R v Lomman
[2014] SASCFC 55
•3 June 2014
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 deciding whether to accept it.
4. The complaints about the complainant’s evidence do not amount to compelling reasons for requiring the Judge to give a warning, pursuant to s 12A of the Evidence Act 1929 (SA).
Criminal Law Consolidation Act 1935 (SA) s 56; Evidence Act 1929 (SA) ss 34CA, 9, 12A, referred to.
R v J, JA (2009) 105 SASR 563; Andrews v Armitt (1971) 1 SASR 178; R v French (2012) 114 SASR 287; R v Starrett (2002) 82 SASR 115; R v BBR (2009) 195 A Crim R 330; R v Brooks (1998) 44 NSWLR 121; RJ v The Queen (2010) 208 A Crim R 174; SH v R [2012] NSWCCA 79; R v J, AP (2012) 113 SASR 529; Bromley v The Queen (1986) 161 CLR 315; R v Corrigan (1998) 74 SASR 454; R v Haak (2012) 112 SASR 315; R v Mattsson [2011] SASCFC 114, considered.
R v LOMMAN
[2014] SASCFC 55Court of Criminal Appeal: Kourakis CJ, Sulan and Peek JJ
KOURAKIS CJ: I would allow the appeal for the reasons given by Sulan J.
I wish to make some additional observations about the emphasis the Judge placed on the complainant’s lack of understanding of the biblical or religious significance of the oath.
Section 6(3) of the Evidence Act 1929 (SA) (the Evidence Act) assimilates testimony given on affirmation with sworn evidence. Moreover, s 6(2) of the Evidence Act provides that the circumstance that a person who has taken an oath has no religious belief, or that for any other reason was not bound in conscience by the form of oath taken, has no effect in law on the validity or effect of the oath. It follows that the references to “sworn” and “unsworn” evidence found in s 9(1) of the Evidence Act are apt to mislead. The presumption of a capacity to give sworn evidence of which s 9(1) of the Evidence Act speaks encompasses a capacity to give evidence on affirmation. So too does the proviso to s 9(1) of the Evidence Act which disentitles a person from giving evidence on oath or affirmation if he or she “does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence”.
As a matter of terminology, it is more useful to refer to testimony given pursuant to s 6(1) and s 6(3) of the Evidence Act as evidence solemnly given, and evidence taken pursuant to s 9(2) of the Evidence Act, as informal evidence.
The element which disentitles a person from testifying in solemn form is an insufficient understanding of the critical importance of giving truthful testimony in maintaining the integrity of the trial process and ensuring the just administration of the law. That understanding includes an appreciation of the temporal consequences of giving false evidence. They are the concepts which must be explained in appropriate language to a witness whose capacity to testify solemnly is challenged. If a witness does not sufficiently understand the importance to the trial process of giving evidence truthfully but is allowed to give informal evidence, the Judge must inform the jury of his or her finding to that effect. The Judge’s focus in this case on the witness’s lack of biblical knowledge was misplaced and distracted the jury from that aspect of the Judge’s finding which more fundamentally affected the jury’s assessment of her evidence.
SULAN J: This is an appeal against conviction on one count of aggravated indecent assault. The appellant and defendant, David Will Lomman, was charged with two counts of aggravated indecent assault.[1] The allegation in respect of the first count was that he touched the complainant, RCR, on the vagina. RCR was four years and ten months of age at the time. The allegation in respect of the second count was that he kissed RCR on the lips. The defendant was acquitted of the second count.
[1] Criminal Law Consolidation Act 1935 (SA), s 56.
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.
AMmm
QSo 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?
QPardon
AWhy 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.
There were further questions to elicit more details. In answer to a number of leading questions, RCR confirmed that the defendant had touched her on her “lady bits” inside her knickers. She told the psychologist that she was standing when this first occurred, and then she sat on the defendant’s lap when he invited her to do so.
The defendant gave evidence. He agreed that he had been in the bedroom with RCR, but he denied touching her on the vagina. He admitted kissing RCR on the cheek, but denied that he had kissed her on the mouth. As to his statement to RCR’s father that he was sorry, he said that he made that statement in the background of being threatened by RCR’s father, and because it is within his nature to apologise when feeling threatened or when someone is angry with him.
