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 up to the trial informed the trial Judge’s assessment of his maturity and cognitive abilities when aged five and seven years and were relevant to his ability to understand the obligation to be truthful entailed in giving sworn evidence at trial. The interviews combined with the trial Judge’s questioning of the complainant immediately before he gave evidence provided an evidentiary basis for a determination that the presumption in s 9(1) was displaced.
3.The trial Judge’s reasons, whilst not detailed, sufficiently outlined the basis upon which s 9(1) was displaced. The determination was recorded in the transcript and sufficient reasons for that determination were provided at the time of verdict.
4.The trial Judge said she was not satisfied the complainant had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. The correct question was whether the trial Judge was satisfied that the complainant did not have a sufficient understanding of the obligation. In the circumstances of this case, it was clear that the trial Judge did in fact reach a positive satisfaction that the presumption was displaced, notwithstanding that she did not use the precise language of the legislative provision to express it.
5.In relation to Ground 3, and the challenge to the adequacy of the trial Judge’s reasons for rejecting the appellant’s denials, the trial Judge specifically cautioned herself against ‘choice reasoning’, and her reasons for rejecting the appellant’s denials were not inadequate. This Court is not frustrated in discharging its appellate function by virtue of the reasons, and there was no miscarriage of justice.

Criminal Law Consolidation Act 1935 (SA) s 49(1); Criminal Procedure Act 1921 (SA) ss 158(1)(c); Evidence Act 1929 (SA) ss 9, 9(1), 9(2), 9(3), 13BA, 13(3)(b)(i), referred to.
DL v The Queen (2018) 266 CLR 1; R v Climas (Question of Law Reserved) (1999) 74 SASR 411; R v French (2012) 114 SASR 287; R v Starrett (2002) 82 SASR 115, discussed.
JGS v The Queen [2020] SASCFC 48; Lloyd v The King [2023] SASCA 106; Simpson (A Pseudonym) v The King [2024] SASCA 37, considered.

ROUT v THE KING
[2024] SASCA 72
Court of Appeal – Criminal: Livesey P, Doyle and David JJA

THE COURT: 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 appellant now appeals against his conviction. The grounds of appeal relate to the trial Judge’s decision to allow the complainant to give unsworn evidence, and the treatment of the appellant’s police interview. Prior to the appeal hearing, the appellant abandoned ground one which alleged that the verdict was unreasonable or could not be supported having regard to the evidence.
For the reasons which follow, we grant permission to appeal but dismiss the appeal.
The trial
The appellant’s stepmother would regularly care for the complainant and his siblings, and the complainant would often attend the appellant’s stepmother’s home.
The prosecution case was that the appellant performed an act of fellatio upon the complainant. This was alleged to have occurred at the appellant’s stepmother’s house on an occasion when the complainant’s mother received a tattoo. The complainant said that he went into the appellant’s bedroom and it was there that the appellant performed an act of fellatio upon him. Several family members and associates, as well as the tattoo artist, were present elsewhere in the home at the time.
The complainant was five years old at the time of the offending. Shortly after the alleged incident, in January 2021, he participated in two prescribed interviews with police wherein he gave an account of the offending. 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 the complainant was not capable of giving sworn or unsworn evidence at the time of the interviews.
In addition, the complainant participated in a prescribed interview with police in February 2023, about one month before the trial commenced. The prosecutor indicated that should the trial Judge decline to admit the earlier interviews, he would not seek to tender a recording of the latter interview, as its content was inextricably connected to the earlier interviews.
At trial, the complainant was called to give evidence. By this stage, he was seven years old. The trial Judge permitted him to give unsworn evidence pursuant to s 9(2) of the Evidence Act. The decision to do so is the subject of Ground 2 of the appeal.
