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Court of Criminal Appeal 3 October 2003

Regina v JTB

[2003] NSWCCA 295

Sexual offences
CRIMINAL LAW AND PROCEDURE WITNESS AGED 8

Citation: Regina v JTB [2003] NSWCCA 295
Court: New South Wales Court of Criminal Appeal
Date: 3 October 2003
Judges: Grove J, Hulme J, Greg James J

Background

The appellant was convicted in the Coffs Harbour District Court on two counts of sexual misconduct against his granddaughter. The convictions followed a jury trial before Christie DCJ and resulted in terms of imprisonment.

The complainant was eight years old at the time of trial and gave her evidence by videolink. Before she began, the Crown Prosecutor indicated she would not be sworn on account of her age, and the trial judge acknowledged that without further inquiry.

The trial judge then briefly asked the child whether she understood she was there to answer questions truthfully. The child was neither sworn nor affirmed, and no inquiry was made under the relevant provisions of the Evidence Act to determine whether the unsworn procedure was lawfully available.

  • Whether the complainant's unsworn testimony was ever properly elevated to the status of admissible "evidence" under the Evidence Act and the common law
  • Whether the trial judge was required to conduct inquiries under sections 12 and 13 of the Evidence Act before permitting a witness to give evidence without oath or affirmation
  • Whether the failure to comply with those requirements could be cured by the proviso in section 6 of the Criminal Appeal Act (which allows a conviction to stand despite an error if no substantial miscarriage of justice occurred)
  • Whether any consent or waiver by the parties could validate the course taken at trial

Decision

Under section 21 of the Evidence Act, a witness must take an oath or make an affirmation before giving evidence. The only exception arises under section 13, which applies to a person found incapable of understanding the obligation to give truthful evidence. That exception requires a proper finding, supported by relevant information, that the witness falls within the incapable category.

The Court found that no such finding was made, nor was there any information before the trial judge capable of supporting one. The only material before the court was the complainant's age and her simple acknowledgment that she understood she should tell the truth. That acknowledgment, if anything, pointed against a finding of incapacity under section 13(1) rather than toward it. Grove J concluded that the complainant's statements were never lawfully received as evidence at all.

The Court applied the principles from R v Brooks (1998) 44 NSWLR 121, which established that evidence not given under oath or under some lawful alternative sanction is inadmissible, and that a trial in which such material plays a material part is not a trial according to law. Hulme J acknowledged some personal hesitation, noting it was difficult to see how the error had actually affected the outcome. However, given the clear statement in Brooks that defects of this fundamental nature preclude application of the proviso, he agreed the conviction could not stand.

Greg James J further addressed the Crown's argument that the silence of defence counsel at trial might support an inference of consent or waiver. His Honour found nothing in sections 52, 184, or 190 of the Evidence Act that would have permitted the unsworn course to be taken on the available material, particularly given that section 190 prescribes a formal procedure before any waiver takes effect.

Orders Made

  • Appeal allowed
  • Conviction and sentences quashed
  • New trials ordered on the counts on the indictment upon which the appellant was convicted
  • Suppression order made in relation to the complainant's name and any material tending to identify her

Key Takeaways

  • Under sections 12, 13, and 21 of the Evidence Act (NSW), a witness presumed competent must be sworn or affirmed before giving evidence; the unsworn procedure under section 13 is an exception that requires a positive finding of incapacity, not a bare assumption based on the witness's age alone.
  • Age is not, of itself, a basis for bypassing the oath or affirmation requirement in New South Wales. No statutory provision fixes an arbitrary age below which a child may automatically give unsworn testimony.
  • A conviction resting materially on testimony that was never lawfully received as "evidence" cannot be sustained and is not a trial according to law, following R v Brooks.
  • The proviso under section 6 of the Criminal Appeal Act, which permits a conviction to stand despite error where no substantial miscarriage of justice has resulted, does not apply where the defect is as fundamental as the complete absence of lawfully admitted evidence.
  • Neither the silence of defence counsel at trial nor any informal understanding between the parties constitutes a valid waiver of the statutory requirements; section 190 of the Evidence Act prescribes a formal procedure that must be followed before a waiver is effective.

Legislation and Cases Referenced

Legislation:
- Evidence Act (NSW), ss 12, 13, 21, 52, 184, 189, 190
- Criminal Appeal Act (NSW), s 6

Cases:
- R v Brooks (1998) 44 NSWLR 121
- Bulejcik v The Queen (1996) 185 CLR 375
- Dhanhoa v The Queen [2003] HCA 40