R v GW

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.