In relation to the evidence adduced at trial, the complainant gave evidence that he attended the appellant’s stepmother’s home with his mother so that she could receive a tattoo. The appellant was present at the home at the time. The complainant said he went into the appellant’s bedroom while his mother was receiving a tattoo in another room whereupon the appellant performed fellatio upon him after removing the complainant’s shorts and underpants. It was put to the complainant in cross-examination that this alleged sexual act did not occur, and his allegations were a story that his parents had encouraged him to tell. The complainant rejected those suggestions.
The prosecution also led evidence from various witnesses (all of whom were present at the home) to establish that the appellant had the opportunity to commit the offence. This was a matter about which there appeared to be no dispute.
The appellant participated in a record of interview with police on 15 August 2021, wherein he denied the offences. A video recording of the interview was tendered and played before the trial Judge. Her Honour’s treatment of the appellant’s denials in reaching her verdict is the subject of Ground 3.
The appellant did not give evidence at trial.
The trial Judge convicted the appellant of the offence and provided reasons for her verdict. The aspects of her Honour’s reasons directly relevant to this appeal relate to her decision to permit the complainant to give unsworn evidence pursuant to s 9(2) of the Evidence Act, and her treatment of the appellant’s record of interview and denials of the alleged offending.
Appeal grounds
The appellant challenges his conviction on the following amended grounds.
Ground 2
The trial Judge erred in law by accepting unsworn evidence of the complainant.
Particulars
(a)Notwithstanding [7] of the reasons for verdict, her Honour did not conduct an inquiry as to the understanding of the obligation to be truthful entailed in giving sworn evidence (‘the obligation’);
(b)In the alternative, there was no adequate evidentiary basis for her Honour to determine that the witness did not have a sufficient understanding of the obligation;
(c)In the further alternative, her Honour gave inadequate reasons for making the finding that the witness did not have a sufficient understanding of the obligation; and
(d)In any event, her Honour reversed the presumption in s 9(1) of the Evidence Act by requiring satisfaction that the witness did have a sufficient understanding of the obligation in order for sworn evidence to be given, rather than requiring satisfaction that the witness did not have that understanding in order to rebut the presumption contained in s 9(1).
Ground 3
There was a miscarriage of justice occasioned by the trial Judge’s treatment of the appellant’s police interview.
(a)The reasons for rejecting the denials in the interview were inadequate; and
(b)Further and in the alternative, her Honour failed to take into account the appellant’s intellectual disability when making an assessment of the denials in the interview.
The appellant abandoned the first ground of appeal, which related to a complaint of unreasonable verdict, prior to the appeal hearing.
Ground 2 – unsworn evidence
The appellant contends that, the trial Judge did not properly satisfy herself that the s 9(1) presumption that the complainant was capable of giving sworn evidence has been rebutted. The appellant did not otherwise contend that the other statutory pre-conditions for giving unsworn evidence had not been satisfied.
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).
Later, Duggan J said that where a witness is a child under the age of 10 years, and there is no criminal sanction for not telling the truth, ‘it remains appropriate in the case of children of this age to regard the obligation to be truthful referred to in s 9(1) as alluding to the importance of telling the truth in the witness box as a serious matter which may have serious consequences for the accused.’[2]
[2] R v Climas (Question of Law Reserved) (1999) 74 SASR 411 at [44] per Duggan J (Millhouse J agreeing).
