R v GW

Case [2016] HCA 6

HIGH COURT OF AUSTRALIA

FRENCH CJ,
BELL, GAGELER, KEANE AND NETTLE JJ

THE QUEEN  APPELLANT

AND

GW  RESPONDENT

The Queen v GW

[2016] HCA 6

2 March 2016

C13/2015

ORDER

1.Appeal allowed.

2.Set aside orders 1 to 3 of the Court of Appeal of the Supreme Court of the Australian Capital Territory made on 24 April 2015.

3.Remit the proceeding to the Court of Appeal for consequential orders with respect to sentence.

On appeal from the Supreme Court of the Australian Capital Territory

Representation

J White SC with N S Drumgold for the appellant (instructed by Director of Public Prosecutions (ACT))

S J Odgers SC with B K Baker for the respondent (instructed by Kamy Saeedi Law)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Queen v GW

Criminal law – Evidence – Unsworn evidence – Where respondent convicted following trial in Supreme Court of the Australian Capital Territory of commission of act of indecency in presence of daughter, R – Where R six years old when giving evidence – Where R's evidence received unsworn under s 13(3) of Uniform Evidence legislation – Where ex tempore reasons of pre-trial judge suggested reversal of presumption of competence to give sworn evidence – Where respondent agreed to be bound by pre-trial judge's ruling under s 13(3) – Whether pre-trial judge failed to apply s 13 – Whether open to pre-trial judge to be satisfied s 13(3) test met – Whether R's unsworn evidence wrongly admitted.

Criminal law – Evidence – Jury directions – Where audiovisual recording of child witness' unsworn evidence tendered at trial – Where respondent requested trial judge direct jury that evidence unsworn – Whether Uniform Evidence legislation required direction – Whether common law required direction to avoid perceptible risk of miscarriage of justice – Whether adequate directions given.

Words and phrases – "competence", "evidence of a kind that may be unreliable", "evidence of children", "obligation to give truthful evidence", "perceptible risk of a miscarriage of justice", "presumption of competence", "reliability", "sworn evidence", "unsworn evidence".

Crimes Act 1900 (ACT), s 61(1).
Evidence Act 2011 (ACT), ss 12, 13, 21, 165, 165A, Sched 1.
Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 70.

  1. FRENCH CJ, BELL, GAGELER, KEANE AND NETTLE JJ.   The respondent was convicted following a trial in the Supreme Court of the Australian Capital Territory of the commission of an act of indecency in the presence of R, his daughter, R being a person under the age of 10 years[1].  The offence is alleged to have occurred between 29 March 2012 and 2 April 2012.  R was five years old at the time.

    [1]The indictment charged the respondent with six offences involving the commission of an act of indecency upon or in the presence of a person aged under 10 years contrary to s 61(1) of the Crimes Act 1900 (ACT). Three counts charged offences against R and the remaining three…

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AGLC
R v GW [2016] HCA 6
Case
[2016] HCA 6
Decision Date

CaseChat Overview and Summary

The case of *R v GW* concerned an appeal to the High Court of Australia following a conviction in the Supreme Court of the Australian Capital Territory. The respondent was convicted of an act of indecency committed in the presence of his daughter, R, who was six years old at the time of giving evidence. The central dispute revolved around the admissibility of R's unsworn evidence, which was received under section 13(3) of the Uniform Evidence legislation, and whether the pre-trial judge had properly applied this provision.

The legal issues before the High Court were whether the pre-trial judge failed to apply section 13 of the Uniform Evidence legislation, whether it was open to the judge to be satisfied that the test under section 13(3) was met, and consequently, whether R's unsworn evidence was wrongly admitted. Additionally, the court considered whether the Uniform Evidence legislation or common law required the trial judge to direct the jury that the evidence given by R was unsworn, to avoid a perceptible risk of a miscarriage of justice, and whether adequate directions were provided.

The High Court reasoned that the "obligation" referred to in section 13(3) means being morally or legally bound to give truthful evidence. It was held that a child's affirmative answer to understanding the need to tell the truth does not necessarily equate to understanding the concept of being bound by an obligation to do so in the context of court proceedings. The court found that the pre-trial judge's provisional conclusion that he was not satisfied R possessed the requisite capacity to give sworn evidence was critical. The judge was required to be affirmatively satisfied that R lacked this capacity before admitting her evidence unsworn under section 13(5). The High Court determined that the pre-trial judge's reasoning and the circumstances surrounding the reception of R's evidence indicated a failure to properly apply the requirements of section 13(3).

The appeal was allowed, the orders of the Court of Appeal of the Supreme Court of the Australian Capital Territory were set aside, and the proceeding was remitted to the Court of Appeal for consequential orders with respect to sentence.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders 1 to 3 of the Court of Appeal of the Supreme Court of the Australian Capital Territory made on 24 April 2015.

