R v J, AP

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v J, AP
[2012] SASCFC 95
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice David and The Honourable Justice Peek)
10 August 2012
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - CHILDREN
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - PARTICULAR PERSONS AND MATTERS - CHILDREN
CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - OATH - COMPETENCE TO TAKE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against sentence – appellant found guilty by jury of persistent sexual exploitation of a child – the complainant was aged 8 years of age at the time of the trial – two video recorded statements made by the complainant in the course of interviews with a psychologist were admitted into evidence pursuant to s 34CA of the Evidence Act 1929 (SA) – trial counsel for the appellant indentified the topics upon which he sought permission to cross-examine the complainant – the trial judge granted counsel permission to cross-examine the complainant on the specified topics – the trial judge noted that he would undertake an enquiry as to whether the complainant may give unsworn evidence if he were satisfied she understood the difference between the truth and a lie – the trial Judge spoke to the complainant by audio-visual link prior to her giving evidence – the Judge informed the jury that he had conducted a short enquiry and was satisfied that the complainant was not required to submit herself to an oath but that she may give unsworn evidence – the complainant gave unsworn evidence.
Grounds of appeal: (1) Whether the verdict delivered by the jury was unreasonable or against the weight of the evidence. (2) Whether the trial Judge failed to adequately warn the jury of the possible dangers of accepting the evidence of the complainant in the circumstances and having regard to the evidence as a whole. (3) The appellant seeks permission to appeal on the ground that the trial Judge erred in the application of s 9 of the Evidence Act 1929 (SA).
Held:
As to grounds (1) and (2): Vanstone J, David J agreeing:
(1) the material in the interviews, together with such positive assertions as there were in the testimony about the conduct having occurred, was capable of satisfying the jury beyond reasonable doubt that the allegations were true - the verdict was not unreasonable. (2) there was nothing inherently unreliable about the complainant’s accounts, no conduct said to undermine her allegations, no suggestion of mental or other infirmity, as in Bromley, nothing beyond the complainant’s age and the fact her evidence was unsupported by other prosecution evidence which could be proffered as justification for a warning.
As to ground (3)
Vanstone J (dissenting): The Judge determined that the complainant was to be permitted to give unsworn evidence – the matter having been raised, the judge should have satisfied himself as to the complainant’s capacity to give sworn evidence and should have indicated what view he reached however the failure to more formally address the issue of whether the complainant should be sworn cannot have prejudiced the appellant – the jury would have well understood that a child of eight years would not be required to undertake the obligation of an oath and while more explanation might have been offered it cannot be said s 9(4)(a) of the Evidence Act 1929 (SA) was not complied with – more could have been said, but no complaint was made at the time about the brevity of the warning, or indeed about any other aspect of the summing up – in those circumstances there was no error – the Judge did not err in the application of s 9 of the Evidence Act 1929 (SA) – permission to appeal on ground 3 granted – appeal dismissed.
David J: The trial Judge having made a proper determination that the complainant would give unsworn evidence, should have explained to the jury that the reason the complainant’s evidence was unsworn was because she did not have a sufficient understanding of the obligation to be truthful when giving sworn evidence – the explanation given by the trial Judge in this case does not mention the important difference between sworn and unsworn evidence, namely, not just the difference between a truth and a lie but also that the complainant understood the further obligation that giving sworn evidence demands - the trial Judge did not fulfil the mandatory requirements of s 9(4)(a) of the Evidence Act 1929 (SA).
Peek J: The Judge failed to make a determination under s 9(1) of the Evidence Act 1929 that the complainant did not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. This was a substantial irregularity which required the verdict to be set aside. R v Starrett (2002) 82 SASR 115 applied.
Further, the Judge failed to direct the jury, as required by s 9(4)(a), that the reason that the complainant’s evidence was unsworn was because she did not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence and the jurors were never informed of that matter or its significance as explained in R v Whittingham (1988) 49 SASR 67.
Further, the Judge failed to discharge the statutory obligation to give a warning imposed by s 9(4)(b) in that the words used by His Honour did not amount to a warning, or any adequate warning. Further, the Judge impermissibly “whittled down” the required warning.
David and Peek JJ: permission to appeal on ground 3 granted – appeal allowed – re-trial ordered.
Evidence Act 1929 (SA) s 4, s 9, s 9(1), s 9(2), s 9(3), s 9(4), s 34CA, referred to.
R v J, JA (2009) 105 SASR 563, discussed.
R v Starrett (2002) 82 SASR 115; Mahmood v Western Australia (2008) 232 CLR 397; Tully v The Queen (2006) 230 CLR 234; Robinson v The Queen (1999) 197 CLR 162; Bromley v The Queen (1986) 161 CLR 315; Carr v The Queen (1988) 165 CLR 314; Longman v The Queen (1989) 168 CLR 79; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; R v Gammon (1959) 43 Cr App R 155; R v Leak (1969) SASR 172; R v Powell and Gentle (1979) 23 SASR 52; Siebel and Waterman v The Queen (1992) 57 SASR 558; R v Whittingham (1988) 49 SASR 67; R v Climas (1999) 74 SASR 411; R v Byerley (2010) 107 SASR 517; R v B, J (2009) 262 LSJS 431, considered.

R v J, AP
[2012] SASCFC 95
Court of Criminal Appeal: Vanstone, David and Peek JJ

VANSTONE J: The appellant was found guilty by unanimous verdict of a jury of persistent sexual exploitation of a child, being his daughter. He now appeals against that conviction.
The appellant argues that the verdict was unreasonable and that the judge failed to adequately warn the jury of the possible dangers of accepting the evidence of the complainant having regard to the evidence as a whole. He was given permission to appeal on those grounds by a single judge. On the morning of the appeal hearing the appellant’s counsel gave notice of a proposed additional ground of appeal, namely ground 3. The ground raised questions going to the procedure undertaken by the judge in determining whether the complainant would be permitted to give sworn or unsworn evidence and the directions given to the jury concerning evaluation of the unsworn evidence she ultimately gave.
For the reasons that follow I would grant permission to appeal on ground 3 but dismiss the appeal on all grounds.
Background
The information alleged that sexual exploitation occurred between 28 February 2009 and 14 June 2010 at the appellant’s home in Millicent. The victim (V) was then aged either five or six years. The offending was particularised as touching and digital penetration of V’s vagina, causing V to touch the appellant’s penis, touching V with his penis and urinating on her.
In accordance with s 34CA of the Evidence Act 1929 (SA) electronically recorded statements made by V in the course of interviews with a psychologist from Children’s Protective Services were admitted into evidence. These statements were the critical part of the prosecution case. The first such interview took place on 15 July 2010 and the second on 14 July 2011. The two interviews were lengthy, comprehensive and skilfully conducted.
In response to questions, almost all of which were non-leading, the child spoke of her father letting her (but not her young brother) into his bed at night, kissing her on the lips and on the “fan”, of their being sometimes clothed and sometimes not when in his bed, of showering after the appellant “wees” on her belly while in the bedroom under the bedclothes, or in the lounge room, while he was on top of her, of showering together with the appellant and massaging each other under the shower and washing all parts of each others’ bodies, of the appellant putting his finger in her vagina and ‘wiggling it’ so that it felt ‘nice’ either in the bedroom or while V was lying on the “lounge”, of her brother coming into the bedroom and being told by the appellant to “get out”, of seeing, feeling and gripping the appellant’s (hard) penis after being told by him to touch it, and being touched by it and seeing him “wiggle it around” and “wiggle his whole body”. The account V gave to the psychologist over the course of both interviews, which were, as I said, a year apart, was compelling, in my judgment.
In a hearing on the afternoon prior to the commencement of the trial proper, counsel and the trial judge discussed the admissibility of the two statements of V. During the course of the discussion reference was made to R v J, JA (2009) 105 SASR 563 and R v Byerley (Question of Law Reserved No 1 of 2010) (2010) 107 SASR 517. It is apparent from the transcript that at that point the judge had not watched or read the transcripts of the two interviews. Counsel for the prosecution advised the judge that there were three conditions precedent for the admission of the statements under s 34CA and that those were dealt with in both of the authorities just mentioned. The judge was told the first condition related to the nature of the statements, how they had been taken and whether they had sufficient probative value to justify admission. He was then told that the second condition was that the child must be available to be called. The prosecutor advised the judge that the child was available and that he would present her for cross-examination. Counsel next advised that the judge would be required to consider and rule on the topics upon which the child would be cross-examined. During the course of that discussion Mr Healy, who acted for the appellant both at trial and before this Court, advised the judge that he did not “formally oppose the playing of the tapes”. He further advised in response to a specific question of the judge as to whether there was any reason why the prosecution should not have leave to adduce the evidence of the complainant by way of the statements, that he advanced no such reason. Mr Healy identified the topics upon which he sought permission to cross‑examine and prosecuting counsel acknowledged the relevance of them. The judge indicated that he would not give such permission until he had read the statements.
