R v Wau - [2013] QCA 265

SUPREME COURT OF QUEENSLAND

CITATION:

R v WAU [2013] QCA 265

PARTIES:

R
v
WAU
(appellant/applicant)

FILE NO/S:

CA No 331 of 2012
DC No 607 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore 10 July 2013
Reasons delivered 20 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2013

JUDGES:

Holmes and Gotterson JJA and Douglas J
Judgment of the Court

ORDERS:

Delivered ex tempore on 10 July 2013:

1.The appeal is allowed.

2.The convictions are set aside.

3.A re-trial is ordered on all counts.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of four counts of rape – where the complainant gave unsworn evidence – where the appellant contended that the trial judge failed to comply with the requirements of s 9B of the Evidence Act 1977 – where the appellant argued that the trial judge failed to properly assess the complainant’s competence to give evidence in the proceeding on oath – whether the trial judge should have made inquiry as to the complainant’s understanding that the giving of evidence is a serious matter – whether the trial judge should have made inquiry as to the complainant’s understanding that in giving evidence she has an obligation to tell the truth over and above the ordinary duty to tell the truth – whether a miscarriage of justice resulted from the failure to ascertain whether the complainant was competent to give evidence under oath and if so have the witness sworn or affirmed – whether the proviso could be applied

EVIDENCE – WITNESSES – SWEARING AND OATHS – CAPACITY IN GENERAL – YOUNG CHILDREN – where the complainant was a nine year old child – where the complainant gave pre-recorded evidence by a closed-circuit television – where the examination-in-chief, cross-examination and re-examination occurred without the complainant having been first sworn or affirmed – whether the complainant was permitted to give evidence without having been sworn or affirmed in circumstances where the court had not reached the required opinion with respect to her competency to give evidence on oath – whether there has been a miscarriage of justice

Criminal Code 1899 (Qld), s 349, s 668E
Evidence Act 1977 (Qld), s 9, s 9B

R v BBR [2010] 1 Qd R 546; [2009] QCA 178, cited
R v Brown [1977] Qd R 220, distinguished
R v MBT [2012] QCA 343, cited

COUNSEL:

K Prskalo for the appellant/applicant
M R Byrne QC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: After a trial over six days in the District Court at Brisbane, the appellant, WAU, was found guilty on 12 November 2012 on four counts of rape (counts 1, 5, 8 and 10) and seven counts of indecent treatment of a child…

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 Wau

Details

AGLC: R v WAU [2013] QCA 265
Case: [2013] QCA 265
Decision Date: 10 July 2013

CaseChat Overview and Summary

The case of R v Wau involved the appellant who was convicted on four counts of rape. The trial was conducted with the complainant providing unsworn evidence. The appellant contested the conviction by arguing that the trial judge did not follow the necessary requirements of section 9B of the Evidence Act 1977, particularly in assessing the complainant's competence to give evidence under oath. The appellant argued that the trial judge should have investigated the complainant's understanding of the seriousness of giving evidence and the obligation to tell the truth. The court needed to determine whether the failure to ascertain the complainant's competency to give evidence under oath resulted in a miscarriage of justice, and if the proviso could be applied.

The legal issues before the court were whether the trial judge adequately assessed the complainant's competence to give evidence under oath and whether the failure to do so amounted to a miscarriage of justice. The court needed to consider whether the complainant, a nine-year-old child, was permitted to give evidence without being sworn or affirmed, especially when the court had not reached the required opinion regarding her competency to give evidence on oath. Additionally, the court examined whether there was a miscarriage of justice due to the irregularities in the evidence-giving process.

The court found that the trial judge did not properly assess the complainant's competence to give evidence under oath. The court held that the failure to ascertain whether the complainant was competent to give evidence under oath, and to have the witness sworn or affirmed, amounted to a miscarriage of justice. Consequently, the court allowed the appeal, set aside the convictions, and ordered a re-trial on all counts. The court's decision was delivered ex tempore on 10 July 2013.

Orders

Orders of the court

Delivered ex tempore on 10 July 2013:

1.The appeal is allowed.

2.The convictions are set aside.

3.A re-trial is ordered on all counts.

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.

CITATION:	R v WAU [2013] QCA 265
PARTIES:	R v WAU (appellant/applicant)
FILE NO/S:	CA No 331 of 2012 DC No 607 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Orders delivered ex tempore 10 July 2013 Reasons delivered 20 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	10 July 2013
JUDGES:	Holmes and Gotterson JJA and Douglas J Judgment of the Court
ORDERS:	Delivered ex tempore on 10 July 2013: 1.The appeal is allowed. 2.The convictions are set aside. 3.A re-trial is ordered on all counts.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of four counts of rape – where the complainant gave unsworn evidence – where the appellant contended that the trial judge failed to comply with the requirements of s 9B of the Evidence Act 1977 – where the appellant argued that the trial judge failed to properly assess the complainant’s competence to give evidence in the proceeding on oath – whether the trial judge should have made inquiry as to the complainant’s understanding that the giving of evidence is a serious matter – whether the trial judge should have made inquiry as to the complainant’s understanding that in giving evidence she has an obligation to tell the truth over and above the ordinary duty to tell the truth – whether a miscarriage of justice resulted from the failure to ascertain whether the complainant was competent to give evidence under oath and if so have the witness sworn or affirmed – whether the proviso could be applied EVIDENCE – WITNESSES – SWEARING AND OATHS – CAPACITY IN GENERAL – YOUNG CHILDREN – where the complainant was a nine year old child – where the complainant gave pre-recorded evidence by a closed-circuit television – where the examination-in-chief, cross-examination and re-examination occurred without the complainant having been first sworn or affirmed – whether the complainant was permitted to give evidence without having been sworn or affirmed in circumstances where the court had not reached the required opinion with respect to her competency to give evidence on oath – whether there has been a miscarriage of justice Criminal Code 1899 (Qld), s 349, s 668E Evidence Act 1977 (Qld), s 9, s 9B R v BBR [2010] 1 Qd R 546; [2009] QCA 178, cited R v Brown [1977] Qd R 220, distinguished R v MBT [2012] QCA 343, cited
COUNSEL:	K Prskalo for the appellant/applicant M R Byrne QC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent