R v French

Case [2012] SASCFC 118

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v FRENCH

[2012] SASCFC 118

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)

22 October 2012

CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN

CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - OATH - COMPETENCE TO TAKE

CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - PARTICULAR PERSONS AND MATTERS - CHILDREN

Appeal against conviction - appellant found guilty of aggravated indecent assault and unlawful sexual intercourse - video recorded statements made by each of two complainants in the course of interviews with a police officer admitted into evidence pursuant to s 34CA of the Evidence Act 1929 (SA) - trial Judge determined each complainant could not give sworn evidence though both could give unsworn evidence - whether the trial Judge erred in the application of s 9 of the Evidence Act 1929 (SA).

Held: Appeal allowed - when unsworn evidence is permitted, strict compliance with s 9 of the Evidence Act 1929 (SA) is required s 9(4)(a) requires a Judge to explain to the jury the reason evidence was unsworn - where counsel makes a request for a warning under s 9(4)(b), a Judge is required to identify to the jury that evidence was unsworn and that caution is required in determining whether to accept the evidence and the weight to be given to it - the trial Judge failed to comply with the requirements of ss 9(4)(a) and 9(4)(b).

Evidence Act 1929 (SA) s 9, s 34CA; Criminal Law Consolidation Act 1935 (SA) s 49, s 56; Evidence Act 1977 (Qld) s 9B; Evidence Act 1995 (NSW) s 13, referred to.
R v Starrett (2002) 82 SASR 115, applied.
R v BBR (2009) 195 A Crim R 330; SH v R [2012] NSWCCA 79; R v J, AP [2012] SASCFC 95; Nichols v Police (2005) 91 SASR 232; R v Brooks (1998) 44 NSWLR 121; RJ v The Queen (2010) A Crim R 174; R v P, BR [2004] SASC 323; R v Pascoe (2004) 90 SASR 505, considered.

R v FRENCH
[2012] SASCFC 118

Court of Criminal Appeal:       Gray, Sulan and White JJ

GRAY J.

  1. On 22 August 2012 I joined in orders of the Court allowing the appeal, setting aside the convictions and remitting the proceeding for retrial.  I agree with the reasons now published by Sulan J.

  2. SULAN J:             This is an appeal against conviction.

  3. The defendant and appellant, Maxwell James French, was convicted by jury verdict of the offence of aggravated indecent assault, contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA) and of the offence of unlawful sexual intercourse, contrary to section 49(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant was a seven-year-old girl. The offences occurred between 1 January 2010 and 31 March 2011 at the defendant’s home. The…

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R v French [2012] SASCFC 118
Case
[2012] SASCFC 118
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CaseChat Overview and Summary

In *R v French*, the Full Court of the Supreme Court of South Australia considered an appeal against a conviction for aggravated indecent assault and unlawful sexual intercourse. The appeal concerned the admission of video-recorded statements made by two child complainants, pursuant to s 34CA of the *Evidence Act 1929* (SA). The trial judge had determined that neither complainant could give sworn evidence but permitted them to give unsworn evidence. The central dispute on appeal was whether the trial judge had erred in the application of s 9 of the *Evidence Act 1929* (SA) concerning the procedure for admitting unsworn evidence.

The legal issues before the Full Court were whether the trial judge had complied with the requirements of s 9 of the *Evidence Act 1929* (SA) when permitting the child complainants to give unsworn evidence, and if not, whether this constituted a miscarriage of justice. Specifically, the court had to determine if the judge had adequately explained to the jury the reasons why the evidence was unsworn, as required by s 9(4)(a), and if the judge had provided the necessary warning to the jury regarding the caution required when assessing unsworn evidence, as mandated by s 9(4)(b) upon request.

The Court held that strict compliance with s 9 of the *Evidence Act 1929* (SA) is mandatory when unsworn evidence is permitted. The trial judge failed to comply with s 9(4)(a) by not explaining to the jury the reason the evidence was unsworn, and also failed to comply with s 9(4)(b) by not warning the jury of the need for caution in assessing the evidence, despite this being requested by counsel. The Court found that these failures constituted a substantial irregularity and a miscarriage of justice, as the trial was not conducted according to law.

Consequently, the appeal was allowed, the convictions were set aside, and a retrial was ordered.