The defendant suffers from mild autism. Evidence was led from his sister that if someone gets upset with him or is irritated with him, he apologises. The defendant also called two witnesses who gave character evidence on his behalf.
The appeal
Ground 1 of the notice of appeal was abandoned.
Ground 2
The appellant contends that, notwithstanding the admission of the statements made to various witnesses by RCR as evidence of their truth, the trial Judge failed to adequately warn the jury that the prosecution case depended entirely on the truth and reliability of RCR’s account to each witness.
Section 34CA of the Evidence Act 1929 (SA) (“the Act”) provides:
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; 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.
Section 34CA recognises that, in the case of children, the requirement that they recall events, some many months after their occurrence, places an unfair burden upon the child, with the result that the prosecution of persons alleged to have abused young children often cannot proceed because of the difficulty in obtaining a coherent account from the child. Further, to require a child to recall events when giving evidence in the witness box, or from a witness room, and requiring a young child to concentrate and answer questions places undue stress upon the child.
In R v J, JA Duggan J, with whom Nyland J agreed, referred to the background to the introduction of s 34CA in its present form. He observed: [3]
[3] (2009) 105 SASR 563, [11]-[12].
Section 34CA in its present form was introduced into the Act in 2008 when the Statutes Amendments (Evidence and Procedure) Act 2008 (SA) came into effect. The legislation was intended to overcome the difficulties encountered by young children and persons suffering from a mental disability in giving evidence in the traditional manner. These difficulties in the case of children were discussed in the report of the Australian Law Reform Commission “Seen and Heard: Priority for Children in the Legal Process” (1997). Recommendation 102 of the Report stated:
Evidence of a child’s hearsay statements regarding the facts in issue should be admissible to prove the facts in issue in any civil or criminal case involving child abuse allegations, where admission of the hearsay statement is necessary and the out-of-court statement is reasonably reliable. A person may not be convicted solely on the evidence of one hearsay statement admitted under this exception to the rule against hearsay.
The recommendation in the last sentence was not incorporated into the Act, but the general recommendation as to the admissibility of material of this nature was the inspiration for s 34CA.
When describing the purpose of a broadly similar provision in s 93A of the Evidence Act 1977 (Qld) in Gately v The Queen, Hayne J said:
The section makes a special rule for children and intellectually impaired persons. That rule is made for the evident purpose of preserving the integrity of the evidence of such persons, by allowing evidence of an account of relevant events that was made before, sometimes well before, the trial of the relevant proceeding. But if the party relying on the account of a child or intellectually impaired person is able to and wishes to have that person give their account orally, as well as in the form of the statement that has previously been made, there is no reason to prevent that being done.
In the same case Heydon J said:
Section 93A is dealing with a narrow field, and with peculiar problems – those concerned with evidence from children and intellectually impaired persons. The legislation rests on the assumption that an account given before the trial “can be of more probative value than present testimony, particularly if the present memory is faulty or it is difficult for the witness to articulate it in court”: R v F (CC) [1977] 3 SCR 1183 at 1200 [37]. The legislative judgment is that it is more important to have before the trier of fact a clear statement from these types of witnesses, even if it is an unsworn document, than to preserve the principle of orality in its full integrity. [Citations omitted]
As I have earlier indicated, the prosecution led evidence from RCR’s stepmother, RCR’s father and RCR’s biological mother, as well as the psychologist.
Counsel for the defendant contends that the trial Judge did not adequately warn the jury that, notwithstanding the admission of the evidence of the various statements, the prosecution case depended entirely on the truthfulness and reliability of the complainant’s evidence.
In directing the jury, the trial Judge said:
In cases involving offences against young children a court may admit evidence of the nature and contents of a statement made outside the court by a young child from the person to whom the statement was made.
Evidence of this sort can be used to prove the truth of the facts asserted in the statement. In this case, as I said, the evidence of [SJ], [DR], [AS] and [MS], recounts what the child [RCR] said to them about what the Accused is alleged to have done to her. That has been admitted into evidence in this trial. What these witnesses have recounted may be used by you to prove the truth of the child’s allegations, that is, you can use what these witnesses say about what [RCR] has said to them in assessing the truth of what [RCR] alleges.
