R v French
[2012] SASCFC 118
•22 October 2012
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 118Court of Criminal Appeal: Gray, Sulan and White JJ
GRAY J.
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.
SULAN J: This is an appeal against conviction.
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 defendant appeals against both convictions.
The defendant was also charged with unlawful sexual intercourse with a girl, who was 13 years of age at the time. He was acquitted of that charge. She suffers a significant intellectual disability.
Both complainants were interviewed by a police officer for the purpose of the record of interview being led by the prosecution as evidence of the facts alleged in the interview. Each complainant spoke of the sexual conduct which resulted in the defendant being prosecuted. The trial Judge determined that both complainants could not give sworn evidence, but each could give unsworn testimony.
As the argument before this Court developed, the question of whether the Judge failed to explain to the jury the reasons why he permitted each complainant to give unsworn evidence, as required by section 9 of the Evidence Act 1929 (SA), arose. As a consequence, counsel for the defendant was granted permission to add a further ground of appeal – that the Judge failed to explain to the jury the reasons why the evidence of the complainants was unsworn and, further, failed to warn the jury of the need for caution in determining whether to accept the evidence of the complainants, and the weight to be given to it.
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.
The defendant gave evidence. He denied the allegations made against him.
Unsworn evidence
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.
The decision in Starrett has been considered by the New South Wales and Queensland Courts of Appeal. The requirement to comply with section 9, or its equivalent, was considered by the Queensland Court of Appeal in BBR.[3] In that case, the defendant had been convicted of nine counts of indecent treatment of two complainants. One complainant gave unsworn evidence. The trial Judge did not explain to that complainant the duty of speaking the truth as required by section 9B(3) of the Evidence Act 1977 (Qld). Chesterman JA found the complainant’s evidence was not properly before the Court and that the jury could have no regard to it. The trial was not according to law, and it was not an appropriate case for the application of the proviso. His Honour stated:[4]
Sections 9, 9A and 9B ... facilitate the testimony of children inter alia who are too young to appreciate the nature of an oath, but in allowing such witnesses to give unsworn testimony the Act provides safeguards for an accused. The safeguard in question is that contained in s 9B(3). Before the unsworn testimony can be received the judge must explain to the child “the duty of speaking the truth”.
If the explanation is not given an accused’s rights have been jeopardised. A safeguard, required by the statute, to ensure that the trial is fair has been omitted. The balance which Parliament has insisted be held between the interest of the child witness and the accused has not been kept because of the removal of the counterweight.
I would agree with the characterisation of the statutory requirement expressed in the cases: the evidence is not admissible unless the statutory precondition is satisfied. K’s testimony was not properly tendered and the jury could not have lawfully acted upon it. Its reception has vitiated the trial which was not conducted according to law.
[3] R v BBR (2009) 195 A Crim R 330.
[4] R vBBR (2009) 195 A Crim R 330, 338.
In SH,[5] the defendant was convicted of sexual intercourse with a child under the age of ten. The trial Judge determined the complainant was competent to give unsworn evidence. On appeal, the defendant submitted the trial Judge had failed to comply with section 13(5) of the Evidence Act 1995 (NSW):
(5)A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:
(a) that it is important to tell the truth, and
(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and
(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.
[5] SH v R [2012] NSWCCA 79.
Having set out the procedure followed by the trial Judge, Basten JA stated:[6]
...[t]here is no doubt that the trial judge appreciated the need that he should give instruction required by s 13(5) and proceeded to do so. Although he did so by asking questions of the witness, that form of instruction should not be seen as inconsistent with the requirement of sub-s (5). However, what was missing...was the exhortation not merely to say that a statement believed to be untrue is wrong, but that the witness “should feel no pressure to agree’ with such a statement.
In my view that omission was a failure to comply strictly with the terms of sub-s (5).
[6] SH v R [2012] NSWCCA 79, [33]-[34].
Basten JA considered a passage from the examination by counsel, the effect of which was that it was difficult to conclude there was any substantial miscarriage of justice resulting from the omitted exhortation. He said:[7]
Rather than take such a course, the appropriate conclusion is that the complainant was not competent to give unsworn evidence because, it having been concluded that she did not have sufficient capacity to understand the obligation to tell the truth, she was not given directions required by s 13(5) in full. In the words of Doyle CJ in Starrett, the trial was not conducted according to law, as was the appellant’s entitlement, and accordingly the conviction should be set aside.
[7] SH v R [2012] NSWCCA 79, [35].
The requirement to comply strictly with section 9 was considered in J, AP.[8] In that case, the defendant had been found guilty of persistent sexual exploitation of a child, who was eight years old at the time of trial. Prior to the complainant giving unsworn evidence, counsel for the defence requested a warning under section 9(4)(b). Before the complainant gave evidence, the Judge said:[9]
I have conducted a very short inquiry as I’m required to do pursuant to a question in the Evidence Act and I have satisfied myself that [V] may give unsworn evidence. In other words, I have satisfied myself that [V] who is eight, is not required to submit herself to the oath and to take an oath however, I am satisfied that she is qualified to give unsworn evidence.
