R v Stevenson

[2000] WASCA 301

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
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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 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

Case(s) also cited:

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

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1 PIDGEON J: This is an appeal by the Crown seeking to set aside a permanent stay of the respondent's trial in the District Court. The stay was ordered as a result of a ruling by the trial Judge that the evidence of a child taken on video tape could not be shown to the jury.

2 The circumstances leading to the trial were that on 13 February 1998 a complaint was filed in a Court of Petty Sessions alleging that on 31 January 1998 the respondent sexually penetrated a child under the age of 13 years. The child was born in April 1993 so she was a little over 4-1/2 years of age at the date of the alleged offence. The respondent was committed to the District Court for trial. On 3 November 1998 an order was made, by consent, at a directions hearing conducted by his Honour H H Jackson, that the child's evidence be taken at a pre-trial hearing to be conducted on 30 November 1998 and presented to the jury in the form of a video-taped recording. It was ordered further that the cross-examination take place at this pre-trial hearing. These are orders authorised by those sections of the Evidence Act 1906 (WA) appearing under the heading "Evidence of children and special witnesses".

3 The hearing took place on 30 November 1998 before his Honour Judge Blaxell. It accordingly took place within 10 months of the offence and when the child was aged 5-1/2 years. Judge Blaxell expressed the view that it was obviously not going to be appropriate for her to take the oath. His Honour then proceeded to make a determination under s 106C whether the child was able to give an intelligible account of events which he or she has observed or experienced and he heard evidence on this question. The stage was reached when his Honour said he did not wish to hear further evidence. He then allowed the examination and cross-examination and re-examination to proceed and the evidence was thus recorded on a video tape.

4 The matter came on for trial on Monday 29 May 2000 before his Honour Judge Healy and the jury. Counsel for the defence objected to the video-taped evidence being shown to the jury on the basis that it was assumed by Judge Blaxell that the child was not competent to take the oath, whereas it was submitted that it would be necessary for there to be an enquiry in respect of this. It was then submitted that the Judge did not make a ruling as to whether or not the child was able to give an intelligible account. His Honour rejected the first submission and said that it was obvious that the child was not giving evidence on oath but he upheld the second submission. His reasons were: (AB60)

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"The matter which is to be determined as to whether the child, who was then aged 5, who obviously was not giving her evidence under the oath, was able to give an intelligible account of the events of which she experienced, and there was, as can be seen from the transcript, a couple of unsuccessful attempts to get intelligible answers from the child by the judge, and eventually, after discussion with counsel, further questions were asked and, shortly after that, the judge, without making any ruling, allowed the prosecutor to commence the questions.

It became apparent during the cross-examination that there was difficulty with the child's understanding of the events and the ability to distinguish between truth and falsity, and, as Murray J mentioned in Lau's case, that seems to have something to do with the ability to give an intelligible account of the events.

In my view, it seems to me that the proper test under section 106C of the Evidence Act wasn't fulfilled and, in my view, unfortunately I would not be happy to allow that video to go before the jury as I think there would be serious danger of there being unfairness in light of the age of the child and the confused nature of the child's evidence as it appears on the video."

5 The Crown indicated that they would not be able to establish the charge without the evidence of the child and wished to have the matter adjourned to enable the Crown to consider the possibility of calling of the child to give evidence before the jury. The defence objected on the following basis: (AB63)

"As your Honour indicated earlier today, the evidence really has been contaminated in the sense it's a very young child, asked a range of questions about this issue, during the course of that said that she didn't know the difference between telling lies and telling the truth. Ordinarily speaking in those circumstances, that would be the end of the matter and I submit so it should be in these circumstances unless my friend is contending that he can do the case without the child but certainly in my submission it is wholly inappropriate to suggest that the child should be brought back to have a second bite of the cherry."

6 His Honour then ruled: (AB63)

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"In relation to your application for the matter to be adjourned, I would decline to adjourn the matter because I don't think the matter can be remedied by an adjournment because my view would be that the child having been examined about the matter in November of 1998 and what has happened since then, I don't think it is appropriate for the defence to have to winkle out of the child as to whether she has discussed the matter or had anybody speaking to her about the matter or assessing her performance of how she did at the video and I think that it would prejudice the defence beyond any capacity for cross-examination to remedy.

