R v Sears

In the case of R v Sears, the defendant was charged with the offence of persistent sexual exploitation of a child under section 50(1) of the Criminal Law Consolidation Act 1935 (SA). The case hinged on the admissibility of the audio visual records of the child complainant’s interviews, which were conducted when she was 8 years old, as well as her capacity to provide sworn or unsworn evidence at the time of trial when she was 9 years and 6 months old. The defendant denied the charges and provided sworn evidence.

The court had to determine whether the audio visual records of the child complainant's interviews were admissible under section 13BA of the Evidence Act 1929 (SA), and whether the child had the capacity to give sworn or unsworn evidence at the time the recordings were made and at the time of trial. The court examined whether the child understood the difference between the truth and a lie and the seriousness of the obligation to tell the truth. The court found that the child did not have sufficient understanding of the obligation to be truthful when the recordings were made, but did understand the difference between the truth and a lie, thus having the capacity to give unsworn evidence. At the time of trial, the child was found to have sufficient understanding of the obligation to be truthful and was capable of giving sworn evidence.

The court admitted the audio visual records of the child complainant’s interviews into evidence under section 13BA, as evidence constituting the child's evidence in chief, on the basis that she had the capacity to give unsworn evidence. The court also reminded itself of the reasons why the child’s interview evidence was unsworn and warned itself of the need for caution in determining whether to accept the interview evidence and the weight to be given to it. The court concluded that the prosecution had proved beyond a reasonable doubt that the accused had committed more than one act of sexual exploitation against a particular child under the age of 17 years.

The court found the accused guilty of the offence of persistent sexual exploitation of a child.