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Court of Criminal Appeal 1 May 2009

Pease v R

[2009] NSWCCA 136

Sexual offences
CRIMINAL LAW AND PROCEDURE EVIDENCE STATUTORY TEST FULFILLED NO ERROR BY JUDGE

Citation: Pease v R [2009] NSWCCA 136
Court: New South Wales Court of Criminal Appeal
Date: 1 May 2009
Judge(s): Grove J, McClellan CJ at CL, Buddin J

Background

The appellant was convicted in the Lismore District Court of sexual intercourse with a child under ten years of age, contrary to s 66A of the Crimes Act 1900. The complainant was six years old at the time of the alleged offending. She had told her parents that the appellant, who was in a relationship with a woman residing in the same caravan park as the complainant's family, had digitally penetrated her.

Before trial, the District Court judge was required to determine whether the complainant was competent to give sworn evidence. The judge listened to a police audio recording of the complainant, observed her demeanour, and asked her questions directly. He concluded that she was incapable of understanding the obligation to give truthful evidence under s 13(1) of the Evidence Act 1995, and accordingly admitted her evidence as unsworn evidence under s 13(2).

The appellant was convicted and appealed, arguing that the trial judge had no proper basis for concluding the complainant lacked the capacity to give sworn evidence, and that the judge appeared to have assumed incapacity simply because of the complainant's young age.

  • Whether the trial judge erred in finding that the complainant was incapable of understanding the obligation to give truthful evidence under s 13(1) of the Evidence Act 1995, thereby displacing the presumption of competence to give sworn evidence
  • Whether the trial judge improperly treated the complainant's age alone as the basis for that finding
  • Whether the admission of the complainant's unsworn evidence, and the audio recording of her police interview, was lawful

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. Grove J, with whom McClellan CJ at CL and Buddin J agreed, identified a critical distinction within s 13: the ability to tell the difference between a truth and a lie is not the same as understanding the obligation to give truthful evidence when testifying. The complainant demonstrated the former, but the trial judge was entitled to conclude she lacked the latter.

Grove J confirmed that the determination under s 13(1) necessarily involves an exercise of judgment, including assessment of the witness's maturity and demeanour. The trial judge had listened to the police interview recording, observed the complainant directly, and questioned her before making his ruling. That process was entirely consistent with prior Court of Criminal Appeal authority and with the court's express power under s 13(7) to inform itself as it saw fit.

The Court found no basis to conclude the trial judge had presumed incapacity from age alone. He had not said so, and there was no reason to infer it. Once the judge found the complainant could not give sworn evidence, he correctly turned to s 13(2) to consider whether she could give unsworn evidence, which required him to be satisfied she understood the difference between truth and a lie, a requirement she met. No challenge was raised to the admission of the police audio recording.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • Under s 13(1) of the Evidence Act 1995 (in its pre-2009 form), a child witness who can distinguish between truth and lies is not automatically competent to give sworn evidence. A further and distinct question arises: whether the child understands the obligation to give truthful evidence when testifying.
  • There is no fixed age below which a child is presumed incompetent to give sworn evidence, and courts must not treat young age alone as establishing incapacity.
  • A trial judge conducting the s 13 investigation may inform themselves as they see fit, including by listening to recordings of prior interviews and directly questioning the proposed witness, consistent with s 13(7).
  • The competency determination under s 13(1) is an evaluative judgment that includes assessing the witness's maturity, demeanour, and responses. No error is established simply because the witness is very young or because the resulting evidence is unsworn.
  • In dismissing the appeal, the Court confirmed that the procedure adopted in R v RAG [2006] NSWCCA 343 represents an appropriate approach to competency investigations for child witnesses.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Evidence Act 1995 (NSW), s 12, s 13 (pre-2009 version)
- Evidence Amendment Act 2007 (NSW)
- Evidence (Children) Act 1997 (NSW), s 9(1) (now repealed)
- Criminal Procedure Amendment (Vulnerable Persons) Act 2007 (NSW)

Cases:
- R v Brooks (1998) 44 NSWLR 121
- R v JTB [2003] NSWCCA 295
- R v RAG [2006] NSWCCA 343