R v Starrett

Case [2002] SASC 175

R  v  STARRETT
[2002] SASC 175

Court of Criminal Appeal:  Doyle CJ, Perry and Lander JJ

  1. DOYLE CJ:           The appellant was tried by a District Court Judge, sitting without a jury, on one count alleging indecent assault on J, a girl of the age of seven years, and on two counts alleging unlawful sexual intercourse with a person under twelve years of age, that person again being J.  When the matter came to trial J was eight years of age.

  2. The Judge convicted the appellant on each count.

  3. The appellant appeals against his conviction. The first ground is that the Judge erred in the application of s 9 of the Evidence Act 1929 (SA) (“the Act”). The second ground is that the Judge erred in failing to direct himself that it was unsafe to convict on J’s evidence, unless that evidence was corroborated. The third ground is that the Judge erred in his treatment of one aspect of the medical evidence. The fourth ground is that the verdict is unsafe, in the sense that the Judge should have had a reasonable doubt about the appellant’s guilt. This ground relies mainly on the age of J, the absence of any corroboration, some inconsistencies between her evidence and her statement to the police, and some inconsistencies in her evidence.

    Facts

  4. The appellant is a male nurse.  At the relevant time he was working at a hospital.  In May 2001 J was a patient in the hospital.  She stayed there several nights.  J was then aged about seven years eight months.  She was in Grade 3 at school.  Her evidence was that the offences occurred one night, when the appellant was on duty.  The appellant and one other nurse were on duty in the ward in question.  The evidence of the other nurse was that there were occasions when A was alone in the immediate vicinity of J.  Accordingly, he had the opportunity to commit the offences alleged.  J made a complaint about the appellant’s conduct when her mother visited her about 8am the next morning.  A doctor examined J later that day.  The doctor found what he described as a possible abrasion in the lower part of J’s vagina.

    Legislation

  5. Section 9 of the Act provides as follows:

    “Unsworn evidence

    9.(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…

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R v Starrett [2002] SASC 175
Case
[2002] SASC 175
Decision Date

CaseChat Overview and Summary

In the matter of R v Starrett, the appellant has appealed against his conviction on the grounds that the trial judge made several errors in the application of the law, resulting in an unsafe verdict. The first issue concerns the judge's application of section 9 of the Evidence Act 1929 (SA) in permitting the complainant, a child, to give unsworn evidence. The second issue is whether the judge erred in not directing himself that it was unsafe to convict on the uncorroborated evidence of a child. The third issue is the judge's treatment of certain medical evidence, and the fourth issue is whether the verdict was unsafe due to various factors, including the age of the complainant and inconsistencies in her evidence.

The court found that while the trial judge was entitled to form an impression of the complainant's credibility based on her demeanour, the presence of certain factors did not necessarily preclude the judge from being satisfied beyond reasonable doubt of the appellant's guilt. These factors included the age of the complainant, the absence of corroboration, and inconsistencies in her evidence. However, the court held that the trial judge erred in not directing himself that it was unsafe to convict on the uncorroborated evidence of a child, as required by section 12A of the Evidence Act 1929 (SA). This error was considered to be fundamental to the criminal trial, and the court found that the appeal should be allowed, the verdict set aside, and a retrial ordered.

The court acknowledged the difficulty in determining how a trial judge should approach the task of determining whether a proposed witness has a "sufficient understanding of the obligation to be truthful entailed in giving sworn evidence" under section 9(1) and (2) of the Evidence Act 1929. However, this question was not argued in the case and will have to await a suitable occasion to be addressed. The court emphasised the importance of ensuring the safety of verdicts in criminal trials, particularly when the evidence of a child is relied upon.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against his conviction. The first ground is that the Judge erred in the application of s 9 of the Evidence Act 1929 (SA) (“the Act”). The second ground is that the Judge erred in failing to direct himself that it was unsafe to convict on J’s evidence, unless that evidence was corroborated. The third ground is that the Judge erred in his treatment of one aspect of the medical evidence. The fourth ground is that the verdict is unsafe, in the sense that the Judge should have had a reasonable doubt about the appellant’s guilt. This ground relies mainly on the age of J, the absence of any corroboration, some inconsistencies between her evidence and her statement to the police, and some inconsistencies in her evidence.Facts The appellant is a male nurse. At the relevant time he was working at a hospital. In May 2001 J was a patient in the hospital. She stayed there several nights. J was then aged about seven years eight months. She was in Grade 3 at school. Her evidence was that the offences occurred one night, when the appellant was on duty. The appellant and one other nurse were on duty in the ward in question. The evidence of the other nurse was that there were occasions when A was alone in the immediate vicinity of J. Accordingly, he had the opportunity to commit the offences alleged. J made a complaint about the appellant’s conduct when her mother visited her about 8am the next morning. A doctor examined J later that day. The doctor found what he described as a possible abrasion in the lower part of J’s vagina.Legislation Section 9 of the Act provides as follows:“Unsworn evidence9.(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 trial by jury, 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.(5) A justice to whom it appears that a person who desires to lay a complaint or information does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence may ascertain by inquiry the subject matter of the complaint or information and reduce it into the appropriate form, and any action or proceedings may be taken on the complaint or information in all respects as if the complainant or informant had deposed to the truth of the contents on oath or affirmation.”Section 12 now comprises only subsections (4) and (5) and they provide as follows:“12(4) A young child who is called as a witness is, while giving evidence, entitled to have present in the court, and within reasonable proximity, a person of his or her choice to provide emotional support (but the person must not interfere in the proceedings).(5) Unless the court otherwise allows, a witness or prospective witness in the proceedings cannot be chosen under subsection (4) to provide emotional support for a young child.”Section 12A provides as follows:“12A. There is no rule of law or practice obliging a judge in a criminal trial to warn the jury that it is unsafe to convict on the uncorroborated evidence of a child if the child gave sworn evidence.”Application of s 9 at trial

