R v K, MC

[2018] SASCFC 133

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v K, MC

[2018] SASCFC 133

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)

13 December 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING - EVIDENCE OF CHILD

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

EVIDENCE - WITNESSES - SWEARING AND OATHS - CAPACITY IN GENERAL - YOUNG CHILDREN

Appeal against conviction – appellant charged with persistent sexual exploitation of a child – complainant and two other child witnesses were permitted to give unsworn evidence – whether the trial Judge failed to warn the jury as to the need for caution in the use of the unsworn evidence – whether the judge gave confusing and inadequate directions about corroboration.

Held, per Bampton J (Kourakis CJ and Stanley J agreeing) refusing permission to appeal on the appellant’s proposed second ground and dismissing the appeal:

1. The jury were directed correctly and appropriately;

2. No miscarriage of justice has occurred.

Evidence Act 1929 (SA) s 9, s 12A, s 13, s 13BA, referred to.
R v J, AP (2012) 113 SASR 529; R v Lomman (2014) 119 SASR 463; R v French (2012) 114 SASR 287; Perara-Cathcart v The Queen (2017) 260 CLR 595, considered.

R v K, MC
[2018] SASCFC 133

Court of Criminal Appeal:  Kourakis CJ, Stanley and Bampton JJ

1. KOURAKIS CJ:  I would dismiss the appeal for the reasons given by Bampton J.

2. I would emphasise that the courts cannot add to the statutory prescription of the directions which must be given to a jury when unsworn evidence is adduced in a trial. The directions in this case properly discharged the duty imposed by s 9(4) of the Evidence Act 1929 (SA) because the Judge explained why the evidence was unsworn and warned the jury of the need for caution. No further elaboration was required by the statute.

3. An omission to further explicate the reasons for admitting the evidence and the need for caution, in the way commended by the decisions of this Court may, on occasion, result in a miscarriage of justice but there has been no miscarriage of justice in this case.  The jury would sufficiently have understood from the directions which were given that the need for caution arose because the testimony of children, who do not appreciate the solemnity of the occasion, grasp the importance of a criminal trial, or understand the consequences of giving false evidence may, for those reasons, not be as reliable as testimony which is affirmed or sworn.

4. STANLEY J:       I would dismiss the appeal for the reasons given by Bampton J and the additional reasons of the Chief Justice.

5. BAMPTON J:     Following a trial before a jury in the District Court, the appellant was convicted of persistent sexual exploitation of a child.

6. The appellant appeals with permission on ground 1 and seeks permission to appeal on proposed ground 2.  Ground 1 asserts that the trial Judge failed to adequately warn the jury as to the need for caution in the use of the unsworn evidence given by the complainant and two other child witnesses.

7. Proposed ground 2 asserts that the Judge gave confusing and inadequate directions as to the nature and origin of the prosecution evidence by telling the jury that there was no evidence that could corroborate the complainant’s evidence, but then directing them that the Evidence Act 1929 (SA) (“the Act”) prohibited any requirement for corroboration.

   Background

8. The appellant was charged with, between 1 March 2013 and 6 February 2016, having committed more than one act of sexual exploitation of his stepdaughter, EV.

9. The complainant, EV, was aged between six and eight years at the time of the offending.  EV’s mother was in a relationship with the appellant during the period of the offending. 

10. EV made an initial complaint to her friend, TW, in the presence of TW’s sister, SW, at TW and SW’s home on 6 February 2016.  EV’s mother was informed of the disclosure and reported the matter to police.  The appellant was arrested the following day.

    Pre-trial rulings

11. During a voir dire, the appellant objected to the prosecution’s application for permission to lead evidence of EV’s two police interviews in the form of audio visual recordings pursuant to s 13BA of the Act on the ground that the trial Judge could not be satisfied of EV’s capacity to give sworn or unsworn evidence at the time of the interviews.

12. The first interview was conducted on 7 February 2016 and the second on 9 July 2016.  The Judge permitted the admission of the first audio visual record of interview (“the recorded interview”) but refused the admission of the second audio visual record of interview (“the second recorded interview”) on the ground that the interviewer, Detective Shepheard, did not emphasise the importance of telling the truth and did not obtain EV’s agreement that she would tell the truth.  The prosecution was given permission to further examine EV in chief to elicit the contents of the second interview and the appellant was granted permission to cross‑examine on a limited number of topics.

    The evidence

13. At trial, the prosecution called six witnesses:  EV, TH (EV’s mother), TW, SW, TC (the father of TW and SW), and Detective Shepheard.  EV was aged 10 at the time of trial.  TW was aged nine and her sister, SW, was aged eight at the time of trial. 

