R v Sparks

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.