I think that the matter should be permanently stayed and I propose permanently staying this prosecution and to discharge the jury, so if you ask the jury to come back I will discharge them."

Whether the pre-recorded video tape was admissible evidence

7 The first thrust of the appellant's contention is that his Honour erred in his ruling that the pre-recorded evidence was inadmissible. A principal ground of appeal in this area is that the trial Judge, by making a reference to an inability to distinguish between truth and falsity, was referring to a wrong test of competency.

8 The answer to these questions depends on an interpretation of s 106A - s 106S of the Evidence Act these being the sections appearing under the heading "Evidence of children and special witnesses". This portion of the Evidence Act was inserted by the Acts Amendment (Evidence of Children and Others) Act 1992. The amendments made were based on recommendations of the Law Reform Commission of Western Australia in its report headed "Report on Evidence of Children and Other Vulnerable Witnesses (Project No 87)", published in April 1991. In interpreting these provisions, it is important to remember that a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not), should be preferred to a construction that would not promote that purpose or object. (Interpretation Act, s 18). It is apparent from the report of the Law Reform Commission and of the speeches in the Parliament that the purpose and object of the new sections was to make it easier for young children, who are capable of giving evidence, to be able to give their evidence and to avoid unnecessary formality and inhibitions that had previously existed.

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9 I propose to examine the earlier history of what was required to enable a young child to give evidence, and particularly the situation prior to the enactment of the recent amendments. This is important in understanding the purpose and object of the new amendments..

10 Sir Matthew Hale in his Pleas of the Crown made two references to the question. In volume I at 302 he said: "Regularly an infant under fourteen years is not to be examined upon his oath as a witness; but yet the condition of his person, as if he be intelligent, or the nature of the fact may allow an examination of one under that age…". In volume II at 283 - 284 he said: "Yet such very young people under twelve years old I have not known examined upon oath, but sometimes the court for their information have heard their testimony without oath which possibly being fortified with their concurrent evidence may be some weight as in cases of rape, buggery, witchcraft and such crimes which are practised on children."

11 The question later arose for consideration in R v Brasier (1779) I Leach's Crown Cases 199. The case involved an assault with intent to commit a rape on a girl under 7 years of age. The prosecution case was proved by the mother and another woman, who lived with her, telling the jury what the child had told them and describing how the child identified the prisoner to them. The child was not sworn or produced as a witness at the trial. The question whether this evidence was sufficient in point of law was submitted to the 12 Judges who assembled at Serjeants-Inn Hall on 29 April 1779. They were unanimously of the opinion that no testimony whatever can be legally received except upon oath; and that an infant, though under the age of 7 years, may be sworn in a criminal prosecution, provided such infant appears, on strict examination by the Court, to possess a sufficient knowledge of the nature and consequences of an oath, for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court; but if they are found incompetent to take an oath, their testimony cannot be received.

12 This prohibition was modified to a limited extent by the Parliament in England in 1885 by an enactment which provided that in limited circumstances a child of tender years may give evidence without taking the oath. The principles of this enactment were later enacted in a much wider form in this State. The Act passed in England was the Criminal Law Amendment Act 1885, 48 and 59 Vict, Ch 69. It was an Act, as its

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long title indicated, to make further provision for the protection of women and girls. Section 4 made it a felony to unlawfully and carnally know a girl under the age of 13 years. This section then went on to provide that where a complainant under this section, or any other child of tender years does not, in the opinion of the Court or Justices, understand the nature of an oath, then the evidence of such girl or other child may be received, though not given upon oath, if in the opinion of the Court or Justices, as the case may be, such girl or child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth. The section then provided that no person shall be liable to be convicted of the offence unless the testimony admitted by virtue of this section and given on behalf of the prosecution shall be corroborated by some other material evidence in support thereof implicating the accused. There was a further provision that a person whose evidence had been admitted under this section was liable for perjury as if he or she had been sworn.

