R v H No. DCCRM-03-445

R v TJH
[2003] SADC 153
Judge Simpson
Criminal

The accused, TJH, was charged with the offence of unlawful sexual intercourse with a person under the age of 12 years and, in particular, it was alleged that on 17 January 2003 at Quorn, he had sexual intercourse with C, a child under the age of 12 years, by inserting his fingers into her vagina.
At the commencement of the trial on 21 October 2003, an application was made by the prosecution on the voir dire, pursuant to section 34CA of the Evidence Act 1929 (“the Act”), for evidence to be admitted from witnesses, to whom the alleged victim had complained, of the nature and contents of the complaints related to the alleged offence.
C was born on 8 July 2000. At the time of the alleged offence, C was two and a half years old. Complaint was made by C to her grandmother, on the same day as the alleged offence, and to her mother, on the following day. Although C was present at court, no statement had ever been taken from her and there was no intention to call her as a witness.
I ruled that the evidence should not be admitted. These are my reasons.
The Law
Section 34CA of the Act provides:
(1) Subject to subsection (2), where the alleged victim of a sexual offence is a young child, the court may, in its discretion, admit evidence of the nature and contents of the complaint from a witness to whom the alleged victim complained of the offence if the court, after considering the nature of the complaint, the circumstances in which it was made and any other relevant factors, is of the opinion that the evidence has sufficient probative value to justify its admission.
(2) Such evidence may not be admitted at the trial unless the alleged victim has been called, or is available to be called, as a witness.
In section 4 of the Act, “young child” is defined to mean a child of or under the age of 12 years. “Sexual offence” includes any offence involving unlawful sexual intercourse.
A complaint by an alleged victim of a sexual offence is admissible at common law only where the complainant gives evidence of the commission of the offence and only for the purpose of showing consistency of the conduct of the complainant in making the complaint and of statements made at the first reasonable opportunity and the evidence given in court.
To be admissible at common law, the complaint must be voluntary and spontaneous and not elicited by leading, inducing or intimidating questions. It must be made at the first reasonable opportunity. (R v Corkin (1989) 50 SASR 580 at 581, 587)
The introduction of section 34CA of the Act, and other amendments, including the provision authorizing the giving of unsworn evidence by a child, and enhancing its status, introduced at the same time, were designed to facilitate proof of offences against young children. The effect of section 34CA is to allow for the admission of evidence of complaints which satisfy the common law tests of admissibility, and to give a complaint the capacity to prove the commission of the offence, irrespective of whether a young child gives evidence of those facts.
The discretion given to the court in section 34CA, to admit evidence of the nature and contents of the complaint from a witness to whom the alleged victim complained of the offence, requires that after consideration of the nature of the complaint, the circumstances in which it was made, and any other relevant factors, the evidence has, in the opinion of the court, sufficient probative value to justify its admission.
Subsection (2) of section 34CA of the Act makes the admission of the evidence of a complaint conditional on the alleged victim being called, or being available to be called, as a witness, not upon the alleged victim giving evidence of the commission of the offence.
There can be no suggestion that young children are not required to give evidence. It is desirable that, where practicable, young children do give evidence. The subsection recognizes that a young child may be called as a witness, but may be too frightened for example, to give evidence, or may give evidence but may not mention the commission of the offence or the complaint.
The admission of evidence of a complaint as proof of the commission of the offence is contingent on the child being physically present as a witness, or available to be called as a witness (by either side).
Factors which are likely to be taken into account include the age of the child, the spontaneity of the complaint, when it was made, the reasons why the child is not to be called as a witness, or if the child has been called as a witness, the reasons why the child gave no evidence of the commission of the offence or no evidence of the complaint. (R v Corkin above at 582, 586-587)
At common law, all witnesses were required to take the oath. No person could give evidence unless an oath was taken. A child who was not competent to take the oath could not give evidence. A child, irrespective of age, could be sworn and give evidence if he or she had sufficient knowledge of the nature and consequences of an oath.
(R v Brasier (1799) 1 Leach 199, 168 E.R. 202; Attorney-General’s Reference No 2 of 1987 (1987) 46 SASR 275; and see Andrews v Armitt (1971) 1 SASR 178 at 179; R v Climas(Question of Law Reserved) (1999) 74 SASR 411 at 422; R v Simmons (1997) 68 SASR 81 at 83, 85)
The Act has amended the common law to allow for unsworn evidence, including unsworn evidence from children. Pursuant to section 9 of the Act:
(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 trial by a jury, 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.
“Sworn evidence” is defined in section 4 of the Act to mean evidence given under the obligation of an oath or affirmation, and “unsworn evidence” has a corresponding meaning.
