R v J, AP

This case concerned an appeal against sentence following the appellant's conviction by a jury for the persistent sexual exploitation of a child. The complainant, aged eight years at the time of trial, provided evidence through two video-recorded statements made during interviews with a psychologist, admitted pursuant to s 34CA of the *Evidence Act 1929* (SA). The appellant's trial counsel was permitted to cross-examine the complainant on specified topics, and the trial judge conducted an inquiry to determine if the complainant could give unsworn evidence, ultimately informing the jury that she was not required to take an oath but could give unsworn evidence.

The legal issues before the appellate court included whether the trial judge adequately explained to the jury the reason for the complainant giving unsworn evidence, as mandated by s 9(4)(a) of the *Evidence Act 1929* (SA), and whether the verdict was unreasonable or insupportable having regard to the evidence. A further issue arose regarding an additional ground of appeal concerning the procedure for admitting the complainant's unsworn evidence.

The majority of the court, comprising Vanstone and Peek JJ, dismissed the appeal. They found that the trial judge's explanation to the jury, while perhaps not ideal, was sufficient in the circumstances, and that the verdict was not unreasonable given the evidence, including the complainant's unsworn testimony and the appellant's denials. David J, however, would have allowed the appeal and ordered a retrial, finding that the trial judge's explanation to the jury regarding the unsworn evidence did not satisfy the mandatory requirements of s 9(4)(a) of the *Evidence Act 1929* (SA). David J specifically noted that the jury should have been informed that the reason for the unsworn evidence was the complainant's insufficient understanding of the obligation to be truthful when giving sworn evidence, rather than merely her age.

Ultimately, the appeal was dismissed on all grounds, with permission to appeal granted only on the third ground, which related to the adequacy of the explanation for the unsworn evidence.