14. The appellant gave evidence in his defence and denied committing any act of sexual exploitation against EV.

15. Prior to EV, TW and SW giving evidence, the Judge conducted inquiries in in order to ascertain whether they each had sufficient understanding of the obligation to be truthful required for them to give sworn evidence pursuant to s 9 of the Act. The Judge determined that none of the children had the requisite understanding of the obligation, and found them each incapable of giving sworn evidence.

16. The Judge satisfied himself that each of the children understood the difference between the truth and a lie.  He told each child that it was important to tell the truth and each child indicated that she would tell the truth.  Each child was permitted to give unsworn evidence transmitted to the courtroom via closed circuit television.

17. The recorded interview was played to the jury and EV gave unsworn evidence-in-chief of the further incident that was detailed in the excluded recorded interview.  EV described the type of sexual acts the appellant would perform on her or require her to perform.  She said the acts were happening “a lot”, occurring “nearly every day” and that the last acts had occurred a few weeks prior to her interview on 7 February 2016.

18. EV said the first occasion of sexual exploitation occurred while she, her mother, siblings and the appellant were living at the Marion Hotel.  EV was about five, six, or seven years old when her family were staying at the Marion Hotel.  EV said that the appellant “wee-ed” on her but she could not recall what else had happened.

19. EV gave evidence of a particular occasion when the appellant held her upside down in the shower and performed cunnilingus on her while she performed fellatio on him.

20. She also gave evidence of the circumstances in which the last occasion of sexual contact occurred at her family’s home at Christies Downs.  She said that the appellant first took his clothes off and then hers.  While she lay naked on the bed, the appellant stood at the end of the bed, leant over and licked her vagina.  She described the appellant putting his penis in her mouth before he “wee-ed” on her.

21. EV alleged that the sexual activity would only occur when her mother was out, visiting her friends.  She said that her brothers were usually playing in the lounge room while the offending occurred in the appellant’s bedroom.  She described the appellant’s penis as having “balls and it’s got a long kind of stick” and felt hard.  In describing the acts of fellatio, EV said, “he puts it in my mouth and goes like that” and used her hands to show the how appellant moved his hand up and down his penis.  In describing the acts of cunnilingus, EV said “he licks all around it and then he sucks on it”.  Finally, in detailing the penile-anal intercourse, EV said, “he spits, then he wipes it on my bum then he wipes it on his dick and then he um puts it in there and it hurts and then after that it hurts and I can’t go [to] the toilet for a while”.  EV said that when the appellant “wee-ed” on her, it “looks like yellow stuff”.  EV was asked whether it was “like wee when you wee”.  She said “yep” and added “kind of like vomit”.

22. TW and SW’s father, TC, gave evidence that his daughter, TW, and EV went to school together.  TC said that on one occasion EV stayed the night.  On this occasion, TC became aware that EV had made an allegation against the appellant.  Upon learning of the allegation, TC rang EV’s mother.  TC agreed in cross-examination that he possessed magazines depicting naked adults and sexual acts which he kept in his bedroom.  He agreed that his daughters may have seen the magazines but that they had not mentioned seeing them to him.  TC also agreed that the magazines where in his home the night EV stayed over.

23. EV said in cross-examination that she had not seen pornographic magazines at TW’s home.  She also denied having been shown pornography by a teenage family friend.

24. TW said that she had seen her father’s pornographic magazines, but that she did not think that there was any pornography around the house when EV stayed the night.  TW also gave evidence that there was an occasion when her father had exposed his penis to her.  TW said that no such “rude” conduct occurred during EV’s visit.

25. EV was examined by a doctor on 18 February 2016.  It was an agreed fact that the doctor recorded no injuries to EV’s internal or external genitalia.  It was also an agreed fact that in the examining doctor’s opinion, penetration of the anus by a penis could occur without any injury resulting.

    Complaint evidence

26. EV made an initial complaint to TW, while SW was present, during a sleepover at TW and SW’s home.  TW gave evidence that EV had said that her stepdad had sex with her at a hotel.

27. SW gave evidence that EV had said that her dad had sex with her in a bed.  In cross-examination, both EV and TW agreed that the disclosure was made in response to TW telling EV that TW and SW’s older sister had been sexually assaulted.

28. EV’s mother, TH, gave evidence of an elaboration made to her by EV within hours of the initial complaint.  TH also gave evidence that the appellant would look after EV and her brothers up to three times a week while she was out at appointments, visiting her mother, or “going to S’s house”.

29. In her recorded interview, EV told police that she felt happier that she had complained because the appellant would not be near her anymore.

