R v Sparks

Case [2017] SASCFC 171

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SPARKS

[2017] SASCFC 171

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Hinton)

22 December 2017

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

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

Appeal against conviction.

The appellant was found guilty by a jury in the District Court of two counts of aggravated indecent assault. He appeals against the convictions on the ground that the Judge erred in admitting into evidence pursuant to s 13BA of the Evidence Act 1929 (SA) an audio visual record of interview of the complainant when there was no evidence as to her capacity to give sworn or unsworn evidence at the time of the interview.

The complainant was almost 12 years old at the time of the interview.  During the interview, the police officer did not ask her whether she understood the difference between the truth and a lie or that it was important to tell the truth or whether she would tell the truth.

The appellant contends that s 13BA(3)(b) of the Evidence Act requires that the witness be asked questions during the interview about his or her understanding of the difference between the truth and a lie and the importance of telling the truth and indicate that he or she will tell the truth. He contends that s 13BA(3)(b) requires the Court to assess the witness’s level of understanding by reference to information at the time of the interview rather than information obtained at any time thereafter.

The Director contends that s 9 of the Evidence Act applies directly to evidence of a witness admitted under s 13BA.

Held by Blue J (Kourakis CJ and Hinton J agreeing) dismissing the appeal:

1. Section 9 does not apply to evidence of a witness admitted under s13BA of the Evidence Act when the recording has been made pursuant to Part 17 Division 3 of the Summary Offences Act 1953 (SA) (at [41]-[42]).

2.  The question whether there is material capable of satisfying a judge that a person was capable of giving sworn or unsworn evidence at the time of the interview will depend on the facts and  circumstances in each individual case.  There are no a priori rules or limitations as contended by the appellant (at [47]).

3.  The Judge was entitled to have regard to the complainant’s answers on questioning by the Judge (at [50]). 

4.  Having regard to the material before the Judge, the Judge was entitled to be satisfied that the complainant was capable at the time of the interview of giving sworn or unsworn evidence (at [51]).

5.  Appeal dismissed (at [52]).

Criminal Law Consolidation Act 1935 (SA) s.56; Evidence Act 1929 (SA) S 9, 13BA and 12AB; Summary Offences Act 1953 (SA) Part 17 Division 3,…

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R v Sparks [2017] SASCFC 171
Case
[2017] SASCFC 171
Decision Date

CaseChat Overview and Summary

The appellant, R v Sparks, appealed convictions on the ground that the trial judge erred in admitting an audio-visual recording of an interview with the complainant. The complainant was two weeks shy of her twelfth birthday at the time of the interview. The appeal was heard by Kourakis CJ, Blue and Hinton JJ.

The central legal issue before the Full Court was whether the trial judge had erred in admitting the audio-visual recording of the complainant's interview into evidence, specifically concerning the complainant's capacity to give sworn or unsworn evidence at the time the recording was made, as required by section 13BA of the *Evidence Act 1929* (SA).

The Court considered section 9 of the *Evidence Act 1929* (SA), which presumes a person is capable of giving sworn evidence unless the judge determines otherwise due to a lack of understanding of the obligation to be truthful. If such a lack of understanding is found, the judge may permit unsworn evidence if satisfied the person understands the difference between truth and lies and indicates an intention to tell the truth. The Court noted that the presumption of capacity operates unless there is a suggestion of insufficient understanding, and a judge is not obligated to question a young person merely due to their age. The Court found that, having regard to the material before the trial judge, including the interview itself and the judge's questioning of the complainant, the judge was entitled to be satisfied that the complainant possessed the requisite capacity at the time of the interview.