13 The Parliament in this State, when enacting the Evidence Act 1906 used similar wording to s 4 of the English enactment with the exception that it was to be of universal application and was not limited to any particular offence. It was to apply in any civil or criminal proceeding, or any inquiry or examination in any Court, or before any person acting judicially, where any child of tender years is tendered as a witness. The marginal note referred to the English enactment.

14 There was an amendment to this section by the Evidence Act (No 2) 1976 which deleted the reference to a child of tender years and made the section apply to a child who has not attained the age of 12 years. I would also mention, in passing, that another amendment introduced by this Act was an amendment to s 97 providing that every witness, other than witnesses excepted, shall give evidence on oath. It accordingly placed in the enactment the former common law requirement. This was the state of s 101 when it was repealed and replaced by the sections now being considered.

15 When the child came to give evidence before Judge Blaxell, his Honour reached the view within the meaning of s 106B that the child, who was then 5-1/2 years of age, was not competent to take the oath. His Honour then received evidence to determine whether the child was competent to give evidence without taking an oath. The test is now governed by s 106C which reads:

(Page 8)

"A child under the age of 12 years who is not competent to give evidence under section 106B may give evidence without taking any oath or making a solemn affirmation if the Court or person acting judicially forms the opinion, before the evidence is given, that the child is able to give an intelligible account of events which he or she has observed or experienced."

16 The requirement is that the child must have the ability to give an intelligible account of events which he or she has observed or experienced. This is not limited to the particular event about which the child is testifying. It refers to the child's general ability to give an intelligible account of any event which the child has observed or witnessed. Very young children are not able to give such an account, but, in ordinary circumstances, a 5-1/2-year-old child could be expected to do so. It follows that the age of the child would have an important bearing on the decision his Honour is required to make. There is probably little difference to this requirement from the earlier concept in s 101 which stated that the child must be possessed of sufficient intelligence to justify the reception of the evidence. There is, however, an important and significant difference. The repealed s 101 had a further requirement, namely that the child must understand the duty of speaking the truth. This requirement has been omitted from the current section. This means that in order to see if the child is qualified there is no requirement to ask the child questions as to whether he or she understands the duty of speaking the truth. Questions of this type are not asked of adult witnesses for the purposes of qualifying them and this was a matter commented on by the Law Reform Commission. If a child is capable of giving an intelligible account of events witnessed, then it is a matter for the jury to determine whether or not the child is speaking the truth. If the child has sufficient intelligence to give an intelligible account of events recently observed, that would qualify the child. It may be, in a particular case, there is difficulty in recalling or giving an account of an event that might have happened a year or two earlier, but it would be a matter for the jury to determine whether the child had properly remembered the earlier events. To suggest that a child who can give intelligible accounts of recent events, is not competent by reason of a lack of recall of earlier events, would be to put the child in a worse position than an ordinary adult witness. A perusal of the report of the Law Reform Commission would show that the purpose and object of the amendments is that child witnesses should not be in this position. An adult witness competent to give evidence, but called upon to testify as to what happened in the adult's very early life

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may well have similar lack of recall and in each case it is a matter for the jury to determine whether or not there is accurate recall.

17 As to the method to be used it is important to observe that each case will depend on its own facts and there is no formula of words or list of questions which must be asked. This was said by Owen J in Revesz v The Queen, unreported; CCA SCt of WA; Library No 960607; 18 October 1996 at 4. Owen J made this observation when referring to both s 106B and s 106C. His Honour in that paragraph made reference to asking questions to show that the child understands the importance of telling the truth, but that relates to the enquiry under s 106B which his Honour was considering. As I mentioned it does not relate to the enquiry under s 106C. His Honour did, however, refer to the child giving an intelligible account of the events or incidents to which the testimony relates whereas s 106C in its terms is expressed more generally.

18 Normally only a few questions would be required of a 5-1/2-year-old child to ascertain if the child is able to give an intelligible account of events which he or she has observed. For example, the child could be asked how he or she travelled from home to the court.

