R v French

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.