the court astray.
Are intermediaries on the side of the prosecution or defence?
Intermediaries are impartial, independent officers of the court—they must not take a ‘side’. Although initial contact is likely to be with the police or another justice agency, they must not favour the prosecution or defence. Intermediaries must not advocate for the witness they are appointed for. Their key responsibility is to support the administration of justice.
Why are intermediaries important?
Like an interpreter is to a witness who only speaks another language, and a support person is to a traumatised child witness, intermediaries are critical to enable witnesses to communicate and give their best evidence.
The language used by police, lawyers and judges involved in the criminal justice system can be confusing and difficult to understand for people with communication needs. The appointment of an intermediary who will assist vulnerable witnesses understand questions asked of them and communicate their responses to the court will allay these communication needs and result in fairer outcomes by improving the quality of evidence.
The QIS aims to reduce trauma to vulnerable witnesses and give police officers, the legal community and the courts a better understanding of the needs of vulnerable witnesses which will, in turn, improve access to justice. Significantly, the QIS will reinforce the importance of effectively and respectfully responding to child sexual abuse allegations from the most vulnerable people in the community.
How do I identify that someone might have difficulty communicating?
The first step in determining whether a witness has a communication need is through obtaining information from the witness themselves and/or their parent/guardian. Sometimes a witness may choose not to disclose out of fear or shame. Questions such as “Do you get any extra help at school?” and “Do you need help with reading or writing?” should be asked instead of questions such as “Do you have a learning disability?”.
In particular, certain behaviours may indicate the witness has difficulty communicating including if the person:
- responds inappropriately or inconsistently to questions
- is difficult to understand
- uses signs and gesture to communicate
- cannot read or write
- has difficulty knowing the day of the week, where they are and whom they are talking to
- is physically withdrawn.
The Advocates Gateway (Toolkit 10) is a useful resource in determining communication difficulties.
How do I request an intermediary?
Intermediaries are provided upon request from police officers, lawyers and the court.
If you are a parent, guardian or carer of a vulnerable witness and believe your dependent has communication difficulties, due to their age or any other reason, notify the police officer or prosecuting lawyer handling the matter as soon as possible so an intermediary can be considered.
Police officers and Office of the Director of Public Prosecutions (ODPP) officers can submit a request to the QIS team, or a request can be made by order of a court.
How is an intermediary selected when a request is made (matching process)?
The QIS team receives all requests for intermediaries and manages the matching of witnesses to intermediaries. It is important to note, the QIS team does not assess requests to determine whether an intermediary is necessary—the team simply acts as a conduit between those requesting intermediaries and intermediaries themselves.
The QIS team uses the information provided in the request to select an appropriate intermediary for the vulnerable witness. Generally, a suitable intermediary is found when:
- the intermediary and witness are in the same location (Brisbane or Cairns)
- the intermediary’s skillset is compatible with the witness’ communication needs
- the intermediary is available on the date required for the service
- no conflict of interest exists.
If an intermediary has previously been engaged for the witness, every attempt will be made to engage the same intermediary.
What happens if the intermediary realises they know someone or have treated someone who is a witness in the matter?
Intermediaries must declare they have no conflict of interest before being engaged for a vulnerable witness. A conflict of interest exists where an intermediary:
- Is a relative, friend or acquaintance of the witness or of the defendant (i.e. has knowledge of the personal circumstances of a witness, defendant or a person connected to the witness because of a personal relationship); or
- Is a party to the relevant proceeding; or
- Is a potential witness in the relevant proceeding; or
- Has, in a professional capacity—
- Assisted the witness, other than in the capacity of an intermediary; or
- Assisted the defendant.
If any of the above circumstances exist, the intermediary becomes an “excluded person” as defined in s 21AZL, Evidence Act 1977. Excluded persons cannot be engaged as an intermediary in the matter.
It is the responsibility of the intermediary to identify any conflict of interests and inform the QIS team as soon as possible. Where conflicts of interest becomes evident after the referral has been accepted, for example during the police interview, the intermediary must immediately advise the referrer and the QIS team. The QIS team will assess the conflict and reallocate the witness to another intermediary if required. As officers of the court, it is vital that intermediaries are impartial in investigations and court proceedings.