19 Questions which have arisen in this appeal are whether Judge Blaxell did form an opinion as to whether or not the child was able to give an intelligible account of events which she has observed or experienced, and whether there was a proper basis for his Honour reaching that view. A further question which has arisen is whether there are answers in the evidence which would show that the child was not capable of giving an intelligible account. In order to deal with these questions, it is necessary to set out in detail what occurred before Judge Blaxell on 13 November 1998.

20 His Honour said at the start that it was obvious that the child could not take the oath and that it was then a question whether he could satisfy himself whether she was able to give an intelligible account. The proceedings commenced with the child being in a remote room connected to the court by closed circuit television. The accused person and his counsel were in the court.

21 His Honour commenced by asking a number of questions, including whether the child could see him and was not getting an answer. He asked her what her name was and did not receive an answer. He asked a number of questions and it was ascertained that, at some stage, the sound to the remote room had failed. In addition, although what was said was being

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recorded on the transcript tape, there was no picture and sound being recorded on the video tape. The proceedings were stopped and the equipment adjusted. They resumed again a little later and his Honour asked the child if she could hear him, to which she nodded her head. She was then asked to say yes and she replied, "Yes." He then asked her how old she was to which she replied that she was five.

22 He then asked her where she lived and she replied, "Narrogin." His Honour then said, "At Wickepin. Is that right?" To this question the child replied, "Narrogin" and I would see this as a significant factor as to the child's intelligence and ability to communicate. His Honour then acknowledged that he had made a mistake and said that Judges made mistakes sometimes. He asked her if she went to kindergarten, to which he got no response. This is understandable as this word may not now be in a young child's vocabulary. He then asked, "Do you go to school? Which school do you go to? What's the name of it?" to which she replied she did not know. His Honour then asked her if she was at pre-school and her reply was, "Mm pre-school." His Honour then asked some questions to which the child nodded her head. One of these questions are whether she lived at home with her mother and father. His Honour was experiencing some difficulty in getting her to say yes instead of nodding her head. He then asked a number of questions to which it would appear that the witness did not answer, or to use a term later used, "froze up". She was asked, "Do you know why you are here today?" to which there was no response. His Honour then asked, "Do you know why you have been asked to come to the court building today?" to which there was no response and his Honour then asked if she was feeling all right and if she was comfortable. His Honour then again asked her how old she was and she replied, "Five." There then appeared the following: (AB13)

"What's the date of your birthday? Do you know?---In the month.

Which one was that one?---Month.

In May? No. What's the date of your birthday?---In April."

23 I consider it is clear from this exchange that the child was seeking to ascertain if his Honour wanted to know the month of her birthday and she was able to give the correct month. It would also appear that when his Honour had difficulty in hearing the word month and referred to May she corrected him by the shake of her head. There then occurred the following questions: (AB14)

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"In April, and did you have a good party back in April? Did you have a good birthday party?---I didn't have my birthday yet.

You didn't have one. Do you get any presents? Did you get any presents for your birthday?---I didn't have my birthday yet.

Right, I see. What about the last birthday? Do you remember your last birthday?---I didn't have that either. I don't have any birthdays."

24 I consider here that the child was using the word birthday party or birthday celebration synonymously with the word birthday and was saying that her birthday was not celebrated. His Honour then reverted to the question and again asked her a number of questions as to why she has come to the court and it would appear that she did freeze up and his Honour directed the recording to cease. His Honour, when the link had been switched off, said that he knew that it was very difficult and he had the feeling that some of the problems being experienced were due to a lack of experience with the system and he said, "I think we have all got to learn about how to handle young children in this situation myself included."

25 His Honour then said, "As things stand I don't think I can be satisfied that this child is able to give an intelligible account of events." He later said, "I mean the longer it takes to get her to answer simply questions like that, the more doubt I've got as to the worthlessness of proceeding." He decided to adjourn to make enquiries.