When the Court reconvened on the following morning the judge indicated that he had looked at the materials overnight and was inclined to grant leave to Mr Healy to cross-examine on the topics which had been mentioned. The judge also noted that he would have to satisfy himself about V’s capacity to give evidence. After the jury was empanelled the psychologist to whom V had spoken gave evidence attesting to the interviews.
Prior to V being called the judge told the jury members that he would need to speak to her, in their absence, to determine the fashion in which she would give evidence, that is, whether or not it would be sworn. Then, in the absence of the jury, counsel for the prosecution advised the judge that he did not seek to call V to give sworn evidence. Thereupon the judge noted that the only enquiry he would make was one going to s 9(2) of the Evidence Act, that is whether V might give unsworn evidence if he were satisfied that she understood the difference between the truth and a lie. The judge outlined what matters he planned to raise with V in terms of complying with the subsection and mentioned the warning he would give to the jury under s 9(4)(b), if requested, as to evaluation of her evidence. Counsel indicated their acquiescence in the planned approach. Mr Healy asked for the warning about V’s evidence to be given. The judge then spoke to V via audio-visual link asking her, among other things, her age, the state of her schooling and questions directed to determining whether she knew the difference between telling the truth and a lie. He told her it was very important that she tell the truth in answer to the questions she would be asked and he explained the reason why it was important. In response to his questions she promised that she would tell the truth. The judge then spoke to counsel in the absence of the witness and neither counsel suggested that any aspect of compliance with s 9 of the Evidence Act was outstanding. It was not suggested that anything additional needed to be done.
When the jury entered the courtroom the judge told it he had conducted a short enquiry and was satisfied that V might give unsworn evidence. He said:
I have conducted a very short inquiry as I’m required to do pursuant to a provision in the Evidence Act and I have satisfied myself that [V] may give unsworn evidence. In other words, I have satisfied myself that [V], who is eight, is not required to submit herself to the oath and to take an oath however, I am satisfied that she is qualified to give unsworn evidence.
The judge then went on to give a warning in response to s 34CA of the Evidence Act. He said:
However, having come to that conclusion, I’m obliged under the terms of the Evidence Act to warn you, the jury, of the need for caution in determining whether to accept the evidence of [V] and the weight to be given to that evidence. They are the words of that section. They are the words I’m required to say to you. I’ve done so.
I’ll say something about the evidence when I come to sum up to you at the end of the trial, but that is what I am obliged to do before [V] gives her evidence, that is, her unsworn evidence. I’ve complied with the Evidence Act and with some luck we’ll now turn on the television and get the picture back and we’ll be able to proceed with [V]’s evidence.
At the trial, V gave only brief evidence-in-chief which did not touch upon her allegations. She was then cross-examined. Often the questions took the form of asking whether she remembered saying certain things to the psychologist. Sometimes she claimed no memory of having said certain things. She said she could not remember telling the psychologist that she touched her father’s penis, or doing so. She did not say it did not happen. While at one point she claimed no memory of her father touching her on the vagina, when it was put to her it did not happen she insisted it did.
The prosecution also called the child’s mother – to whom a complaint had been made – and led evidence of the appellant’s interview with police. In that interview the appellant denied any indecent dealing with V, although he acknowledged that they had showered together. Asked whether she had gripped his penis in the way V described, he said that “[s]he may have at some stage when we showered, but I usually tell her off for anything like that.” Told of V’s description of him putting his finger into her vagina, he said that the only time she could have got that idea was “during a session of teaching her to wash properly”.
Arguments on appeal
In this Court, Mr Healy referred to the passages where V claimed no memory of what she told the psychologist. He contended that in light of concessions of lack of memory and the lack of cogency under cross-examination, the jury could not safely convict the appellant. He submitted that it followed that the verdict was unreasonable.
In support of the second ground of appeal Mr Healy submitted that in the circumstances of the case the judge erred in failing to give a warning in the nature of a Bromley warning in relation to the complainant’s evidence. He put that the circumstances calling for such a warning were the age of the complainant, the fact that her evidence was given by means of s 34CA of the Evidence Act and the limitations upon counsel in terms of cross-examination. In Bromley v The Queen (1986) 161 CLR 315 the High Court considered what, if any, warning was needed where an important witness for the prosecution suffered from a mental illness in the form of schizophrenia and had suffered from an episode of the illness on the night of the observation he made. Gibbs CJ, with whom Mason, Wilson and Dawson JJ agreed, said that although the witness did not fall within any recognised category of witness in respect of which a warning need be given, it was common sense that the jury should be alerted to the potential unreliability of the witness’s evidence, as appropriate to the circumstances.
The proposed ground of appeal, ground 3, as finally drafted by Mr Healy in the course of his reply, was that:
“The learned trial judge erred in the application of s 9 of the Evidence Act in that:
a)the judge did not rebut the presumption required under s 9(1),
b)the judge did not make any enquiry of [V] to determine whether she understood what was entailed in giving sworn evidence,
c)the judge did not explain to the jury why the evidence was to be given unsworn, and
d)the caution given under s 9(4) was not sufficient in that the judge merely repeated the wording of the section.”
I shall deal with the grounds in reverse order.
Ground 3 – whether s 9 of the Evidence Act was obeyed
It is convenient here to set out the terms of s 9 of the Evidence Act so far as relevant:
9—Unsworn evidence
(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 criminal trial, 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.
(5)…
Mr Healy’s main argument in support of the ground was that the judge failed to grapple with the presumption in s 9(1) – that he failed to ‘rebut the presumption’, as he put it – before allowing V to give unsworn evidence and that this resulted in a fundamental irregularity giving rise to a miscarriage of justice.

Reference was made to R v Starrett (2002) 82 SASR 115. In that case the complainant was aged seven years at the time of the complaint and eight at the time of trial by a judge sitting without a jury. There the prosecutor asked questions of the girl at the time she was called to the witness box. The prosecutor had already told the judge that the girl would not take the oath or affirm. The judge did not make any determination that the child was incapable of giving sworn evidence, but she was not sworn. However, critically, the judge did not make any determination – either during the trial or in his reasons for verdict – that he was satisfied under s 9(2) that she should be permitted to give unsworn evidence. The child was not questioned by the judge about those matters. Nor did the judge tell the child the importance of her telling the truth. Although the child promised to tell the truth, that promise was made to the prosecutor, rather than to the judge. Doyle CJ (with whom Perry and Lander JJ agreed) said at [22]:
I conclude that the evidence of J was taken irregularly. It was given unsworn, when no proper basis was made out for doing so. I do not know what the outcome would have been if the judge had followed the appropriate procedure. I cannot conclude that the judge would necessarily have determined that J should have been permitted to give her evidence unsworn.
The result was, as Lander J in his additional reasons pointed out, that the child’s evidence was neither sworn nor unsworn and was therefore not evidence that the judge could rely on. For that reason, Mr Starrett did not receive a trial according to law.
The present case is quite different. Here, after making the enquiries dictated by s 9(2) the judge determined that V was to be permitted to give unsworn evidence; and that is what occurred.
It is true that the judge seems to have assumed that the prosecutor’s statement that he did not propose that V be sworn disposed of the presumption. It did not. In my opinion the matter having been raised, the judge should have satisfied himself as to V’s capacity to give sworn evidence and have indicated what view he reached. However, having regard to the prosecutor’s intimation to the judge and to V’s age, and the judge having read or seen overnight the child’s statements, one can well understand that he might have been disposed to agree with counsel’s position without more.
In the event, the child was not sworn and the defence had the benefit of a warning of the need for caution before acting on her evidence. In those circumstances, the failure to more formally address the issue of whether V should be sworn cannot have prejudiced the appellant.
I would add that there is an air of unreality about this argument. Since all the probative allegations made by V were made in her statements to the psychologist, the assertions she made were necessarily unsworn. She did not, in the course of her evidence, confirm that what she told the psychologist was true. (I am not suggesting that she should have been asked questions designed to establish that). Therefore, I cannot see that whether or not V was sworn for the purposes of giving such evidence as she did could have had any impact on the jury; except that it led to the jury receiving the warning under s 9(4)(b).
Turning to ground 3(c) and (d), I have earlier set out what the judge said to the jury first about why V would not give sworn evidence, and then in terms of a warning about evaluation of unsworn evidence. In his summing up the judge gave similar directions.
I consider that the jury would have well understood that a child of eight years would not be required to undertake the obligation of an oath. The reasoning behind that is self-evident. While more explanation might have been offered, perhaps in terms of what is entailed in taking an oath or affirmation, I do not think it can be said that s 9(4)(a) was not complied with.
As to the caution, I do not see force in the complaint. Mr Healy did not develop his complaint. Presumably, it was that the words of the warning the judge gave were really confined to the terms of the section. Once again, more could have been said, but no complaint was made at the time about the brevity of the warning, or indeed about any other aspect of the summing up. In those circumstances I can find no error.