However, having come to that conclusion, I’m obliged under the terms of the Evidence Act to warn you, the jury, of the need for caution in determining whether to accept the evidence of E and the weight to be given to that evidence. They are the words of that section. They are the words I’m required to say to you. I’ve done so.
[8] R v J, AP [2012] SASCFC 95.
[9] R v J, AP [2012] SASCFC 95, [93].
In summing up, the Judge said:[10]
In other words, I have satisfied myself that [V], who is eight, is not required to submit herself to the oath and to take an oath however, I am satisfied that she is qualified to give unsworn evidence.
...
That mechanism is permitted by the Evidence Act because it is not thought appropriate to require a child as young as [V] to swear an oath. I am obliged under the Act to warn you of the need for caution in determining whether to accept that unsworn evidence and the need for caution in giving weight to that evidence.
[10] R v J, AP [2012] SASCFC 95, [38], [95].
A ground of appeal was that the trial Judge erred in the application of section 9.
The majority of the Court (David and Peek JJ) applied Starrett and allowed the appeal and ordered a retrial. David and Peek JJ both emphasised that strict adherence to the requirements of section 9 is required.
The directions in this case
At the commencement of the trial, the Judge questioned each of the complainants about their understanding of the difference between the truth and a lie. The Judge questioned the younger complainant, as follows:
It is important to tell the truth at all times?
Yes
Now you’ve come to court today, do you think it’s more important to tell the truth in court than say in talking to your friends?
Tell the truth?
Yes. It is more important to tell the truth here in court than say when talking to your friends?
Yes.
Why do you think it’s more important to tell the truth here in court?
Because you can get in trouble if you don’t tell the truth.
You know what sort of trouble you might get into?
Big trouble.
Do you think the courtroom is a special place, important place?
Yes.
Do you promise to me that if you come to give evidence in this courtroom that you’ll tell the truth?
Yes.
And only the truth?
Yes.
The Judge asked the complainant whether she knew it was more important to tell the truth when her hand was on the Bible. She said that she did, although she could not identify why it was more important.
The Judge engaged in a similar exercise with the older complainant who, as earlier observed, suffered from an intellectual disability.
The Judge decided that neither complainant was able to give sworn evidence, but both should be permitted to give unsworn evidence.
I’ve had to reflect upon the question of s.9 in relation to both witnesses for different reasons. [F] is now I think aged nine years, she presented well, she answered questions well. I have no doubt that she knows the difference between a truth and a lie, that it’s important to tell the truth. She’s promised to tell the truth and she appreciates it’s more important to tell the truth in court than to her friends or otherwise. I’m not entirely satisfied she appreciates the obligations associated with giving sworn evidence as discussed in the Full Court in the case of The Queen v Climas and in those circumstances, although I accept she may barely pass that test, I am satisfied that she ought to be able to give unsworn evidence in that respect. So in those circumstances out of an abundance of caution in spite of the onus in favour of the witness giving sworn evidence, I find that she will give unsworn evidence pursuant to s.9 of the Act. In relation to the second witness, [A], again I am entirely satisfied she knows the difference between a truth and a lie. It is important to tell the truth, she has promised to me she will tell the truth and appreciates the importance of telling the truth in court rather than elsewhere, is aware of the penalties that may apply, namely, big trouble in the event she doesn’t tell the truth. I’m sure that she does appreciate the obligations, however, I am not satisfied that she knows the significance of sworn evidence as discussed in that case and again notwithstanding the onus in s.9 of the Act, I conclude that she ought to give unsworn evidence pursuant to s.9.
Each complainant then gave short unsworn evidence-in-chief, and both were cross‑examined.
At the conclusion of addresses, the following exchange took place between the Judge and counsel.
HIS HONOUR: ... I raised with you both yesterday the question of whether I should give some warning given the fact of the evidence of the complainants being both unsworn, the intellectual disability of the complainant [A] and just the general nature of it, not any more detailed than what you’ve both already said, I think, in terms of look [sic] at the evidence very carefully. Do I need to say anything further than that in the circumstances?
MS GILES: No, but I wish to direct your Honour to para.43 in the judgment of Starritt, [sic] it’s comparable. The jury cannot assess without a direction to that effect.
HIS HONOUR: Mr Mead I assume would be requesting me to make some direction as in terms of a warning or otherwise, would you not?
MR MEAD: Certainly under s.9.
HIS HONOUR: Sub-s.(4) I think it is.
MR MEAD: Yes, I think so. Yes. I would be asking for a direction about that.
HIS HONOUR: Anything further than what’s already been said in that respect? I can’t comment on the fact of them being children, but just in terms of I think Ms Giles has already said, the fact there have been some inconsistencies, the fact of there being an intellectual disability of [A], those sorts of matters and the evidence being unsworn, in those circumstances to consider their evidence with particular care.
MR MEAD: Yes.