26 I consider that the difficulties at this stage arose from the fact that the child was asked some questions which are difficult for any witness to answer and which do not bear on the question of whether or not the child can give an intelligible account of events which she has observed or experienced. The child was answering intelligently and accurately questions relating to her age, where she lived and who was at the house where she lived. She also, in the belief that she was being asked the month of her birthday, answered that question accurately and may well have answered accurately that she did not have birthday celebrations. The questions she did not answer and where it would appear she became uncomfortable or embarrassed were questions as to why she had come to the court today. Questions of this type are suggested questions to ask in determining the test under s 106B as to whether the child is competent to take an oath, and they are asked for the purpose of ascertaining whether the child understands that the giving of evidence is a serious matter and

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whether she has an obligation to tell the truth that is over and above the ordinary duty to tell the truth. They do not have any bearing on whether the child is able to give an intelligible account of events which she has observed or experienced. A child will often answer questions literally and the question why she has come to court today suggests a number of answers. These could be that she was told to come to court or that she had been driven to the court. They would be questions not easy for an adult to answer when an adult has come along to court to testify as to what he or she has seen or observed.

27 During the break which followed his Honour was informed of some matters from the Bar table. His Honour was told that his face appeared on two monitors in the remote room, one being on each side of the child and she was accordingly being questioned from two monitors which was a source of confusion on her part. This was put right. His Honour was also informed that when he asked a specific question, "What is your name Rebecca?" she did not answer and said to the persons in the remote room, "Why is he asking my name when he already knew it?" His Honour was then requested to again ask her the question what is your name without putting "Rebecca" at the end of the question. His Honour was also told that she did not understand the word "comfortable" when asked the question, "Are you comfortable?"

28 His Honour resumed the questioning and on this occasion asked the question, "What is your full name?" She correctly gave her first, second and surname. She then gave answers to the questions his Honour asked. She said that she was 5 years old, lived at Narrogin and she answered questions where she described other members of the family living in the house. She gave the names of each of her brothers. She said she was at pre-school and in answer to the question, "What's your teacher's name?" she gave the surname preceeeding it by "Mr".

29 She was then asked some questions as to the colour of the walls and his Honour asked a question, "If I was to say the colour of the walls were red would that be true or not?" to which she replied, "No." It is not possible to judge whether this answer was right or wrong. It appeared to be accepted in the discussion before Judge Healy that the answers given to both the colour of the walls and to water being in a glass (referred to below) showed that the child seemed to have an impression of what was true and what was false.

30 I would again interpose by saying that putting a proposition to a child and asking whether it would be true or false is the type of question that is

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asked to establish competency to take the oath, but is not the type of question to determine whether or not a child can give an intelligible account of events which he or she has observed or experienced.

After His Honour dealt with the questions relating to the walls, he asked the questions about the glass of water. He asked her if she could see the glass in front of her and asked her what's inside the glass and she replied, "Water." He then said, "So if I say there's water in the glass is that true?" to which she replied, "Yes." He then asked her if she had any rules at pre-school to which she said, "Yes." She was asked, "What rules do you have?" and she replied, "No kicking." She was asked, "What happens if you kick someone?" The answer is not properly recorded but appeared to indicate the teacher would impose a sanction. His Honour then said: (AB22)


"Very well. Well, thank you, Rebecca, that's all the questions that I have got to ask. Now I'm going to ask Mr Urquhart to ask you some questions. I think you have met Mr Urquhart, so if we can have Mr Urquhart please."

31 Mr Urquhart was the Crown prosecutor who then asked questions relating to the offence.

32 I consider it is clear from what I have set out that his Honour had formed the opinion that the child was able to give an intelligible account of events which she has observed or experienced. I say that for these reasons. His Honour, at the commencement, said that the question he was determining was whether he could satisfy himself that the child was able to give an intelligible account. He repeated this at a later stage in the proceedings. At the commencement of the second break he said expressly that as things stand he did not think he could be satisfied that the child was able to give an intelligible account. He resumed the examination and asked a number of questions that obtained accurate answers. Those answers I consider would lead anyone to the view that the child was able to give an intelligent account. His pronouncement that he did not wish to ask any more questions and his request for the examination-in-chief to commence must lead to only one view, namely, that he was satisfied the child could give an intelligible account. It would be inconceivable that he would have allowed the examination-in-chief to start if he had not reached that view.

