Reference of a Question of Law pursuant to the Criminal Code s 693A (Reference No 1 of 1999)

This case involved a reference to the court regarding the interpretation and application of section 106D of the Evidence Act 1906. The case arose from a criminal trial where the prosecution's case relied on the uncorroborated evidence of a child. The central issue was whether the trial judge's direction to the jury, which included the statement that "children do fantasise," was in breach of section 106D of the Evidence Act, which prohibits judges from suggesting that it is unsafe to convict on the uncorroborated evidence of a child because children are classified as unreliable witnesses.

The court considered whether the trial judge's direction fell within the prohibition of section 106D. The court noted that while section 106D prevents general warnings about the unreliability of children as witnesses, it does not preclude warnings about the reliability of a particular child witness where the circumstances of the case warrant it. The court had to determine if the direction given by the trial judge constituted a general warning about children's reliability or if it was specific to the circumstances of the particular case. The key passage in the direction, which stated that "children do fantasise," was scrutinised to determine if it conveyed a suggestion that it was unsafe to convict on the uncorroborated evidence of a child because children are classified by law as unreliable witnesses.

The court concluded that the trial judge's direction infringed section 106D because it suggested to the jury that it was unsafe to convict on the uncorroborated evidence of a child due to children's tendency to fantasise. This was seen as a generalisation about children's reliability as witnesses, which is prohibited by section 106D. However, the court emphasised that the section does not diminish the need for warnings about an individual child witness where specific circumstances, such as inconsistencies in their evidence or a significant passage of time since the alleged offence, necessitate such a warning to avoid a miscarriage of justice. The court's decision highlighted the need for careful wording in jury directions to ensure compliance with the statutory provisions while still allowing for necessary warnings about the reliability of specific witnesses.

The court's final orders were to provide clarification on the proper application of section 106D in criminal trials where the prosecution relies on the uncorroborated evidence of a child. It stressed the importance of avoiding generalisations about children's reliability as witnesses while still permitting specific warnings where necessary to safeguard against a miscarriage of justice.