Citation: R v AKB (No. 3) [2018] NSWSC 1076
Court: Supreme Court of New South Wales
Date: 10 July 2018
Judge(s): Davies J
Background
This decision arose as a pre-trial or mid-trial ruling in a criminal proceeding before the Supreme Court. One of the prosecution witnesses, referred to as WB, was aged 11 at the time of trial and had been aged nine when his recorded police interviews were conducted.
Before WB's evidence could be received, the court was required to determine whether he was competent to give evidence under the Evidence Act 1995 (NSW). Neither the prosecution nor defence counsel challenged his competence, but the court retained an independent obligation to be satisfied of the matter.
Legal Issues
- Whether WB was competent to give evidence within the meaning of s 13 of the Evidence Act 1995 (NSW), specifically whether he understood his obligation to give truthful evidence as required by s 13(3)
Decision
Competence under s 13(3) of the Evidence Act 1995 (NSW):
Davies J reviewed the transcripts of WB's recorded interviews and found that, based on WB's answers to introductory questions, he demonstrated an understanding of the difference between truth and a lie, and that he was required to answer truthfully (at [5]).
The judge also conducted a personal examination of WB at trial. Although WB did not know the word "obligation" in the abstract, he demonstrated his practical understanding of the concept by correctly equating it with a concrete, everyday example: being required to attend school from Monday to Friday (at [5]).
Taking these matters together, the court was satisfied that WB understood he was under an obligation to give truthful evidence, and therefore met the competence threshold in s 13(3) (at [6]).
Orders Made
- WB is competent to give evidence within the meaning of s 13(3) of the Evidence Act 1995 (NSW)
Key Takeaways
- Under s 13(3) of the Evidence Act 1995 (NSW), a child witness is competent to give evidence if the court is satisfied the child understands the obligation to give truthful answers, even where the child cannot articulate legal terminology (at [5]-[6]).
- A court retains an independent obligation to be satisfied of a child witness's competence, regardless of whether the parties raise any challenge to it (at [3]).
- Davies J drew on both the recorded interview transcripts and a direct oral examination of the child at trial to inform the competence assessment, illustrating the practical tools available to a court under this inquiry (at [4]-[5]).
- The Court of Criminal Appeal's guidance in R v RAG [2006] NSWCCA 343, alongside the Equality Before the Law Bench Book, informed the court's approach to assessing competence in this case (at [4]).
- A child's ability to apply a concept correctly to a familiar real-world situation can satisfy the court of the required understanding, even where abstract vocabulary is beyond the child's knowledge (at [5]-[6]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- R v RAG [2006] NSWCCA 343