30. A recorded police interview from the day of the appellant’s arrest was tendered by the prosecution.  In the interview, the appellant said that he was the parent who mostly had the care of the children.  He said that there were many occasions when TH would leave the children in his custody while she visited S.  The appellant told police that in the weeks leading up to his arrest, TH had a falling out with S and was therefore spending more time at home.

31. The appellant gave evidence that he and EV had always enjoyed a good relationship.

    The appeal

    Ground 1 — failure to warn the jury adequately as to the need for caution in the use of the unsworn evidence

32. The appellant complained that, in circumstances where the prosecution case rose and fell on the unsworn evidence of EV with no other independent support or confirmation, the directions given by the Judge in relation to the unsworn evidence of EV and the other child witnesses were not sufficient to comply with the requirements of s 9 of the Act.

    The law

33. Section 9 of the Act provides that in order for a person to give unsworn evidence, the judge must be satisfied that the person knows the difference between the truth and a lie. The judge must tell the person that it is important to tell the truth and the person must indicate that he or she will tell the truth. Where unsworn evidence is given, consistent with s 9(4), the judge must explain to the jury the reason the evidence is unsworn and, if so requested, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. Section 9 provides:

    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.

    …

34. In warning a jury, a judge should convey why the fact that the evidence is unsworn requires them to exercise caution.[1]  In R v J, AP,[2] Peek J said that it is necessary to make clear the reason why there is a significant difference in the weight to be attached to the giving of sworn and unsworn evidence:[3]

    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”.

    [1]    R v Lomman (2014) 119 SASR 463 at [41]-[43] (Sulan J).

    [2] (2012) 113 SASR 529.

    [3] (2012) 113 SASR 529 at [106].

35. Section 13BA of the Act provides that the Court may order that the evidence of a witness may be admitted in the form of an audio visual record. Section 13BA(3)(b) requires a judge to be satisfied, before admitting such evidence as to the witness’ capacity to give sworn or unsworn evidence at the time the recording was made. Section 13(6) of the Act requires the judge to explain and warn the jury about the presentation of evidence in audio visual form as follows:

    (6)If a court admits evidence in the form of an audio visual record under this section, the judge must—

    (a)     explain to the jury that the law allows the court to admit evidence in this form; and

    (b)     warn the jury—

    (i)not to draw from the admission of evidence in that form any inference adverse to the defendant; and

    (ii)not to allow the admission of evidence in that form to influence the weight to be given to the evidence.

    The directions before each witness gave unsworn evidence

36. The prosecutor, during her opening, explained to the jury that EV would be the first witness in the trial and that “the first portion will be the” recorded interview.

37. Following the tendering of the recorded interview as Exhibit P1, the Judge explained the DVD of the interview would be played.  He also explained that the evidence the jury saw on the screen “is the evidence which constitutes the evidence P1” not the transcript of the interview the jury had received as an aid in following the recorded interview.

38. The Judge then gave a direction regarding the unsworn evidence of EV in the following terms:

    Ladies and gentlemen of the jury, the evidence that you are about to hear from the complainant, [EV], is given in a form that is not sworn but nor is it affirmed.  It is called unsworn evidence.  I have a discretion under the Evidence Act to allow you to receive evidence in this form in particular circumstances, ones where I am satisfied the witness is not necessarily able to understand the seriousness of the oath or affirmation or, for example, the consequences of breaking it.  A 10-year-old child is in such a position.  It might be different for a 13-or-14-year-old child but a 10-year-old child is such a person whom I am satisfied is not able to understand the seriousness of the affirmation or the consequences of breaking it.

39. The appellant complained that, in giving this direction about unsworn evidence, the Judge appeared to move immediately to a direction about the admission of evidence pursuant to s 13BA(6) of the Act when he said:

    In so doing, I am required to warn you not to draw from the admission of the evidence in that form any inference adverse to the defendant and not to allow this admission of evidence in that form to influence the weight to be given to the evidence.

40. Prior to EV giving oral evidence, defence counsel requested that the Judge give the jury a warning pursuant to s 9(4)(b) of the Act regarding the need for caution in determining whether to accept the unsworn evidence and the weight to be given to it. The Judge then gave the following direction:

    You are about to hear some oral evidence given by [EV].  The oral evidence is in the form of unsworn evidence.  A witness may give unsworn evidence if I determine that the witness does not have sufficient understanding of the obligation to be truthful in giving sworn evidence.  That means that, for example as in this case, the person is so young that the witness may not understand what might be entailed and the effect of not being truthful about that evidence in the context of what effect it would have if she didn’t give sworn evidence.  The law recognises in these sorts of situations – as I explained to you yesterday, some of this is a repeat of what I said to you, this is slightly different in that there will be oral evidence given to you today.

