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District Court 16 November 2010

R v KERTAI

[2010] NSWDC 264

Sexual offences
CRIMINAL LAW JUDGMENT

Citation: R v Kertai [2010] NSWDC 264
Court: District Court of New South Wales
Date: 16 November 2010
Judge(s): Berman SC DCJ

Background

The accused faced criminal charges, and the primary witness against him was a six-year-old complainant, referred to in the judgment as MN. Her evidence had been given by way of a recorded police interview, and she was also cross-examined at trial.

As the evidentiary phase concluded and counsel prepared for closing addresses, defence counsel applied for a judicial direction to the jury under s 165A(2) of the Evidence Act 1995 (NSW). That provision allows a judge to warn the jury about potential unreliability of a child's evidence where particular circumstances, beyond age alone, warrant such a warning.

The Crown opposed the application. The judge considered the three specific matters raised by defence counsel and delivered an ex tempore ruling.

  • Whether the accused had satisfied the court that there were circumstances particular to the child complainant, beyond her age alone, that affected the reliability of her evidence and warranted a direction under s 165A(2) of the Evidence Act 1995 (NSW).
  • Whether references in the complainant's evidence to a "shark" and a "witch," and evidence of her willingness to lie to one parent on behalf of the other, met the threshold for such a direction.

Decision

Defence counsel relied on three matters. The first was MN's reference during her police interview to thinking she had seen a shark at the beach, which defence counsel characterised as evidence of fantasy. The judge rejected this characterisation, noting there was simply no evidence establishing that MN's account was untrue. Without a basis for treating the statement as a fabrication, it could not support an inference of unreliable fantasy.

The second matter was MN's use of a "witch" analogy to describe the pain she experienced. The judge found this was plainly an attempt by a six-year-old to convey her emotional state, not a literal belief in witches. MN had explicitly clarified during cross-examination that she did not believe witches were real, explaining that "inside my brain it feeled like" a witch. The judge characterised this as an eloquent, if imaginative, description of how she felt.

The third matter was evidence that MN had, at her father's request, lied to her mother about the accused visiting the family home. The judge acknowledged this showed a capacity to lie, but regarded it as entirely unremarkable in context: a child complying with one parent's request to keep a secret from the other.

The judge declined to give the direction. His Honour found that while these matters might be described as particular to MN, they were commonplace in the context of child evidence and their potential significance to the jury's assessment of credibility was self-evident. No special judicial instruction was needed to draw the jury's attention to them. The judge also noted the risk that a s 165A warning could itself be misread by jurors as a judicial hint about the complainant's truthfulness, reinforcing that such directions should not be given lightly.

Orders Made

The application for a direction under s 165A(2) of the Evidence Act 1995 was declined.

Key Takeaways

  • Under s 165A(2) of the Evidence Act 1995 (NSW), the accused bears the burden of satisfying the court that circumstances particular to the child witness, beyond age alone, both affect the reliability of that witness's evidence and warrant the giving of a warning.

  • The District Court held that the threshold is not met merely by pointing to features that are commonplace in child evidence. A vivid imagination and a willingness to lie to one parent at the other's request were treated as ordinary childhood characteristics whose effect on credibility a jury could assess without judicial direction.

  • Where an aspect of a child's account cannot be shown to be false, it cannot serve as a foundation for a finding of fantasy or unreliability. The judge refused to treat MN's "shark" reference as evidence of fabrication in the absence of any contrary evidence.

  • Refusing the direction, the court observed that a s 165A warning carries its own risk: despite other directions, jurors may interpret a judicial warning as a hint about a witness's credibility, which is a reason such directions should not be given without genuine warrant.

  • The judgment includes a candid observation from Berman SC DCJ that the rationale for requiring judges to direct juries about children's reliability is not obvious, noting that available literature tends to suggest children are more reliable than commonly assumed.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 165, 165A(2)

Cases cited: None cited in the judgment text.