R v JTB - [2003] NSWCCA 295

CITATION: Regina v JTB [2003] NSWCCA 295

HEARING DATE(S): Friday 3 October 2003

JUDGMENT DATE:
3 October 2003

JUDGMENT OF: Grove J at 1; Hulme J at 18; Greg James J at 24

DECISION: APPEAL ALLOWED; NEW TRIAL ORDERED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - WITNESS AGED 8 - ASSUMPTION THAT SHE COULD GIVE "EVIDENCE" WITHOUT BEING SWORN - ABSENCE OF RELEVANT ENQUIRIES AS TO HER UNDERSTANDING - STATUTORY AND COMMON LAW REQUIREMENTS UNFULFILLED

LEGISLATION CITED: Criminal Appeal Act
Evidence Act

CASES CITED: R. v Brooks 1998 44 NSWLR 121
Bulejcik v The Queen (1996) 185 CLR 375
Dhanhoa v The Queen [2003]HCA 40

PARTIES :
Regina v JTB

FILE NUMBER(S): CCA 60234/03

COUNSEL: E. Wilkins (Crown)
L. Flannery (Applicant)

SOLICITORS: C.K. Smith (Crown)
B. Duchen (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/51/0194

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

60234/03

GROVE J
HULME J
GREG JAMES J

Friday 3 October 2003

REGINA v J.T.B.

Judgment

1 GROVE J: This is an appeal against conviction upon two counts after a trial before Christie DCJ and a jury at the Coffs Harbour District Court. The offences charged involve sexual misconduct towards a young child who was in fact the granddaughter of the appellant. The convictions were followed by the imposition of terms of imprisonment.

2 A number of grounds of appeal have been lodged. None of those grounds would ordinarily result in an order of this Court other than including a new trial, should such a ground succeed. As, in my view, the fourth ground must be sustained, it is unnecessary to deal with the others.

3 The background can be briefly sketched. When the matter came to trial, arrangements had been made for the infant complainant to give evidence by videolink and the transcript shows that there was some attention given to putting her outside of the range of looking at her grandfather. It may be that the need to make these practical arrangements led to matters which I believe must have been overlooked.

4 The complainant at the time was aged eight years of age. The Crown Prosecutor mentioned to his Honour, “And I won’t be asking that the complainant be sworn, your Honour, she’s only eight”. His Honour’s response was to say, “Yes, I understand”.

5 The child was then brought to what I might describe for convenience as the witness position and upon arrival his Honour inquired of her whether she could see and he then had this exchange with her:

“Q. (E), there is a gentleman about to stand up who wants to ask you a number of questions. You understand that?

A. Yes.

Q. And you understand that you are here to respond to his questions truthfully?
A. Yes.”

6 It appears to me then, therefore, that it is an issue to be considered by this Court whether what the complainant had to say was ever elevated into the category of being evidence.

7 I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v JTB

Details

AGLC: Regina v JTB [2003] NSWCCA 295
Case: [2003] NSWCCA 295
Decision Date: 3 October 2003

CaseChat Overview and Summary

In the case of R v JTB, the court heard an appeal against the conviction of the respondent on charges related to sexual offences. The dispute revolved around the admissibility of the evidence given by an eight-year-old witness, who was alleged to be the victim. The High Court of Australia was tasked with determining the validity of the trial judge's approach to the child's testimony and whether the statutory and common law requirements for such testimony were properly satisfied. The court examined whether the trial judge erred in assuming that the child could provide evidence without being sworn, and whether the necessary inquiries regarding the child's understanding of the judicial process were adequately conducted.

The primary legal issue before the court was whether the trial judge's handling of the child's evidence complied with both statutory and common law principles. The court needed to assess whether the statutory requirement under the Evidence Act 1995 (Cth) for a witness to be sworn or affirmed was properly considered, and whether the common law principles regarding the competency and credibility of child witnesses were appropriately applied. Specifically, the court focused on the necessity of determining the child's understanding of the difference between truth and falsehood, as well as her appreciation of the obligation to tell the truth, which is a fundamental aspect of providing reliable testimony.

In its judgment, the court held that the trial judge's approach was flawed. The judge had not made the necessary enquiries to ascertain the child's comprehension of the judicial process and the importance of truthfulness. Consequently, the statutory requirement for the child to be sworn was not fulfilled, and the common law principles regarding child witnesses were not properly applied. The court concluded that the child's evidence was inadmissible because the trial judge did not ensure that she understood the consequences of lying under oath. As a result, the convictions were quashed, and the case was remitted for retrial, with directions to properly assess the child's capacity to give evidence.

Orders