SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LOMMAN
[2014] SASCFC 55
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Peek)
3 June 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - INDECENT
CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - PARTICULAR PERSONS AND MATTERS - CHILDREN
Appeal against conviction on one count of aggravated indecent assault. Alleged that appellant touched the complainant on the vagina. The complainant was four years and ten months of age at the time. Evidence of complaint made by the complainant to the three family members and the psychologist admitted at trial. Complainant gave unsworn evidence at trial.
Whether the trial Judge failed to adequately warn the jury that the prosecution case depended entirely on the truth and reliability of the complainant’s account to each witness, notwithstanding that the admission of the statements made to various witnesses by the complainant as evidence of their truth. Whether the trial Judge erred in his consideration and directions to the jury in relation to the complainant’s unsworn evidence. Whether the trial Judge failed to warn the jury that it is unsafe to convict the appellant on the complainant’s uncorroborated evidence pursuant to s 12A of the Evidence Act 1929 (SA), following a request from defence counsel. Whether the verdict of guilt is unreasonable and cannot be supported having regard to the evidence.
Held (Sulan J, Kourakis CJ and Peek J agreeing, allowing the appeal):
1. In the circumstances here, the directions made it clear that the prosecution case relied entirely on RCR’s account to the various witnesses. The statements made by the complainant to each of the witnesses related directly to the alleged offence and it was open to the jury to consider the extent to which those statements were consistent or inconsistent in assessing how much weight was to be given to that evidence.
2. Having conducted an inquiry and determined that the complainant did not have a sufficient understanding of the obligations to be truthful entailed in giving sworn evidence, the Judge determined that the complainant could give unsworn evidence. The Judge was then required to explain to the jury the reason why the evidence of the complainant was unsworn, namely that the Judge had determined that she did not sufficiently understand the solemnity and importance of the occasion of taking an oath or affirmation.
3. Further, having been requested to do so, the Judge was required to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. The Judge failed to warn the jury in sufficiently clear terms why the fact that the evidence was unsworn should make the jury cautious when…
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- R v Lomman [2014] SASCFC 55
- Case
- [2014] SASCFC 55
- Decision Date
CaseChat Overview and Summary
The appeal concerned a conviction for indecent assault. The defendant, Lomman, appealed his conviction on several grounds, with his primary submission being that the trial judge erred in his consideration and directions to the jury regarding the unsworn evidence of the complainant, RCR. The alleged offending occurred when RCR, a child, was playing in the defendant's bedroom. RCR later made statements to her stepmother, father, and mother, as well as to a psychologist, alleging that the defendant had touched her "lady bits". The trial judge determined that RCR did not possess a sufficient understanding of the obligation to be truthful when giving sworn evidence and therefore permitted her to give unsworn evidence.
The central legal issue before the appellate court was whether the trial judge's directions to the jury concerning RCR's unsworn evidence were adequate and complied with the requirements of the *Evidence Act 1929* (SA). Specifically, the court had to consider if the judge correctly explained the reason for the unsworn evidence and whether the jury was adequately cautioned about the need for caution in assessing its weight and reliability, as required by section 9 of the Act. The appeal also implicitly raised questions about the proper application of section 9 in determining a child witness's understanding of the obligation to be truthful and the subsequent directions to the jury.
The appellate court, comprising Kourakis CJ, Sulan and Peek JJ, allowed the appeal. The court found that while the trial judge had correctly determined RCR's capacity to give unsworn evidence and had explained the general reasons for this, his directions to the jury were insufficient. The judge had explained the different ways witnesses could give evidence (sworn, affirmed, or unsworn) and had stated that RCR's unsworn evidence was permitted because she did not understand the obligation to swear on the Bible and had been satisfied that she understood the difference between truth and lies and promised to tell the truth. However, the judge failed to adequately convey to the jury the specific warning required by section 9(4)(b) of the *Evidence Act*, which mandates a warning about the need for caution in accepting unsworn evidence and the weight to be given to it, particularly when requested by a party. The court concluded that this failure constituted a misdirection, necessitating a retrial.
The central legal issue before the appellate court was whether the trial judge's directions to the jury concerning RCR's unsworn evidence were adequate and complied with the requirements of the *Evidence Act 1929* (SA). Specifically, the court had to consider if the judge correctly explained the reason for the unsworn evidence and whether the jury was adequately cautioned about the need for caution in assessing its weight and reliability, as required by section 9 of the Act. The appeal also implicitly raised questions about the proper application of section 9 in determining a child witness's understanding of the obligation to be truthful and the subsequent directions to the jury.