Counsel for the defendant submits that the trial Judge erred in not directing the jury that they were not to reason that, because evidence of different repetitions of the complainant’s statement had been admitted, the complainant’s account of events thereby gained additional reliability. He submits that the jury should have been directed that the prosecution case depended entirely on the truthfulness and the reliability of the complainant and it gained no additional strength from the repetition of the allegations.
That submission should be rejected. The trial Judge directed the jury that the allegation of vaginal touching was dependent upon the evidence of the three family members and the psychologist and, therefore, in considering the first count, the prosecution case depended solely upon an acceptance of the veracity of RCR’s complaint to three family members and to the psychologist.
The trial Judge referred to the out of court statements of RCR and directed the jury that they can consider each of the statements and the evidence given in cross-examination to test the evidence as to any inconsistencies or consistencies in that evidence. The Judge referred to defence counsel’s submission that, in respect of the count alleging vaginal touching, the prosecution case relied solely on the credibility and reliability of RCR. The jury would have understood that the prosecution case relied entirely on RCR’s account to various witnesses.
The statements made by RCR to each of the witnesses related directly to the alleged offence. It was open to the jury to consider those statements and to consider whether they were consistent in assessing how much weight was to be given to that evidence. In the same way as juries are invited to reject evidence because a witness has given inconsistent accounts, the jury was entitled to assess the evidence by reference to its consistency and by reference to the level of detail given in the statements. In this case, the level of detail given by RCR was minimal. In response to questions from her relatives, the allegations of touching her “lady bits” was not supplemented by any detail. When the psychologist attempted to elicit more detail, RCR gave details relating to whether the touching was inside or outside her pants, and some minor detail about how it occurred.
The jury would have well understood that their assessment of RCR’s statements, as given in evidence by the witnesses, as well as her unsworn evidence in cross-examination, were critical to their consideration.
The directions to the jury were adequate and I reject this ground of appeal.
Grounds 4 and 6
Counsel for the defendant submits that the trial Judge failed to direct the jury as to the reasons why RCR gave unsworn evidence. It is further submitted that the Judge failed adequately to warn the jury of the need for caution in determining whether to accept the evidence of RCR and the weight to be given to it, pursuant to s 9(4)(b) of the Act.
At common law, the rule was that all evidence, including that of a child of tender years, must be given on oath or, in appropriate circumstances, on affirmation, and that a child should be sworn if the court is satisfied that the child sufficiently understands the nature and consequences of an oath. If the court is not satisfied, the evidence of the child could not be received at all.[4]
[4] Andrews v Armitt (1971) 1 SASR 178.
Section 6 of the Act provides the manner in which an oath is to be administered. Section 6(1) provides that a person taking the oath on the Bible is required to hold the Bible and, after the oath has been read, answer “I swear”. A person can take an oath in any manner or form which the person declares is binding on their conscience. For example, a person who believes that taking an oath whilst holding a lighted candle may do so if the Court is satisfied that, in so doing, the person is bound by their conscience to tell the truth. Section 6(2) provides that the fact that a person taking an oath on the Bible, or taking an oath in some other form, has no religious belief, or is not bound by their conscience, does not affect the validity or effect of the oath. In other words, it is no defence to a prosecution for giving false evidence for a person to claim that they were not bound by their oath because they did not have the requisite belief entailed in taking the oath.
Section 6(3) provides that a person should be offered the choice of making an affirmation instead of taking an oath, and be permitted to give evidence upon affirmation rather than upon oath. Section 6(4) provides the form of affirmation that must be administered. An affirmation has the same force and effect as an oath.
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.
In R v French,[6] I set out the principles relating to s 9 and the requirements for strict compliance with that section. In my judgment, with which Gray and White JJ agreed, I said:[7]
As I have stated earlier, strict compliance with section 9 is required when unsworn evidence is permitted. Failure to comply will result in a miscarriage of justice.[8] The legal principles relating to unsworn evidence can be summarised as follows:
·Section 9(1) presumes a person capable of giving sworn evidence. There is no obligation to conduct an inquiry as to the ability to do so unless some matter relating to the person raises in the judge’s mind that the presumption may be rebutted. No such inquiry is required merely because the person is a child, though an inquiry will usually be necessary of a child of very tender years.