Ground 2 – whether the jury was adequately warned
As already discussed the judge gave a warning about the fact that V’s evidence was unsworn, in obedience to s 9(4)(b) of the Evidence Act. No further or other warning was sought by counsel.
The preconditions giving rise to the requirement of a warning in respect of evidence admitted under s 34CA of the Evidence Act were not met as V had been cross‑examined.
The judge was prohibited by s 12A of the Evidence Act from giving a warning that it was unsafe to convict on the evidence of a child witness in the absence of a request and cogent reasons to do so. Section 12A provides:
12A—Warning relating to uncorroborated evidence of child in criminal proceedings
(1)In a criminal trial, a judge must not warn the jury that it is unsafe to convict on a child’s uncorroborated evidence unless—
(a) the warning is warranted because there are, in the circumstances of the particular case, cogent reasons, apart from the fact that the witness is a child, to doubt the reliability of the child's evidence; and
(b) a party asks that the warning be given.
(2)In giving any such warning, the judge is not to make any suggestion that the evidence of children is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults.
This section imposes significant restraint on a judge’s authority to warn a jury that it is unsafe to convict. It does not, however, affect the requirement that where the evidence of a witness may be potentially unreliable (for reasons not related to the established categories of witnesses) and where a warning of some description is needed to avoid a miscarriage of justice, an appropriate warning must be given: Bromley v The Queen (1986) 161 CLR 315, per Gibbs CJ at 319 and Brennan J at 325.
It is not clear what other features of this case called for a warning. That the child’s allegations were embodied in out of court statements, that her memory of the events had diminished over time and that there was no evidence in support of V’s allegations were matters readily apparent to the jury. This is a telling factor when considering whether a warning is needed. (See R v B, J [2009] SASC 110; (2009) 262 LSJS 431 at [31] where several High Court cases which discuss this factor are collected). Here, there was nothing inherently unreliable about V’s accounts, no conduct said to undermine her allegations, no suggestion of mental or other infirmity, as in Bromley; nothing beyond V’s age and the fact that her evidence was unsupported by other prosecution evidence which could be proffered as a justification for a warning. As seen, s 12A(2) discloses a policy opposed to the view that children’s evidence is inherently unreliable. (I say other prosecution evidence, because, on one view of the appellant’s evidence, he made some inculpatory remarks. I shall mention them in the course of discussing ground 1).
In all the circumstances, including the fact that defence counsel did not apparently perceive a need for any additional warning, I would dismiss this ground.
Ground 1 – whether the verdict was unreasonable
I referred earlier in summary form to some of the answers given by V in cross‑examination. The argument underpinning ground 1 is that, having regard to the answers given, the jury should have entertained a reasonable doubt as to the allegations as a whole. The cross-examination was as follows:
Q.Do you remember telling Sarah [the psychologist] about sometimes you touching your daddy’s doodle.
A.No.
Q.You don’t remember telling Sarah about that.
A.No.
Q.So you don’t remember ever touching daddy’s doodle.
A. No.
Q. So if you told Sarah that - would that be right or not or you just can’t remember.
A.I just can’t remember.
Q.I just want to talk to you a bit more about that. Are you saying that - well, have you ever touched your daddy’s doodle.
A.I can’t remember.
Q.Can you remember ever seeing your dad’s doodle.
A.No.
Q. Do you know what a fan is.
A.Yes.
Q.What is it.
A.It’s a girl’s private part.
Q.Is it where you wee from.
A.Yes.
Q.You told Sarah that your daddy touched you. Do you remember telling Sarah that your daddy touched you sometimes on your fan.
A.Yes.
Q.Was that when he was bathing you or washing you in the shower.
A.I think it was like any time actually.
Q. Any time.
A.Yeah.
Q.What, do you have a memory of it, do you. Do you have a memory of your father touching your fan.
A.No.
Q.You don’t have any memory.
A.No.
Q.So when you say ‘any time’ you are not sure about that now.
A.No.
Q.So when you told me just then that you think he touched in your fan any time you now don’t know if that’s right.
A.I don’t know if that’s right.
Q.Would it be the case that your father never touched you on the fan other than when he was washing you perhaps; would that be right. That he never touched you there.
A.Maybe.
Q. That might be right. Is that what you are saying.
A.That might.
Q.Because your father never - he never touched you on the fan, did he. He never put his finger in your fan or anything like that.
A.He did.
Q.He did.
A.Yep.
Q.You just said a minute ago that you can’t remember. So can you remember him -
HIS HONOUR: That’s about something else.
XXN
Q.I asked you a minute ago about whether your father ever touched you on the fan and you said you couldn’t remember. Do you remember that.
A.Yeah.
Q.So are you now saying that you remember him touching you on the fan.
A.Yes.
Q.You do remember now.
A.Yep.
Q.Why did you say a minute ago that you couldn’t remember.
A.Because I don’t think I really knew if it really happened.
Q. Okay. Why do you say that.
A.Because -
Q. Are you not sure whether it happened or not now. It’s okay. I’m just trying to sort of see if I can understand what you are saying. When you said a minute ago or just a second ago that you are not sure - I don’t know the exact words now. I think I asked you why you said you couldn’t remember, and I think you said you weren’t sure whether it really happened, I think were your words. What do you mean by that.
NOT ANSWERED
Q.Can I just ask you: are you now saying that you are not sure whether it happened or not, whether or not your dad ever did touch you on the fan.
A.I think he really did.
Q.You think he really did.
A.Yep.
Q.But you are not sure about that.
A.No.
Q.You are not sure about it.
A.I am sure.
Q.You are sure about it now.
A.Yep.
Q.Why did you say a minute ago though that you didn’t really know if you were sure or not.
A.Excuse me?
Q.Yes.
A.Can I have a break?
HIS HONOUR: Yes.
(Emphasis added)
After a break defence counsel indicated that he had no further questions. It was suggested that, particularly in light of the italicised questions and answers, the verdict is unreasonable.
I do not find that there is any substance in this ground. The jury had to bear in mind that by the time the child gave evidence in March 2012, the allegations were between two and three years old. It is unsurprising that the child showed some equivocality under probing and repetitive cross-examination. The evaluation of the suggested concessions was quintessentially a matter for the jury. Plainly, the material in the interviews with the psychologist, together with such positive assertions as there were in the testimony about the conduct having occurred, was capable of satisfying the jury beyond reasonable doubt that the allegations were true and of leaving this Court without misgivings as to the safety of the verdict. That was particularly so where some of the appellant’s answers in evidence – even in examination in chief – were of themselves all but inculpatory. For example his suggestion that the child might have taken hold of his penis and that he might have touched the child’s vagina in such a way as to leave her with a recollection of inserting his finger into it could be seen by the jury as quite extraordinary. He said that latter might have happened during his teaching her how to wash. However, I note that V’s mother said that well before V was six she was washing herself without need of assistance.
Furthermore, V described the conduct of the appellant and what happened between them in a way which one would not expect a seven or eight year old to be able to do, unless she had experienced such conduct.
Having read the child’s evidence and the appellant’s denials of it on oath, I am left with no concerns as to the reasonableness of the verdict. That is so, even though the child’s evidence was unsworn and her out of court statements were not subjected to the robust cross‑examination that was seen in the days before a protected witness’s evidence could be given in this way.
Conclusion
None of the grounds is made good. I would grant permission to appeal on ground 3, but dismiss the appeal on all grounds.
DAVID J: I have read the draft judgments of Vanstone J and Peek J. I indicate at the outset that the appeal should be allowed and a retrial ordered. I do so on the basis that the appellant’s argument in relation to the additional ground 3 filed on the morning of the appeal has been made out. I agree with Vanstone J that grounds 1 and 2 should be dismissed.
I adopt the recitation of the facts set out in the judgment of Vanstone J and also her Honour’s outline of the procedure that took place at the trial leading up to the Judge’s explanation to the jury concerning the fact that V would be giving unsworn evidence when cross-examined. As Vanstone J pointed out, the trial Judge said to the jury on that occasion:
In other words, I have satisfied myself that [V], who is eight, is not required to submit herself to the oath and to take an oath however, I am satisfied that she is qualified to give unsworn evidence.
In my view those comments did not go far enough to satisfy s 9(4)(a) of the Evidence Act 1929 (SA) which provides:
(4)If unsworn evidence is given under this section in a criminal trial, the judge—
(a) must explain to the jury the reason the evidence is unsworn; …
In my view the jury should have been made aware that the reason V’s evidence was unsworn was because V did not have a sufficient understanding of the obligation to be truthful when giving sworn evidence. Merely to tell the jury that he was satisfied that V was not required to submit herself to the oath with an oblique reference to her age does not fulfil the mandatory requirements of the subsection. Although the authority of R v Starrett[1] is, as Vanstone J points out, factually different, it nevertheless emphasises the strict adherence that must be given to the requirements set out in s 9 of the Evidence Act.