    I am required to tell you the reason why the evidence is unsworn, because I form the view that [EV] is too young to clearly understand the obligations that are carried with sworn evidence or affirmed evidence, the usual way that a witness would give that evidence.  I have satisfied myself of that and I am satisfied that she is able to give unsworn evidence.  There are two steps there.  I am satisfied of the first and I am satisfied she is able to give unsworn evidence.

    I am also required to tell you that you need to exercise caution in determining whether to accept this evidence and the weight to be given to it.  That’s a matter for you.  It’s unsworn evidence, it’s a question of you determining whether to accept the evidence and the weight to be given to it, and that’s the matter that I have to cover with you under the relevant provisions.

41. The appellant made three criticisms of this direction given.  First, he contended that it was not accurate to say that EV may not understand what might be entailed in the obligation to give truthful evidence; rather, the Judge had made a determination that she did not understand the obligation.

1. Second, the appellant was critical of the Judge’s statements that he was “required” to tell the jury that they needed to exercise caution and that he “had to cover” those matters with the jury under the relevant provision.  It was submitted that the use of this language had the tendency to suggest to the jury that the Judge would not have referred to these matters at all had he not been required to and he was only doing so as a matter of formality.

2. The appellant argued, citing Peek J in R v J, AP,[4] that he was entitled to such a warning with the full weight of the Judge’s office behind it.  In R v J, AP, references to “being obliged” and “required” by the legislation to give a warning were found to might “well be interpreted by the jury as whittling down the warning”.[5]  Justice Peek said:[6]

   [4] (2012) 113 SASR 529.

   [5]    R v J, AP (2012) 113 SASR 529 at [118] (Peek J).

   [6]    R v J, AP (2012) 113 SASR 529 at [112] – [119] (Peek J).

   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:

   … 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. …

   In R v Leak the Court of Criminal Appeal (Bray CJ, Hogarth and Walters JJ) stated:

   … 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.

   And in R v Powell, 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.

   …

   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.

   (Citations omitted)

3. The third criticism made by the appellant is that the direction did not adequately explain the reasons why the jury needed to be cautious in assessing EV’s unsworn evidence.  According to appellant, the direction did not, in accordance with the requirement in R v French,[7] convey that EV had failed to demonstrate that she understood that the taking of an oath or affirmation creates an obligation which goes beyond the moral obligation to tell the truth in day-to-day life.  In R v French, Sulan J (with whom Gray and White JJ agreed) said that a judge, in explaining to the jury the reason that evidence is unsworn in compliance with s 9(4)(a) of the Act should, before the witness gives evidence and again in summing up:[8]

   ·direct the jury that he or she has determined that the witness does not have a sufficient understanding of the obligation of giving evidence on oath or affirmation.  That is, that the person does not understand the solemnity attaching to the taking of an oath or affirmation;

   ·explain to the jury that the witness has failed to demonstrate that he or she understands that the taking of an oath or affirmation creates an obligation which goes beyond the moral obligation to tell the truth in day-to-day life;

   ·make it clear that, in permitting the witness to give unsworn evidence, he or she is satisfied that the witness understands the difference between truth and a lie; and

   ·explain that he or she has told the witness that it is important to tell the truth, and the witness has indicated that he or she will be truthful.

   [7] (2012) 114 SASR 287.

   [8]    R v French (2012) 114 SASR 287 at [35] (Sulan J).

4. The appellant contended that it was not sufficiently conveyed to the jury that EV’s evidence was unsworn because she had an insufficient understanding of the obligation to be truthful required to give sworn evidence or the consequences of the failure to do so.  The appellant submitted that the jury needed to understand that the evidence was of a witness who had only informally promised to tell the truth and who had insufficient understanding of what is involved in giving sworn evidence.

5. The jury were also given the following direction by the Judge before TW and SW gave their unsworn evidence:

   The next two witnesses are [TW], who is nine years of age, and [SW], who is eight years of age.  I have determined that both [TW] and [SW] are persons, because of their age, who do not have — and I’m satisfied of this — do not have sufficient understanding of the obligations to be truthful entailed in giving sworn evidence and I have decided to permit them to give unsworn evidence having made that decision.

   The reason why I allow them to give unsworn evidence is because of my determination that I have just spoken to you about, and I warn you again that in relation to both witnesses you will need to exercise caution in determining whether you accept the evidence given by each of the girls and in respect of each, the weight to be given to that evidence.  It is unsworn evidence and therefore you must exercise caution in determining whether to accept the evidence and the weight to be given to it.