In Climas, Lander J went further and expressed the view that s 9(1) requires that a witness understand the solemnity of taking an oath or making an affirmation and the sanctions which would follow both morally and legally if that person failed to comply with the obligation to tell the truth. Lander J said:[3]
Section 9(1) contemplates an obligation more than simply an obligation to be truthful. In my opinion, what is contemplated in s 9(1) is an understanding that, in giving sworn evidence, the person is thereby accepting the solemnity of the taking of an oath or the making of an affirmation and the sanction which would follow, both morally and legally, if that person failed to comply with the obligation to tell the truth. It is not simply the legal obligation which attaches to sworn evidence which is important. Section 242 of the Criminal Law Consolidation Act provides for an offence of perjury for a false statement made under oath. Oath includes an affirmation (s 242(5)(a)). Because of s 5 of the Young Offenders Act 1993 (SA) no child under the age of 10 years can commit an offence. Although a child under the age of 10 years cannot be guilty of the offence of perjury a child under that age can give sworn evidence. That supports the proposition that the obligation to be truthful entailed in giving sworn evidence does not emanate solely from the legal sanction for failing to do so. The obligation arises from the public declaration in taking an oath or making a declaration, the accompanying recognition of the solemnity of that declaration, the recognition of the importance of truthfulness in the proceedings and the acceptance of the moral, and in the case of a person over the age of 10 years, the legal sanctions in failing to comply with that public declaration.
Section 9(1) therefore in my opinion contemplates obligations attaching to sworn evidence which would not attach to similar statements made outside the Court even though social obligations would suggest that those extra curial statements should also be truthful.
[3] R v Climas (Question of Law Reserved) (1999) 74 SASR 411 at [137]-[138] per Lander J (Millhouse J agreeing).
Milhouse J agreed with both Duggan and Lander JJ.
Subsequently, in R v Starrett[4] (‘Starrett’), Doyle CJ considered s 9 and the correct approach to be taken by judges in determining the basis upon which the evidence is received. Doyle CJ (with whom Perry and Lander JJ agreed) held:[5]
The legislative provisions found in s 9 cannot be dismissed as mere matters of form. Parliament has made it plain that evidence is to be given on oath, unless the presumption that the witness is capable of giving sworn evidence is rebutted. Parliament has also made it plain that appropriate inquiries are to be made before a decision is made as to whether evidence is given sworn or unsworn. The history of this legislation and of the approach of the courts to these issues makes it plain that these are important matters in our system of trial.
…
I would expect that usually the judge would question the witness before a determination is made under s 9(1). I accept that in some cases it may be appropriate for counsel to do so instead of the judge, particularly if counsel has talked to the witness before trial, and there is some reason why it is preferable for counsel to undertake the questioning. The judge is not limited to questioning the witness. It is plain from s 9(3) that the judge can receive and rely on information supplied from other sources. In other words, while one would usually expect the judge to make a determination on the basis of questions asked by the judge, there is no hard and fast rule to this effect.
But it is essential that the judge make a determination, if the witness is not to give sworn evidence, and it is desirable that the determination be recorded in the transcript, with reasons. The reasons need be no more than a few lines.
[4] R v Starrett (2002) 82 SASR 115.
[5] R v Starrett (2002) 82 SASR 115 at [15], [17]-[18] per Doyle CJ (Perry and Lander JJ agreeing).
Doyle CJ concluded that a departure from the proper procedures required by s 9 constituted a substantial irregularity and held that the trial was not conducted according to law, so it was inappropriate to apply the proviso.
In R v French[6] (‘French’), the application of s 9 was considered in circumstances where a ground of appeal was that the trial judge, after determining that the presumption in s 9(1) had been rebutted and permitting the complainants to give unsworn evidence pursuant to s 9(2), failed to explain to the jury the reason the evidence of each complainant was unsworn. In allowing the appeal, Sulan J (with whom Gray and White JJ agreed) set out the applicable legal principles under s 9:[7]
As I have stated earlier, strict compliance with s 9 is required when unsworn evidence is permitted. Failure to comply will result in a miscarriage of justice. The legal principles relating to unsworn evidence can be summarised as follows:
·Section 9(1) presumes a person capable of giving sworn evidence. There is no obligation to conduct an inquiry as to the ability to do so unless some matter relating to the person raises in the judge’s mind that the presumption may be rebutted. No such inquiry is required merely because the person is a child, though an inquiry will usually be necessary of a child of very tender years.
