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8
Court of Criminal Appeal 26 October 2006

R v RAG

[2006] NSWCCA 343

Sexual offences
CROWN APPEAL S 5F(2) CRIMINAL APPEAL ACT 1912 LIMITS OF INQUIRY UNDER S 13 AGE

Citation: R v RAG [2006] NSWCCA 343
Court: NSW Court of Criminal Appeal
Date: 26 October 2006
Judge(s): McClellan CJ at CL, Johnson J, Latham J (Latham J wrote the leading judgment; the others agreed)

Background

The respondent faced trial in the District Court on charges of sexual assault against a child complainant who was six years old at the time of the alleged offences. The Crown case rested on the complainant's evidence and DNA analysis linking the respondent to the child's underwear worn on the night in question. The respondent denied any sexual misconduct and offered an innocent explanation for the DNA.

By the time of the fifth trial, on 17 February 2006, the complainant was seven years and ten months old. On each of the four previous occasions, the trial judge had found the complainant competent to give unsworn evidence. At the fifth trial, however, Maguire DCJ ruled that the complainant was not competent to give unsworn evidence under s 13(2) of the Evidence Act 1995. The Crown appealed that ruling.

The respondent challenged the Court of Criminal Appeal's jurisdiction to entertain the appeal at all, arguing the ruling was neither an interlocutory judgment or order within s 5F(2) of the Criminal Appeal Act 1912, nor a ruling on admissibility that substantially weakened the prosecution case under s 5F(3A).

  • Whether the trial judge's ruling on the complainant's competency to give unsworn evidence was an interlocutory judgment or order for the purposes of s 5F(2) of the Criminal Appeal Act 1912, giving the DPP a right of appeal.
  • Whether the ruling alternatively attracted a right of appeal under s 5F(3A) as a ruling on admissibility of evidence that eliminated or substantially weakened the Crown case.
  • Whether the trial judge applied the correct criteria and stayed within the proper limits of the inquiry under s 13(2) of the Evidence Act 1995 in assessing the complainant's competency.

Decision

Jurisdiction. The Court of Criminal Appeal held that a competency ruling under s 13 of the Evidence Act is not a ruling on the admissibility of evidence. Competency is dealt with under Part 2.1 of Chapter 2 of the Act, while admissibility falls under Chapter 3. The authorities relied on by both parties, which concerned evidentiary admissibility rulings, were therefore inapplicable. The Court found it unnecessary to resolve which precise limb of s 5F conferred the right of appeal, concluding that the ruling was properly characterised as an interlocutory judgment or order because it effectively brought the Crown case to nothing and did not finally dispose of the proceedings.

The competency inquiry. Under s 13(2) of the Evidence Act, the relevant question for unsworn evidence is whether the person understands the difference between telling the truth and telling a lie. The Court found that the trial judge impermissibly expanded the inquiry well beyond this statutory criterion. His Honour considered whether the complainant had been coached or improperly influenced by her mother, whether the allegations might have originated in a dream, and whether threats had been made to the complainant. None of these matters formed part of the legitimate competency assessment.

Irrelevant considerations and ignored answers. The trial judge also treated answers by the complainant demonstrating an understanding of the obligation to tell the truth as evidence of improper influence, rather than as positive indicators of competency. Relevant answers capable of establishing the required understanding were ignored. The Court noted the incongruity of finding incompetency at the fifth trial when nothing had materially changed since the earlier trials, and when one would ordinarily expect a child to have matured in understanding over time.

The ruling was set aside. The Court observed that even if the complainant were unavailable, the Crown may have had a pathway to admit transcripts or recordings from earlier trials as an exception to the hearsay rule under s 65(3) and (6) of the Evidence Act. However, the trial judge's misconception of the s 13 function was sufficiently fundamental that the ruling could not stand.

Orders Made

  • Appeal allowed.
  • The decision of Maguire DCJ of 17 February 2006 is set aside.

Key Takeaways

  • A competency ruling under s 13 of the Evidence Act 1995 is not a ruling on the admissibility of evidence. It falls under a separate part of the Act dealing with witnesses, not under the admissibility provisions in Chapter 3.
  • Under s 13(2), the only relevant criterion for unsworn evidence is whether the person understands the difference between telling the truth and telling a lie. A trial judge cannot expand the inquiry to include questions about coaching, improper influence, or the origins of the complainant's account.
  • Matters going to the reliability or credibility of a child's account, such as whether the complainant was improperly influenced or whether allegations arose from a dream, fall outside the scope of the s 13 competency assessment entirely.
  • Where a child complainant's answers affirmatively demonstrate an understanding of the distinction between truth and lies, a trial judge must treat those answers as relevant and positive indicators of competency, not as cause for suspicion.
  • Where a complainant is found incompetent, the Crown may not be left without recourse. Prior sworn or unsworn evidence from earlier trials may be admissible as an exception to the hearsay rule under s 65(3) and (6) of the Evidence Act if the complainant becomes relevantly unavailable.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5F(2), 5F(3), 5F(3A)
- Evidence Act 1995 (NSW), ss 4, 13, 38, 65, 67
- Evidence (Children) Act 1997 (NSW)

Cases
- Brown, Barwick, Brown v R [2006] NSWCCA 69
- R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386
- R v Bozatsis & Spanakakis (1997) 97 A Crim R 296
- R v Brooks (1998) 44 NSWLR 121
- R v Caine & Anor (1993) 68 A Crim R 233
- R v Haddad & Treglia [2000] NSWCCA 352
- R v Lavender [2002] NSWCCA 511
- R v Lisoff [1999] NSWCCA 364
- R v Loc Huu Phan [2003] NSWCCA 205
- R v Milakovic [2004] NSWCCA 199
- R v O'Neill (2001) 122 A Crim R 510
- R v Pavia (1993) 67 A Crim R 364
- R v Steffan (1993) 30 NSWLR 633
- R v Stevenson [2000] WASCA 301