[1] (2002) 82 SASR 115.
The explanation given by the trial Judge in this case does not mention the important difference between sworn and unsworn evidence namely, not just the difference between a truth and a lie but also that V understood the further obligation that giving sworn evidence demands. It could not be safely said that a jury by merely being informed of V’s age would have inferred that that was the reason she was giving unsworn evidence.
However, I do not agree that the Judge did not make a proper determination that V give unsworn evidence. It is important to remember that, pursuant to s 9(3), the Judge is not bound by the rules of evidence but may inform himself or herself as the Judge thinks fit. In this case the Judge was assisted by the attitude of the prosecution, the fact that V was eight years of age, and the Judge had access to the statements made by V pursuant to s 34CA of the Evidence Act. However having made that determination, in my view the Judge has not adequately explained to the jury the reason why V’s evidence is unsworn. Consequently, the trial has miscarried.
I would grant permission to appeal on ground 3. I would allow the appeal and order a retrial.
PEEK J: This is an appeal against conviction of persistent sexual exploitation of a child. I would allow the appeal and order a retrial.
Introduction
I have read the draft judgment of Vanstone J. I largely adopt her summary of the facts.
The Information charged an offence of persistent sexual exploitation of a child contrary to s 50(1) Criminal Law Consolidation Act 1935 which was alleged to have occurred sometime between 28 February 2009 and 14 June 2010, this latter date being the date when complaint was first made. The case was left to the jury on the basis that the appellant might be convicted for performing as few as two acts within a period as short as four days, this four day period occurring at any time within the period between 28 February 2009 and 14 June 2010. The complainant was born on 2 February 2004 and was eight years old at the time of the trial at the end of March 2012.
The grounds of appeal
The grounds of appeal (as amended) were as follows:
(1)The verdict delivered by the jury was unreasonable or against the weight of the evidence;
(2)The learned trial Judge failed to adequately warn the jury of the possible dangers of accepting the evidence of the complainant in the circumstances and having regard to the evidence as a whole;
(3) The learned trial Judge erred in the application of s 9 of the Evidence Act in that:
a) the Judge did not rebut the presumption required under s 9(1),
b) the Judge did not make any enquiry of [E] to determine whether she understood what was entailed in giving sworn evidence,
c) the Judge did not explain to the jury why the evidence was to be given unsworn, and
d) the caution given under s 9(4) was not sufficient in that the Judge merely repeated the wording of the section.
Section 34CA Evidence Act 1929 - video interviews
Two interviews with the complainant were video recorded on 15 July 2010 and 14 July 2011 (“the recorded interviews”) and were admitted into evidence pursuant to s 34CA Evidence Act 1929 (the Act) which provides as follows:
34CA—Statement of protected witness
(1)     A court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made if—
(a)the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and
(b)     —
(i)the protected witness has been called, or is available to be called, as a witness in the proceedings; and
(ii)the court gives permission for the protected witness to be cross‑examined on matters arising from the evidence.
(2)     A court may only give permission to allow a protected witness to be cross‑examined on such matters if satisfied that the cross‑examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
(3)     Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement.
(4)     In a criminal trial, the judge must, if evidence of the nature and contents of a statement made outside the court by a protected witness has been admitted but the protected person has not, for some reason, been cross‑examined on matters arising from the evidence, warn the jury that the evidence should be scrutinised with particular care because it has not been tested in the usual way.
(5)     In this section—
protected witness means—
(a)     a young child;[2] or
(b)a person who suffers from a mental disability that adversely affects the person’s capacity to give a coherent account of the person’s experiences or to respond rationally to questions.
[2] Section 4 defines “a young child” to mean “a child of or under the age of 12 years”.
Sworn or unsworn evidence?

The decision in The Queen v J, JA[3] addressed a number of the ambiguities in the drafting of s 34CA of the Act and is an important central authority. It emphasised[4] that, unlike some legislation elsewhere, s 34CA does not deem a previously recorded statement to be the evidence-in-chief of the complainant at trial but rather enables such evidence to be adduced in support of the prosecution case as an exception against the rule against hearsay. As is self evident, the child will not have been under oath during the making of any such statement.
[3] (2009) 105 SASR 563. Unfortunately, this decision was not referred to by either the appellant or the respondent at the hearing of the appeal.
[4] (2009) 105 SASR 563 passim including at [23], [26] and [66].
In the present case, the accused indicated that he wished to cross-examine the child. If the child is to give evidence at trial, the further question arises as to whether the child may give sworn evidence or unsworn evidence.
“Sworn evidence” (and “unsworn evidence”) is defined at s 4 as follows:
sworn evidence means evidence given under the obligation of an oath or an affirmation; and unsworn evidence has a corresponding meaning.
The Act somewhat unusually addresses the important matter of whether a person is permitted to give sworn evidence under the heading “Unsworn evidence” and provides at s 9:
9—Unsworn evidence
(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 criminal trial, 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.
Thus s 9 approaches the matter of sworn evidence by way of a presumption of capability to give sworn evidence which may be rebutted by a finding that the person “does not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence”.
Ground 3(A) & (B) of appeal: the decision in R v Starrett
In discussing the decision in R v Starrett,[5] I will call the determination that “a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence”, referred to in s 9(1) and s 9(2), the “determination process” and the separate process of giving permission to give unsworn evidence under s 9(2) the “permission process”.
[5] (2002) 82 SASR 115.
The appellant submits that the Judge failed properly to carry out the determination process with the result that the evidence of E was received irregularly and the verdict must be set aside. I consider that submission to be correct. In my view, both the judgments of Doyle CJ (with whom Perry J concurred) and Lander J in R v Starrett[6] make it quite plain that complete adherence to the process laid down in s 9 is required and that a failure of a Judge to undertake the determination process will vitiate the trial even if the Judge purports to undertake the permission process.
[6] (2002) 82 SASR 115.
The judgment of Doyle CJ
In Starrett, Doyle CJ stated:
[14]… the case law demonstrates that the courts have continued to attach importance to the basis upon which evidence of witnesses is received (be it sworn or affirmed on the one hand, or unsworn on the other hand), to the means by which the court determines the basis upon which the evidence is to be received, and to the eligibility or entitlement of a witness to give evidence on a particular basis. …
[15]The legislative provisions found in s 9 cannot be dismissed as mere matters of form. Parliament has made it plain that evidence is to be given on oath, unless the presumption that the witness is capable of giving sworn evidence is rebutted. Parliament has also made it plain that appropriate inquiries are to be made before a decision is made as to whether evidence is given sworn or unsworn. The history of this legislation and of the approach of the courts to these issues makes it plain that these are important matters in our system of trial.
His Honour decided that the trial transcript showed that the Judge had not made any express determination (the determination process) by the time when J entered the witness box. His Honour then considered whether one might infer the occurrence of a determination process by the Judge based upon the actions of J in answering a number of questions she was asked by the prosecutor while in the witness box. His Honour stated:
[21]What is recorded in the transcript raises the possibility that the judge made a determination, unrecorded, that J could not give sworn evidence, once the prosecutor indicated that he had “covered the issues”. If that is what happened, the procedure is unsatisfactory. The determination should have been recorded. But in any event none of the questions that the prosecutor asked were directed to the issue of whether J did not “have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence”. There was no question at all about the significance of giving evidence on oath or affirmation. Either form of sworn evidence is equally acceptable: s 6(3) of the Act. Nor was it open to the judge simply to accept a statement or assurance by the prosecutor that J was not capable of giving sworn evidence. To do that would be to transfer the judge’s responsibility to counsel.
After coming to that conclusion, his Honour’s next paragraph in his judgment was as follows:
[22]I conclude that the evidence of J was taken irregularly. It was given unsworn, when no proper basis was made out for doing so. I do not know what the outcome would have been if the judge had followed the appropriate procedure. I cannot conclude that the judge would necessarily have determined that J should have been permitted to give her evidence unsworn.
As I understand it, the respondent seeks to postulate a factual distinction between Starrett and the present case on the basis that in Starrett, the trial Judge failed to undertake the determination process and also failed to undertake the permission process whereas in the present case the Judge only failed to undertake the determination process. The argument presumably continues that in Starrett one could not know what the trial Judge would have done in relation to such a purported permission process (because he never purported to carry it out) but that the present case is different because here the Judge, although failing to undertake the determination process, did then proceed to purport to undertake the permission process and purported to grant permission to give unsworn evidence.