·If a matter raises in a judge’s mind that the s 9(1) presumption may be rebutted, the judge must determine whether the person has sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. The determination is to be recorded in the transcript, preferably with brief reasons. Usually, before making a determination a judge should ask whether the person understands the distinction between telling the truth or a lie, and whether they understand what a lie is. The person should be asked whether they will tell the truth. They should be asked whether they understand the importance of telling the truth by reference to any of the consequences or sanction that might otherwise arise.
·Once a judge has determined that the s 9(1) presumption is rebutted, questions must be asked of the person so as to satisfy s 9(2). The Judge must tell the person that it is important to tell the truth.
·If the Judge permits unsworn evidence to be given, s 9(4)(a) requires the Judge to explain to the jury the reason the evidence is unsworn. In so doing, the Judge should direct the jury that the Judge has determined that the person does not have a sufficient understanding of the obligation of giving evidence on oath or affirmation. That is, that the person does not understand the solemnity attaching to the taking of an oath or affirmation. It should be explained to the jury that the person has failed to demonstrate that he or she understands that the taking of an oath or affirmation creates an obligation which goes beyond the moral obligation to tell the truth in day-to-day life. The Judge should make it clear that, in permitting the person to give unsworn evidence, the Judge is satisfied that the witness understands the difference between truth and a lie, and that the Judge has told the witness that it is important to tell the truth, and the witness has indicated that he or she will be truthful. The explanation should be given to the jury before the person gives evidence and again in summing up.
·When a party makes a request, the trial Judge must give a warning as required by s 9(4)(b). The warning should necessarily include a reference to the fact the evidence is unsworn.
[6] R v French (2012) 114 SASR 287.
[7] R v French (2012) 114 SASR 287 at [35] per Sulan J (Gray and White JJ agreeing).

Relevantly to this case, and having regard to the principles articulated in Climas, Starrett and French, an inquiry under s 9(1) is required to be directed to whether the witness does not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. Such an understanding involves an appreciation of the difference between a truth and a lie, and both the legal and moral importance of telling the truth in court by comparison with the importance of telling the truth on other extra curial occasions which arise as part of daily life. For a witness to be capable of giving sworn evidence he or she must have an understanding that a failure to tell the truth may have serious consequences for the accused person.
There is no prescribed formula as to how an inquiry is to be conducted, nor any rigid form of questioning required. In the case of a child, it will vary from case to case depending on the age, maturity, and cognitive abilities of the child. However, any questioning should usually be conducted by the trial judge, and the inquiry must enable a judge to make a determination as to whether the witness has sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. The determination is to be recorded in the transcript or reasons for verdict or both, preferably with brief reasons.
Once a judge has determined that the s 9(1) presumption is rebutted, the judge must be satisfied that the other requirements of s 9(2) are satisfied (that is, the person understands the difference between a truth and a lie, the judge tells the person that it is important to tell the truth, and the person indicates that he or she will tell the truth) before the person is permitted to give unsworn evidence.
In the present case, the appellant contends that the trial Judge did not conduct an inquiry under s 9(1) as to the complainant’s understanding of the obligation to be truthful entailed in giving sworn evidence; or in the alternative, there was an insufficient evidentiary basis for her Honour to determine that the witness did not have a sufficient understanding of the obligation to displace the presumption. In particular, the appellant contends that the complainant was not asked, directly, whether he understood the importance of telling the truth in court by reference to any consequences or sanctions that might otherwise arise.
There is a curious feature associated with this ground. Had nothing been done, and no attempt made to comply with s 9, the common law presumption was that the complainant would give sworn evidence. However, the objection made to the tender of the complainant’s recorded interviews pursuant to s 13BA and the view taken of the complainant’s capacity to give sworn evidence by the trial Judge, brought into focus the requirement of s 9 of the Evidence Act. The object of this ground was that the unsworn evidence should not have been received and its admission resulted in a miscarriage of justice within s 158(1)(c) of the Criminal Procedure Act 1921 (SA).
