R -v- STEVENSON [2000] WASCA 301

Reported Decision:	(2000) 23 WAR 92
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 301
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:144/2000	Heard:	15 SEPTEMBER 2000
Coram:	PIDGEON J WALLWORK J PARKER J	Delivered:	18/10/00
No of pages:	20	Judgment Part:	1 of 1
Result:	Appeal allowed Stay removed
PDF Version

Parties:	THE QUEEN JOSEPH GEORGE STEVENSON
Catchwords:	Evidence Children and special witnesses Competency of 5-year-old child to give unsworn evidence Evidence pre-recorded for use at trial Whether competency to be determined at time of pre-recording Whether questions required to ascertain whether child can take the oath Evidence Act, s 106A, s 106S Criminal law and procedure Permanent stay on basis that pre-recorded evidence was inadmissible Whether evidence was admissible
Legislation:	Acts Amendment (Evidence of Children and Others) Act 1992 Criminal Law Amendment Act 1885, 48 and 59 Vict, Ch 69 Evidence Act (No 2) 1976 Evidence Act 1906 (WA), s 100A(1), s 101, s 106A - S 106S Interpretation Act, s 18
Case References:	Cook v R [2000] WASCA 78 Lau v The Queen (1991) 6 WAR 30 R v Brasier (1779) I Leach's Crown Cases 199 Revesz v The Queen, unreported; CCA SCt of WA; Library No 960607; 18 October 1996 Vine v The Queen, unreported; CCA SCt of WA; Library No 950423; 8 August 1995 Gindrod v The Queen [1999] WASCA 44 Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082; 4 March 1997 R v Vincent (1990) 50 A Crim R 25

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- STEVENSON [2000] WASCA 301 CORAM : PIDGEON J

WALLWORK J

PARKER J

HEARD : 15 SEPTEMBER 2000 DELIVERED : 18 OCTOBER 2000 FILE NO/S : CCA 144 of 2000 BETWEEN : THE QUEEN

Appellant

AND

JOSEPH GEORGE STEVENSON

Respondent

Catchwords:

Evidence - Children and special witnesses - Competency of 5-year-old child to give unsworn evidence - Evidence pre-recorded for use at trial - Whether competency to be determined at time of pre-recording - Whether questions required to ascertain whether child can take the oath - Evidence Act, s 106A - 106S

Criminal law and procedure - Permanent stay on basis that pre-recorded evidence was inadmissible - Whether evidence was admissible

Legislation:

Acts Amendment (Evidence of Children and Others) Act 1992

Criminal Law Amendment Act 1885, 48 and 59 Vict, Ch 69

(Page 2)

Evidence Act (No 2) 1976
Evidence Act 1906 (WA), s 100A(1), s 101, s 106A - S 106S
Interpretation Act, s 18

Result:

Appeal allowed

Stay removed

Representation:

Counsel:

Appellant : Mr S P Pallaras QC

Respondent : Mr R E Lindsay & Ms B J O'Sullivan

Solicitors:

Appellant : State Director of Public Prosecutions

Respondent : Halperin Fleming Meertens

Case(s) referred to in judgment(s):

Cook v R [2000] WASCA 78
Lau v The Queen (1991) 6 WAR 30
R v Brasier (1779) I Leach's Crown…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Stevenson

Details

AGLC: R v Stevenson [2000] WASCA 301
Case: [2000] WASCA 301
Decision Date: 18 OCTOBER 2000

CaseChat Overview and Summary

The case before the court involved the conviction of Stevenson, who was found guilty of multiple counts of indecent assault against a child. The child, who was five years old at the time of the offences, gave evidence through a pre-recorded video which was played at trial. The primary legal issues were whether the child was competent to give evidence under the Evidence Act, and whether her competency needed to be assessed at the time of the pre-recording or at the time of the trial. The court also considered whether the child was required to understand the obligation to tell the truth before being allowed to give evidence.

The court held that the child was competent to give evidence and that her competency was to be assessed at the time of the trial. The court found that the questions required to ascertain whether the child could take the oath were not necessary. The court noted that the Evidence Act does not require a child to understand the obligation to tell the truth before being allowed to give evidence. The court also held that the child's evidence was admissible and that the trial judge had not erred in admitting it. The court found that the pre-recorded evidence was admissible as it was relevant and probative of the charges against Stevenson.

The court found that the trial judge had erred in staying the proceedings on the basis that the pre-recorded evidence was inadmissible. The court held that the error was not such as to affect the fairness of the trial or the conviction. The court allowed the appeal and removed the stay, thereby allowing the conviction to stand.

Orders

Orders of the court

Appeal allowed

Stay removed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.