What is a directions hearing?
A directions hearing is a court proceeding where the intermediary, prosecution, defence and the judge discuss how best to adapt court practices to ensure the witness is able to give their best evidence. The witness is not required to attend. Directions hearings aim to streamline the trial process and limit trauma to witnesses. During this hearing the judge may make directions in relation to how the witness should be questioned.
An intermediary must be present at this hearing in order to discuss their recommendations for communicating with the vulnerable witness. An intermediary may also be asked to provide a report in advance of this hearing to assist the court.
This type of hearing is referred to as ‘ground rules hearings’ in other jurisdictions.
What can a judge decide on at a directions hearing?
At a directions hearing, a judge has the power to give any direction regarding the giving of evidence by a witness that the court considers appropriate for the fair and efficient conduct of proceedings (s 21AZS, Evidence Act 1977).
The judge’s power to give directions is extremely broad, and includes (but is not limited to) directions about:
- the manner and duration of questioning the witness
- the questions that may, or may not, be put to the witness
- the use of communication aids to help communicate a question or answer
- the frequency and length of breaks
- the use of an audio-visual link or another communication facility.
The court may also direct how the intermediary will intervene.
Can an intermediary interrupt the questioner or witness when the witness is giving evidence in court?
How and when an intermediary is to intervene while a witness’ evidence is being given will be determined at a directions hearing. It will ultimately depend on how the judge wishes to manage their court. Some judges may ask the intermediary to raise their hand and only intervene when a court-approved recommendation has been contravened or only in instances where the intermediary believes the witness does not understand the question asked.
It is the decision of the judge whether or not to uphold the intermediary’s intervention.
Intermediaries must attempt to achieve a balance between putting witnesses off because of their interruption and/or the risk of unduly interrupting the questioner, with the importance of ensuring the witness understands and is understood in proceedings.
How can we be sure the witness has not been coached by the intermediary?
An intermediary will never be left alone with a witness, including during a witness assessment. For example, a police officer, support worker or Office of the Director of Public Prosecutions (ODPP) officer will always accompany a witness when an intermediary is involved, and it is this person who will provide an independent account of events if required.
Interactions between a witness and intermediary (e.g. witness assessments) will be electronically recorded and disclosable in a court of law.
What is the Intermediaries Panel?
The Intermediaries Panel is a network of allied health professionals in the disciplines of psychology, speech pathology, occupational therapy and social work. Those professionals comprising the Panel will have undergone a rigorous selection process and received QIS-specific training. It is from this Panel only that intermediaries can be requested. The panel will be managed and administered by the QIS team.
Does an intermediary’s work fall within the sexual assault counselling privilege (Evidence Act 1977 (Qld), Division 2A)?
No. An intermediary’s work is confidential but not privileged. Intermediaries do not provide ‘protected counselling communications’ as defined in s 14A, Evidence Act 1977 (Qld). Intermediaries do not ‘counsel’ the witness in any form, for example:
- intermediaries do not listen to and give verbal or other support, help or encouragement to the witness, whether one-on-one or in a group
- intermediaries do not advise, give therapy to, or treat the witness, whether one-on-one or in a group.
Can an intermediary assess the competency or capacity of a witness?
An intermediary cannot assess the competency or capacity of a witness. The aim of the QIS and therefore the intermediary is to assist the court to properly engage with a vulnerable witness. If an intermediary were to cross into the territory of competency or capacity, this would be outside the scope of their statutory functions.
How do you know if the intermediary has done a good job?
Intermediaries will have done a good job if the strategies provided to police officers, lawyers and the court help these people to obtain the best evidence from the witness.
After each engagement the QIS team will seek feedback from all parties—including the intermediary themself, the witness, police, lawyers and the judiciary—in relation to the intermediary’s effectiveness. Feedback will help not only to evaluate the QIS, but also performance management of the intermediaries. Intermediaries with consistent negative feedback and demonstrated inability to perform their functions may be removed from the QIS pursuant to s 21AZW, Evidence Act 1977 (Qld).