R v Wayan Suarwata - [2008] ACTSC 140

R v WAYAN SUARWATA [2008] ACTSC 140 (16 December 2008)

CRIMINAL LAW ─ trial by judge alone ─ offence of sexual intercourse with a person under the age of 10 years ─ no evidence in support of offence ─ accused found not guilty.

CRIMINAL LAW ─ trial by judge alone ─ two charges of committing an act of indecency upon a person under the age of 10 years ─ one charge of attempting to commit an act of indecency upon a person under the age of 10 years ─ charges not proved beyond reasonable doubt ─ accused found not guilty.

CRIMINAL LAW ─ trial by judge alone ─ evidence given by a child in a Supreme Court trial ─ evidence to be given by way of audiovisual link ─ Evidence (Miscellaneous Provisions) Act 1991 (ACT).

CRIMINAL LAW ─ trial by judge alone ─ offences of committing an act of indecency upon a person under the age of 10 years ─ unsworn evidence by child ─ warning as to reliability of evidence of complainant ─ s 165 Evidence Act 1995 (Cth) ─ s 70 Evidence (Miscellaneous Provisions) Act 1991 (ACT).

EVIDENCE ─ complainants aged 8 years and 10 years ─ whether complainants competent to give sworn evidence ─ no understanding of “obligation” ─ complainants not competent to give sworn evidence but competent to give unsworn evidence ─ s 13 Evidence Act 1995 (Cth).

Crimes Act 1900 (ACT), subs 61(1), subs 55(1)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2, ss 40, 8, 43, 10, 46, 70, 125
Supreme Court Act 1933, s 68C
Legislation Act 2001 (ACT), Dictionary, s 144
Evidence Act 1995 (Cth), ss 13, 165, 164,
Crimes Act 1900 (ACT), s 264

Fleming v R (1998) 197 CLR 250

No. SCC 424 of 2007

Judge: Penfold J
Supreme Court of the ACT

Date: 16 December 2008

IN THE SUPREME COURT OF THE     )
  )          No. SCC 424 of 2007
AUSTRALIAN CAPITAL TERRITORY )

R

v

WAYAN SUARWATA

ORDER

Judge:  Penfold J
Date:  16 December 2008
Place:  Canberra

THE COURT FINDS THAT:

Wayan Suarwata is not guilty of the charge that between the 27^th day of July 2007 and the 30^th day of September 2007 at Canberra in the Australian Capital Territory he attempted to commit an act of indecency upon [the male complainant], the said complainant then being a person under the age of 10 years, namely 9 years of age.

Wayan Suarwata is not guilty of the charge that on the 22^nd day of September 2007 at Canberra in the Australian Capital Territory he committed an act of indecency upon [the female complainant], the said complainant then being a person under 10 years of age, namely 7 years of age.

Wayan Suarwata is not guilty of the charge that on or about the 22^nd day of September 2007 at Canberra in the Australian Capital Territory he engaged in sexual intercourse with [the female complainant], the said complainant then being a person under 10 years…

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 Wayan Suarwata

Details

AGLC: R v Wayan Suarwata [2008] ACTSC 140
Case: [2008] ACTSC 140
Decision Date: 16 December 2008

CaseChat Overview and Summary

The case of R v Wayan Suarwata involved the defendant, Wayan Suarwata, who was on trial for multiple charges related to sexual offences against two child complainants, one aged eight and the other ten. The trial was conducted in the Supreme Court of the Australian Capital Territory, with the judge presiding over the proceedings without a jury. The primary charges against Suarwata included the attempted commission of an indecent act on a person under ten years of age and the commission of indecent acts and sexual intercourse with a person under ten years of age.

The court was required to determine whether Suarwata was guilty of the charges as alleged. This involved assessing the credibility and sufficiency of the evidence provided, particularly the unsworn testimony of the child complainants. The court had to consider the competency of the child witnesses to provide unsworn evidence, as well as the reliability of their testimonies. The legal framework for these considerations was provided by sections 13 and 165 of the Evidence Act 1995 (Cth) and section 70 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). These provisions address the competency of witnesses to give sworn evidence and the manner in which unsworn evidence from children can be presented and considered in court.

