The Queensland Intermediary Scheme (QIS)
What is the Queensland Intermediary Scheme?
The Queensland Intermediary Scheme (also known as QIS) is a pilot program currently operating in the Brisbane and Cairns courthouses. Following the Royal Commission into Institutional Responses to Child Sexual Abuse, the QIS was implemented as a two-year pilot program, but is anticipated to be extended. The Scheme is designed to support individuals with cognitive disabilities, such as intellectual impairments or autism, when they are involved in the criminal justice system. The scheme provides trained intermediaries who assist these individuals in communicating effectively with the police, legal professionals, and the courts. These intermediaries ensure that the person’s rights are protected, facilitate clear communication, and help them understand the legal process.
The Scheme commenced in 2021 and involved amendments to the Evidence Act 1977 (Qld). It is designed to allow prosecution witnesses who may have difficulties in giving evidence in a court room, answering questions or being interviewed to give evidence in court proceedings that may not otherwise be heard. The goal is to promote fairness and accessibility within the justice system for people with cognitive disabilities, ensuring they can effectively participate in criminal proceedings.
What is an intermediary?
An intermediary is a person appointed as an intermediary under an order of a court made pursuant to section 21AZJ of the Evidence Act. There is a panel of intermediaries, and they are made up of people who have appropriate qualifications. This may include occupational therapists, psychologists, social workers or speech pathologists. They are considered an officer of the Court and must act impartially.
When can an intermediary be appointed?
Currently there are limitations as to which matters can be accepted as part of the QIS program. The current criteria for cases when an intermediary can be appointed include:
- That the matter is held before the Brisbane or Cairns courts; and
- The criminal proceedings include an offence of a sexual nature committed in relation to a child.
In those cases, a witness for the prosecution must also satisfy one of the following criteria:
- Is under 16 years of age;
- Is a person with an impairment of the mind (as defined under the Criminal Code);
- Has difficulty communicating; or
- Meets other criteria set out in the legislation.
The order to appoint an intermediary can be made at any stage of the proceedings.
However, the Court is prohibited from appointing an intermediary if the prosecution witness is aware of the option to appoint an intermediary but wishes to give evidence without the intermediary’s help and it would not be in the interests of justice to make such an order.
There are some exceptions to the strict eligibility criteria and if your case is one that could benefit from the program, it is something your lawyer can discuss with you.
Who decides if an intermediary should be appointed?
The Court can make an order appointing an intermediary for a prosecution witness of its own initiative or on the application of a party to the proceedings (eg. prosecution or defence).
Who will they appoint as an intermediary?
There is a panel of approved intermediaries that can be appointed. However, there are laws in place to ensure that the intermediary appointed is:
- not a friend, family member or acquaintance of the witness or the defendant;
- not a party to the proceedings or a potential witness to the proceedings; and
- not someone who has assisted the witness or the defendant outside of this scheme in a professional capacity (eg. was the defendant and/or complainant’s counsellor).
What does an intermediary do if they are appointed?
Unlike a support person who is present to provide emotional support, the intermediary is there to provide assistance communicating.
The intermediary will meet with the witness and undertake an assessment of that witness and then prepare a report. They will then attend court and give evidence as to their opinions regarding how the court can best accommodate the witness’ needs to get their best evidence.
They can communicate to or explain to the witness the questions that are to be asked of that witness to the extent necessary to ensure that the witness actually understands the questions. Similarly, they can communicate or explain to the person asking questions (e.g. a prosecutor, defence lawyer or barrister, or the court) the answers given by the witness in reply, so as to assist the person asking the questions to understand the answer.
What is the process?
The Court, of its own initiative or on application, can make an order appointing an intermediary for a prosecution witness.
The Prosecution will then be required to complete and submit a QIS referral for the relevant witness.
That order will state that the intermediary is to prepare a written report for the court that sets out the communication needs of the witness and the intermediary’s recommendations as to the most effective way to communicate with the witness.
The report will be distributed to the parties (eg. the Crown and defence) at least one week before the directions hearing.
The Court will also order that the matter is listed for:
- a directions hearing, in relation to the giving of evidence by the relevant witness; and
- a pre-recorded evidence hearing, where the witness will give evidence.
Counsel for both defence and the prosecution as well as the intermediary must attend the directions hearing. At the directions hearing the court will hear from the intermediary and can make directions about:
- the manner of questioning;
- duration of questioning;
- questions that may or may not be put to the witness;
- the use of models, plans, body maps or similar aids to help better communicate a question or answer;
- the use of audio-visual links or other communication facilities;
- and if there is more than one defendant, the allocation amongst the co-accused as to the topics about which the witness can be questioned about.
The Court can also make orders about how the intermediary is to participate in the process of the witness giving their evidence, including the appropriate ways to intervene where required.
At the pre-recording of the witness’ evidence, the intermediary will be present. At the trial, directions will be made to the jury in relation to the involvement of an intermediary in the case.
What impact will this have on my case?
The criminal justice system is complicated. Giving evidence at court is daunting for anyone, but where a person suffers from communication or comprehension difficulties, it is even more so. If the traditional methods of investigative interviewing or questioning at a trial are used, the evidence given by witnesses may be compromised. For example, a person with a learning disability or cognitive issues may have a fear of authority and be more likely to accept anything said by that person, thus rendering their answers to a police officer or prosecutor unreliable. An intermediary can provide the Court (as well as the Prosecution and Defence) with their professional opinion as to the best way to take evidence from a witness, which will assist in obtaining accurate evidence from that witness.
Before the QIS scheme was created, there were already a number of measures that could be implemented in relation to “special witnesses”, for example, alleged victims of crimes giving evidence remotely via video link with a support person present. The Queensland Intermediary Scheme aims to ensure that our system is more accessible to those who may struggle to give evidence in court due to difficulties whether that be their age, cognitive abilities, trauma, mental illness, learning disabilities or a diagnosis of ADHD or autism.