33 His Honour Judge Healy, during submissions by the Crown prosecutor, expressed the view that he thought it was necessary for a finding to be made, not just to be inferred, as to the capacity of the child

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to give an intelligible account of the events and his Honour indicated to counsel he did not think this was done. Then his Honour in the reasons I have set out referred to the fact that the Judge had not made any express ruling.

34 There is no requirement in the section for a Judge to say expressly words to the effect: "I am satisfied this child can give an intelligible account of events" and there would be every reason for his not saying as it would be recorded on the tape and heard by the jury. In Cook v R [2000] WASCA 78 there was a ground of appeal claiming that the trial miscarried by reason of a trial Judge expressing a view about a child's competence to take the oath. While the ground failed by reason of its being thought that the jury was not misled as to their true task by what was said in that case, it is nevertheless an area where care is needed. It has been my experience under the earlier enquiries under s 101 when asked to judge the competency of a child to give unsworn evidence of doing no more than asking the questions and then allowing the examination to proceed, or stopping the evidence if the Judge felt the child was not competent. The only conclusion open by what happened in this case is that his Honour was satisfied as to the child's competency.

35 The next question is whether there was a basis by which his Honour could be so satisfied. I consider that there was an abundance of evidence and circumstances that would justify his Honour reaching such view. The child was 5-1/2 years of age and attending pre-school. That of itself could almost be sufficient. However, in her answers she demonstrated an ability to state her full name, describe all members of the family living at her house, to correct the Judge as to the town where she was living and the description she gave of her pre-school would inevitably lead to that conclusion.

36 As his Honour reached that view in circumstances where it was clearly open to him, it follows that the child was competent to give unsworn evidence. Having reached this stage, this could not be displaced by answers given in cross-examination. Any answers impugning the truthfulness of the child or showing the child was inaccurate, or showing an inability to fully recall earlier events, are all matters for the jury in evaluating the evidence and reaching a conclusion whether or not the evidence was to be accepted. In this case a perusal of the transcript of the evidence actually given by the child would confirm that she had the ability to give an intelligible account. She said she remembered "Joe's house". She named the people who were in the house and the fact that there was a television there. She said saw teddy bears on a video. She

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was asked that when she was lying on a chair with the accused, did the accused do something. She said, "He touches my minnie." When asked what did he touch her minnie with she said, "His finger." She said she was wearing silkies. His Honour later asked her, "Whereabouts on your minnie did he touch you?" and she replied, "Inside." His Honour asked, "And how do you know he touched you inside?" and she replied, "Because I was there." She then said it hurt.

37 I would make reference to some earlier questions asked of her in her evidence-in-chief and which were: (AB23)

"Rebecca, does mummy have lots of friends?---Some.

Has she got a friend called Joe? Did she used to have a friend called Joe?---No, she never has.

Never had?---What is he doing?

What's that Rebecca?---What are you doing?

I'm just asking you some questions. Do you know why we're here today?---What?

Do?---Why?

Do you know why we're here today in court?---I don't know.

You don't know. I want to ask you some things, okay. Do you remember going to a house that belonged to a friend of your mummy's?---Mummy doesn't have a friend Joe.

She doesn't have a friend Joe. Did she used to have a friend called Joe?---No."

38 I consider it is clear from this passage that the child, in her own mind, did not see the accused person as being a friend of her mother. The prosecutor asked her, "Do you know why we are here today?" This question was not asking the witness why she was here, but was asking the witness why the prosecutor and other undesignated persons were there. The answering in the negative by the witness would be a literal and true answer. She could not be expected to know why the prosecutor and other people were present in court. These questions would not detract from her ability to give an intelligent account and were followed by the questions to which I have already referred where she described what happened to her.
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39 The learned trial Judge, in his reasons for not admitting the evidence into the trial, referred to the cross-examination and this led his Honour to the view that the proper test under s 106C had not been fulfilled. I have already indicated that I consider his Honour was in error in referring to the cross-examination. If the Judge taking the evidence is satisfied as to competency prior to the evidence being given, and reaches this view on a proper basis, then the witness is competent. It is evidence for the jury and it is a matter for the jury to weigh up the effect of cross-examination. The trial Judge made specific reference to a difficulty in the child's ability to distinguish between truth and falsity. The following portions of the cross-examination bear on this and they occurred after the child had been cross-examined for some 20 minutes: (AB48)

"Do you know what lying is?---What?