The court found that neither of the child complainants was competent to give sworn evidence as they did not understand the obligation to tell the truth. However, both children were deemed competent to provide unsworn evidence after inquiries established their understanding of the difference between truth and lies and their commitment to telling the truth in court. Despite the unsworn testimony, the court concluded that the prosecution had not proved the charges beyond reasonable doubt. Consequently, Suarwata was found not guilty on all counts.

The final orders of the court declared Suarwata not guilty of all charges, including the attempted commission of an indecent act, the commission of indecent acts, and sexual intercourse with a person under ten years of age.

Orders

Orders of the court

THE COURT FINDS THAT:

1. Wayan Suarwata is not guilty of the charge that between the 27th day of July 2007 and the 30th day of September 2007 at Canberra in the Australian Capital Territory he attempted to commit an act of indecency upon [the male complainant], the said complainant then being a person under the age of 10 years, namely 9 years of age.

2. Wayan Suarwata is not guilty of the charge that on the 22nd day of September 2007 at Canberra in the Australian Capital Territory he committed an act of indecency upon [the female complainant], the said complainant then being a person under 10 years of age, namely 7 years of age.

3. Wayan Suarwata is not guilty of the charge that on or about the 22nd day of September 2007 at Canberra in the Australian Capital Territory he engaged in sexual intercourse with [the female complainant], the said complainant then being a person under 10 years of age, namely 7 years of age.

4. Wayan Suarwata is not guilty of the alternative charge that on or about the 22nd day of September 2007 at Canberra in the Australian Capital Territory he committed an act of indecency upon [the female complainant], the said complainant then being a person under the age of 10 years, namely 7 years of age.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Subsections 13(1) and (2) of the Evidence Act 1995 (Cth) (the Evidence Act) are set out in Appendix A. A person is not competent to give sworn evidence if the person is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence (subs 13(1)). Under subs 13(2), a person who is not competent to give sworn evidence may give unsworn evidence if the judge is satisfied that the person understands the difference between the truth and a lie and tells the person that it is important to tell the truth, and the person indicates, when asked, that he or she will not tell lies in the court. In view of the age of the two complainants, I undertook with each of them an inquiry about their understanding of the significance of giving truthful evidence. The female complainant, who at the time of the hearing was a month short of her ninth birthday, told me, when asked, that she did not know what an obligation was. I considered that explaining the concept of an obligation to her and then inviting her to confirm her understanding of my explanation would not provide a proper basis for a finding that she was capable of understanding the obligation to give truthful evidence as described in subs 13(1). I therefore found that she was not competent to give sworn evidence, and moved on to an inquiry under subs 13(2). During that inquiry the female complainant made it clear that she did understand the difference between the truth and a lie, and that it was bad to tell lies. I then told her that it was very important that in the court she only tell the truth, and in response to my questions, she said “Yes, I will tell the truth” and “I will not tell any lies”. The female complainant’s unsworn evidence was then received. The male complainant, who at the time of the hearing was 10 years and 9 months old, also told me, when asked, that he did not know what an obligation was. As already explained in relation to the female complainant, I did not consider that it was appropriate to seek to explain that concept to the male complainant. Accordingly I found that he also was incapable of understanding the obligation to give truthful evidence as described in subs 13(1), and therefore was not competent to give sworn evidence. In an inquiry under subs 13(2), the male complainant indicated that he knew that a lie was “when you’re not saying the truth, it’s just made up”, that he knew what it means to tell the truth, and that it is bad to tell lies. He said that it was very important to tell the truth in court, “because people can go to jail from just a lie” and confirmed that when people in the court asked him questions, he would answer them “in the truth”. In response to a request from me, he said “I will not tell any lies in this court”. The male complainant’s unsworn evidence was then received. Section 70 of the Miscellaneous Provisions Act (set out in Appendix A) prohibits a judge, in a sexual offence proceeding in which a child has given evidence, giving the jury “any warning or suggestion to the effect that the law regards children to be an unreliable class of witnesses”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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