Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: SH v Regina [2012] NSWCCA 79
• Hearing dates: 23 April 2012
• Decision date: 03 May 2012
• Before: Basten JA at 1; Blanch J at 36; Hall J at 37

Decision

(1) Appeal allowed.

(2) Conviction set aside.

• Catchwords: CRIMINAL LAW - appeal - conviction - evidence - sexual intercourse with person aged under 10 years - complainant gave unsworn evidence - Court did not tell complainant that she should feel no pressure to agree with statements she believed were untrue - whether Evidence Act 1995 (NSW), s 13 complied with - whether non-compliance necessitates upholding appeal - whether miscarriage of justice; EVIDENCE - witnesses - competence - unsworn evidence - requirement that Court tell witness about to give unsworn evidence that he or she should feel no pressure to agree with statements that he or she believes are untrue - whether Evidence Act 1995 (NSW), s 13 complied with - whether witness competent to give unsworn evidence if not given required direction
• Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6; Criminal Appeal Rules, r 4; Evidence Act 1995 (NSW), ss 13, 21, 30, 31, 165, 165A; Evidence Amendment Act 2007 (NSW); Evidence Act 1977 (Qld), ss 9, 9A, 9B; Evidence Act 1929 (SA), s 9; Evidence Act 1958 (Vic), s 23; Uniform Evidence Act, s 13
• Cases Cited: The Queen v WG [2010] VSCA 34; R v Anunga (1976) 11 ALR 412; R v BBR [2009] QCA 178; [2010] 1 Qd R 546; R v Brooks (1998) 44 NSWLR 121; R v Starrett [2002] SASC 175; 82 SASR 115
• Texts Cited: Anderson, Williams and Clegg, The New Law of Evidence (2nd ed, LexisNexis, 2009) at [13.1], [13.9]; Australian Law Reform Commission report, Uniform Evidence Law - Report 102 (AGPS, December 2005), Appendix 1, p 699; Recommendations 114-115; Victorian Law Reform Commission Report, Sexual Offences: Final Report (2004), Recommendation 137 at 296
• Category: Principal judgment
• Parties: SH - Appellant; Regina - Respondent
• Representation: Counsel: D L Carroll - Appellant; N F Noman - Respondent; Solicitors: Legal Aid NSW - Appellant; S Kavanagh, Solicitor for Public Prosecutions - Respondent
• File Number(s): CCA 2008/17999

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2011-01-21 00:00:00
• Before: King DCJ
• File Number(s): DC 2008/17999

Judgment

1 BASTEN JA: The appellant (SH) appeals against his conviction for sexual intercourse with a girl aged under 10 years. His name has been anonymised, not for his own protection, but for the protection of the child.

2 The principal witness for the prosecution was the complainant who alleged two incidents of digital penetration by the appellant between 4 August and 24 October 2007. She did not give sworn evidence, but gave evidence unsworn. That course is permitted, pursuant to the Evidence Act 1995 (NSW), but only if particular statutory preconditions are satisfied. The appellant says that the judge failed to give a necessary instruction to the complainant, the result of which was not merely that her evidence was inadmissible, but that she was an incompetent witness. In such circumstances, it was submitted, the conviction must be set aside despite the fact that no objection was taken on that ground to her giving evidence, and that there may have been no substantial miscarriage of justice.

Competence - unsworn evidence

3 The appellant's challenge was limited to the alleged failure of the judge to tell the prospective witness about each of the factors set out in sub-s 13(5) of the Evidence Act. To assess that challenge it is necessary to identify the context of that provision.

(a) section 13 - context

4 The competence of persons to give evidence is dealt with in s 13 of the Evidence Act, which relevantly provides:

"13 Competence: lack of capacity

(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability):

(a) the person does not have the capacity to understand a question about the fact, or

(b) the person does not have the capacity to give an answer that can be understood to a question about the fact,

and that incapacity cannot be overcome.

Note. See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.