When you don't tell the truth, isn't it? Isn't that right? Somebody lies when they don't tell the truth? Rebecca, do you know if that's right?---No.

Rebecca, look, I have just got a few more questions for you, so if you just answer them we will be finished soon. Do you know the difference between telling lies and telling the truth? You don't? Can you just say an answer please?---No.

You don't know the difference. Well, do you know what telling lies is?---No.

Do you know what telling the truth is?---No."

40 A little later the following questions were asked: (AB49)

"Now, Rebecca, you just - you haven't told us the truth today about Joe touching you on the minnie, have you? Are you listening to me?---I can hear you.

Yes, okay. You're not telling the truth about Joe touching you on the minnie, are you?---Yes, I am."

41 The trial Judge in the reasons I set out, referred to a difficulty the child's ability to distinguish between truth and falsity and to the remarks of Murray J in Lau v The Queen (1991) 6 WAR 30. He then said that he considered that the proper test had not been fulfilled. The requirement to understand the duty of speaking the truth was a specific requirement under the former s 101, but as I mentioned, it is no longer a requirement under

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the section now being considered. Lau's case was decided before the recent amendments and Murray J was discussing the old s 101. If a child is able to give an intelligible account, the question of whether or not the child is truthful and whether there are factors to show the child as being untruthful are now matters for the jury.

42 I consider the matter goes further in the present case as I consider that a jury, after examining the whole of the evidence, could well reach the view that the child was being truthful and that this was not detracted from the fact of her answering these particular questions in the way she did at the time they were asked. The questions in this particular area were complex and in my view confusing. The request, "Can you just say an answer please?" is not necessarily seen by a child as seeking the correct answer to a particular question. The jury have also before them the later positive assertion by that witness that she was telling the truth about the accused person touching her minnie.

43 There is one further aspect of the trial Judge's reasons on which I would comment and that is that his Honour referred initially to the fact that there were "a couple of unsuccessful attempts to get intelligible answers from the child by the Judge". This will often occur in examinations of children of this age and may well be as a result of the correct question not being asked. If the child in fact later demonstrates an ability to give an intelligible account, that would be quite sufficient for the Judge to form a view on competency and I consider it was open and proper for Judge Blaxell to form that view on what later occurred.

44 For these reasons I have reached the view that the evidence of the child complainant taken by Judge Blaxell was admissible and it was not open to the trial Judge for the reasons he gave to say the evidence should not go to the jury.

Whether further enquiry needed as to the child's ability to take the oath

45 The other matter raised before the trial Judge was the question that it had been assumed by Judge Blaxell that the child was not competent to take the oath without there being any questioning as to whether that was the position. The trial Judge rejected this submission as it was also apparent to him that it was obvious the child could not take the oath. The submission on this appeal on behalf of the respondent is that there is a requirement to ask the child questions. The case of Lau did refer to the necessity for a proper enquiry to be carried out when a witness was giving unsworn evidence under s 100A(1) of the Evidence Act when it was an

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order sought under that section for an 18-year-old witness to give unsworn evidence. The considerations under that section are entirely different when it is sought to apply that section to adult witnesses. There would be a presumption that an adult witness is capable of understanding the nature of an oath, and it would be necessary to establish the contrary for the purposes of allowing an adult witness not to give such evidence.