In my view, this argument cannot be accepted. The first two sentences of paragraph [22] of Doyle CJ’s judgment follow from, and depend upon, what had preceded that paragraph, namely his Honour’s findings that the evidence was given irregularly because of the absence of a prior determination process. When his Honour then says at [22] “I do not know what the outcome would have been if the judge had followed the appropriate procedure”, his Honour is clearly referring to the whole of the required process under s 9. His Honour cannot be referring to the purported carrying out of a permission process under s 9(2) without a prior determination process under s 9(1) because in no sense could that be “appropriate procedure”; the only appropriate procedure by which unsworn evidence may be permitted is to undertake the determination process and then undertake the permission process. Indeed, Parliament has gone to the trouble of specifically repeating “if the judge determines …” as the introductory words to s 9(2) so as to make it pellucidly clear that the power under s 9(2) can only be exercised if and only if a determination has previously been made by the Judge under s 9(1).
What his Honour said at paragraph [22] of his judgment was entirely consistent with what had preceded that paragraph. One could not know what conclusion the trial Judge would have reached if he had undertaken the appropriate procedure – namely the determination process - simply because he had not done so. Indeed, his Honour later proceeds to state:
[25]By s 7(4) of the Juries Act 1927 (SA) the judge’s decision on the question of guilt “will, for all purposes, have the same effect as a verdict of a jury”. The judge’s verdict of guilt rests on the acceptance of the evidence of J, given unsworn as a result of a failure to comply with the requirements of s 9 of the Act. The circumstances of the case were such that it is possible that J’s evidence might have been given unsworn, if the correct procedure were followed, but in the particular circumstances the giving of the evidence unsworn reflected a substantial irregularity.
(Emphasis added)
It is clear that Doyle CJ’s words “if the correct procedure were followed” refer to the whole of the required procedure under s 9. His Honour concluded that it was quite impossible to be sure that the outcome of a proper determination process would necessarily have been a finding that J could not give sworn evidence because a child of eight years of age can in fact give sworn evidence. It is important to note that in Starrett the person was eight years of age at trial (just as was E in the present case).[7] Doyle CJ specifically noted that fact[8] and stated:
[16]The starting point in this trial was that J was presumed capable of giving sworn evidence unless the judge determined otherwise, applying the criteria set out in s 9(1) of the Act.
…
[19]… There is no suggestion that the judge had material before him which would have enabled him to make that determination at that stage. Nor was J so young that one could say that a determination to that effect could be made, even without any other material.
(Emphasis added)
[7] (2002) 82 SASR 115, [8].
[8] (2002) 82 SASR 115, [8].
His Honour was clearly correct in saying so. As his Honour stated elsewhere in Starrett:[9]
[13]R v Brasier (1799) 1 Leach 199; 168 ER 202 is taken as establishing that at common law testimony could be received only on oath, and that a child could give sworn evidence “provided such infant appears ... to possess a sufficient knowledge of the nature and consequences of an oath”. …
[9] (2002) 82 SASR 115, 119.
Similarly, Lander J stated:[10]
[54]Provided a child understood the nature and consequences of an oath a child of any age could give evidence on oath: R v Brasier (1779) 1 Leach 199; 168 ER 202.
[10] (2002) 82 SASR 115, 126.
Doyle CJ concluded in Starrett that the topic of evidence being regularly and lawfully received is such a central and important element of a criminal trial that a substantial irregularity constitutes a miscarriage of justice in that the appellant has not had a trial according to law.
[26]What effect does that irregularity have on the verdict? The power of this Court to interfere on appeal with a verdict includes the power to set aside a verdict if “on any ground there was a miscarriage of justice”: s 353(1) of the Criminal Law Consolidation Act 1935 (SA). That appears to me to be the relevant ground in the present case.
[27]Has there been a miscarriage of justice? There is no reason to think that the judge’s decision to accept J’s evidence turned on the fact that it was unsworn rather than sworn, or to think that the irregularity affected the outcome of the case. On the other hand, I regard the irregularity as a substantial one.
[28]Such authority as there is suggests to me that this is an irregularity that gives rise to a miscarriage of justice. The trial was not conducted according to law. The appellant was entitled to such a trial. The departure from the requirements of the law is not a trifling one, nor is it a departure on a matter that can be regarded as a mere matter of form.
The judgment of Lander J
Lander J makes very definitive statements that each of the requirements of s 9 must be satisfied thus:
[56]However, it is only permissible for a court to receive unsworn evidence if the procedure prescribed by s 9 of the Act itself is followed.
[57]A court can only receive unsworn evidence if the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, and the judge is satisfied that the person understands the difference between the truth and a lie, and the judge tells the person that it is important to tell the truth and the person indicates that he or she will tell the truth.
[58]In my opinion, all four requirements must be satisfied before the court can receive unsworn evidence.
[59] If those requirements are not met the evidence cannot be received.
[60]The requirements will not be met if the judge does not make a determination or is not satisfied that the person understands the difference between the truth and a lie or the person indicates that he or she will not tell the truth on being told that it is important to tell the truth.
[61]The requirements will not be met if the judge fails to make a determination or to satisfy himself or herself that the person understands the difference between the truth and a lie or fails to tell the person that it is important to tell the truth.
[62]In this case there is no record that the judge made the determination, or if he did that he was satisfied that J understood the difference between the truth and a lie, or that he had told J that it is important to tell the truth.
[63]It seems to me whether the requirements are not met because the judge is not satisfied that the person understands the difference between the truth and a lie or because the judge fails to observe the procedure under the section does not matter much. The end result is the evidence is not admissible.
[64]In my opinion, in this matter J’s evidence was neither sworn or unsworn. In those circumstances it was not evidence that the judge could rely upon.
[65]In those circumstances this was not a trial according to law. The appellant is entitled to have his trial conducted according to law.
(Emphasis added)
It is plain beyond peradventure that his Honour considered that a failure to undertake the determination process per se renders the evidence inadmissible because, in his Honour’s words, all four requirements must be satisfied before the court can receive unsworn evidence.
I understand it to be suggested, despite Lander J’s specificity and all that had preceded paragraph [64] in his judgment, that his Honour’s words at [64] – “J’s evidence was neither sworn or unsworn” – in some way save the day for the prosecution. The argument presumably is that the present case is different because here it can be said that the evidence is unsworn by virtue of his Honour’s purported undertaking of the permission process.
With the greatest respect, when read in the context of the repeated specific statements made by Lander J in his judgment that each requirement must be satisfied, it is obvious that paragraph 64 of his Honour’s judgment merely follows as an inevitable conclusion from what had preceded it. The evidence could not be sworn for the plain reason that the witness had not been sworn. It could not be unsworn for the equally plain reason that, in the words of Lander J, “all four requirements must be satisfied before the court can receive unsworn evidence.”
At the risk of labouring the point, Lander J’s view, with which I entirely agree, is that if the first requirement (the determination process) is absent then it does not matter a jot if one or more of the other requirements are purported to be performed.
Conclusion as to ground 3(A) & (B) of appeal
I conclude that the position here is the same as in Starrett and for the same reasons as those expressed by Doyle CJ and Lander J. The Judge did not perform the determination process and accordingly his purported decision to permit the complainant to give “unsworn evidence” was a nullity.
Ground 3(C) & (D) and ground 4 of appeal: directions and warnings
The cumulative effect of some of the legislative changes to the common law system for trying a person for a serious criminal offence as they apply in the present case may be broadly stated thus:
1A video recording may be made of a child being questioned in the absence of the accused about the alleged conduct of the accused no matter how long after the conduct is alleged to have taken place.
2There is no requirement to inform the accused of an intention to interview the child or to give him an opportunity to suggest lines of inquiry or any questions that should be put to the child as part of the process or to give him an opportunity to have a representative to be present and observe the process.
3Such a video recording may be tendered in evidence and may by itself be sufficient to ground a conviction.
4Even though a video recorded interview is received, the prosecutor may lead such evidence-in-chief as he or she chooses.
5On the other hand, the accused may not cross-examine the complainant except in so far as he or she is able to secure advance approval of the trial Judge to the questions wished to be put in cross-examination.
6The complainant if giving evidence may do so without being sworn even though it is clear that the complainant does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
7There is no requirement that such unsworn evidence be corroborated.
8If giving evidence, the complainant may give evidence from a different room via a CCTV system. (This is a procedure that may be adopted in other cases apart from those in which a recorded statement is tendered but such procedure will almost inevitably be adopted in such a case and was so adopted in the present case.)
It is in the context of the above changes that the law provides a system of checks and balances designed to safeguard against the risk of wrongful conviction. This system consists of statutory warnings required by the Act together with existing requirements at common law for jury directions.
The mandatory directions under s 9(4)
Section 9(4) of the Act specifically requires two particular directions to be given in the present circumstances and provides as follows:
(4)     If unsworn evidence is given under this section in a criminal trial, 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.
(Emphasis added)
The requirement under s 9(4)(a)
Section 9 is reproduced in full above. As there stated, the only reason that a person’s evidence is given unsworn is that the Judge has determined under s 9(1) that the person does not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. The requirement in s 9(4)(a) by which the Judge “must explain to the jury the reason the evidence is unsworn” is to be discharged by the Judge telling the jury that he had found that the child did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence and explaining what that meant.