The appellate court, comprising Kourakis CJ, Sulan and Peek JJ, allowed the appeal. The court found that while the trial judge had correctly determined RCR's capacity to give unsworn evidence and had explained the general reasons for this, his directions to the jury were insufficient. The judge had explained the different ways witnesses could give evidence (sworn, affirmed, or unsworn) and had stated that RCR's unsworn evidence was permitted because she did not understand the obligation to swear on the Bible and had been satisfied that she understood the difference between truth and lies and promised to tell the truth. However, the judge failed to adequately convey to the jury the specific warning required by section 9(4)(b) of the *Evidence Act*, which mandates a warning about the need for caution in accepting unsworn evidence and the weight to be given to it, particularly when requested by a party. The court concluded that this failure constituted a misdirection, necessitating a retrial.
Orders
Orders of the court
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Background
Background to the litigation
The defendant relies on various grounds of appeal which I shall particularise later in these reasons. His primary ground of appeal is that the trial Judge erred in his consideration and directions to the jury in relation to RCR’s unsworn evidence.Background The alleged offending occurred in October 2012 when RCR and her parents visited the defendant’s parents’ home. During the afternoon, RCR and the defendant were playing in the defendant’s bedroom. RCR’s stepmother walked past the bedroom and observed the defendant leaning over and kissing RCR on the lips. Later, she took RCR to her car to change into warmer clothes. RCR told her, “David touched my lady bits”. RCR then spoke to her father. He confronted the defendant and asked him if he was playing with his daughter. The defendant denied the allegation. In response to RCR’s father saying, “I had better not find out that you have”, the defendant said, “Okay, I am sorry”. The statements made by RCR were later relied upon by the prosecution for the truth of their contents. RCR’s mother was informed of the allegation. That evening, she met RCR’s father and stepmother at the Angle Vale Shopping Centre. She spoke to RCR in the absence of other adults. RCR told her that the defendant had kissed her and had been touching her “lady bits”. RCR was interviewed by a psychologist on 9 and 15 October 2012. All the statements made to relatives and to the psychologist were admitted and relied upon for the truth of their content.[2][2] Evidence Act 1929 (SA), s 34CA. Those statements included the allegation that the defendant “touched me on my lady bits”. The Judge determined that RCR did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. He permitted RCR to give unsworn evidence. RCR was cross-examined. During the interview on 9 October 2012, the following questions were asked by the psychologist and responses given:QDo you know the difference between the truth and a lie?AMmm.QWhat does that mean, yes or no?AYes or no.QDoes that mean yes or no, that’s a question.ANo.QYou don’t know the difference between the truth and a lie.AMmm.QOkay so.AThe .......QThe bed?AYeah.QOkay. So a truth is something that really happened whereas a lie is something that doesn’t really happen or hasn’t happened. So if I said that there was a really big pink elephant in this room, would that be a truth or a lie?AA lie.QThat’s right and if I said that you’re wearing purple pants, is that a truth or a lie?ATruth.QThat’s right because it’s really there, and it really happened.AMmmQSo can we both say that a truth is something that really happened and a lie is something that hasn’t happened? Yes? Does it make sense? No. Should I say it again? No okay.AWe have to put the blanket on. During the interview, there were no questions or answers directed to the specific allegations in this case. At the subsequent interview on 15 October 2012, RCR identified various parts of her body. She identified her vaginal area as “lady bits”. She was asked:QOkay, okay I just need you to help me here. You know how you said this is the lady bits of the girl.AYeah.QHas anyone ever touched your lady bits?AUm David.QDavid, who’s David?AUm he’s my best friend.QHe’s your best friend?AI can’t say any more though.QWhy not?ACos.QCos?AIt’s boring.QIt’s boring I know but I just need you to help me here. So when did David touch you on your lady bits?AWhen we, when we were there. Watch this.QWho were you there with?AJosh.QYou were there with Josh, who else was there?A.......do this.QWho else was there when David touched you on your lady bits?AJust help me out here alright.QUhuh.AHelp me out.QI am helping you out. I need you to help me out too though. So you said Josh was there when David touched you on your lady bits. Who else was there?AWhere is that? There? There, there, there.QUhuh.ADoesn’t go there.QDo you remember whose house you were in when Josh, David I’m sorry, touched you on your lady bits?AErr Pauline’s.QYou were at Pauline’s house when David touched you on your lady bits.AYeah.QOkay. Who’s Pauline? Not sure. Are you not sure, can you not remember or something else?AI cannot remember.QOkay. Do you remember if it was day time or night time?ANight time.QOkay. Do you remember where you were when David touched you lady bits?ANo can’t remember.QCan’t remember. Okay. Do you remember what you were wearing when David touched your lady bits?ANo.QDo you remember what David was wearing when he touched your lady bits?ANo.QOkay.ANo, no, no, no, everything no.QEverything no. Really? Is that the truth or is that a bit of a fib?ATruth.QOkay. I just need you to help me out