R v Wau

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.