Evidence

Evidence Before The Court

Section 9 of the Act provides as follows:“Unsworn evidence9.(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 trial by jury, 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.(5) A justice to whom it appears that a person who desires to lay a complaint or information does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence may ascertain by inquiry the subject matter of the complaint or information and reduce it into the appropriate form, and any action or proceedings may be taken on the complaint or information in all respects as if the complainant or informant had deposed to the truth of the contents on oath or affirmation.”Section 12 now comprises only subsections (4) and (5) and they provide as follows:“12(4) A young child who is called as a witness is, while giving evidence, entitled to have present in the court, and within reasonable proximity, a person of his or her choice to provide emotional support (but the person must not interfere in the proceedings).(5) Unless the court otherwise allows, a witness or prospective witness in the proceedings cannot be chosen under subsection (4) to provide emotional support for a young child.”Section 12A provides as follows:“12A. There is no rule of law or practice obliging a judge in a criminal trial to warn the jury that it is unsafe to convict on the uncorroborated evidence of a child if the child gave sworn evidence.”Application of s 9 at trial Immediately before opening briefly on the facts, the Prosecutor said to the Judge:“The other matter raised yesterday is the taking of the oath for J. J will not take an oath nor affirm: instead your Honour will ask her some questions about telling the truth in court today. I am ready now to open for the prosecution.”The Prosecutor then outlined the facts. We were informed that the reference to the “other matter raised yesterday” is a reference to a brief discussion in open court between the Judge and counsel. It is not suggested that any evidence relevant to s 9 was put before the Judge then, or that anything of substance was decided. There is no apparent basis for the Prosecutor’s statement that J would not take an oath or affirm. This was, of course, for the Judge to decide, and there is no suggestion that any decision had been made by the Judge to that stage.

Decision

Reasons for decision

PERRY J LANDER J
I am satisfied that it was open to the Judge to make a finding of guilt beyond reasonable doubt, notwithstanding the presence of these factors. They are not factors as to which it can be said that everything is disposed of by the Judge’s assessment of the demeanour of the witness. While the impression that J made on the Judge is a significant matter, that in itself is not a complete answer to doubts that might arise by reason of the factors identified. But in my opinion it remains the case that it was open to the Judge to be satisfied beyond reasonable doubt. The factors relied upon are not of such force that, in my opinion, one could conclude that notwithstanding the impression that J made on the Judge, it was not open to him to be satisfied beyond reasonable doubt. Accordingly, I would reject the fourth ground.Conclusion For those reasons the appeal should be allowed, the verdict should be set aside, and a retrial should be ordered. It is regrettable that a retrial should be necessary on what may seem to be a technical point. But the point is one which I regard as fundamental to a criminal trial. I agree with the reasons published by Doyle CJ and with the order which he proposes. I share his regret as to the circumstances which have arisen in this case, which oblige the Court to order a retrial. At the same time, I recognise that there may be some difficulty in determining how a trial judge should approach the task of determining whether the proposed witness has a “sufficient understanding of the obligation to be truthful entailed in giving sworn evidence”: (ss 9(1) and (2) of the Evidence Act 1929). More particularly, a question arises as to whether or not the judge must still have regard to the proposed witness’s belief in God and belief in the expectation that God will reward or punish in this world or the next, as to which, see R v Simmons (1997) 68 SASR 81 per Perry J at 82 et seq. The question was not argued in this case, and will have to await a suitable occasion upon which it may be addressed. The common law required evidence taken in Court to be given on oath: R v Climas (Question of Law Reserved) (1999) 74 SASR 411 at 423. Provided a child understood the nature and consequences of an oath a child of any age could give evidence on oath: R v Brasier (1779) 1 Leach 199; 168 ER 202. The Evidence Act1929 (SA) (the Act) has amended the common law to allow a Court to receive unsworn evidence from persons including children; s 9 of the Act. However, it is only permissible for a Court to receive unsworn evidence if the procedure prescribed by s 9 of the Act itself is followed. A Court can only receive unsworn evidence if the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, and the judge is satisfied that the person understands the difference between the truth and a lie, and the judge tells the person that it is important to tell the truth and the person indicates that he or she will tell the truth.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J, LANDER J

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