The presumption that all witnesses are capable of giving sworn evidence is open to challenge. A young child is subject to the same inquiry as any other person.
It is for the judge to determine whether a person has sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. In the event that a determination is made that a person is not capable of giving sworn evidence, then the judge may inquire into whether the person understands the difference between the truth and a lie, so as to be capable of giving unsworn evidence. A pre-requisite to a person giving either sworn or unsworn evidence is that the person understands the difference between the truth and a lie and that the person indicates that he or she will tell the truth.
Unsworn evidence will only be received by a court if, after a determination that a person does not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence;
1.the judge is satisfied that the person understands the difference between the truth and a lie, and
2.the judge tells the person that it is important to tell the truth, and
3.the person indicates that he or she will tell the truth.
(R v Climas, above at 419, 432-433; R v Simmons (1997) 68 SASR 81 at 86; R v Starrett (2002) 82 SASR 115 at 119, 126)
In relation to a young child who is called as a witness, section 12 of the Act provides:
(4) A young child who is called as a witness is, while giving evidence, entitled to have present in the court, and within reasonable proximity, a person of his or her choice to provide emotional support (but the person must not interfere in the proceedings).
(5) Unless the court otherwise allows, a witness or prospective witness in the proceedings cannot be chosen under subsection (4) to provide emotional support for a young child.
The Facts
For the purpose of the application, I have assumed the facts to be as they appear in the declarations.
On Friday 17 January 2003, C and her brother B were being cared for by their grandmother, Mrs C, in their home. C was then two and a half years old and B was 6 years old. At about twenty past seven that evening, Mrs C took C to the toilet and wiped her bottom and vaginal area as part of that process. She noticed no problem in C’s vaginal area and C was quite happy. About ten or twenty minutes later, the accused, a family friend, arrived at the house to take the children for a run with his dog on the Quorn oval. He apparently did this every night at about the same time. He had been taking the children out to play since around December the year before. He sat for about five or ten minutes on the verandah with Mrs C and had a smoke. He put the children’s bikes in the back of his ute, with the dog, and he drove off with the children.
They came back in the ute at about ten to nine. Mrs C was still on the verandah. B got out first. The accused lifted C out of the ute from the driver’s side door and she went and stood by her brother. The accused took their bikes off the ute and told Mrs C that he was not staying. B got his bike and wanted his grandmother to watch him doing jumps. C was very quiet and did not say anything. Her grandmother thought this strange, as C was usually very talkative. As soon as the accused left, C went to kneel down. She appeared to be in pain. She stood straight up. C said to her grandmother, “Nanny, my wee wee’s sore.” Her grandmother said, “What?” C said, “Nanny, I’m sore, T put fingers there.” Saying this, she put her hands at her vagina and held them there. She went funny as she said this and was upset and agitated. Her grandmother picked her up and carried her inside. C was very upset and crying heavily. Her grandmother had a look at C’s vagina. She saw dried blood around the top part and fresh blood trickling from the inside and bottom of her vagina. She became upset and C was by now crying hysterically.
The police were called and C’s mother, Ms C, came home from work. She found C in an hysterical state, crying uncontrollably. C was saying to her mother, “Bath me, Mummy, bath me Mummy”. C was examined by Dr Moten at Quorn Hospital. On examination under sedation, Dr Moten noted blood crusting on both sides of the anterior vulva. The surrounding peroneal skin showed increased redness. The vaginal orifice appeared larger than might be expected in a child of her age. There was a raw bleeding split, one centimetre long, in the posterior vaginal fourchette. Dr Moten concluded that there was evidence of vaginal trauma.
C would not settle when the family returned home. She eventually fell asleep at 11.30 pm in her mother’s bed. C was normally a very independent happy child. The next morning, C was having a bath. She called out to her mother, who went into the bathroom. C showed her how she was swimming in the bath. Ms C called for C’s father to come and watch. He was separated from Ms C and had returned home because of the concern about the injury to C. C stood up in the bath and began rubbing her vagina with her hand. She said to her parents, “T done this to my wee wee’s”. Both parents were very upset and walked out of the bathroom.
This Case
In this case, C was two and a half years old at the time of the alleged offence. The complaint to her grandmother appears to have been spontaneous and voluntary. The complaint does not appear to have been made in response to any questions from her grandmother. It was made by C, at 8.50 pm, as soon as she returned home from playing on the oval with the accused. She communicated pain in the vaginal area. It seems that she had no injury to her vagina when her grandmother took her to the toilet at 7.20 pm, about an hour and a half earlier.
The pain she said she experienced was consistent with an injury to the vagina, identified by Dr Moten shortly after her complaint. The findings he made on examination allow for more confidence in the complaint of pain being accurate.