(2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.

(3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.

(4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.

(5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:

(a) that it is important to tell the truth, and

(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and

(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue."

5 The Evidence Act requires that every witness must either take an oath or make an affirmation, except a person who gives unsworn evidence under s 13: s 21. The primary test of competence, namely the capacity to understand a question and communicate a comprehensible answer, may be generic in respect of a particular witness or may relate to particular facts: sub-ss (1) and (2). Even what appears to be a generic exclusion, such as inadequate competence in English requiring the intervention of an interpreter, may operate differentially in relation to questions about particular facts: s 30. Deaf and mute witnesses are treated as having a generic incapacity: s 31. However, not all competent witnesses are competent to give sworn evidence; that depends upon having the capacity to understand that one is obliged to give truthful evidence: sub-s (3).

6 The purpose and effect of sub-s (4) is less clear: it appears to have a dual operation, namely to impose a precondition on a person who is not competent to give sworn evidence, but who is competent to give unsworn evidence and to condition the competence to give unsworn evidence upon compliance with sub-s (5). The word "may" is ambiguous: on one view, competence within sub-s (1) having been determined, it is merely the conferral of an alternative procedure for giving evidence. On another, its intended purpose may be to confer a discretionary power on the trial judge to allow such evidence, but only in some circumstances and not others. If the latter operation were intended, it would be necessary to identify the criteria (or criterion) to be applied by the trial judge.

7 Section 13 was amended by the Evidence Amendment Act 2007 (NSW) ("the 2007 Amendment Act"), which commenced operation on 1 January 2009. In its old form, s 13(2) permitted a person to give unsworn evidence if the Court were satisfied that the person understood the difference between the truth and a lie: s 13(2)(a). That required an evaluative judgment. That requirement appears to have been deliberately removed because of the lack of clear differentiation between that test and the test of understanding an obligation to give truthful evidence, necessary to give sworn evidence.

8 This ambiguity is to be resolved in favour of the conclusion that there is no discretionary power to refuse to allow a child to give unsworn evidence, if the court is satisfied as to the capacity to understand a question and give a comprehensible answer, in accordance with sub-s (1). That conclusion follows from both the structure of the section and by reading sub-ss (4) and (5) together. Thus, sub-s (5) does not use equivocal language, but, subject to identified preconditions, states that a person who is not competent to give sworn evidence "is" competent to give unsworn evidence. That language, together with the absence of any attempt to specify criteria relevant to the exercise of a discretion, demonstrate that no discretionary power was intended.

9 In its form prior to the 2007 Amendment Act, the Court was not merely obliged to tell the witness that it was "important to tell the truth" but the prospective witness was required to indicate "by responding appropriately when asked" that he or she would not tell lies. The practical consequence of that dual requirement was that trial judges gave the instruction as a question and required a response. Perhaps counter-intuitively, the present form of sub-s (5) requires judicial instruction but no response. Nevertheless, it is understandable that, as occurred in this case, a judge is likely to seek a response to ensure that the instruction has been noted and understood.

10 For the purposes of this case, sub-s (5) raised two issues. The first was the essential requirement of paragraph (c); the second, involving the combined operation of sub-ss (4) and (5), concerned the consequence of a failure to comply with sub-s (5).

(b) content of section 13(5)(c)

11 Dealing with the content of paragraph (c), it appears that there are two limbs to the required instruction, each involving the idea of a 'suggestion', reflecting a common form of cross-examination. The prospective witness is advised to agree with those suggestions which he or she thinks are true, but "should feel no pressure to agree with" statements believed to be false.