6. The appellant complained that this direction also did not contain sufficient information, in accordance with R v French,[9] to explain to the jury why TW and SW were permitted to give unsworn evidence. 

   The directions during the summing up

   [9] (2012) 114 SASR 287.

7. The appellant contended that the direction about the unsworn evidence given during the summing up again morphed into a s 13BA(6) warning when the Judge said:

   [21]It is important that I again give you a special direction about the use of unsworn evidence that has been given by [EV] and [TW] and [SW].

   [22]There is first a need to give you the same direction on the initial taped evidence of [EV], having previously given it to you just prior to you hearing that evidence.  This involves the evidence given on video; that is, the video recording of [EV].  You will recall that the first part of her evidence was given through a pre-recorded interview with Detective Shepheard.  As I explained to you, at the time the law allows the court to receive evidence in this form and in doing so I need to give you two specific directions.  The first is that you are not to draw from the admission of evidence, in that form, any inference adverse to [Mr K], the accused.

   [23]The second is that you are not to allow the admission of evidence in that form to influence the weight to be given to the evidence of [EV].  You must assess her evidence in the same way as for any other witness, recalling always that she gave unsworn evidence.

8. While the appellant accepted that a s 13BA(6) warning was required in relation to the admission of the recorded interview, he contended that the fact the warning about unsworn evidence was followed immediately by the warning about the audio visual record would have confused the jury. This is because, in the appellant’s submission, the warning regarding the need for caution in relation to unsworn evidence and the weight to be given to it cannot be easily correlated with the s 13BA(6) warning stipulating that the admission of the evidence in recorded form is not to influence the weight to be given to that evidence. It was the appellant’s contention that the jury had to be carefully and separately directed regarding the weight to be given, firstly, to the unsworn evidence and that to be given to the recorded evidence. To give directions about both matters essentially “under the same heading”, in the appellant’s submission, is fraught with danger.

9. The next direction the appellant took issue with in the summing up is the direction defence counsel had requested regarding the need for scrutiny of EV’s evidence.  Prior to the summing up, counsel asked the Judge:

   Your Honour, I’m not asking for your Honour to warn that it is unsafe for the jury to convict, the history of this section is that it used to be in cases involving the uncorroborated evidence of a child that the court could give a direction to the jury that it would be unsafe to convict without some confirmation. The direction that I am seeking is one that is often given in these cases and it does not impinge s 12A, that is that they should scrutinise her evidence with care and bring it home to the jury that really the prosecution case, whether it’s what they have seen on the video or heard from [EV] or even complaint witness, really comes from one source. I didn’t mean to suggest your Honour gives any direction that infringes s 12A.

10. It was submitted that although defence counsel did not mention s 9(4)(b) of the Act specifically in requesting the direction, it would appear, by reference to the direction given, that the Judge understood the application for a direction to scrutinise the evidence as a request for direction pursuant to s 9(4)(b) of the Act. The Judge directed as follows:

    [24]You will also remember that before [EV], [TW] and [SW] gave their oral evidence I explained to you that I had conducted an inquiry and determined that they did not have a sufficient understanding of the obligations of giving evidence on oath or an affirmation so as to give evidence in that way.  I determined, nevertheless, that they could give unsworn evidence.  I said I will give you a complete direction.  That is what I am doing now.

    [25]Before [EV] gave her oral evidence and [TW] and [SW] gave their oral evidence, I went and spoke to them and I asked them a series of questions.  I came to the conclusion that they did not have a sufficient understanding of what is involved in giving evidence on oath or affirmation.  That is, they did not really understand the solemnity attaching to the oath or affirmation.  That obligation means more than simply telling the truth.  It involves an understanding of what it means to be bound by an oath or affirmation in court.  Unsurprisingly, given their age and you saw how very young they were, they did not really have that understanding.  They are, as you have seen, very young children.  However, I then asked them other questions as required of me by the Evidence Act.  Those questions were directed to see if they knew the difference between the truth and a lie.  From their answers I was satisfied that they did understand that difference.  In addition, I told them that it was important for them to tell the truth if they were permitted to give unsworn evidence.  Finally, I asked them to indicate to me that if they were permitted to give unsworn evidence that they would be truthful in their answers.  They said that they would be truthful.  Now, those are very important requirements of the Evidence Act and, as a result of the answers of each, as too the three of them, I came to the conclusion that they should be permitted to give unsworn evidence and you will remember they all did so.

    [26]There is a further important provision in the Evidence Act on this topic. In view of the fact that [EV], [TW] and [SW] have given unsworn evidence I warn you of the need for caution in determining whether to accept their evidence and the weight to be given to it. That is because their evidence was unsworn for the reasons I have explained to you.