Of course, the procedures in s 9 are very much interlinked; the requirement in s 9(4)(a) is predicated on the Judge having discharged his duty under s 9(1). Indeed, because the provisions of s 9 are so interlinked, it is critical that all are observed, a fact which serves to confirm the correctness of the reasoning of Doyle CJ and Lander J in Starrett considered above under the previous grounds 3(A) and (B) of appeal – a failure to carry out the initial determination process is of itself fatal to the conviction here.
To explain further, if the Judge does not properly carry out the initial determination process (which can only lead to the giving of unsworn evidence by the route of a positive finding that the person “does not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence”) that very failure is likely to lead to a further error in that the Judge may not appreciate that when s 9(4)(a) requires the Judge to “explain to the jury the reason the evidence is unsworn” the only true reason is that he or she had already made a positive finding that the person “does not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence”. So in the present case, the Judge had failed to undertake that initial determination process and this failure, not surprisingly, appears to have contributed to his further and separate failure to give an appropriate direction under s 9(4)(a).
What his Honour did say was contained in the following two passages.
In the first passage, his Honour initially stated to the jury at the time when the video recordings were about to be played to the jury:
I have conducted a very short inquiry as I’m required to do pursuant to a provision in the Evidence Act and I have satisfied myself that E may give unsworn evidence. In other words, I have satisfied myself that E, who is eight, is not required to submit herself to the oath and to take an oath however, I am satisfied that she is qualified to give unsworn evidence.
In this first passage, his Honour fails to say anything about the fact that the only reason for the complainant giving unsworn evidence was a finding that she did not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. This was non-direction amounting to misdirection in that his Honour was positively required to so direct the jury.
His Honour in fact said that “E is not required to submit herself to the oath”. This was positive misdirection in that it positively misstated the position. It was not a matter of E “not being required to submit herself to the oath”; rather it was that she was not able to give sworn evidence because she did not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
In the second passage, his Honour later said:[11]
Pursuant to the provisions of the Evidence Act, E was then able to give her evidence-in-chief via the recording of her conversations with the psychologist Ms Luscombe instead of being asked questions by the prosecutor. Her evidence-in-chief is to be gleaned from the two interviews with Ms Luscombe.
The first was on 15 July 2010 and the second was on 14 July 2011. In addition, there were a few questions asked by Mr Longson.
That mechanism is permitted by the Evidence Act because it is not thought appropriate to require a child as young as E to swear an oath.
[His Honour then proceeded to the matter of a warning under s 9 with which I deal separately below.]
[11] Summing up pages 5-6.
As to this second passage, it was not correct to say that the complainant’s previous statements to a psychologist constituted evidence-in-chief. As stated above, the decision in The Queen v J, JA[12] makes it clear that this is not the correct position at all.
[12] (2009) 105 SASR 563.
More seriously, his Honour conflated two separate matters, namely the question of the admissibility of the statements made out of Court on the one hand and the question of whether this particular complainant may give evidence in Court on the other hand.
The “mechanism” of the admission of statements under s 34CA Evidence Act 1929 is not based upon a premise that “it is not appropriate to require a child as young as E to swear an oath”. Rather, admissibility under s 34CA is governed solely by reference to the objective age of the complainant; s 34CA provides that such statements may be received when made by any “young child” which term is defined at s 4 of the Act to mean “a child of or under the age of 12 years.”
His Honour’s statement as to it not being “thought to be appropriate to require a child as young as E to swear an oath” did not begin to comply with s 9(4)(a) and there was no further relevant comment by his Honour in the rest of the summing up.
The result is that the jurors were never given the information that the complainant did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence (“the required information”) despite the fact that the Act specifically required that they be so informed as part of the checks and balances under the Act. In the present case, the failure of the Judge to provide the required information to the jury may have affected the approach of the jury to their task in a number of ways, two examples of which are as follows.
First, a jury may only convict of a charge if satisfied beyond reasonable doubt and this level of proof does not vary according to the type of offence charged. Just because a charge of child sexual abuse is involved does not mean that the statements of the child carry greater weight than evidence in other cases; it is not the case that a jury may accept the evidence of a child as proof beyond reasonable doubt just because it is the only evidence that can be placed before them. Rather, the same test applies to all cases of whatever type: does the evidence actually adduced prove the charge beyond reasonable doubt?
Against that background, the Judge was required to inform the jury that the complainant at her present age of eight years did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. Such a direction may have the effect of concentrating the jury’s consideration of the important issue of the weight to be given to a recording of statements made by the complainant when she was younger and less – not more – mentally developed. Thus the direction had considerable relevance in relation to the video recordings and not just E’s evidence in Court. It required the jury to face up to the true question before them: did the out of court statements of a child who, at the time of making them, would have had less understanding of the obligation to be truthful entailed in giving sworn evidence than the insufficient understanding she had at trial, provide a sufficiently firm basis for a finding of guilt beyond reasonable doubt?
Second, the cross-examination of the complainant, brief as it was, did raise significant cause for concern as to whether this charge could be proven beyond reasonable doubt. In so far as some answers might be interpreted as adhering to some level of belief that the appellant had performed a relevant act, such statements had to be taken together with other parts of the cross-examination which cast real doubt on the matter. But also, and very importantly, the possibly incriminating statements had to be considered in the light of the required information that at the time of giving that unsworn evidence the complainant had insufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
In the case of an eight year old child, this goes very much to the matter of reliability as well as credibility. The requirement to give the direction is an essential part of the system of checks and balances enacted by the Act and cannot be disregarded.
The further and additional requirement under s 9(4)(b)
Quite apart from the above mandatory direction under s 9(4)(a), there is an additional requirement for the Judge to give a further warning where unsworn evidence is given under s 9(4)(b) which relevantly provides:
(4) If unsworn evidence is given under this section in a criminal trial, the judge—
…
(b) may, and if a party so requests[13] must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
[13] Counsel made the appropriate request under s 9(4)(b).
The Judge stated to the jury at the time that the video recording was played to the jury:
I have conducted a very short inquiry as I’m required to do pursuant to a provision in the Evidence Act and I have satisfied myself that E may give unsworn evidence. In other words, I have satisfied myself that E, who is eight, is not required to submit herself to the oath and to take an oath however, I am satisfied that she is qualified to give unsworn evidence.
However, having come to that conclusion, I’m obliged under the terms of the Evidence Act to warn you, the jury, of the need for caution in determining whether to accept the evidence of E and the weight to be given to that evidence. They are the words of that section. They are the words I’m required to say to you. I’ve done so.
I’ll say something about the evidence when I come to sum up to you at the end of the trial, but that is what I am obliged to do before E gives her evidence, that is, her unsworn evidence. I’ve complied with the Evidence Act and with some luck we’ll now turn on the television and get the picture back and we’ll be able to proceed with E’s evidence.
Early in the summing up, his Honour stated:
When I come to the evidence of E I will be giving you a special warning. It is really a repetition of a warning that I am obliged to give under the Evidence Act. As you will remember E’s examination-in-chief was principally given by way of her interviews with the psychologist Ms Luscombe. I will give you a special warning about that as I am obliged to under the Evidence Act.
Later, during the summing up, his Honour stated:
Pursuant to the provisions of the Evidence Act, E was then able to give her evidence-in-chief via the recording of her conversations with the psychologist Ms Luscombe instead of being asked questions by the prosecutor. Her evidence-in-chief is to be gleaned from the two interviews with Ms Luscombe.
The first was on 15 July 2010 and the second was on 14 July 2011. In addition, there were a few questions asked by Mr Longson.
That mechanism is permitted by the Evidence Act because it is not thought appropriate to require a child as young as E to swear an oath. I am obliged under the Act to warn you of the need for caution in determining whether to accept that unsworn evidence and the need for caution in giving weight to that evidence.
Nevertheless, after bearing those cautions in mind, if you are satisfied beyond reasonable doubt of E’s evidence, then you are entitled to rely on it.
I consider that the cumulative effect of these three passages was that his Honour did not discharge the statutory obligation under s 9(4)(b) because, first, the above words did not amount to the giving of “a warning” at all or any adequate warning and second, if there was a warning, his Honour impermissibly “whittled it down”.
The Judge’s statement did not amount to “a warning”
A warning is a particular type of direction. The function of a judicial warning is not to require jurors to come to a particular factual conclusion. Rather, it is to require them to take into account particular considerations when coming to the conclusion of their choice.