here, it’s really important.ACan you help me do this puzzle, I can’t do it.QOkay I will help you if you help me as well. Has David touched your lady bits once, more than once or something else?ASomething else.QSomething else. Has David touched your lady bits more than one time?AJust one time.QJust one time. How did it make you feel when David touched our lady bits?AHappy but I said get out.QHappy but you said get out.AYeah.QDid David listen?ANo.QWhat happened?ACan’t remember. .......QCan’t remember.AHave you got another blue bit?QCan you remember what you were doing before it happened?ANo. Where can it go?QIt’s okay let’s do it slowly together.AI don’t do it slow.QIt’s okay we can both do it slow. Is a bit hard this one.AI’m doing this one.QOkay.AThis one’s easy.QAlright let’s do that one.AEasier. Why is this going down?QPardonAWhy is this going down?QIt is a bit crooked that’s why. Where were you when David touched your lady bits?AAww, I don’t know.QWhat did you do after it happened? Did you tell anyone that it happened? What was that, a yes, a no or something else?ANo.QOkay.ASee.....stays there, car there...QOkay. When David touched your lady bits was that on top of your pants, inside of your pants or something else?AInside my pants.QOkay was it on top of your knickers, inside your knickers or something else?AInside my knickers....QWe can cos we’re both clever. Okay so when David touched your lady bits inside of your knickers, was that on top of your lady bits or was it in your lady bits or something else?AInside, it out my lady bit.QI don’t quite know what you mean. Can you, so was it on top of your lady bits or inside your lady bits?ALet’s play. I don’t wanna ask questions.QIt’s really important that you help me out though. Can you tell me what he touched your lady bits with?AA hand.QA hand.AHis hand I mean.QHis hand.AYeah his hand.QHis hand. Did it go inside of your lady bits or outside of your lady bits or something else?ASomething else.QOkay.AI can get down from here.QYou can get down from here. Did David tell you anything when he was doing it to you?AAhh. Don’t even think about it.QIs that what he said?ANo.QNo.AI want to say it.QYou wanted to say it to him.AYep.QUh hmm and then what happened?ANothing.QDid anyone else see it?ANo just me.
Evidence
Evidence Before The Court
Section 9 provides as follows:[5][5] Evidence Act 1929 (SA), 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.... The trial Judge conducted an inquiry and determined that RCR did not have a sufficient understanding of the obligations to be truthful entailed in giving sworn evidence. Having made that determination, the Judge was required to explain to the jury the reason why the evidence of RCR was unsworn. Further, having been requested to do so, the Judge was required to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. The trial Judge directed the jury that witnesses can given evidence in one of three ways. First, on oath, that is, the witness takes up the Bible and swears to tell the truth. Second, by making a solemn affirmation. He directed the jury that persons who have no belief in the Bible and God are permitted to make what is called an affirmation. Third is by unsworn testimony. He directed the jury that if a 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 the Judge is satisfied that the witness understands the difference between the truth and a lie, the witness is instructed that it is important to tell the truth, and the witness indicates that he or she will tell the truth. He directed the jury in the following terms:[RCR] gave unsworn evidence. In the case of very young children, members of the jury, that is not unusual. The reason that she was permitted to give unsworn evidence was because, in answer to questions by myself in your absence before the trial began, it was clear to me that religion and God were no part of her life, that she knew nothing about the Bible and, in particular, she did not know or understand what it meant to swear on the Bible. You may think that there are some adults who would be in the same position. Also, I took the view that asking her ‘to solemnly and truly affirm’ would be an arid exercise.However, I permitted her to give evidence which was not sworn upon being satisfied, after the questioning that I have mentioned, that she knew the difference between the truth and a lie, that she appreciated that it was important to tell the truth and that she promised to tell the truth. Accordingly, that is why she did not swear on the Bible, as other witnesses in this case have done, or make an Affirmation.I need to tell you that in all the inquiries that I made to determine in what manner [RCR] could give her evidence, I have not come to any conclusion about the ultimate question, that is, whether she would, in the end, be truthful about this matter. That was not my task. It is solely your function to decide whether she has done what she promised that she would do, namely, to tell the truth in this case. What I did in allowing her to give unsworn testimony was not to decide whether or not what she had to say about the events, the subject of the charges, was likely to be true and reliable because that is your function.
Decision
Reasons for decision
PEEK J
I would refuse permission to appeal on this ground.Conclusion For the reasons given, I would allow the appeal. I would set aside the conviction and order that the case be remitted to the District Court for retrial I would allow the appeal and order a retrial. I agree with the reasons of Sulan J. I also agree with the further observations of the Chief Justice
Ratio Decidendi
Legal Principle Established
Established by: PEEK J
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