12 Little assistance in understanding the purpose and content of sub-s (5) is to be obtained from the Australian Law Reform Commission report, Uniform Evidence Law - Report 102 (AGPS, December 2005) as that report limited the requirement in respect of a person giving unsworn evidence to a direction to the person that it is "important to tell the truth": Appendix 1, p 699 and Recommendations at 114-115. The amendment accepted by the legislature mirrors s 23(1D) of the Evidence Act 1958 (Vic). That provision was introduced pursuant to a recommendation of the Victorian Law Reform Commission Report, Sexual Offences: Final Report (2004), Recommendation 137 at 296: see Anderson, Williams and Clegg, The New Law of Evidence (2nd ed, LexisNexis, 2009) at [13.9]. That report provides limited guidance, but the idea behind the provision is tolerably clear: it is designed to limit the danger that persons with a limited understanding of the concept of truth telling may be confused or intimidated by the fact that a person with apparent authority is seeking agreement to a proposition. Similar concerns underlay the formulation of the rules for interrogation of Aboriginal persons in R v Anunga (1976) 11 ALR 412 (Forster J). Forster J noted the difficulty in dealing with people who do not understand English very well, a remark which also applies in respect of the language used in courts. His Honour continued at 414:

"Another matter which needs to be understood is that most Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman."

13 Similar considerations may apply in respect of children. Although somewhat vaguely expressed, the key consideration underlying paragraph (c) appears to be a concern that the prospective witness should not feel under pressure to agree with statements put by adults in wigs and robes. Such instruction is required to be provided by the court, not by the person who is likely to be doing the questioning.

(c) consequence of non-compliance

14 The second issue concerns the consequence of a failure to give an adequate instruction in accordance with the statutory provision. In The Queen v WG [2010] VSCA 34, Warren CJ, Nettle and Ashley JJA drew a distinction between a condition of competence and a condition of admissibility: at [35]. The Court continued at [36]:

"In our view, the importance of that distinction is that, although compliance with a condition of competence is essential (in that the testimony of an incompetent witness is not evidence at all), and thus it has been held that failure to comply with the requirements of ss 13(2)(a), (b) and (c) of the Uniform Evidence Act is productive of a miscarriage of justice to which the proviso cannot be applied, a condition of admissibility can ordinarily be waived and, if so waived, failure to comply with the condition does not result in a miscarriage of justice or at least in a miscarriage to which the proviso cannot be applied."

15 The reference to s 13(2) of the Uniform Evidence Act was a reference to that provision as it applied before the 2007 Amendment Act. The authorities identified for the proposition that such a failure cannot be cured were R v Brooks (1998) 44 NSWLR 121 at 125 and R v BBR [2009] QCA 178; [2010] 1 Qd R 546 at [25]. However, these cases did not deal with the current provision. As correctly noted by Anderson, Williams and Clegg at [13.1], the amendment of s 13 requires that cases determined under the repealed provision should be treated with caution.

16 In its earlier form, s 13(2) read:

"13 Competence: lack of capacity

...

(2) A person who because of subsection (1) is not competent to give sworn evidence is competent to give unsworn evidence if:

(a) the court is satisfied that the person understands the difference between the truth and a lie, and

(b) the court tells the person that it is important to tell the truth, and

(c) the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding."

17 In R v Brooks, the failure to comply with paragraph (b) (being the only provision involving potential judicial instruction) was inconsequential. The Court held that where the evidence demonstrated that the child was capable of giving sworn evidence, the trial was fatally flawed in circumstances where she was not sworn. In giving separate reasons for that conclusion, Sperling J stated at 127C-D:

"I do not think there was compliance with the requirements of par (b) of s 13(2). The trial judge failed to 'tell' the complainant it was important to tell the truth. A witness who has been asked whether they know something is important has not been told it is important. The distinction is significant. The policy I discern behind the provision is that the authority of the court is to be brought to bear on the witness by means of an instruction. Nothing less will do."

