MK v R

The case of MK v R involved an appeal against the conviction of the applicant for take without consent and indecent assault. The appeal was heard by the Supreme Court of New South Wales, Court of Criminal Appeal. The primary issue before the court was whether the trial was conducted according to law, specifically whether the child witnesses were competent to give unsworn evidence. Additionally, the court considered whether the verdict was unreasonable and if there was a miscarriage of justice due to the Crown's submissions and the trial judge's directions to the jury.

The court found that the trial was not conducted according to law because the child witnesses were not competent to give unsworn evidence. The trial judge failed to adequately inform the child witnesses about the obligation to tell the truth and agree with statements they believed to be true, as required by section 13(5)(c) of the Evidence Act. This failure constituted a fundamental defect in the giving of unsworn evidence. Consequently, the convictions were quashed, and the matter was remitted to the District Court for a new trial. The court dismissed the other grounds of appeal, finding that the verdict was not unreasonable and that there was no miscarriage of justice due to the Crown's submissions or the trial judge's directions.

The court's reasoning highlighted the importance of ensuring that child witnesses understand their obligation to tell the truth when giving unsworn evidence. The failure to properly inform the child witnesses about this obligation led to a fundamental defect in the trial process. Despite this defect, the court found that the evidence was sufficient for a properly instructed jury to be satisfied beyond reasonable doubt of the applicant's guilt. Therefore, the matter was remitted for a new trial to ensure that the trial was conducted according to law.