Consequently, the Full Court concluded that no error had been demonstrated in the admission of the audio-visual recording of the interview and dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against the convictions on the ground that the Judge erred in admitting into evidence the audio visual record of the interview between the complainant and a police officer on 1 November 2015 when there was no evidence as to the complainant’s capacity to give sworn or unsworn evidence at the time.Background The complainant was born in November 2003. Her mother met the appellant in about 2004 and they had been in on again off again relationships over the years. In 2012 they resumed a relationship and in May 2014 their son was born. Later in 2014 they moved into a house in the southern suburbs. The complainant gave evidence that before the school holidays preceding October 2015 she and the appellant were in the lounge while her mother was away. The appellant pushed her down, pulled down her pants and knickers and started doing a push-pull motion with his penis through his pants in the vicinity of her genital area. This was the subject of count 1. The complainant gave evidence that on 29 October 2015 she and the appellant were in the lounge while her mother was at work. The appellant pushed her down onto all fours, pulled down her pants and knickers and started doing a push-pull motion with his penis through his pants in the vicinity of her genital area. This was the subject of count 2. The complainant gave evidence that later that afternoon the appellant pushed her face down onto the bed, pulled his pants and her pants down and started doing the same push pull motion with his penis. This was the subject of count 3. The complainant and her mother gave evidence that after her mother arrived home from work on 29 October 2015 they went to the shopping centre with the appellant. While they were alone together at the shopping centre, the complainant told her mother what had happened that day. Her mother then took her to the police station. Later that night the appellant was arrested and charged with aggravated sexual assault. On 1 November 2015 Senior Constable Paterson conducted an audio visually recorded interview of the complainant. The complainant was two weeks short of her twelfth birthday at that time. Senior Constable Paterson asked her a series of general questions about her family and school. Senior Constable Paterson then asked her about the events of the previous Thursday. She gave an account of those events as summarised above. The trial At the outset of the trial the appellant’s counsel opposed the admission of the audio visual record of interview pursuant to section 13BA of the Evidence Act 1929 (SA) (the Act) on the ground that the requirement under section 13BA(3)(b) that the court be satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made was not met. The Judge viewed the audio visual record of the interview on the voir dire and heard submissions on its admissibility. The prosecutor invited the Judge to find from the record of interview that the complainant had been capable in November 2015 of giving sworn or unsworn evidence. The Judge was invited to question the complainant concerning her understanding in November 2015. The Judge expressed the provisional view that the complainant had been perfectly capable of giving sworn evidence. The Judge then questioned the complainant.

Evidence

Evidence Before The Court

Section 9 relevantly 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.…(6)Subject to this Act, this section does not apply to a statement made outside of a court admitted as evidence in any proceedings under an exception to the rule against hearsay at common law or under this Act. In the case of a child, the presumption operates unless it is suggested that the child might not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence and there is no obligation on a trial judge to consider that question merely because the person is young.[2] [2] R v P, BR [2004] SASC 323 at [119] per Mullighan J (Nyland and Anderson JJ agreeing). Section 13BA was introduced into the Act with effect on 1 July 2016 as part of a comprehensive set of provisions for the admission in a criminal trial of evidence of a witness in the form of an audio visual record.[3] Those amendments apply to proceedings for an offence commenced but not determined as at 1 July 2016 as well as to new proceedings commenced after that date.[4][3] Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA).[4] Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) Sch 1 as amended by Statutes Amendment (Attorney-General's Portfolio) Act 2016 (SA) s 27. In broad terms there are three components of the scheme for the admission of evidence of a witness in the form of an audio visual record. The three components apply to a person who falls within one of two classes (collectively special witnesses), namely:·a young child[5] being a child of or under the age of 14 years;[6]·a person with a disability that adversely affects his or her capacity to give a coherent account of his or her experiences or to respond rationally to questions (a relevant disability).[7][5] Evidence Act 1929 (SA) 4(1) definition of “young child”; Summary Offences Act 1953(SA) s 74EA(1)(a).[6] Evidence Act 1929 (SA) s 12AB(14) definition (a) of “witness to whom this section applies”; Summary Offences Act 1953(SA) s 74EA(1)(a).[7] Evidence Act 1929 (SA) s 12AB(14) definition (b) of “witness to whom this section applies”; Summary Offences Act 1953(SA) s 74EA(1)(b).

Decision

Reasons for decision

Having regard to the material before the Judge, the Judge was entitled to be satisfied that the complainant was capable at the time of the interview of giving sworn or unsworn evidence.Conclusion No error has been demonstrated in the Judge’s admission of the complainant’s evidence in the form of the audio visual record of interview. I would dismiss the appeal.HINTON J: I would dismiss the appeal. I agree with the reasons of Blue J and have nothing to add.

Ratio Decidendi

Legal Principle Established

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