MS GILES: In my submission there’s a specific direction under s.9 is not required in the circumstances.
HIS HONOUR: Let’s have a think about that. I understand what was said, in that case my understanding of s.34CA says, but again the question really is in the circumstances of this case I should say it given the fact there are some inconsistencies, given the fact of the intellectual disability of [A].
MS GILES: In my submission it’s no different than any usual matter that involves children where there’s going to be a certain amount of inconsistencies.
HIS HONOUR: I’ll reflect on that Ms Giles, I’m grateful. I’ll consider that position overnight.
In summing up to the jury, the Judge gave the following direction:
Both complainants also gave unsworn evidence. Parliament has provided that the Courts may permit certain witnesses to give unsworn evidence. If ever there was a case for you to understand why parliament [sic] has provided for that method, you might think that this case highlights the reasons ladies and gentlemen. You will appreciate from your own impression of the two complainants the level of their respective cognitive abilities and understanding of the world.
In [the older complaint’s] case there can be no doubt she has an intellectual disability. That was identified by the psychologist Elizabeth Brumby, in whose opinion, she falls in most respects, within the bottom 1% of children of her age.
In the case of [the younger complaint], you saw her on the CCTV now aged 9. You saw her in the interview with Senior Constable Gregory on 1 April 2011. If you were to accept her evidence beyond reasonable doubt then the alleged offences occurred before she went overseas, in October 2010. It is a matter for you as you watched her give her evidence on those occasions. You might think that she was a very young child at the time she gave her statement to Senior Cosntable [sic] Gregory and, indeed, when she gave her evidence before you. You will make your assessment of the cognitive ability of both complainants to be able to tell the truth. You saw how they presented to you.
Section 9(4)(a) requires the Judge to explain to the jury the reason the evidence is unsworn. The Judge failed to explain to the jury the reason that the evidence of each complainant was unsworn. That failure amounted to a misdirection.
Pursuant to section 9(4)(b), counsel for the defendant requested the Judge to warn the jury of the need for caution in determining whether to accept the evidence of each complainant, and the weight to be given to it. The Judge directed the jury that each complainant had been interviewed by Senior Constable Gregory, and those interviews had been recorded. The DVD recording of the interviews was played to the jury. The Judge explained to the jury that the recorded statements may be used to prove the truth of the facts asserted in the statement. He said:
Parliament has therefore permitted such a method by which the evidence can go before you rather than the long painstaking method of the prosecutor taking the witness through her evidence. Having seen [the older complaint] on the DVD, you may think that would have taken four days trying to elicit from this witness what she alleges had happened to her. That is the very reason why parliament has permitted the courts to receive as evidence the interviews of the complainant by Senior Constable Gregory. I will come back to that in a moment. I am however referring only to the interviews with Senior Constable Gregory by each complainant respectively in Exhibit P1 and Exhibit P4. Contrast a one on one interview with Senior Constable Gregory with what may have happened had that evidence been given in court, with the witnesses being led by the prosecution.
So parliament has permitted the courts to admit the statements in the DVDs as evidence before you. I must caution you, ladies and gentlemen, that when you do come to consider each of the respective statements on the DVDs and the oral evidence of the two complainants, given to you by CCTV, you must scrutinise their respective evidence very carefully. I am sure that you will scrutinise everyone’s evidence carefully but in light of what I have explained to you about the cognitive ability and mutual inconsistencies of the two complainants, I caution you again to scrutinise their evidence very carefully. You see, whilst it is perfectly proper, as Ms Giles submitted, that you ought to give them certain leeway because of their respective difficulties, and that those difficulties may well explain some apparent inconsistencies, you must remember this: while parliament has permitted those means by which the evidence can be given to you, it is not intended by parliament to prejudice any accused. The prosecution must still satisfy you beyond reasonable doubt as to the guilt of the accused on a count on the information before you could return a verdict of guilty in respect of that count. In other words, while there is a method by which the evidence may come before you, you still need to scrutinise that evidence very carefully.
I will explain why I have cautioned you. It has got nothing to do with the fact that the complainants are children. Common sense and indeed the law itself says that it would be wrong to suggest that children as a class are inherently less reliable than adults. I have cautioned you because of the combination of matters which you can realise from your own common experience, that is the characteristics of the two complainants, their cognitive development, the manner in which they each presented to you, the inconsistencies which have been acknowledged by both counsel, their ages, and [the older complainant’s] intellectual disability. It is because of these matters and their cognitive development and possible susceptibility to influence that leads me to give you that caution. They are common sense matters which I am sure you will be aware of anyway.
The Judge failed to relate the caution to his decision to permit each complainant to give unsworn evidence. He was required by section 9 to identify to the jury that, when considering unsworn evidence, because it is unsworn they should heed his caution when deciding whether to accept the evidence and, if they do accept it, the weight to be given to it.
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
For these reasons, the appeal was allowed, the conviction set aside and a retrial ordered.
WHITE J. The reasons of Sulan J contain my reasons for joining in the orders made on 22 August 2012.
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