11. The appellant submitted that although framed in terms of s 9(4)(b) of the Act, the direction was inadequate to satisfy the requirements of that section and address the principles articulated in R v French in relation to the unsworn evidence of the three child witnesses.

12. The appellant’s substantive complaint in relation to this direction is that the Judge ought to have, but did not, relate the s 9(4)(b) warning to the evidence.[10] The appellant submitted that s 9(4)(b) requires that the Judge explain to the jury the reasons why there is a difference in the weight to be attached to sworn and unsworn evidence. The appellant contended the direction did not convey to the jury that the evidence was not given by witnesses who understood the solemnity of giving evidence in court and who were aware of the consequences of failing to be truthful. Rather, it was given by children who failed to demonstrate an understanding that the taking of the oath creates an obligation that goes beyond the moral obligation to tell the truth in everyday life.

    [10] R v J, AP (2012) 113 SASR 529.

13. The appellant submitted that it was not enough for the Judge to simply recite the terms of the legislation.  The jury should have been directed not only that there was a need for caution in determining whether to accept the witness’ evidence and the weight to be given to it, but also the reasons that there was a need for caution.  In the appellant’s submission, the jury should have specifically been told they needed to be cautious because the evidence given by all three witnesses emanated from one source, namely EV, that there was no other supporting evidence such as forensic or medical evidence, and that the prosecution case depended entirely on the credibility and reliability of EV.  The Judge could have, in the appellant’s submission, told the jury that there were indications that EV might not be credible or reliable about critical issues, and provided the example of her evidence that she was nine when the shower incident occurred, when she had told police it occurred when she was eight.

14. The appellant complained that the Judge did refer to the absence of other independent evidence that could corroborate EV’s evidence,[11] but did so in a way that would have confused the jury by referring to the prohibition against warning that it is unsafe to convict on a child’s uncorroborated evidence pursuant to s 12A of the Act.

    The Director’s submissions

    [11] R v J, AP (2012) 113 SASR 529 at [103].

15. The Director submitted that the Judge did comply with the requirements of s 9 of the Act and that there has been no miscarriage of justice.

16. It was submitted that the Judge’s warning in his summing up at [26], set out at [51] of these reasons, about the need for caution in assessing the unsworn evidence, which concluded with the words “for the reasons that I have just explained to you”, must be read in conjunction with the preceding paragraph, [25].  Paragraph [25] contained a comprehensive explanation of why the evidence of EV, TW, and SW was unsworn.  The Judge explained to the jury that he had questioned the children and their answers led him to conclude that each child did not understand the solemnity attaching to the oath or affirmation, which involved more than the obligation to tell the truth.  The Director contended that the reasons set out in paragraph [25] put in context the direction that there was a need for caution because the evidence was unsworn.

17. The Director maintained that the jury could not have misunderstood that caution was required when assessing the unsworn evidence, because the Judge explained that EV, TW, and SW did not understand the solemnity attaching to the oath or affirmation and what it meant to be bound by an oath or an affirmation in court, which is an obligation that means more than simply telling the truth.

    Proposed ground 2 — the Judge gave confusing and inadequate directions regarding corroboration

18. The appellant asserted that the direction given by the Judge in respect of corroboration was confusing and inadequate.  It was submitted that the direction discussing corroboration was also made in response to defence counsel’s request for a direction, referred to above, that the jury scrutinise the complainant’s evidence with care.  The Judge gave the following direction:

    [100]The evidence concerning the alleged offence and the source of the complaint is from one source only; namely, [EV].  In saying that, I am in no way disparaging that evidence.  But a matter for you to take into consideration is that there is no other independent evidence that could corroborate the evidence of [EV] such as forensic evidence in one form or another, including DNA evidence.  It is therefore necessary for you to scrutinise that evidence with care because the evidence led by the prosecution about the alleged offence is from one child between perhaps five and eight and who is now aged 10.  When I give that age between five and eight, that is the potential age range of [EV] at the time that the offences are alleged to have occurred.  You are to understand that this is not a direction that the evidence of the child witness requires to be corroborated.  The Evidence Act forbids that approach.  Here, I am directing the act of the alleged offence and the complainant’s memory is a matter that you may take into account in consideration of the charged offence.

19. While the Judge referred to the absence of other independent evidence that could corroborate the complainant’s evidence, the appellant submitted that the introduction immediately thereafter of a direction that the Act prohibited warnings that it is unsafe to convict on a child’s uncorroborated evidence would have confused the jury. It was submitted that the Judge should have emphasised to the jury that the evidence of TW, SW and EV’s mother was only evidence that EV told other people.

