Citation: RA v R [2007] NSWCCA 251
Court: New South Wales Court of Criminal Appeal
Date: 21 August 2007
Judge(s): McClellan CJ at CL, Howie J, Harrison J
Background
The appellant faced a charge of sexual intercourse with a child under the age of ten years. The alleged offence occurred in August 2003, when the complainant was five years and three months old. At the time of the appeal, she was nine years old.
Police conducted a recorded interview with the complainant shortly after the alleged offence. The Crown sought to tender that sound recording as the complainant's evidence in chief under section 9(1) of the Evidence (Children) Act 1997. Defence counsel objected, arguing the trial judge must be satisfied, beyond reasonable doubt, that the complainant was competent to give evidence at the time of the interview, not merely at the time of trial.
The trial judge, Freeman DCJ in the District Court, admitted the recording. He certified the matter for consideration by the Court of Criminal Appeal, identifying questions about competence assessment and the allocation of the onus of proof.
Legal Issues
- Whether a child witness's competence must be assessed at the time of the original recorded interview, or only at the time she is called to give evidence at trial
- Whether the defence or prosecution bears an onus of proving competence or incompetence under section 13 of the Evidence Act 1995
- Whether the trial judge applied the correct standard of proof when assessing competence
- Whether the trial judge erred in admitting the recorded interview
Decision
The Court of Criminal Appeal found it unnecessary to resolve the question of whether competence must be assessed at the time of the interview or at the time of trial. The trial judge had addressed both possibilities: he was inclined to the view that competence needed only to be assessed at trial, but he also considered the evidence relating to the interview itself and concluded that the statutory presumption of competence had not been displaced on either basis.
On the onus question, the Court confirmed that neither the defence nor the prosecution carries an onus under section 13 of the Evidence Act 1995. The presumption under section 13(5) is that a person is competent unless the contrary is proved. The court conducting the inquiry must determine whether it is satisfied that incompetence has been established, on the balance of probabilities under section 142(1), and may inform itself as it thinks fit under section 13(7).
The Court noted that one of the grounds certified by the trial judge incorrectly described his own findings. The trial judge had not, in fact, held that the defence bore the onus of proving lack of capacity. His approach was consistent with the statutory framework, which places no burden on either party but requires the court to assess the evidence and determine whether the presumption of competence has been rebutted.
No error was identified in the trial judge's reasoning or approach. The Court of Criminal Appeal unanimously upheld the decision to admit the recording.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Under section 13(5) of the Evidence Act 1995, a person is presumed competent to give evidence unless the contrary is proved on the balance of probabilities. Neither party bears a formal onus.
- The court conducting a competence inquiry may inform itself as it thinks fit under section 13(7), and is not confined to contested examination of the witness.
- In dismissing the appeal, the Court of Criminal Appeal left open the precise question of whether a child's competence must be assessed at the time a recorded interview was made, or only at the time the child is called to give evidence at trial.
- No error was established in the trial judge's admission of the recorded interview, where the judge examined the interview evidence and found the presumption of competence unrebutted on either temporal approach.
- Questions of competence under the Evidence Act 1995 must be resolved by reference to that Act's provisions, not by direct application of common law authorities or law reform commission reports.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 12, 13, 142
- Evidence (Children) Act 1997 (NSW), ss 9, 15
- Criminal Appeal Act 1912 (NSW), s 5F(b)
Cases:
- R v Ellis (2003) 58 NSWLR 700
- R v T (1998) 102 A Crim R 222
- R v Yacoob (1981) 92 Cr App R 313