18 The principal judgment in Brooks was given by Grove J, who expressed, obiter, a different view concerning the requirement of s 13(2)(b), at 126E-F:

"I am unable to agree that nothing less than some form of judicial instruction is necessary. I would construe the obligation cast on the court by the provision as to convey the information that it is important to tell the truth; if the authority of the court was being called in aid the obligation could be phrased as directing the person to tell the truth. The latter could in isolation amount to an empty ritual. The conveyance of information that it is important to tell the truth is coordinated with s 13(2)(c) where the person to whom the information is conveyed is to respond by appropriate assurance that he or she will not tell lies in the proceeding. The effect is to be derived from the combined operation of both provisions. I would understand the use of 'tells' in s 13(2)(b) in the sense of making known and I see no warrant for adding to the meaning a bringing to bear of authority or some instructive character."

19 Priestley JA agreed with Grove J, expressly including his "addendum concerning what is required by s 13(2)(b)": at 122D. However, the reasoning of Grove J in reaching a conclusion contrary to that of Sperling J rested heavily on the coincidence of paragraphs (b) and (c). That provided a powerful reason for the conclusion reached. Two changes have now been made in s 13, relevant for present purposes. First, sub-s (2) having been recast into sub-ss (4) and (5), there is no equivalent to the old paragraph (c), requiring a response from the prospective witness. Secondly, the idea of a condition of competence, rather than a condition of admissibility, is reinforced by the fact that competence to give unsworn evidence is said, in sub-s (4), to be "subject to sub-s (5)" and in sub-s (5) competence is said to arise "if" the elements in pars (a), (b) and (c) have been "told" to the prospective witness.

20 Sections 9, 9A and 9B of the Evidence Act 1977 (Qld), as considered by the Court of Appeal in R v BBR, were different from both the Victorian and the Uniform Evidence Acts. Section 9B(3) required that, if a witness were competent to give evidence, but not on oath, "the court must explain to the [witness] the duty of speaking the truth". In circumstances where the trial judge failed to give such an explanation, the Court (Chesterman JA, Keane JA and Ann Lyons J agreeing) concluded that the failure "vitiated the trial process because the statutory condition to the reception of the child's evidence had not been satisfied": at [18]. Chesterman JA referred to Brooks at 125-126, concluding that a witness was not entitled to give unsworn evidence unless incapable of understanding the obligation to give truthful evidence and noting the finding that "before such unsworn evidence can be put before a court the requirements of s 13(2)(b) and s 13(2)(c) must be fulfilled". There was no reference to the subsequent remarks as to the nature of compliance with those provisions. Chesterman JA concluded at [25]:

"The judgments in Brooks stand as authority for two propositions. Both are relevant to this appeal but it was only the second which figured in the appellant's submissions. That proposition is that where a statute permits the giving of unsworn testimony on certain conditions those conditions must be satisfied before the evidence can be given. Where a condition is that the judge give an explanation or admonition of some kind to the witness the explanation or admonition must be given."

21 R v Starrett [2002] SASC 175; 82 SASR 115 dealt with s 9 of the Evidence Act 1929 (SA), which, with a slightly different structure, was to similar effect as s 13(2) prior to the 2007 Amendment Act. Doyle CJ stated:

"[23] But s 9(2)(a)(ii) requires that the Judge 'tells the person that it is important to tell the truth.' The Judge did not do this. ... There are obvious reasons why Parliament has required that the Judge tell the witness that it is important to tell the truth, and that the witness indicate to the Judge that the witness will tell the truth.

...

[28] Such authority as there is suggests ... that this is an irregularity that gives rise to a miscarriage of justice. The trial was not conducted according to law. The appellant was entitled to such a trial. The departure from the requirements of the law is not a trifling one, nor is it a departure on a matter that can be regarded as a mere matter of form."

22 Section 13(5)(c) does not impose an obligation to give instruction in a particular form, but to a particular effect. There is room for differences of opinion as to whether a particular instruction is sufficient in respect of a specific witness. Although the context differs from that where a challenge is made to the instructions given to the jury, the possibility that error might be remedied by a timely objection is present in both circumstances. It might seem undesirable if, as a matter of principle, r 4 of the Criminal Appeal Rules (requiring leave to raise a point to which objection was not taken at trial) were to be treated as irrelevant. Similarly, it might be thought unfortunate if a doubt as to the adequacy of the instruction to the witness were held to be fatal to maintenance of a conviction, despite the appeal court being satisfied there had been no substantial miscarriage of justice, for the purposes of s 6(3) of the Criminal Appeal Act 1912 (NSW).

