R v Lomman

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.