Rout v The King - [2024] SASCA 72

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ROUT v THE KING
[2024] SASCA 72
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
13 June 2024
EVIDENCE - ADMISSIBILITY - EXCLUSIONS: UNSWORN EVIDENCE
CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - PARTICULAR PERSONS AND MATTERS - CHILDREN
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
This is an appeal against conviction.

The appellant was convicted by a judge sitting without a jury of the offence of unlawful sexual intercourse with a person under the age of 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA).
The prosecution case was that the appellant performed an act of fellatio upon the complainant. This was alleged to have occurred when the complainant was five years of age.
Shortly after the alleged incident, in January 2021, the complainant participated in two prescribed interviews with police. He was still five years old at the time of the interviews. The prosecutor applied to tender the interviews pursuant to s 13BA of the Evidence Act 1929 (SA) (‘the Evidence Act’). Defence counsel objected to their tender. After watching the video-recordings of the interviews, and hearing the parties’ submissions, the trial Judge declined to admit the interviews on the basis that he was not capable of giving sworn or unsworn evidence at that time. The complainant also participated in a third police interview when he was seven years old, and about one month prior to the trial.
The trial Judge permitted the complainant to give unsworn evidence pursuant to s 9(2) of the Evidence Act.
The appellant participated in a record of interview with police wherein he denied the alleged offence. A video recording of the interview was tendered and played before the trial Judge. The appellant did not give evidence at trial.
The appellant challenges his conviction on two appeal grounds concerning the trial Judge’s decision to allow the complainant to give unsworn evidence (Ground 2), and the treatment of the appellant’s police interview (Ground 3). Prior to the appeal hearing, the appellant abandoned a complaint that the verdict was unreasonable or could not be supported having regard to the evidence (Ground 1).
Held, per the Court, granting permission to appeal but dismissing the appeal:
1.In relation to Ground 2, the trial Judge conducted an inquiry under s 9(1). Her Honour made a determination that the presumption that the complainant was capable of giving sworn evidence was rebutted, before permitting him to give unsworn evidence under s 9(2).
2.There was a sufficient evidentiary basis to determine that the presumption in s 9(1) was rebutted and for the complainant to give unsworn evidence pursuant to s 9(2). The complainant’s interviews conducted over a period of two years leading…

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 Rout v The King

Details

AGLC: Rout v The King [2024] SASCA 72
Case: [2024] SASCA 72
Decision Date: 13 June 2024

CaseChat Overview and Summary

The appeal concerned the admissibility of unsworn evidence in a criminal trial. The appellant, Rout, was convicted of sexual offences. A central issue on appeal was whether the trial judge had erred in permitting a child witness to give unsworn evidence.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge had correctly applied section 9 of the Evidence Act 1929 (SA) in determining the child witness's capacity to give unsworn evidence, and whether any error in this regard constituted a miscarriage of justice. Specifically, the court considered the statutory preconditions for permitting unsworn evidence and the judge's obligations in explaining the nature of truthfulness to the witness.

The Court affirmed that section 9 of the Evidence Act presumes a witness's capability to give sworn evidence, with the discretion to permit unsworn evidence arising only upon satisfaction of specific statutory conditions. These conditions include the judge determining the witness lacks sufficient understanding of the obligation to be truthful under oath, but understands the difference between truth and falsehood, and that the judge has impressed upon the witness the importance of telling the truth, with the witness indicating an intention to do so. The Court found that the trial judge had properly considered and applied these preconditions, and therefore, no error had occurred that would amount to a miscarriage of justice.

Permission to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 9 of the Evidence Act relevantly provides: 9—Unsworn evidence(1) A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.(2) If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—(a) the judge—(i) is satisfied that the person understands the difference between the truth and a lie; and(ii) tells the person that it is important to tell the truth; and(b) the person indicates that he or she will tell the truth.(3) In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.(4) If unsworn evidence is given under this section in a criminal trial, the judge—(a) must explain to the jury the reason the evidence is unsworn; and(b) may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.(5) …(6) … The reference to a person in s 9(1) applies to a person of any age. In considering the operation of s 9, the starting point is that any witness, even a very young child, is presumed capable of giving sworn evidence unless the trial judge determines otherwise. The discretion to permit a witness to give unsworn evidence is enlivened only upon the trial judge’s satisfaction of the four statutory pre-conditions in s 9 of the Evidence Act, namely: ·the witness does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence; ·the witness understands the difference between a truth and a lie; ·the judge tells the witness that it is important to tell the truth; and·the witness indicates that he or she will tell the truth. In R v Climas[1] (‘Climas’), the Full Court considered various questions of law relating to the operation of the recently introduced s 9. Duggan J made the following observations about s 9(1):Under the new provisions the focus has changed from a consideration of the ability to understand the nature of the oath to a consideration of the ability to understand an obligation which is common to both oath and affirmation. King CJ explained the nature of this obligation in R v Whittingham when he said:The law depends upon the solemnity attaching to the taking of the oath or affirmation to impress upon the minds of witnesses the importance of telling the truth in the witness box, and indeed the crucial importance of telling the truth in the witness box by comparison with other, everyday occasions on which the sanction and solemnity of the oath are not involved.(citations omitted.)[1] R v Climas (Question of Law Reserved) (1999) 74 SASR 411 at [24] per Duggan J (Millhouse J agreeing).

Decision

Reasons for decision

We dismiss this ground of appeal. Conclusion1. We grant permission to appeal but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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