In Mahmood v Western Australia, Gleeson CJ, Gummow, Kirby and Kiefel JJ stated:[14]
[16]The distinction between a direction and a comment by a trial judge is referred to in Azzopardi v The Queen. It reflects the fundamental division of functions in a criminal trial between the judge and the jury. The distinction is important. Telling a jury that they may attach particular significance to a fact, or in this case suggesting that other evidence may be considered of greater weight, is comment. Because it is comment it may be ignored by the jury, a matter about which the jury should be told. A direction, on the other hand, may contain warnings about the care needed in assessing some evidence or the use to which it may be put. A direction is something which the law requires the trial judge to give to the jury and which they must heed.
[Footnotes omitted]
[14] (2008) 232 CLR 397.
And, as Kirby J stated in Tully v The Queen:[15]
[62]When a warning is required, it should be said loudly and clearly by this Court that it is not enough for the trial judge to tell the jury what defence counsel have said. Juries rightly regard counsel’s addresses as partisan. They are entitled to look to the judge, himself or herself, to tell them the true issues for decision and to give them any warnings which the law requires, relevant to those issues. …
[15] (2006) 230 CLR 234.
A requirement for the giving of a warning may arise at common law or by statute and in the present case, a warning is specifically required by s 9(4)(b) of the Act.[16] There is an important practical difference between a warning being prescribed by statute and a warning arising at common law.
[16] Another section of the Act, s 34CB, makes it clear that the Act recognises the particular status of a judicial warning and draws a clear distinction between a direction and a warning.
In the joint judgment of Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ in Robinson v The Queen,[17] their Honours stated that the common law required a warning to be given “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.” This same formulation is to be found in the previous decisions of the High Court in Bromley v The Queen,[18] Carr v The Queen[19] and Longman v The Queen.[20] In the case of the common law warning, it is the assessment of the risk that leads to the giving of the warning; as Brennan J stated in Bromley v The Queen:[21]
When a warning is needed to avoid a miscarriage of justice, it must be given; when none is needed to avoid a miscarriage, none need be given. The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content.
[17] (1999) 197 CLR 162, 168.
[18] (1986) 161 CLR 315, 319, 323-325. In the circumstances, I find it unnecessary to further consider decisions on particular sets of facts such as Tully v The Queen (2006) 230 CLR 234.
[19] (1988) 165 CLR 314, 330.
[20] (1989) 168 CLR 79, 86.
[21] (1986) 161 CLR 315, 325.
In the present case however, it is not for the Court to assess the risk or the need for the warning. The legislature has determined that the giving of unsworn evidence itself occasions the need for the warning, and has delineated the topic of the warning and has required that it be given. It remains only for the Court to give an adequate warning directed to that topic.
The topic of the s 9(4)(b) warning is “the need for caution in determining whether to accept the evidence and the weight to be given to it.” I emphasise that this is the topic with which the warning must deal. It is not sufficient simply to read out that topic and then abstain from saying anything in relation to it. Such would be, and would be seen to be, a hollow formality and of very little assistance to the jury.
In Zecevic v Director of Public Prosecutions (Vic), Deane J stated:[22]
Law cannot exist in a vacuum and the elucidation of legal principle must inevitably, if it is to be related to reality, proceed by way of factual analogy and illustration. The processes of such legal reasoning do not however transform factual argument into legal principle or require that factual considerations and illustrations be subsequently treated as legal propositions which limit and control a jury in applying its own standards and reaching its own conclusions in relation to the factual issues which the law entrusts to its decision. The effective discharge of that subservient judicial function also requires that legal principles governing criminal liability which are developed by appellate courts be capable of effective oral exposition and that summary statements of such legal principles in judgments which are framed on the basis that they will be read by lawyers are not mistakenly seen as rendering unnecessary the framing of oral directions to a jury in words which can be readily understood by an ordinary juror.
The formulation in Viro v The Queen, of a summary statement of the task of the jury in deciding an issue of self-defence on a murder trial was intended to provide a concise statement of principle to which reference could be made by a trial judge in framing, in language suitable for a jury, legal directions appropriate to enable the jury correctly to identify and comprehend the real questions of fact which must be resolved in deciding such an issue in a particular case. The concurrence of a majority of the Court in that formulation and the inherent complexity of some of the notions which it encapsulated made it perhaps inevitable that it would be seen by some trial judges as providing a convenient and safe set of directions to be given verbatim to a jury in any such case. The use of the formulation in that way creates a situation in which an ordinary juror must experience extreme difficulty in comprehending the process which he and his fellow jurors are being instructed to follow in determining an issue of self-defence. In part, that difficulty is the predictable result of the use for the purpose of giving oral directions to a jury of a formulation which was framed to be read by lawyers.
(Emphasis added)
[22] (1987) 162 CLR 645, 671.
As Deane J explains, while formulations such as that in Viro may be very difficult for a jury to digest, the point is that such formulations are not intended to be served up in that indigestible form; summary statements in such formulations are intended to serve as the basis for an oral exposition to the jury – not to be stolidly read verbatim with no assistance or explanation as to their meaning or significance.
Thus there was a need to relate the warning to the facts of the case. But there was also the need to make clear to the jury the reason why there is a significant difference in the weight to be attached to the giving of sworn and unsworn evidence. In brief terms, the essential point is that a person who is able to give sworn evidence feels a higher degree of compulsion to give truthful evidence engendered by the solemnity and importance of the occasion of taking an oath or affirmation in Court than does a person who has been found by the Judge not to “have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence”.
The nature of that higher obligation was explained by King CJ in R v Whittingham thus: [23]
The law depends upon the solemnity attaching to the taking of the oath or affirmation to impress upon the minds of witnesses the importance of telling the truth in the witness-box, and indeed the crucial importance of telling the truth in the witness-box by comparison with other, everyday occasions on which the sanction and solemnity of the oath are not invoked.
I think that experience indicates that a great many witnesses are impressed by the solemnity of the taking of the oath or affirmation and they are influenced to comply with its obligations by a variety of considerations — in some cases religious, in some cases civic, and in some cases perhaps merely instinctive. By reason of such considerations, witnesses are more prone to be careful about telling the truth in their evidence in court than they might be on other everyday occasions.
For those reasons I think that a trial judge should refrain from making any observations to a jury which would diminish their appreciation of the solemnity and importance of the taking of the oath by witnesses.
[23] (1988) 49 SASR 67, 69.

The subsequent decision of the Court of Criminal Appeal in R v Climas[24] addressed s 9 of the act in its present form. The Court approved[25] the approach of King CJ in Whittingham. In a helpful summary of the present position in relation to s 9 of the Act, Lander J stated.
[24] (1999) 74 SASR 411.
[25] (1999) 74 SASR 411, 416-417 (Duggan J); 436-437 (Lander J).
[132]The presumption in s 9(1) is that a person of any age is capable of giving evidence under the obligation of an oath or an affirmation in any proceedings unless the judge otherwise determines for the reason given in the subsection.
[133]The statutory presumption can be displaced, as s 9(1) provides, if the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
[134]Any inquiry therefore under s 9(1), if it arises, is as to whether the witness simply has sufficient understanding of the obligation to be truthful in giving evidence by taking an oath or making an affirmation. It is not an inquiry into the witness’s understanding of an oath or affirmation. Nor is it an inquiry into the witness’s religious beliefs or whether the witness has a belief in God. It is merely an inquiry into whether the witness has sufficient understanding of the obligation to be truthful under an oath or an affirmation. In that respect the Court will simply inquire as to whether the witness understands the meaning of truth and whether the witness understands that in giving sworn evidence there is an obligation to be truthful.
[135]The Act does not indicate what the understanding of the obligation to be truthful entailed in giving sworn evidence is. It must be more than simply an understanding of an obligation to be truthful otherwise the Act would only have required an understanding to be truthful in giving evidence and not included specifically “sworn evidence”.
[136]Because of the provision of s 9(2) it must be more than simply an understanding of the obligation to be truthful. That subsection allows for a person who understands the difference between a truth and a lie and also indicates that he or she will tell the truth to give unsworn evidence.
[137]Section 9(1) contemplates an obligation more than simply an obligation to be truthful. In my opinion, what is contemplated in s 9(1) is an understanding that, in giving sworn evidence, the person is thereby accepting the solemnity of the taking of an oath or the making of an affirmation and the sanctions which would follow, both morally and legally, if that person failed to comply with the obligation to tell the truth. …
(Emphasis added)
Just as nothing should be said to derogate from the importance to be attached to sworn evidence, so it is equally important in the present case not to minimise the difference between sworn evidence and unsworn evidence. Unsworn evidence is to be characterised as not having the above qualities that attach to sworn evidence. Not only is that so, but in the special circumstances of this case the Judge was required to give a positive warning as to such matters.
His Honour did not come close to doing so by merely read out the words “the need for caution in determining whether to accept the evidence and the weight to be given to it”.
The appeal must be allowed on this basis alone.
The Judge whittled down the warning
However, with respect, the position in the present case is even worse than if his Honour had read out the words in s 9(4)(b) and said nothing further. Here his Honour did say something further the effect of which was to actually derogate from the required warning.
