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R v Climas

R v Climas

Case [1999] SASC 457 28 October 1999

Admissibility of Evidence

Oath

Affirmation

Understanding of Obligation to be Truthful

Evidence Law

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R v CLIMAS
QUESTION OF LAW RESERVED BY TRIAL JUDGE ON AN ISSUE ANTECEDENT TO TRIAL
[1999] SASC 457

Court of Criminal Appeal: Millhouse, Duggan and Lander JJ

1 MILLHOUSE J. I agree with the answers given by my brothers Duggan and Lander and, broadly, for the reasons which they give.
2 DUGGAN J. A judge presiding over a trial in the District Court has reserved for the consideration and determination of this Court various questions of law arising out of a preliminary issue raised before him. The questions are concerned with the interpretation and application of recent amendments to the Evidence Act 1929 dealing with sworn and unsworn evidence.
3 In the case before the trial judge the accused is charged with inciting a child to commit an indecent act. It is alleged that the offence took place in April 1998. The alleged victim was born on 21 September 1991 and the prosecution intends to call her as a witness at the trial.
4 Prior to the commencement of the prosecution case the learned trial judge was asked to determine whether the child should be permitted to give sworn evidence. There followed a discussion on the amendments contained in the Evidence (Miscellaneous) Amendment Act 1999 (the amending Act) which came into effect on 27 June 1999.
5 Before considering the questions which have been referred to this Court it is convenient to have regard to some relevant provisions both before and after the passing of the amending Act.
The relevant provisions prior to the passing of the amending Act

6 Section 6 (3) permitted an affirmation to be made instead of an oath. It provided:
"A person shall be permitted to make an affirmation instead of an oath in all circumstances in which, and for all purposes for which, an oath is required or permitted by law."
7 Section 9 dealt with the giving of evidence without formality. It provided as follows:
"(1) Where in any proceedings (including proceedings in the nature of a preliminary examination) it appears to a judge that a person does not understand the obligation of an oath, he may permit that person to give evidence without an oath and without formality.
(2) Before the judge receives any such evidence he must explain or cause to be explained to the person by whom the evidence is to be given that he is required to be truthful in anything that he may say before the court.
(3) (Irrelevant)
(4) A person who in giving evidence under this section wilfully makes any false statement shall be guilty of an offence and liable to be imprisoned for a term not exceeding two years.
(5) (Irrelevant)
(6) Unsworn evidence given under this section has such weight and credibility as ought to be given to evidence given without the sanction of an oath."
8 The giving of evidence by young children was dealt with in s 12. "Young child" is defined in both the pre and post amending Act legislation…

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 R v Climas

Details

AGLC: R v Climas [1999] SASC 457
Case: [1999] SASC 457
Decision Date: 28 October 1999

CaseChat Overview and Summary

This case involves a question reserved by a District Court judge regarding the interpretation and application of recent amendments to the Evidence Act 1929. The accused is charged with inciting a child to commit an indecent act and the prosecution intends to call the alleged victim as a witness at the trial. The judge is asked to determine whether the child should be permitted to give sworn evidence. The Court of Criminal Appeal, consisting of Millhouse, Duggan, and Lander JJ, considers various questions related to the interpretation and application of the Evidence Act 1929 and its amendments.

The main legal issues addressed in this case are:

1. Whether the amendments effected by the Evidence (Miscellaneous) Amendment Act 1999 apply where the offence was allegedly committed before 27 June 1999.
2. Whether the determination under s 9(1) of the Evidence Act 1929 is merely one where the witness "does not have sufficient understanding of the obligation to be truthful," irrespective of whether the witness is to take an oath or make an affirmation.
3. Whether the determination under s 9(1) is one where the witness "does not have sufficient understanding of the obligation to be truthful" in relation to either an oath or an affirmation depending on which of them the witness has chosen or is to choose.
4. Whether the witness is to be required to make the choice under s 6(3) of the Evidence Act 1929 before any determination is made under s 9(1).
5. If the accused so requests, whether the Court is to inquire into whether the witness has a sufficient understanding of an oath or an affirmation so as to be able to make a proper choice between them and what is the effect if the witness cannot make a proper choice.

The Court of Criminal Appeal held that the amendments effected by the Evidence (Miscellaneous) Amendment Act 1999 apply prospectively and are applicable to the trial in the present case. The determination under s 9(1) of the Evidence Act 1929 is merely one where the witness "does not have sufficient understanding of the obligation to be truthful" irrespective of whether the witness is to take an oath or make an affirmation, and if capacity is upheld, witnesses can either take an oath or make an affirmation as they then choose. The determination as to whether the witness does not have sufficient understanding of the obligation to be truthful is to be considered without regard to the choice of the witness to either take the oath or affirm. The witness is not required to make the choice before any determination is made under s 9(1). If the accused so requests, the Court is to assist the witness in understanding the differences between an oath and an affirmation but is not required to determine whether the witness has a sufficient understanding of an oath or an affirmation. The obligation to be truthful under s 9(1) is the same for a witness over the age of ten years, as described by King CJ in R v Whittingham, but without the legal sanction that would attach for a false statement. The Court may use special form of wording for the non-statutory parts of the affirmation in appropriate cases. The criteria laid down in R v Schlaefer are not to be used in determining whether the witness does not have sufficient understanding of the obligation to be truthful in giving evidence on oath. If it is determined that the witness does not have the capacity to take the oath, the witness is to be allowed to make an affirmation if the witness has the appropriate understanding.

Orders