R v G, AP

The appeal concerned a criminal conviction for maintaining an unlawful relationship with a child. The defendant, the appellant, argued that the trial judge had erred in two respects. Firstly, it was submitted that the judge failed to fulfil her obligations under section 21 of the Evidence Act concerning the complainant. Secondly, the appellant contended that the judge failed to conduct an inquiry under section 9 of the Evidence Act regarding the complainant's competence to give sworn evidence. The appeal was heard by Gray, Kelly, and Stanley JJ.

The central legal issues before the appellate court were whether the trial judge had properly discharged her duties under section 21 of the Evidence Act, which governs the competence and compellability of close relatives of an accused to give evidence, and whether an inquiry into the complainant's competence to give sworn evidence under section 9 of the Evidence Act was required. Section 21 outlines the circumstances under which a close relative can apply for exemption from giving evidence against an accused, and the court's power to grant such an exemption, particularly if the witness is a young child or mentally impaired. Section 9 deals with the presumption that a person is competent to give sworn evidence unless the contrary is proved.

Gray J, with whom Kelly J agreed, found that the complainant gave evidence without apparent difficulty, and it was within the judge's discretion to conclude, without further inquiry, that the complainant was capable of giving sworn evidence and that the presumption under section 9 was not displaced. Stanley J, while agreeing with the outcome, reached his conclusion by a different reasoning. He held that section 21 of the Evidence Act was not enlivened in this case because the complainant was not under a legal obligation to give evidence against the accused. Stanley J emphasised that the right to apply for exemption under section 21(2) is for a witness under an obligation to give evidence, and the court's power to exempt under section 21(3) is predicated on the existence of such an antecedent legal obligation. He concluded that the legislation did not impose an obligation on the complainant to give evidence.

The appeal was dismissed.