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Court of Criminal Appeal 1 September 2017

Tikomaimaleya v R

[2017] NSWCCA 214

Sexual offences
EVIDENCE WITNESS EVIDENCE CHILDREN’S EVIDENCE WITNESS EVIDENCE CHILDREN’S EVIDENCE WHERE EXAMINATION

Citation: Tikomaimaleya v R [2017] NSWCCA 214
Court: Court of Criminal Appeal, New South Wales
Date: 1 September 2017
Judge(s): Simpson JA (with Harrison J and Davies J agreeing)

Background

The appellant was convicted in the District Court of one count of sexual intercourse with a child under the age of ten years, contrary to s 66A of the Crimes Act 1900 (NSW). He was sentenced to nine years' imprisonment with a non-parole period of six years. The offence occurred at a family day care centre operated by his wife from their home, where the complainant attended twice weekly.

The complainant was between four and five years old at the time of the offence. She alleged that the appellant had inserted his finger into her vagina while she was asleep on a lounge watching television. She disclosed the incident to her parents on the last day of her attendance at the centre, and was interviewed by police on 23 December 2013. That interview was video recorded.

At trial, the complainant was approximately six and a half years old. Her competence to give sworn evidence was a contested issue. The video recording of her police interview was played to the jury as her evidence-in-chief under s 306V(1) of the Criminal Procedure Act 1986 (NSW). The appellant denied the allegations throughout.

  • Whether the trial judge erred in finding the complainant competent to give sworn evidence under s 13 of the Evidence Act 1995 (NSW).
  • Whether, if an error was made as to the form of the complainant's evidence (sworn versus unsworn), a miscarriage of justice resulted.
  • Whether ss 59 and 61 of the Evidence Act required the complainant to have been competent at the time of her police interview, so as to affect the admissibility of the video recording.
  • Whether the jury's verdict of guilty was unreasonable or unsupported by the evidence.

Decision

Competency to give sworn evidence: The Court found no error in the trial judge's determination that the complainant was competent to give sworn evidence. No specific error in the trial judge's reasoning was identified by the appellant. Relying on The Queen v GW (2016) 258 CLR 108, the Court also held that even if the trial judge had wrongly classified her evidence as sworn rather than unsworn, no miscarriage of justice would have followed. Under GW, there is no requirement to give the jury any direction about the distinction between sworn and unsworn evidence, so the classification error would have had no practical consequence on the conduct of the trial.

Admissibility of the video recording: The appellant argued that ss 59 and 61 of the Evidence Act required the complainant to have been competent at the time of the video interview, and that the recording was inadmissible on that basis. The Court rejected this argument. The video recording was not admitted under the Evidence Act at all. It was admitted by direct operation of s 306V(1) of the Criminal Procedure Act, which provides a separate statutory pathway for the admission of recorded interviews from vulnerable witnesses. The hearsay and competency provisions of the Evidence Act did not apply to that pathway.

Unreasonable verdict: The Court conducted an independent assessment of all trial evidence, as required when this ground is raised on appeal. The evidence included the complainant's recorded interview, the testimony of both parents, a police officer, the appellant's wife, and a character witness for the appellant. The Court acknowledged the jury's advantage in observing witnesses directly. All three judges independently concluded that the evidence did not give rise to a reasonable doubt and that the verdict was open to the jury.

Orders Made

  • Leave granted to rely on Ground 3 of the Notice of Appeal.
  • Appeal against conviction dismissed.

Key Takeaways

  • Under The Queen v GW (2016) 258 CLR 108, classifying a child's evidence as sworn rather than unsworn does not of itself produce a miscarriage of justice, because no jury direction is required on that distinction in any event.
  • The hearsay rule in s 59 and the competency provision in s 61 of the Evidence Act 1995 (NSW) do not govern the admission of a child complainant's video-recorded police interview where that recording is admitted under s 306V(1) of the Criminal Procedure Act 1986 (NSW). The two statutory regimes operate independently.
  • No error was established in the trial judge's finding of competency, particularly where the appellant identified no specific flaw in the trial judge's reasoning or questioning process.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal confirmed its obligation to make an independent assessment of all trial evidence, not merely to review whether the jury's verdict was supportable in the abstract.
  • A complainant's age at trial (here, approximately six and a half years) does not preclude a finding of competency to give sworn evidence; the inquiry turns on the specific questions asked and answers given at the time of the competency assessment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A
- Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW), Sch 1
- Criminal Appeal Act 1912 (NSW), ss 5, 7
- Criminal Procedure Act 1986 (NSW), ss 306U, 306V, Ch 6 Pt 6
- Evidence Act 1995 (NSW), ss 12, 13, 21, 59, 61, Ch 3 Pt 3.2

Cases:
- The Queen v GW (2016) 258 CLR 108; [2016] HCA 6
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Chidiac v The Queen (1991) 171 CLR 432; [1991] HCA 4
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
- MK v R [2014] NSWCCA 274
- SKA v R; R v SKA [2009] NSWCCA 186