23 Section 13, it should be noted, is not directly concerned with the interests of a witness of limited competence, such as a young child: it is concerned with the public interest of obtaining evidence relevant to the determination of a criminal charge. There are other provisions which protect the interests of a child witness in sexual offences such as the present, including those which provide for the recording of evidence and the absence of the child from the court room to a different place linked by closed circuit television. It is not correct to treat the operation of s 13 as involving a balance between the interests of the child witness and those of the accused: cf BBR at [38].

24 Further, BBR is not itself authority for the distinction between a condition as to competence and a condition of admissibility. The failure to comply with the statutory requirement was, it was said, such as to render the evidence "not admissible": at [39]. Nor is the failure to give instruction to a prospective witness in the same category of error as a failure to swear a witness who was competent to give sworn evidence, as in Brooks.

25 Given the differences in the statutory schemes, it is apparent that no authority requires this Court to conclude that a failure to comply with s 13(5) necessitates upholding the appeal. On the other hand, it is clear that the South Australian Court of Criminal Appeal in Starrett and the reasoning of the Victorian Court of Appeal in WG support such a conclusion. Similarly, in Brooks, this Court treated the liberalisation of the rules relating to the competence of witnesses as requiring careful compliance in order to avoid a miscarriage of justice.

26 A critical aspect of the present provision is that, being satisfied that a child has the capacity to understand a question and give a comprehensible answer in respect of a fact, there appears to be no residual discretion to decline to allow evidence to be given unsworn, assuming the absence of capacity to understand the obligation to give truthful evidence. A further consideration to be taken into account is the removal, also by the 2007 Amendment Act, of the power of a judge to give any of the warnings with respect to evidence of a child set out in s 165A(1), although that does not preclude an appropriate warning as to the unreliability of specific evidence: s 165A(2) and (3) and s 165.

Application of principles

27 On 20 April 2009 the jury was empanelled and given initial instructions by the trial judge. On the following morning, the prosecutor opened to the jury, followed by a brief opening on the part of counsel for the accused. In the absence of the jury, the question of the competence of the complainant was addressed. Giving evidence on closed circuit television, she was asked a number of questions by the trial judge, designed to determine whether she understood the obligation to tell the truth. In the absence of the witness, the prosecutor suggested that she had demonstrated capacity to make an affirmation. Counsel for the accused cast doubt upon that proposition and the trial judge merely stated that he would "bring her back online and I will deal with those matters that arise under section 13 subsection (5)": Tcpt, 21/04/09, p 9(30).

28 In fact what then followed was questioning by the trial judge, following which he expressed doubts as to her ability "to give evidence", but permitted the prosecutor to ask further questions. In the course of the further questioning, the following exchange took place (Tcpt, p 14):

"Q. I think you can see a man sitting down the other end of this table with a lady, is that right?

A. Yes, yes.

Q. He's going to need to ask you some questions do you understand that?

A. Yes.

Q. If he says to you something that's wrong are you going to agree with him?

A. No.

Q. Do you understand that it's important to tell us if you don't agree with us?

A. Yes.

Q. Do you understand that you shouldn't feel under any pressure because we are grown ups in funny clothes to agree with us if we're not right?

A. Yes.

Q. Do you know what that means to be under pressure?

A. No.

Q. Pardon.

A. No.

Q. No. Do you understand you don't have to agree with us because if for any reason if what we're saying isn't true?

A. Yes.

Q. Do you understand you especially don't have to agree with us because we're grown ups in funny clothes and we're saying it?