20. The appellant contended that the conviction is based entirely on the unsworn evidence of EV, who was between six and eight years old when the alleged offending occurred.  The appellant asserted that the Judge’s failure to adequately direct in relation to the unsworn evidence and the absence of independent evidence where the prosecution case rose and fell on EV’s evidence has led to a miscarriage of justice.

    The Director’s submissions

21. The Director submitted that the impugned direction in paragraph [100] of the summing up correctly brought home to the jury the fact that proof of the charge depended solely on the truth and accuracy of EV’s evidence and that, therefore, they should scrutinise it with care.

22. The Director pointed out that the words used by the Judge alerted the jury to the reasons why they needed to scrutinise EV’s evidence.  The Judge explained that:

    1evidence of the alleged offence and the source of the complaint came only from one source, that is EV’s evidence;

    2EV’s evidence was uncorroborated by independent evidence, for example, by DNA or other forensic evidence;

    3EV was a child of 10 years at the time that she gave her evidence; and

    4EV gave evidence of events that occurred when she was aged between five and eight years old.

23. It was submitted that it was important for the jury to know why they should scrutinise EV’s evidence with care.  However, in the Director’s submission, linking the direction to the fact that there was no independent support for her account, without further explanation, might have led a jury to believe that the law required her account be corroborated or that the lack of corroboration had a greater legal significance than it did.  The Judge’s reference to the approach forbidden by “the Evidence Act” did no more than take the fact that EV’s evidence was not corroborated and put it into its proper context.  Read in its entirety, the direction served to explain to the jury that corroboration of EV’s evidence was not required as a matter of law but that the jury should nevertheless scrutinise that uncorroborated evidence with care.

1. It was submitted that the matters which might be thought to give rise to the need for particular scrutiny of the evidence of EV would have been obvious to the jury.  Those matters were referred to in the addresses of counsel and by the Judge in his summing up.  The prosecutor, in her closing address, acknowledged that proof of the charge relied upon the evidence of EV and encouraged the jury to scrutinise her unsworn evidence with great care.  It was also submitted by the prosecutor that EV’s account was able to withstand close scrutiny and that the jury could be satisfied that she had given a truthful and reliable account of the charged conduct.

2. The jury was also told of the significant forensic disadvantage to the appellant that was occasioned by the delayed complaint, which they needed to take into account when scrutinising the evidence for the prosecution.  The Judge also alerted the jury to matters that had the potential to affect the reliability and credibility of EV’s evidence: for example, her prior inconsistent statements.

   Analysis

3. In considering this matter, I have read the entirety of trial transcript and viewed the recorded interview and the recorded police interview of the appellant after his arrest. 

4. It is of significance that no complaint or concern was raised with the Judge regarding any confusion or inadequacy in the directions given during the trial or the summing up.  As the majority in Perara-Cathcart v The Queen noted,[12] the absence of an application by defence counsel for a further direction “affords some practical indication that the trial judge, whose task was to direct the jury only as to so much of the law as they needed to know to resolve the real issues in the case, succeeded in that task”.[13]

   [12] (2017) 260 CLR 595: In that case the Court, in determining an appeal from this Court, considered a ground of appeal that a direction regarding the permissible and impermissible uses of discreditable conduct evidence was not given.

   [13] (2017) 260 CLR 595 at [60].

   Ground 1

5. The first direction regarding EV’s unsworn evidence given prior to the jury viewing the recorded interview referred to jury being about to hear EV’s evidence “given in a form that is not sworn but nor is it affirmed”.  The direction, as set out at [38] of these reasons, was incomplete. It did not make clear that, in permitting EV to give unsworn evidence, that the Judge was satisfied that she understood the difference between truth and a lie.  It also did not explain that the Judge had told EV that it is important to tell the truth, and that EV had indicated that she would be truthful.[14]

   [14] R v French (2012) 114 SASR 287.

6. This direction is followed by an incomplete s 13BA(6) direction regarding the admission of the recorded interview as EV’s evidence. The direction, without introducing the topic of the admission of the recorded interview or referring to the recorded interview, warned the jury “not to draw from the admission of the evidence in that form any inference adverse to the defendant and not to allow this admission of evidence in that form to influence the weight to be given to the evidence”. The direction did not make clear that the admission of the evidence in that form in this context meant in the form of the audio visual record of interview.

7. The directions given prior to EV giving evidence in person and prior to TW and SW giving evidence also did not explain that in permitting the children to give unsworn evidence, that the Judge was satisfied that they understood the difference between truth and a lie.  The directions also did not explain that the Judge had told each child that it is important to tell the truth, and that each child had indicated that she would be truthful.