46 There were two cases considered by this Court relating to the ascertaining of the competency of children giving evidence. The first was Vine v The Queen, unreported; CCA SCt of WA; Library No 950423; 8 August 1995. That was the case of an 8-year-old child who was at school and who was not of an age where it would be apparent that she was not competent to take the oath. The Judge commenced to ask questions to ascertain this question. She answered these correctly and then his Honour, for no apparent reason, said that there was no need to swear her. He had not specifically directed his mind to the questions raised by the section. This case did not deal with the question whether it was necessary to ask questions in every case, irrespective of the age of the child. The second case was Revesz v The Queen. In that case the trial Judge allowed a 7-year-old witness to take the oath without properly examining her competency. This, too, has no bearing on the present question. It is clear that a competency to take the oath must be properly established and the test under s 106B to take an oath is a different one.

47 In the present case the first Judge did direct his mind to the question and considered that the age of the child was sufficient to reach a view that she could not meet the test required to take the oath. The age of a child is a very important consideration in deciding whether the child is capable of understanding the necessary requirements to take an oath. A child can be of a sufficiently young age when it is obvious that it would not have that capacity. This is how the child appeared to each of the Judges in the District Court and there was a proper basis for reaching that view. For my part, I would have a doubt whether a 5-year-old child who had not yet commenced school would realise that he or she has an obligation to tell the truth that is over and above the ordinary duty to tell the truth. I would also have a doubt whether the questions formulated for older children to test these concepts would be sufficient to remove that doubt in the case of a 5-year-old child. If there is such a doubt then it would not be possible to form the opinion that the child has the understanding required in s 106B(2). I would also add that interpreting the section as containing a requirement that such questions must be asked in every case, would not be an interpretation consistent with the purpose and object of the Act. It is

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not the intent to be unnecessarily asking very young children questions of the type necessary to qualify them under the section.

Lateness in raising the question

48 Section 106S provides that pre-trial hearings are mandatory when there is a child witness. It is of great concern that questions of the type raised by counsel for the defence were raised at the trial and not at an earlier stage and I would endorse the admonition of Judge Healy to counsel for raising the question at the time it was raised. Counsel did express to his Honour his extreme regret. It is however actions of this type which add to the delay in obtaining trial dates. The jury were required to be discharged and time which could be used on another trial was lost.

When competency must be determined

49 A question was argued during the hearing of the appeal that when the Judge taking the trial is different from the Judge taking the evidence, whether the trial Judge is bound by the decision of the Judge making the earlier decision. It is highly desirable in cases involving children describing recent events that the matter is expedited so that a young child is giving evidence as soon as possible after the event has occurred. This policy is followed in the District Court and this particular trial was expedited and heard as soon as was possible. A particular matter arose which required an earlier adjournment and this was through no fault of either party. The next matter of importance is that such a trial should, if possible, be placed under the management of the one Judge so that the one Judge takes the earlier evidence, makes the decisions at the directions hearings and conducts the trial. Although the Act authorises different Judges to conduct these functions, it is a procedure which should be avoided if possible. However, it is appreciated that with the state of the District Court lists this is not always possible, however if it is done the question now being considered would not arise.

50 The question is what is the position if the Judge conducting the trial is of a different opinion as to competency to the judge recording the evidence? The Evidence Act specifically authorises evidence to be taken prior to the trial and the Act provides that the tape becomes evidence in the trial. In these circumstances the Court or person acting judicially, and who must form the opinions referred to in s 106B and s 106C, is the Judge taking the evidence at the earlier hearing. Once the Judge forms the

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required opinion, the evidence becomes admissible. If the Judge conducting the trial were of a different opinion, that would be of no consequence as the admissibility is dependent upon the opinion of the Judge first taking the evidence. I would nevertheless see the Judge conducting the trial having a discretion in circumstances where it would be obvious that the evidence is inadmissible or where its prejudicial value exceeds its probative value. The present case is not in that category. The tape showed that the child had the capacity to describe events she witnessed and it was a jury question whether the matters raised affected its accuracy and truthfulness.

51 I would allow the appeal and remove the stay.

52 WALLWORK J: I agree with the reasons for judgment of Pidgeon J and to the orders proposed by his Honour.

53 PARKER J: I agree with the reasons and decision proposed by Pidgeon J.