A. Yes.

Q. You understand that if we get grumpy and say it that you don't have to agree with us if it's not true?

A. Yes.

Q. You understand that it is your job to only tell the truth which certainly means not agreeing if it's wrong?

A. Yes.

Q. Did you understand that question?

A. Yes."

29 Following that exchange, counsel for the accused stated:

"Once again I was concerned with the complainant's inability to answer your Honour's questions. My friend has asked her a number of questions and it is a matter for your Honour, but the section is quite specific as to whether she is competent to give unsworn evidence. It is a matter for your Honour."

30 The prosecutor then submitted that she was competent to give unsworn evidence: Tcpt, p 15(26). There followed a brief judgment in which the trial judge set out the terms of s 13(5) and concluded:

"Although the course of asking her questions has taken some time, I accept that she is competent to give unsworn evidence and that she has effectively been told of paragraphs (a), (b) and (c) of subsection (5). So I propose to allow her to give unsworn evidence."

31 At that stage, the point might have been taken on behalf of the accused that the trial judge himself had not told the person the matters set out in sub-s (5) and particularly those set out in paragraph (c). That did not happen, although there followed discussion between the trial judge and counsel as to relevant steps in respect of the complainant's evidence. When the jury returned, the closed circuit television was reactivated and the following exchange occurred between the complainant and the trial judge, after identifying her by name (Tcpt, 21/04/09, p 18):

"Q. Do you understand that it's important that in telling us about what happened that you tell us the truth?

A. Yes.

Q. You understand that if you're asked questions and you don't know the answer to the question you should say that you don't know?

A. Yes.

Q. Do you understand that if you're asked a question in relation to which you can't remember the answer, you should say that you cannot remember?

A. Yes.

Q. Do you understand that if it is suggested to you ....

32 At this stage there appears to have been a technical problem and the closed circuit television was turned off and then reactivated. When it resumed, the trial judge continued:

"HIS HONOUR: Now do you also understand that if someone suggests to you that something is untrue when you say that it's true, that you should tell us that what they've said to you is wrong?

WITNESS: Yes."

33 Despite the suggestion in the judgment on competence set out above, there is no doubt that the trial judge appreciated the need that he should give the instruction required by s 13(5) and proceeded to do so. Although he did so by asking questions of the witness, that form of instruction should not be seen as inconsistent with the requirement of sub-s (5). However, what was missing from the final question in relation to suggestions was the exhortation not merely to say that a statement believed to be untrue is wrong, but that the witness "should feel no pressure to agree" with such a statement.

34 In my view that omission was a failure to comply strictly with the terms of sub-s (5). However, given the passage from the examination by counsel for the prosecution set out at [28] above in relation to not feeling under any pressure "because we are grown-ups in funny clothes", it is difficult to conclude that there was any substantial miscarriage of justice resulting from that omission.

35 On the other hand, to seek to avoid the consequences of non-compliance would be inconsistent with the approach referred to in the authorities discussed above. If reliance upon the statement by the prosecutor in the course of asking questions of the witness on the voir dire were to be treated as an adequate compliance with sub-s (5) in one respect, it would be difficult to draw a line in respect of other requirements of sub-s (5). On the other hand, ignoring the part played by the prosecutor, it would be difficult to draw a line based on the omission by the trial judge of some element of the instruction, as opposed to other elements. Rather than take such a course, the appropriate conclusion is that the complainant was not competent to give unsworn evidence because, it having been concluded that she did not have sufficient capacity to understand the obligation to tell the truth, she was not given the directions required by s 13(5) in full. In the words of Doyle CJ in Starrett, the trial was not conducted according to law, as was the appellant's entitlement, and accordingly the conviction should be set aside.

36 BLANCH J: I agree with Basten JA.

37 HALL J: I agree for the reasons stated by Basten JA, that the conviction should be set aside.

**********

Amendments

21 August 2013 - Typographical errors
Amended paragraphs: [32], [35]

Decision last updated: 21 August 2013