3. Remit the proceeding to the Court of Appeal for consequential orders with respect to sentence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

R was interviewed by officers of the Australian Federal Police on 13 September 2012 ("the interview"). An audiovisual recording of the interview was tendered as R's evidence in chief at the pre-trial hearing. The audiovisual recording of the pre‑trial hearing, together with the recording of the interview, were played at the trial and constituted R's evidence. Competence to give evidence Before the enactment of the Evidence Act 1995 (Cth) ("the Commonwealth Act"), courts in the ACT were empowered to receive the unsworn evidence of a child who had not attained the age of 14 years without any formality. This was subject to the court explaining, or causing it to be explained, to the child that he or she was required to tell truthfully what he or she knew about the matter to which the evidence related[7]. From its commencement until the commencement of the substantive provisions of the Evidence Act in 2012, the Commonwealth Act governed the determination of the competence of witnesses to give sworn and unsworn evidence in proceedings in the ACT[8].[7]Evidence Act 1971 (ACT), s 64.[8]Commonwealth Act, as enacted, s 8(4); Evidence Regulations 1995 (Cth), reg 4. As enacted, s 13(1) of the Commonwealth Act provided that a person who was incapable of understanding that, in giving evidence, he or she was under an obligation to give truthful evidence was not competent to give sworn evidence. Where a person was not competent to give sworn evidence under s 13(1), the Commonwealth Act, as enacted, imposed three conditions on competence to give unsworn evidence: (a) the court was satisfied that the person understood the difference between the truth and a lie; (b) the court had told the person that it was important to tell the truth; and (c) the person had indicated, by appropriate response when asked, that the person would not tell lies in the proceedings[9].[9]Commonwealth Act, s 13(2)(a)-(c). A decade after the enactment of the Commonwealth Act, the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission (collectively, "the Commissions") conducted a joint review of the operation of the Uniform Evidence legislation[10]. That review addressed the subtlety of the distinction between the test of competence to give sworn evidence – capacity to understand the obligation to give truthful evidence – and the test of competence to give unsworn evidence – satisfaction that a person understands the difference between the truth and a lie[11]. In their joint report the Commissions recommended the introduction of a test of general competence to give evidence based upon basic comprehension and communication skills[12]. In the case of unsworn evidence, the Commissions proposed removing the requirement of satisfaction that the person understand the difference between the truth and a lie and the requirement that the person indicate that he or she will not tell lies[13]. It was said to be inconsistent to impose either requirement on a person who had been found to lack the capacity to understand the obligation to give truthful evidence[14]. [10]Australian Law Reform Commission, Uniform Evidence Law, Report No 102, (2005). [11]Australian Law Reform Commission, Uniform Evidence Law, Report No 102, (2005) at 101-103 [4.30]-[4.37], 104 [4.40].[12]Australian Law Reform Commission, Uniform Evidence Law, Report No 102, (2005) at 106 [4.49]. [13]Australian Law Reform Commission, Uniform Evidence Law, Report No 102, (2005) at 108 [4.60].[14]Australian Law Reform Commission, Uniform Evidence Law, Report No 102, (2005) at 110 [4.69].

Decision

Reasons for decision

FRENCH CJ, BELL, GAGELER, KEANE AND NETTLE JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, BELL, GAGELER, KEANE AND NETTLE JJ

The respondent's argument embraces the Court of Appeal's analysis; it is evident from his reasons that Burns J was not satisfied one way or the other of whether R possessed the requisite capacity. Moreover, the respondent observes that at no stage in the course of the hearing did Burns J correctly state the s 13(3) test. In his submission, it was well open to the Court of Appeal to infer that his Honour was under the misapprehension that unsworn evidence was the "default" position because the material suggested that R had the requisite capacity. R's affirmative answer to the question of whether she understood that, in giving evidence, she had to tell the truth is suggested by the respondent to amount in effect to an acknowledgment of her understanding that she was under an obligation to do so. Correctly understood, the prosecutor's submission is suggested to have supported that conclusion. This is because R's want of understanding of the Bible or an affirmation was "utterly irrelevant" to the question while the prosecutor's opinion that R understood the importance of telling the truth was "almost identical to the criterion" (of competence in s 13(3)). The respondent submits that it is questionable that it was open to Burns J to be satisfied affirmatively to the contrary. Consideration Turning to the respondent's last submission first, "obligation" in s 13(3) is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound – in this case, to give truthful evidence[26]. A child may agree that he or she understands that he or she is to tell the truth without having any understanding of what it is to give evidence in a court proceeding, much less of the concept of being morally or legally bound to give truthful evidence. Contrary to the respondent's submission, R's affirmative answer to the question "[a]nd do you understand that today in giving evidence you have to only tell us the truth? You have to tell us things that really happened, you understand that?" is not to be understood as necessarily conveying that R had the capacity to understand that, in giving evidence, she was under such an obligation. [26]The New Shorter Oxford English Dictionary, (1993), vol 2 at 1966, "obligation", sense 3. There are many ways to explore whether a child understands what it means to give evidence in a court and the concept of being morally or legally bound to be truthful in so doing. Here, it would seem the prosecutor questioned R about her understanding of swearing an oath on the Bible or making an affirmation. Her lack of understanding of either was not determinative but it was not irrelevant to the formation of the opinion that she did not possess the capacity to understand the obligation. The suggestion that it may not have been open to Burns J to be satisfied that R, a six‑year‑old child, lacked that capacity is unsustainable. It was necessary for Burns J to be affirmatively satisfied that R did not have the requisite capacity before instructing her pursuant to s 13(5) and admitting her evidence unsworn. At the end of the examination of R, Burns J expressed his provisional conclusion, subject to any submission by defence counsel, in terms that he was not satisfied that R had the requisite capacity. In the absence of controversy over the indication of the intention to proceed under s 13(5), Burns J was not required to, and did not, give further reasons for the determination. Whether it is correct to conclude that Burns J was not satisfied that R lacked the requisite capacity, and that his Honour treated the reception of R's unsworn evidence as the "default" position under the Evidence Act, does not turn on analysis of his remarks alone. It requires consideration of the whole of the circumstances.