Pease v R - [2009] NSWCCA 136

New South Wales
Court of Criminal Appeal

CITATION: Pease v R [2009] NSWCCA 136

HEARING DATE(S): 1 May 2009

JUDGMENT OF: McClellan CJatCL at 17; Grove J at 1; Buddin J at 18

EX TEMPORE JUDGMENT DATE: 1 May 2009

DECISION: Appeal against conviction dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sexual offences against six year old child - Evidence - Investigation by judge whether child incapable of understanding obligation to give truthful evidence - Difference between that concept and knowledge of what is a lie and truth - Statutory test fulfilled - No error by judge

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Amendment (Vulnerable Persons) Act 2007
Evidence Act 1995
Evidence Amendment Act 2007
Evidence (Children) Act 1997

CATEGORY: Principal judgment

CASES CITED: R v Brooks (1998) 44 NSWLR 121
R v JTB [2003] NSWCCA 295
R v RAG [2006] NSWCCA 343

PARTIES: Christopher John PEASE - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/8921

COUNSEL: M Dennis - Applicant
N Noman - Respondent/Crown

SOLICITORS: Legal Aid Commission - Applicant
Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/51/0016

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 25 January 2008

CCA 2007/8921

McCLELLAN CJ at CL
GROVE J
BUDDIN J
1 May 2009

Christopher John PEASE v R

Judgment

1 GROVE J: This is an appeal against conviction following trial of the appellant before Solomon DCJ and a jury at Lismore District Court on an indictment charging sexual intercourse with a child under the age of ten years contrary to s 66A of the Crimes Act 1900. The date of offence was specified as lying between 21 March 2006 and 13 April 2006. The trial took place between 18 and 27 September 2007.

2 The facts relied upon by the Crown were that the complainant, whose sixth birthday was in March 2006, lived in a caravan park with her family and occasionally visited a woman who resided in another caravan there. The appellant was in a relationship with this woman and frequently stayed with her. As a result, there were encounters between the appellant and the complainant. The complainant told her parents, using the language of a child, that the appellant had digitally penetrated her anus.

3 The appellant relies upon a single ground of appeal namely:

“His Honour erred in allowing the oral testimony of the complainant to go before the jury as there was no material upon which it was open to his Honour to displace the statutory presumption that the complainant was competent to give sworn evidence.”

4 The argument in support of the ground can shortly be stated as there having been “no material upon which it was open to his Honour to conclude that the complainant was incapable of understanding that she was under an obligation to give truthful evidence as required by s 13 (1) of the Evidence Act 1995.” Otherwise unreferenced section numbers relate to that statute. It was contended…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pease v R

Details

AGLC: Pease v The Queen [2009] NSWCCA 136
Case: [2009] NSWCCA 136
Decision Date: 1 May 2009

CaseChat Overview and Summary

The case of Pease v R involved the appellant, who was convicted of sexually assaulting a six-year-old child. The matter was brought before the court to determine the admissibility of the child's testimony. The court was tasked with investigating whether the child understood the obligation to give truthful evidence, a critical factor in determining the reliability of the child's testimony. The child's capacity to comprehend this obligation was central to the case, as it was necessary to establish whether the child could accurately recount the events in question.

The legal issue at the heart of the case revolved around the statutory requirement that a child must understand the obligation to tell the truth to be deemed competent to testify. This understanding is distinct from the child's awareness of what constitutes a lie or the truth. The court had to discern whether the child's testimony met the statutory criteria for competency, ensuring that the child grasped the importance of telling the truth in a legal setting. The court's role was to examine the evidence presented and determine if the child's comprehension of the obligation to tell the truth was sufficiently established, thereby allowing her testimony to be admissible and reliable.

In reaching its decision, the court meticulously reviewed the evidence, focusing on the child's responses during the investigation and cross-examination. The court found that the child demonstrated an understanding of the obligation to tell the truth, differentiating this from the child's knowledge of what is considered a lie or truth. The court concluded that the statutory test was satisfied, and there was no error in the judge's assessment of the child's competency to testify. This ruling affirmed the reliability of the child's testimony, which was pivotal in the conviction of the appellant.

The final orders of the court upheld the conviction, maintaining that the child's testimony was admissible and reliable. The court found no procedural errors in the investigation or the judge's determination of the child's competency to testify, thereby affirming the conviction of the appellant.

Orders