·If a matter raises in a judge’s mind that the section 9(1) presumption may be rebutted, the judge must determine whether the person has sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. The determination is to be recorded in the transcript, preferably with brief reasons.[9] Usually, before making a determination a judge should ask whether the person understands the distinction between telling the truth or a lie, and whether they understand what a lie is. The person should be asked whether they will tell the truth. They should be asked whether they understand the importance of telling the truth by reference to any of the consequences or sanction that might otherwise arise.
·Once a judge has determined that the section 9(1) presumption is rebutted, questions must be asked of the person so as to satisfy section 9(2). The Judge must tell the person that it is important to tell the truth.
·If the Judge permits unsworn evidence to be given, section 9(4)(a) requires the Judge to explain to the jury the reason the evidence is unsworn. In so doing, the Judge should direct the jury that the Judge has determined that the person 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. It should be explained to the jury that the person 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. The Judge should make it clear that, in permitting the person to give unsworn evidence, the Judge is satisfied that the witness understands the difference between truth and a lie, and that the Judge has told the witness that it is important to tell the truth, and the witness has indicated that he or she will be truthful. The explanation should be given to the jury before the person gives evidence and again in summing up. [Citations omitted]
[6] (2012) 114 SASR 287.
[7] (2012) 114 SASR 287, [35].
[8] See R v Starrett (2002) 82 SASR 115, 122 (Doyle CJ), 126 (Lander J): R v BBR (2009) 195 A Crim R 330, 241; R v Brooks (1998) 44 NSWLR 121; RJ v The Queen (2010) 208 A Crim R 174, 184; SH v R [2012] NSWCCA 79, [28]; R v J, AP (2012) 113 SASR 529, [40] (David J), [55], [69] (Peek J).
[9] R v Starrett (2002) 82 SASR 115, 119, 120.
The issue which arises in the present case is whether the direction given by the trial Judge and referred to above was sufficient to satisfy the requirement that the Judge explain to the jury the reason why RCR gave unsworn evidence. In order to satisfy that requirement, the Judge must explain to the jury that he or she has determined that the person does not have a sufficient understanding of the obligation of giving evidence on oath or affirmation. The Judge may add that, in permitting the witness to give unsworn evidence, the Judge is satisfied that the witness understands the difference between the truth and a lie, that it has been explained to the witness that it is important to tell the truth, and that the witness has demonstrated, or indicated, an understanding and willingness to do so.
The trial Judge failed to explain to the jury the distinction between a person being permitted to give evidence on oath or affirmation and unsworn evidence. The direction that the trial Judge determined that RCR did not understand what it meant to swear on the Bible, and that the Judge took the view that asking her to solemnly and truth affirm would be an “arid exercise”, did not explain to the jury in clear terms that he had determined that RCR did not understand the solemnity and importance of the occasion of taking an oath or affirmation. In my view, it was not explained to the jury that the witness was not giving evidence on oath because of the Judge’s determination that she did not understand the solemnity of the occasion.
When a party makes a request, the trial Judge must also give a warning as required by s 9(4)(b). No particular form of words is required.[10] However, the warning should necessarily include a reference to the fact the evidence is unsworn. It is clear from the judgement of Peek J in R v J, AP,[11] that the Judge is required to explain to the jury why the fact that the evidence is unsworn, should make the jury cautious when deciding whether to accept it. As observed by Peek J in J, AP, there is a 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. Peek J said:[12]
... 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”.
[10] Bromley v The Queen (1986) 161 CLR 315, 318-319; R v Corrigan (1998) 74 SASR 454, 465.
[11] (2012) 113 SASR 529, [75]-[77].
[12] R v J, AP (2012) 113 SASR 529, 554.
What is important is that the Judge direct the jury that the taking of an oath or affirmation requires an understanding that the person is accepting the solemnity of the taking of an oath or affirmation, both morally and legally, and if the person fails to comply with that obligation the consequence may be that sanctions will follow.