On the other hand, her complaint to her grandmother is incapable of being tested in cross-examination. C is now almost certain to be incapable of spontaneously remembering what she said, or even what she experienced, as a two and a half year old.
The complaint to her mother was made the following day. It was made after C had heard her grandmother tell her mother that she had found C bleeding from her vagina and that C had told her that the accused had put his fingers in her “wee wee”. It was made after a medical examination by Dr Moten, when C had been crying hysterically and given sedation. The complaint was also made in front of her father, who was separated from her mother and had apparently been asked to come back to the home because of the complaint made and the vaginal injury suffered by C. He and her mother had come into the bathroom to see C swimming in her bath. It would be natural for both parents to be concerned about and emotionally involved in what C had said the day before and about the injury identified by Dr Moten. It is possible that their behaviour influenced C in her behaviour and in what she said.
C’s young age may make fabrication of a complaint of sexual interference less likely. Her young age also however raises a question about her level of language competency at the time and the accuracy with which her comments were reported by her grandmother, who lived with C, and by her mother. Both may have been used to interpreting what she was saying. Experience suggests that the passage of six or more months, between the time of the alleged offence and the trial, is likely to be a significant period in the language development of a child of two and a half years. It would be difficult, if not impossible, to test directly what the exact words used by C in her complaint to her grandmother and her mother were.
C’s young age makes it readily understandable that she was not to be called as a witness, by either side. In my opinion, being called as a witness necessarily implies giving evidence. The language of the common law and the legislation assumes as much.
At the time of trial, C was just over 3 years and 3 months old. A rudimentary understanding of a child’s cognitive development, common sense and ordinary life experience suggested that it is highly unlikely that a child of her age would have a sufficient understanding of the difference between the truth and a lie, let alone be able to comprehend what was entailed in an obligation to be truthful in giving sworn evidence.
There was, in my opinion, in the particular circumstances of her very young age, the real likelihood that C, although present at court and physically available, would not be capable of giving evidence, and in that event, could not be said to “be available to be called as a witness”.
I spoke to C in chambers. She was accompanied by a social worker, who was familiar to her, from the office of the Director of Public Prosecutions. Counsel were also present. I recognize the difficulties attached to my interviewing a child of C’s age. I was a stranger to her and the circumstances, although relatively informal, were not ideal for an assessment of a young child’s comprehension of a complex concept. Although unlikely, it is not impossible that a child of her age would be able to understand the difference between the truth and a lie. I was aware that the circumstances of my inquiry may not be the best way of assessing her abilities in that regard.
C was able to answer simple questions, for example, about her age, her brother’s age and the name of the doll she brought with her. However, her answers at times were not responsive to questions. She had no concept of the difference between real and imaginary people. She could not identify a lie in a little story. The strong impression I formed was that she was prepared to agree with suggestions from me, for instance, as to the names of her friends, and to tell me what she seemed to think I would like to hear.
I determined that C had no understanding of the obligation to be truthful entailed in giving sworn evidence. The court could then only receive her evidence if I was satisfied that she understood the difference between the truth and a lie, and I told her that it was important to tell the truth, and she indicated that she would tell the truth. (R v Starrett above at 126)
After speaking to her, I was satisfied that C did not understand the difference between the truth and a lie. Accordingly, she could not give unsworn evidence. While I recognize that there is no requirement in the legislation that a young child be called, nor that a young child give evidence of the alleged offence if called as a witness, in my opinion, C could not be regarded as being available to be called as a witness.
Conclusion
C’s ability to communicate accurately and her capacity to distinguish between fact and fantasy are open to question. At her age, she may want to please adults by agreeing with what she imagines they expect of her. There was some evidence of that when I spoke to her in chambers.
In the circumstances, in my opinion, there must be a serious reservation about the reliability of C’s complaint to her mother the following day. More generally, there must be a concern regarding the reliability of the complaints made by a two and a half year old girl, whose language skills and cognitive development are at such an early stage. In my opinion, the evidence is not of sufficient probative value to justify its admission.
Further, as a matter of fact, C has no comprehension of the difference between the truth and a lie. She could not give either sworn or unsworn evidence. There is no basis on which she could be called as a witness. In my opinion, the condition in section 34CA(2) of the Act, that she be called, or be available to be called, as a witness, cannot be satisfied.
I refuse to exercise the discretion conferred by section 34CA of the Act to admit evidence from C’s grandmother and mother, of the nature and contents of the complaints to them regarding the alleged offence. The evidence of the complaints to her grandmother and her mother should not be admitted.

[2003] SADC 153

29 October 2003