R v CH

Case [2016] SASCFC 112

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v CH

[2016] SASCFC 112

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Doyle)

27 September 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - EXTENT OF OBLIGATION TO GIVE REASONS

EVIDENCE - WITNESSES - SWEARING AND OATHS - CAPACITY IN GENERAL - YOUNG CHILDREN

Appeal against conviction.

The Appellant was charged in the Youth Court with five counts of indecent assault of a child under 14 years old.

At trial, the complainant, who was 11 years old, gave evidence on oath deposing to the conduct the subject of the charges. The appellant gave evidence on oath denying that conduct.

A Judge found the first count proved and, although he accepted the complainant’s evidence that the conduct occurred more than once, found that the remaining counts were not proved because they were not adequately delineated.

The appellant appeals against the conviction on the grounds that:

1.       the Judge erred in allowing the complainant to give sworn evidence without conducting an inquiry into her understanding of the oath obligation;

2.       the Judge failed to give adequate reasons for the decision; and

3.       the finding of guilt was incapable of being supported having regard to the evidence.

Held (Blue J, Stanley and Doyle JJ agreeing):

1.       The Judge did not err in not conducting an inquiry into the complainant’s understanding of the oath obligation before she gave evidence (at [37]).

2.       The Judge's reasons for decision were not inadequate (at [112]).

3.       The finding of guilt was capable of being supported having regard to the evidence (at [116]).

4.       Appeal dismissed (at [117]).

Criminal Law Consolidation Act 1935 (SA) s 56; Evidence Act 1929 (SA) s 9, s 34CA, s 34LA, s 34M, referred to.
H, SA v Police (2013) 116 SASR 547; Nichols v Police (2005) 91 SASR 232; Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; R v Beard [2004] SASC 411; R v Byerley (2010) 107 SASR 517; R v Dennis (2010) 202 A Crim R 453; R v French (2012) 114 SASR 287; R v J, JA (2009) 105 SASR 563; R v Keyte (2000) 78 SASR 68; R v P, BR [2004] SASC 323; R v Power (2003) 141 A Crim R 203, discussed.
Papps v Police (2000) 77 SASR 210, considered.

R v CH
[2016] SASCFC 112

BLUE J:

  1. This is an appeal…

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R v CH [2016] SASCFC 112
Case
[2016] SASCFC 112
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the accused, R v CH, against a conviction. The appeal was heard by Blue, Stanley, and Doyle JJ. The central dispute revolved around the admissibility of unsworn evidence given by young children during the trial, and whether the trial judge had erred in failing to conduct a sufficient inquiry into the children's understanding of the obligation to be truthful.

The legal issues before the appellate court were whether the trial judge had discharged their obligations under section 9 of the Evidence Act concerning the presumption of a person's capacity to give sworn evidence. Specifically, the court had to determine if there was "good cause" to warrant an inquiry into the children's understanding of the oath obligation, and if so, whether the inquiry conducted was adequate. The court also considered whether the verdict was against the evidence or the weight of the evidence, and whether there was an error of law in the judge's failure to provide adequate reasons for their decision.

The appellate court, in dismissing the appeal, affirmed that the starting point under section 9 of the Evidence Act is a presumption of capacity to give sworn evidence. It was held that a judge is not obliged to conduct an inquiry unless "good cause" is drawn to their attention. While the mere fact of a child being of tender years does not automatically constitute good cause, an inquiry is ordinarily warranted in such circumstances. However, the court found that in this instance, there was nothing about the children's ages or any other feature of the case that necessitated a more extensive inquiry than that which was undertaken. The court concluded that the trial judge had not erred in law and that the verdict was not against the evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 9 of the Evidence Act relevantly provides:9—Unsworn evidence(1)A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.(2)If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—(a) the judge—(i)is satisfied that the person understands the difference between the truth and a lie; and(ii) tells the person that it is important to tell the truth; and(b) the person indicates that he or she will tell the truth.(3)In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit. Section 9 does not expressly address whether or in what circumstances a Judge should embark upon an inquiry under subsection (3) whether a person may not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence (the oath obligation) under subsection (1). However, as a matter of statutory construction, three principles are now clearly established:1.The starting point is the presumption that a person has sufficient understanding of the oath obligation and, absent good cause, a judge is not obliged to embark on an inquiry into that question.2.What amounts to good cause depends on the particular circumstances of the case drawn to or coming to the attention of the judge. 3.The mere fact that the person is a child does not amount to good cause but ordinarily an inquiry will be warranted when the child is of very tender years. In R v P, BR,[5] Mullighan J (with whom Nyland and Anderson JJ agreed) said:I do not think that there is any obligation on the part of a judge to conduct any inquiry under s 9(1) unless there is some matter relating to the person who is to give evidence which raises in the judge’s mind that the presumption may be rebutted. Mental illness or psychological impairment may suggest such an inquiry is required. Mere young age does not, although it is to be expected that there will usually be the need to conduct some inquiry of a child of very tender years. There may be features of the evidence to be given or of what a witness has said in a statement or otherwise to an investigator which suggests the need for an inquiry. Information provided by counsel may require an inquiry to be undertaken. It is not difficult to think of other reasons. S 9(1) does not require an inquiry merely because the person is a young child.…The first observation to be made is whether there was any need to conduct an inquiry in relation to any of the girls. There is nothing about their respective ages which demanded an inquiry. If that was so, the law would have remained as in the repealed s 12(1) under which a young child could not take an oath unless the judge was satisfied that the child understood the obligation of an oath. That was a condition precedent to the taking of the oath. Under s 9(1) a young child, like any one else, is presumed to be capable of giving sworn evidence unless the judge determines that he or she does not have the requisite understanding.[6][5] [2004] SASC 323.[6] At [119], [122].

Decision

Reasons for decision

This ground is not established.Conclusion I would dismiss the appeal.STANLEY J: I would dismiss the appeal. I agree with the reasons of Blue J. DOYLE J: I agree with the reasons of Blue J, and would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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