The failure of the Judge to adequately direct and warn the jury pursuant to ss 9(4)(a) and 9(4)(b) of the Act amounted to a misdirection and a failure to comply with the requirements of the Act. The failure to comply with the Act necessarily means that the appeal should be allowed and the conviction should be set aside.[13]
[13] R v Starrett (2002) 82 SASR 115.
Ground 5
Counsel contends that the trial Judge failed to warn the jury that it is unsafe to convict the defendant on the complainant’s uncorroborated evidence pursuant to s 12A, following a request from defence counsel. The defendant seeks permission to appeal on this ground.
Section 12A of the Evidence Act 1929 (SA) 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.
The defendant submits that cogent reasons existed other than the complainant’s young age to doubt the reliability of the complainant’s evidence which obliged the Judge to warn the jury. Section 12A requires the following pre-conditions to exist. First, the complainant must be a child under 12 years of age. Second, the warning must be 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. Third, a party must ask that the warning be given.
It remains an open question whether s 12A applies to s 34CA statements. It is unnecessary for me to decide this question, as I conclude that it has not been established that cogent reasons existed requiring such a warning. It is also unnecessary to decide whether, in this case, RCR’s evidence was uncorroborated.
However, assuming for the purposes of this discussion that s 12A applies to s 34CA statements,[14] and assuming that RCR’s evidence was uncorroborated, I am of the view that it has not been established that there were cogent reasons to give the warning required by s 12A. For cogent reasons to exist, the reasons should be “compelling, convincing and powerful”.[15]
[14] R v Haak (2012) 112 SASR 315, 37; R v J, AP (2013) 118 SASR 150, [2]-[4].
[15] R v Mattsson [2011] SASCFC 114, [20].
Counsel submits that RCR’s inability to contextualise the allegation, her playful and mischievous character, as born out through the statements and cross-examination, the defendant’s denial of the allegation on oath and the positive character evidence supportive of his truthfulness, amount to cogent reasons.
It is unsurprising that a young child’s evidence will not contain a significant level of detail and will be delivered in a seemingly playful manner consistent with the child’s level of maturity. A warning may be required if there are glaring inconsistencies in the child’s various statements. Circumstances such as a child being coached to make allegations may justify a direction pursuant to s 12A.
However, the fact that the defendant gave evidence denying the allegation, and his evidence was supported by character witnesses, does not provide a reason to warn the jury, pursuant to s 12A. The reason for such a warning relates to the evidence of the child. The fact that her account is denied by the defendant is not relevant to whether a warning is required.
For a child of tender years, RCR provided sufficient context to the allegation when recounting the events which occurred on the day of the alleged offence. The complaints about RCR’s evidence do not amount to compelling reasons for requiring the Judge to give a warning, pursuant to s 12A.
I would refuse permission to appeal on this ground.
Ground 3
Permission to appeal was refused on this ground. It is submitted that the verdict of guilt is unreasonable and cannot be supported, having regard to the evidence.
Counsel for the defendant contends that there were a number of aspects of RCR’s evidence which were unsatisfactory. They include that it was only after a leading question from the psychologist that RCR stated that the defendant had touched her on her “lady bits”. Further, RCR stated that the incident might have occurred at night when it occurred during the day. She failed to recall specific details about events surrounding the alleged incident, and she failed to understand the seriousness of the allegations. In my view, there was sufficient material upon which the jury could convict the defendant. RCR’s evidence, as given to the various witnesses and to the psychologist and in cross-examination, if accepted by the jury, was sufficient to justify a conviction. In my view, this ground of appeal is not made out and I would refuse permission.
Ground 8
Counsel for the defendant contends that a warning should have been given that, if the jury was not convinced by the evidence supporting RCR, it was necessary for them to recognise that they then had two competing versions about the alleged events. There was, therefore, a requirement for the trial Judge to caution the jury in proceeding to any conclusion beyond reasonable doubt, and the Judge failed to do so.
In my view, no such direction was required. The trial Judge dealt adequately with the evidence of the prosecution and defence. He gave the necessary directions, and there was no requirement that the Judge should further direct the jury in accordance with the submissions made by the defendant.
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
PEEK J. 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
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