Orders

Orders of the court

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Background

Background to the litigation

Counsel for the Director of Public Prosecutions correctly, in my view, accepted that the Judge had failed to explain to the jury the reasons why the evidence of each complainant was unsworn and failed to warn the jury of the need for caution. It was, therefore, unnecessary for the Court to consider the other grounds of appeal. The Court allowed the appeal, set aside the convictions and ordered a retrial. The Court indicated that it would give reasons later. I now publish my reasons.Background The defendant became friendly with both complainants, who each lived with their parents when they lived nearby. Both spent time at the defendant’s home. It was during the time that the two girls were together at the defendant’s home that indecent conduct was said to have occurred. The matter came to the attention of police after the older complainant’s mother discovered a sexually explicit letter in her daughter’s bedroom. The mother questioned her daughter, who eventually stated that she and the defendant had engaged in sexual intercourse. Police conducted a video interview with the older complainant, who gave a description of various acts of indecency which she said had occurred in the presence of the younger complainant. She also claimed to have seen the defendant have sexual intercourse and oral intercourse with the younger girl. The younger complainant was interviewed after she had spoken to her mother. She told police that the defendant had touched her breast and her “rude part”. The prosecution led evidence from Senior Constable Gregory of the interviews and video tape recordings of the interviews were played to the jury, pursuant to section 34CA(1) of the Evidence Act, to prove the truth of facts as asserted in the statements made to Constable Gregory. Section 34CA provides that a court may admit evidence of the contents of a statement made outside the court by a protected witness from the person to whom the statement was made, if the court is satisfied that the statement has sufficient probative value to justify its admission, and the protected witness has been called, or is available to be called, as a witness in the proceedings and the court gives permission for that protected witness to be cross‑examined on matters arising from the evidence. An out-of‑court statement may be used to prove the truth of the facts asserted in the statement. The cross‑examination of a protected witness is limited to matters which are likely to address material of substantive probative value, or material that would substantially reduce the credibility of the evidence. A protected witness is a young child, or a person who suffers from a mental disability that adversely affects the person’s capacity to give a coherent account of that person’s experiences. Both complainants were protected witnesses. The Judge determined that the statements had sufficient probative value to justify their admission. In each case, the Judge considered whether the complainant should be sworn. He determined in each case that each complainant did not have a sufficient understanding of the obligations to be truthful entailed in giving sworn evidence. However, he permitted each complainant to give unsworn evidence, pursuant to section 9 of the Evidence Act.

Evidence

Evidence Before The Court

Section 9 of the Evidence Act provides: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.(4) If unsworn evidence is given under this section in a criminal trial, the judge – (a)must explain to the jury the reason the evidence is unsworn; and(b)may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.(5) A justice to whom it appears that a person who desires to lay a complaint or information does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence may ascertain by inquiry the subject matter of the complaint or information and reduce it into the appropriate form, and any action or proceedings may be taken on the complaint or information in all respects as if the complainant or informant had deposed to the truth of the contents on oath or affirmation. In Starrett,[1] Doyle CJ, with whom Perry and Lander JJ agreed, made the following observations:[2][1] R v Starrett (2002) 82 SASR 115.[2] R v Starrett (2002) 82 SASR 115, [15], [23]-[28].The legislative provisions found in s 9 cannot be dismissed as mere matters of form. Parliament has made it plain that evidence is to be given on oath, unless the presumption that the witness is capable of giving sworn evidence is rebutted. Parliament has also made it plain that appropriate inquiries are to be made before a decision is made as to whether evidence is given sworn or unsworn. The history of this legislation and of the approach of the courts to these issues makes it plain that these are important matters in our system of trial....There is a further difficulty, although of a lesser order. I accept that the answers given by J to the prosecutor suggest that she met the requirements of s 9(2)(a)(i), if a determination was made that she was not capable of giving sworn evidence. If that determination had been made, it was open to the judge to decide that she should be permitted to give her evidence unsworn, on the basis of questions asked by counsel, although usually it would be better if the judge asked the questions. But s 9(2)(a)(ii) requires that the judge “tells the person that it is important to tell the truth”. The judge did not do this. A question from counsel to the same effect is not sufficient. There are obvious reasons why Parliament has required that the judge tell the witness that it is important to tell the truth, and that the witness indicate to the judge that the witness will tell the truth.What is the consequence of the error in permitting J to give her evidence unsworn?By s 7(4) of the Juries Act 1927(S) the judge’s decision on the question of guilt “will, for all purposes, have the same effect as a verdict of a jury”. The judge’s verdict of guilt rests on the acceptance of the evidence of J, given unsworn as a result of a failure to comply with the requirements of s 9 of the Act. The circumstances of the case were such that it is possible that J’s evidence might have been given unsworn, if the correct procedure were followed, but in the particular circumstances the giving of the evidence unsworn reflected a substantial irregularity.What effect does that irregularity have on the verdict? The power of this Court to interfere on appeal with a verdict includes the power to set aside a verdict if “on any ground there was a miscarriage of justice”: s 353(1) of the Criminal Law Consolidation Act 1935 (SA). That appears to me to be the relevant ground in the present case.Has there been a miscarriage of justice? There is no reason to think that the judge’s decision to accept J’s evidence turned on the fact that it was unsworn rather than sworn, or to think that the irregularity affected the outcome of the case. On the other hand, I regard the irregularity as a substantial one.Such authority as there is suggests to me that this is an irregularity that gives rise to a miscarriage of justice. The trial was not conducted according to law. The appellant was entitled to such a trial. The departure from the requirements of the law is not a trifling one, nor is it a departure on a matter that can be regarded as a mere matter of form.Doyle CJ concluded that the departure from the proper procedures required by the section was fundamental and made it inappropriate to apply the proviso.

