Citation: SH v Regina [2012] NSWCCA 79
Court: Court of Criminal Appeal, New South Wales
Date: 3 May 2012
Judges: Basten JA; Blanch J; Hall J
Background
The appellant was convicted of sexual intercourse with a girl under the age of 10 years. The principal prosecution witness was the complainant herself, who alleged two incidents of digital penetration occurring between August and October 2007. Because she lacked the capacity to understand the obligation to give truthful evidence, she was not competent to give sworn evidence and instead gave evidence unsworn under section 13 of the Evidence Act 1995 (NSW).
Section 13(5) requires a court to give a prospective unsworn witness three specific directions before that witness is competent to give unsworn evidence. One of those directions, under paragraph (c), requires the court to tell the witness that she may be asked questions suggesting certain statements are true or untrue, that she should agree with statements she believes are true, and crucially, that she "should feel no pressure to agree with statements that she believes are untrue."
On appeal, the appellant argued that the trial judge had failed to deliver that final element of the paragraph (c) direction. No objection had been raised at trial, but the appellant submitted that the omission rendered the complainant incompetent to give evidence and that the conviction must therefore be set aside.
Legal Issues
- Whether the trial judge's directions to the complainant before she gave unsworn evidence complied with section 13(5)(c) of the Evidence Act 1995 (NSW), specifically whether the direction addressed the witness's freedom from pressure to agree with statements she believed were untrue.
- Whether non-compliance with section 13(5) renders a witness incompetent to give unsworn evidence, even where no objection was raised at trial.
- Whether any failure to comply with section 13(5) resulted in a substantial miscarriage of justice requiring the conviction to be set aside under section 6 of the Criminal Appeal Act 1912 (NSW).
- Whether section 13(4) confers a discretionary power on the trial judge to refuse to allow unsworn evidence, or whether competence follows automatically upon satisfaction of the section 13(1) capacity threshold and compliance with section 13(5).
Decision
Basten JA (with Blanch J and Hall J agreeing) held that section 13(4) does not confer a discretionary power on the trial judge. Once a witness satisfies the basic capacity requirements in section 13(1) and the court has given the directions required by section 13(5), the witness "is" competent to give unsworn evidence. The structure of the section and the absence of criteria for any discretion made clear that no such power was intended.
On the content of the directions given, Basten JA concluded that the trial judge appreciated the requirement under section 13(5) and attempted to comply with it. The judge asked the complainant questions covering most elements of the required direction. However, the final question about suggestions did not include the exhortation that she "should feel no pressure to agree" with statements she believed to be untrue, and that omission constituted a failure to comply strictly with paragraph (c).
The prosecution argued that a statement made by the prosecutor during the voir dire, to the effect that the witness should feel no pressure "because we are grown-ups in funny clothes," should be treated as substantially satisfying this requirement. Basten JA declined to take that approach. Treating a prosecutor's remark as adequate compliance would make it difficult to draw a principled line in relation to other elements of the section 13(5) directions or other departures from the statutory requirements.
Because the trial judge had already found that the complainant lacked sufficient capacity to understand the obligation to give truthful evidence, and because the required directions under section 13(5) were not given in full, the complainant was not competent to give unsworn evidence. The trial was therefore not conducted according to law. Although it was difficult to identify any substantial miscarriage of justice on the facts, the Court held that the conviction must be set aside.
Orders Made
• The conviction should be set aside
Key Takeaways
- Under section 13(5) of the Evidence Act 1995 (NSW), a court must give all three prescribed directions before a witness who is incompetent to give sworn evidence becomes competent to give unsworn evidence. Partial compliance is not sufficient.
- The requirement in section 13(5)(c) has two distinct limbs: the witness must be told to agree with suggestions she believes are true, and separately, that she should feel no pressure to agree with statements she believes are untrue. Omitting the second limb constitutes non-compliance.
- Section 13(4) does not give trial judges a discretion to refuse unsworn evidence. Competence to give unsworn evidence follows as a matter of law once the section 13(1) capacity threshold is met and the section 13(5) directions have been properly given.
- A prosecutor's remark during voir dire examination cannot substitute for the judicial direction required by section 13(5). The statutory obligation to deliver the direction rests on the court.
- Where the section 13(5) directions have not been properly given, the witness is incompetent, and a resulting conviction will be set aside as not having been conducted according to law, even absent a finding of substantial miscarriage of justice on the particular facts.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 13, 21, 30, 31, 165, 165A
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules, r 4
- Evidence Amendment Act 2007 (NSW)
- Evidence Act 1958 (Vic), s 23
- Evidence Act 1977 (Qld), ss 9, 9A, 9B
- Evidence Act 1929 (SA), s 9
- Uniform Evidence Act, s 13
Cases:
- The Queen v WG [2010] VSCA 34
- R v Anunga (1976) 11 ALR 412
- R v BBR [2009] QCA 178; [2010] 1 Qd R 546
- R v Brooks (1998) 44 NSWLR 121
- R v Starrett [2002] SASC 175; 82 SASR 115