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 that his Honour appeared to have “presumed such incapability as a product of the complainant’s age.”

5 It should be noted that the Evidence Amendment Act 2007 substituted new provisions in s 13 but these apply to hearings commencing on or after 1 January 2009. What follows is referrable to the now omitted provision which was applicable to the trial of the appellant.

6 That provision was in these terms:

“13. Competence: lack of capacity
(1) A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence.
(2) A person who because of subsection (1) is not competent to give sworn evidence is competent to give unsworn evidence if:
(a) the court is satisfied that the person understands the difference between the truth and a lie; and
(b) the court tells the person that it is important to tell the truth; and
(c) the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding.
(3) A person who is incapable of giving a rational reply to a question about a fact is not competent to give evidence about the fact, but may be competent to give evidence about other facts.
(4) A person is not competent to give evidence about a fact if:
(a) the person is incapable of hearing or understanding, or of communicating a reply to, a question about the fact; and
(b) that incapacity cannot be overcome.
(5) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
(6) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.
(7) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit.”

7 All persons, including children, are presumed competent to give evidence: s 12. There is no fixed rule, either at common law or by statute, as to an age below which a child will be presumed to be incompetent to give sworn evidence: R v Brooks (1998) 44 NSWLR 121. It would be erroneous to presume incapacity merely because of the tender years of an intended witness: R v JTB [2003] NSWCCA 295. An accused may only be convicted upon evidence which is admissible, that is to say in the case of oral testimony, on oath or affirmation or pursuant to an alternative lawful sanction. Section 13 provides such an alternative.

8 The issue of testimony from the complainant was raised before the learned trial judge and the Crown Prosecutor correctly informed him that it would be necessary to determine whether the complainant was competent to give sworn evidence, and, if not, whether she could give unsworn evidence as sanctioned by s 13. His Honour was authorized to investigate the matter as he saw fit: s 13 (7).

9 His Honour first listened to an audio recording of an interview of the complainant by police. Near the conclusion of that interview she was asked some questions about “telling lies”, “fibbing” and “telling the truth.” After listening to the recording his Honour then asked a series of questions of the complainant (transcript 18 September 2007 pp 8-10).

10 The material showed that the complainant understood the difference between telling the truth and telling a lie, but it is apparent from the terms of s 13(1) and 13 (2) that there is a difference between being able to discriminate between telling the truth and telling a lie, and understanding the obligation to give truthful evidence.

11 The determination required by s 13 (1) is a matter of judgment and inevitably includes assessment and impression. His Honour was able to listen to the complainant being interviewed and to observe her demeanour as she responded to his questioning. Although, as I have said, it would be erroneous to assume incapacity only by reason of age, it would nevertheless be potentially relevant to make an assessment of maturity. Nowhere did he say that he presumed that she was incapable simply because of her age and there is no reason to infer that he did. It has not been shown that his Honour’s discretionary judgment has miscarried.

12 In his ruling his Honour expressed satisfaction that the complainant was incapable of understanding the obligation described in terms of s 13 (1) and, upon that finding, he turned to the issue of discrimination in s 13 (2) (a). It is not suggested that s 13 (2) (b) and (c) were not complied with appropriately.

13 The procedure and approach adopted by his Honour cannot be criticized and was entirely compatible with the expressions in R v RAG [2006] NSWCCA 343 to which he was referred.

14 For completeness, I note that his Honour overruled an objection to the playing of the audio interview of the complainant pursuant to s 9 (1) of the Evidence (Children) Act 1997 (now repealed and replaced by the Criminal Procedure Amendment (Vulnerable Persons) Act 2007 with effect from 12 October 2007). References therein to a child giving evidence should be understood to include not only statements verified by oath or affirmation but admitted pursuant to lawful alternative such as authorized by s 13. It is not submitted that his Honour erred in overruling that objection.

15 The ground of appeal has not been sustained.

16 I would dismiss the appeal against conviction.

17 McCLELLAN CJ at CL: I agree with Grove J.

18 BUDDIN J: I also agree with Grove J.

19 McCLELLAN CJ at CL: The order of the Court will be as proposed by Grove J.

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