Decision

Reasons for decision

GRAY J WHITE J
As I have stated earlier, strict compliance with section 9 is required when unsworn evidence is permitted. Failure to comply will result in a miscarriage of justice.[11] The legal principles relating to unsworn evidence can be summarised as follows:·Section 9(1) presumes a person capable of giving sworn evidence. There is no obligation to conduct an inquiry as to the ability to do so unless some matter relating to the person raises in the judge’s mind that the presumption may be rebutted.[12] No such inquiry is required merely because the person is a child, though an inquiry will usually be necessary of a child of very tender years.[13]·If a matter raises in a judge’s mind that the section 9(1) presumption may be rebutted, the judge must determine whether the person has sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. The determination is to be recorded in the transcript, preferably with brief reasons.[14] Usually, before making a determination a judge should ask whether the person understands the distinction between telling the truth or a lie, and whether they understand what a lie is. The person should be asked whether they will tell the truth. They should be asked whether they understand the importance of telling the truth by reference to any of the consequences or sanction that might otherwise arise.[15] ·Once a judge has determined that the section 9(1) presumption is rebutted, questions must be asked of the person so as to satisfy section 9(2). The Judge must tell the person that it is important to tell the truth.[16]·If the Judge permits unsworn evidence to be given, section 9(4)(a) requires the Judge to explain to the jury the reason the evidence is unsworn. In so doing, the Judge should direct the jury that the Judge has determined that the person does not have a sufficient understanding of the obligation of giving evidence on oath or affirmation. That is, that the person does not understand the solemnity attaching to the taking of an oath or affirmation. It should be explained to the jury that the person has failed to demonstrate that he or she understands that the taking of an oath or affirmation creates an obligation which goes beyond the moral obligation to tell the truth in day-to-day life. The Judge should make it clear that, in permitting the person to give unsworn evidence, the Judge is satisfied that the witness understands the difference between truth and a lie, and that the Judge has told the witness that it is important to tell the truth, and the witness has indicated that he or she will be truthful. The explanation should be given to the jury before the person gives evidence and again in summing up.·When a party makes a request, the trial Judge must give a warning as required by section 9(4)(b). The warning should necessarily include a reference to the fact the evidence is unsworn.[17][11] See R v Starrett (2002) 82 SASR 115, 122 (Doyle CJ), 126 (Lander J): R v BBR (2009) 195 A Crim R 330, 241; R v Brooks (1998) 44 NSWLR 121; RJ v The Queen (2010) 208 A Crim R 174, 184; SH v R [2012] NSWCCA 79, [28]; R v J, AP [2012] SASCFC 95, [40] (David J), [55], [69] (Peek J).[12] R v Starrett (2002) 82 SASR 115, 119; Nichols v Police (2005) 91 SASR 232, 239.[13] R v P, BR [2004] SASC 323, [119]; Nichols v Police (2005) 91 SASR 232, 239.[14] R v Starrett (2002) 82 SASR 115, 119, 120.[15] See R v Pascoe (2004) 90 SASR 505, 511, 513.[16] R v Starrett (2002) 82 SASR 115, 120; R v Brooks (1998) 44 NSWLR 121.[17] See R v J, AP [2012] SASCFC 95, [109] (Peek J).Conclusion

Ratio Decidendi

Legal Principle Established

Established by: GRAY J, WHITE J

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