8. The directions given before each child gave evidence did, however, make clear that the evidence was unsworn because each child witness did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, pursuant to s 9(4)(a) of the Act.

9. The directions also explained to the jury that the Judge had formed the view that each child did not understand the obligation to be truthful attaching to sworn or affirmed evidence and that he had satisfied himself that each could give unsworn evidence.

10. The Judge also, before each child gave evidence in person, in accordance with s 9(4)(b) of the Act, directed the jury that they should exercise caution in determining whether to accept the evidence, and the weight to be given to it, because it was unsworn evidence.

11. On my reading, the deficiencies I have referred in the directions given before the jury viewed the recorded interview and before each child gave evidence were obviated by the clear, distinct and complete directions given in the summing up.

12. The Judge said to the jury during the summing up that he needed to again give a special direction “about the use of the unsworn evidence” of EV, TW, and SW. Before giving the unsworn evidence direction, the Judge said he needed to direct the jury regarding the admission of the recorded interview as evidence. His Honour said, “There is first a need to give you the same direction on the initial taped evidence of [EV], having previously given it to you just prior to you hearing that evidence”. The Judge gave the s 13BA(6) warning, explaining that the law allowed the Court to receive EV’s evidence “in this form”. It is clear that this is a reference to the “form” of the “initial taped evidence of [EV]”. The Judge then gave “two specific directions” regarding the recorded interview:

    [22]… The first is that you are not to draw from the admission of evidence, in that form, any inference adverse to [Mr K], the accused.

    [23]The second is that you are not to allow the admission of evidence in that form to influence the weight to be given to the evidence of [EV].  You must assess her evidence in the same way as for any other witness, recalling always that she gave unsworn evidence.

    (Emphasis added)

13. The Judge then proceeded to clearly and distinctly, in [24] and [25], direct the jury regarding the reasons why the evidence of EV, TW, and SW was unsworn.  The Judge explained that he had ascertained, having questioned each child, that each knew the difference between the truth and a lie, that he had told each child it was important that she tell the truth and that each child had agreed she would be truthful in her answers.  He explained in [26] that it was “because their evidence was unsworn for the reasons” articulated in [25] that the jury needed to exercise caution in assessing the unsworn evidence.

14. Having regard to directions given prior to each child giving evidence in person together with the directions given during the summing up the jury could not have misunderstood that caution was required when assessing the unsworn evidence.  Nor could they have misunderstood that caution was required because EV, TW and SW did not understand what it meant to be bound by an oath or an affirmation in court, which is an obligation that means more than simply telling the truth.

15. The jury were directed correctly and appropriately regarding the unsworn evidence of EV, TW, and SW and the need for caution in assessing its reliability and credibility.  No miscarriage of justice has resulted.

16. I would dismiss ground 1.

    Proposed ground 2

17. Whilst there is no prescribed wording to be used by a judge when directing a jury to scrutinise a witness’s evidence, s 12A of the Act forbids a judge from warning the jury that it is unsafe to convict on a child’s uncorroborated evidence, except when there are cogent reasons to doubt the reliability of the particular child’s evidence.

18. The Judge clearly directed the jury in his summing up at [100], set out at [59] of these reasons, that EV, who was 10 years old at the time of trial and aged between five and eight years at the time of the relevant events, was the sole source of evidence of the alleged offence and the complaint.  He pointed out that there was no other independent evidence, such as DNA, that could corroborate EV’s evidence and the jury should therefore scrutinise her evidence with care.

19. The Judge then proceeded to tell the jury that they were to understand that he was not directing them that the evidence of the child witness requires corroboration.  He added that “the Evidence Act forbids that approach”.

20. The appellant complained that the comment about the Act forbidding that approach was likely to confuse the jury and undermine the earlier direction to scrutinise EV’s uncorroborated evidence with care.

21. In my view, the inclusion of the sentence “The Evidence Act forbids that approach” was unnecessary.  Whilst it was superfluous and not of assistance to the jury, having regard to the whole of the direction in the context of the entire summing up, there is no risk that the jury could have been confused or misled about how they should approach the task of scrutinising EV’s unsworn, uncorroborated evidence and determining whether they accepted it and whether it led them to be satisfied of the appellant’s guilt beyond reasonable doubt.

22. I find the evidence given by EV graphic and compelling.  The matters requiring the scrutiny of the jury were appropriately brought to their attention and in the context of the whole of the summing up were, on my assessment, adequate.  No miscarriage of justice has resulted.

23. I would refuse permission to appeal on proposed ground 2.

    Conclusion

24. I would dismiss the appeal.