When the law requires a particular warning to be given, the Judge must not “whittle down” the required warning. Thus in R v Gammon the English Court Of Criminal Appeal (Parker LCJ, Donovan and Salmon JJ) stated:[26]
… This court has said many times that in warning a jury in regard to corroboration in cases of this sort no particular formula is required so long as the sense of the rule of practice is brought home to the jury. Here, the court feels that, so far from giving the ordinary warning that they must approach the matter with extreme care and only convict if they are quite satisfied as to the prisoner’s guilt, the Deputy-Chairman is minimising the danger involved and telling the jury in effect that it is only a trifling danger which they are being invited to disregard. …
[26] (1959) 43 CAR 155, 160.
In R v Leak the Court of Criminal Appeal (Bray CJ, Hogarth and Walters JJ) stated: [27]
… the warning of the danger of acting on the uncorroborated evidence of the other party in sexual cases is meant to be taken seriously by the jury and ought not to be minimised or whittled down in any way. They should of course be told that they can still convict despite the hurdle of the warning: but they should be left in no doubt as to the height of the hurdle. We would deprecate reference to the proposition that many sexual offences would go unpunished if it were not possible to convict without corroboration.
[27] (1969) SASR 172, 174.
And in R v Powell and Gentle,[28] King CJ stated:
I think that the general tenor of the passage quoted tended to minimise and whittle down such warning as was given, contrary to the precepts contained in the judgments in Reg v Leak and Reg v Jansen.
[28] (1979) 23 SASR 52, 55.
In my view, the effect likely to be produced on jurors by the words of his Honour taken as a whole is seriously to whittle down the required warning. As noted earlier, his Honour initially said this:
I’m obliged under the terms of the Evidence Act to warn you, the jury, of the need for caution in determining whether to accept the evidence of E and the weight to be given to that evidence. They are the words of that section. They are the words I’m required to say to you. I’ve done so.
I’ll say something about the evidence when I come to sum up to you at the end of the trial, but that is what I am obliged to do before E gives her evidence, that is, her unsworn evidence. I’ve complied with the Evidence Act and with some luck we’ll now turn on the television and get the picture back and we’ll be able to proceed with E’s evidence.
(Emphasis added)
In this passage, his Honour’s words (in italics) reading out the topic of the warning are overwhelmed by the balance (in bold) which might well be interpreted by a juror as whittling down any warning. The repeated references to being “obliged” and “required” by the legislation and “having done so” and “complied” with the legislation can only have the tendency to convey to the jury that without such a legislative requirement his Honour would not have referred to the matter at all and that he had done so as a formality only.
Further, there is a very real danger that the jurors might well interpret the Judge’s actions in “whittling down the warning” as evincing a strong view taken by the Judge against the accused which in turn might influence the jurors, or some of them, in their deliberations.[29]
[29] Cf R v Powell and Gentle (1979) 23 SASR 52.
The appellant was entitled to the full force of the mandatory warning free of comment the effect of which may have been to whittle down the warning. This is analogous to the right of an accused person who decides not to give evidence to have the full benefit of the statutory prohibition[30] free of any comment by a prosecutor on that choice. Thus King CJ stated in Siebel and Waterman v The Queen:[31]
The rule prohibiting comment by the prosecution upon the failure of an accused person to give evidence is a basic rule for the conduct of a criminal trial. It confers upon an accused person a right to have a trial free of the prohibited comment. The infringement of such a right cannot be lightly overlooked. I think that where such an infringement has occurred, it is necessary for the court to be more than ordinarily vigilant to ensure that the proviso is only applied where the prohibited comment could not reasonably be supposed to have affected the result. I cannot reach that state of mind in the present case and I think that the convictions must be set aside.
Conclusion as to the application of s 9(4) Evidence Act 1929
[30] Evidence Act 1929 s 18(1)(b).
[31] (1992) 57 SASR 558, 564.
The appellant had a fundamental right to have the jury assess the strength of the evidence against him in the light of a correct direction and warning under s 9(4)(a) and (b) respectively. The Judge’s failure to give such correct direction and warning was not only a clear error of law but it went to the very structure of the trial. We are here concerned with the fundamental way in which evidence may be received and upon what conditions – here as stipulated in mandatory legislation regulating the conduct of the trial itself.
In the same circumstances in Starrett, Doyle CJ, after referring to authorities, concluded:
[32]Guided by that authority, I conclude that the irregularity is a substantial one. It gives rise to a miscarriage of justice. The trial has not been conducted regularly. Although the irregularity does not affect the credibility of the evidence, the departure from the proper procedures is fundamental, and makes it inappropriate to apply the proviso. This is what the High Court has described as a “radical or fundamental error”, which may “go either to the form of the trial or the manner in which it was conducted”: Wilde v The Queen (1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ. I consider that it would not be appropriate to apply the proviso in the present case. As I have said several times, the irregularity is a substantial one. The basis upon which a witness gives evidence, sworn or unsworn, is a fundamental aspect of the trial system.
[33]Accordingly, while it is most regrettable that the verdict should be set aside on what may appear to be a technicality, I consider that the court has no choice other than to allow the appeal, set aside the conviction and to order a retrial. Hopefully, this decision will bring home to trial judges and to counsel the importance of paying appropriate attention to the requirements of the Act in relation to the giving of evidence. While the ultimate responsibility in this respect is that of the judge, counsel in the case also have a responsibility to attend to the appropriate procedure. In the present case it is regrettable that neither the prosecutor nor counsel for the defence raised these matters with the judge.
I would simply add that the position in this situation is strongly analogous to cases concerned with irregularities in the trial process such as irregular constitution of the jury. In Rodger Johns v The Queen[32] the High Court quashed a conviction for armed robbery long after the trial solely on the basis that the appellant had been denied the benefit of a peremptory challenge made by him, the juror being sworn after the challenge had been withdrawn by his counsel without instructions. Barwick CJ stated:[33]
… it is incontestable that the denial of the applicant’s right of challenge vitiates the proceedings on the indictment. It is settled that if an accused’s challenge is improperly disallowed or not given effect, the subsequent proceedings cannot yield a lawful conviction: they are said to be absolutely void: Halsbury's Laws of England, 4th ed, vol 2, par 260, eg R. v Edmonds, per Abbott CJ, and R. v Williams. Thus, there never has been a trial of the indictment in this case according to law. The conviction consequent on these proceedings must therefore be set aside.
[32] (1979) 141 CLR 409.
[33] (1979) 141 CLR 409, 419.
In the later decision of the High Court in Maher v The Queen[34] the defendant had pleaded not guilty to the 19 counts on the indictment before a jury had been sworn. After the jury had been sworn and some time into the trial, the trial Judge permitted two further counts to be added to the indictment and re‑arraigned the defendant on those Counts. The Court held that the jury had only been sworn and empanelled to try the issues raised by the pleas to the original 19 counts and that no statute authorised an amendment of the indictment by adding counts after the jury had been sworn. The Court stated:[35]
The provisions of the Jury Act and of the Code which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial are mandatory, for the entitlement to trial by jury which s 604 of the Code confirms is trial by a jury constituted in accordance with the Jury Act and authorized by law to try the issues raised by the plea of not guilty. A failure to comply with those provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal: see Crane v Public Prosecutor. In any event it involves such a miscarriage of justice as to require the conviction to be set aside. Thus, in Reg v Smith a trial was regarded as a nullity because a challenge for cause had been wrongly determined by the judge and not by the jurors. The converse situation arose in Reg v Hall where the trial judge directed jurymen to try a challenge for cause when the relevant statute required the judge to try any challenge. The conviction was set aside. A similar view was taken in Reg v Short. There a juryman was taken ill and the remaining jurymen were discharged but did not leave the jury-box. Another juryman was called and sworn but the other eleven jurymen were not resworn. Judgment against the prisoner was reversed for error on the record. Again, in R. v Dempster, when it appeared that one of the jurors while duly empanelled and chosen had not been sworn, the court directed the record to be amended by expunging all entries subsequent to the plea of not guilty.
[34] (1987) 163 CLR 221.
[35] (1987) 163 CLR 221, 233-234.
The need for a warning at common law
I have referred above to the principle stated by the High Court in cases such as Robinson v The Queen,[36] that a warning must be given “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.” I consider that the combination of circumstances in the present case did require such a warning.
[36] (1999) 197 CLR 162, 168.
However, since I am of the view that the appeal must be allowed on the basis of the interpretation and effect of s 9 Evidence Act 1929, I consider it unnecessary to further expound upon the matter of the common law warning.
Disposition of the appeal
I would grant permission to amend the grounds of appeal by adding ground 3 of appeal and would grant permission to appeal on that ground insofar as permission may be necessary.
I would allow the appeal and order a retrial.

[2012] SASCFC 95

10 August 2012

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Sentencing

Statutory Construction