JAW v The State of Western Australia

The appeal in JAW v The State of Western Australia arose from a conviction and subsequent sentence for an offence against a child. The appellant, JAW, was convicted of indecently dealing with a child under the age of 16. The complainant was a minor, and the case hinged on the child's testimony. The appeal focused on two primary grounds: the sufficiency of the inquiry into the child's competency to give evidence on oath and the severity of the sentence imposed. The appellant argued that the trial judge did not adequately assess the child's competency and that the sentence was manifestly excessive, particularly because it considered uncharged acts as an aggravating factor.

The key legal issues the court had to decide were whether the trial judge correctly assessed the child's competency under section 106B(3) of the Evidence Act 1906 (WA) and whether the sentence imposed was manifestly excessive. The appellant contended that the trial judge did not sufficiently inquire into the child's understanding of the oath and the consequences of lying, which is a critical aspect of ensuring the reliability of the child's testimony. Regarding the sentence, the appellant argued that the judge erred in treating uncharged acts as an aggravating factor and that the resultant sentence was disproportionate to the offence.

In addressing the competency issue, the court reviewed the trial judge's handling of the inquiry into the child's understanding of the oath. It was found that the trial judge did not adequately probe the child's comprehension, which was essential to ensure the child's testimony was reliable. The court concluded that the inquiry fell short of the statutory requirement, leading to an improper assessment of the child's competency. As for the sentence, the court examined whether the consideration of uncharged acts as an aggravating factor was appropriate. The court found that the sentencing judge erred in this regard, as such factors should not have been considered in determining the severity of the sentence. Consequently, the court held that the sentence was manifestly excessive due to this error.

Given the findings, the appeal was allowed in part. The conviction was quashed due to the inadequate inquiry into the child's competency, leading to a retrial. Regarding the sentence, the court found it manifestly excessive and remitted the matter to the sentencing judge for reconsideration without the uncharged acts as an aggravating factor. The court did not specify a new sentence but mandated a fresh sentencing hearing that would not consider uncharged acts in the same manner as previously done.