In the reasons for verdict, her Honour said:
Prior to commencing the trial, I had the opportunity to view the interviews with [the complainant]. Two interviews had been conducted in 2021 and another in February 2023. At the time of the interviews in 2021, [the complainant] was five years old. When he was called to give evidence, he was seven years old and turning eight years old in less than a month. As he was so young, I conducted an inquiry in relation to s 9 of the Evidence Act 1929. Having viewed the interviews and spoken briefly to [the complainant], I was not satisfied that he had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. However, I permitted him to give unsworn evidence as I was satisfied that he understood the difference between the truth and a lie. I told him that it was important to tell the truth and he indicated that he would tell the truth.
It can be seen that the trial Judge explicitly said that after having viewed the complainant’s police interviews (conducted in January 2021 and February 2023) and after having briefly spoken with him, she determined that the complainant did not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. As referred to above, pursuant to s 9(3) of the Evidence Act, a judge is not bound by the rules of evidence and can inform himself or herself as the judge sees fit. For that reason, it was open to her Honour to have regard to the prescribed interviews, in addition to her direct questioning of the witness, in making a determination under s 9(1).
As outlined earlier, the complainant participated in three prescribed interviews with police. The prosecution sought to lead the first two interviews conducted with the complainant in 2021 when he was five years of age pursuant to s 13BA of the Evidence Act. Under s 13BA(3)(b)(i), it was a pre-condition to their admissibility that the trial Judge was satisfied that the complainant was capable of giving sworn or unsworn evidence at the time the recording was made. At trial, both parties appeared to proceed on the basis that the complainant was not capable of giving sworn evidence, presumably because of his very young age at the time of the video recordings, including the third interview when he was still only seven years of age. The prosecutor submitted to her Honour that the complainant was capable of giving unsworn evidence, whilst defence counsel submitted that he was not, on the basis that he had not indicated with sufficient clarity during the prescribed interviews that he was prepared to tell the truth.
In considering whether to admit the evidence of the first two interviews, the trial Judge viewed the recordings of all three interviews and heard lengthy submissions from both parties as to whether the complainant, at the time of the recordings, had satisfied the legislative requirements for giving unsworn evidence. Both parties addressed her Honour on the terms of s 9, and specifically outlined the four statutory pre-conditions before a witness can give unsworn evidence including, relevantly, that there has been a determination by the trial Judge that the presumption that a witness is capable of giving sworn evidence has been rebutted. Both parties in their submissions emphasised, however, the question of whether the complainant should be permitted to give unsworn evidence, and more specifically whether he had indicated during the interviews a preparedness to tell the truth.
After hearing argument, the trial Judge immediately gave an ex-tempore ruling:
I’m not satisfied that the child [the complainant] was capable of giving unsworn evidence at the time of the two interviews in 2021 when he was just over five years old, based upon the material that I have been presented with in this case.
What I have been presented with here shows a child who was extremely distracted throughout both of these interviews. He may have been placed in a very unfortunate position in the first interview where he may be a child who’s prone to being distracted quite easily but was then presented with a number of different options on a table that took all of his interest at that time, especially when he was being asked to discuss a very difficult topic of conversation and, despite numerous efforts by the interviewer, she was unable to bring him back to the necessary parts of an interview pursuant to s 13BA of the Evidence Act such that it, in my view, would be admissible as his evidence in chief in this case. I make that observation in relation to the interviews separately and in combination.
There are too many examples in here of a time when [the complainant] has been distracted where, if he has heard what’s been said, he hasn’t acknowledged what’s been said, where he has either ignored or been reluctant, for any number of reasons, and I don’t think speculating about them is very useful, but perhaps not unusual for a child of this age, but has been very reluctant to engage in the process. But ultimately, I must be satisfied that he was capable of giving unworn evidence at the time of the interviews being conducted.
I only have the interviews and the additional material, that I don’t think assists me greatly in determining this issue. Based upon those interviews, I’m not satisfied that he was capable of giving unsworn evidence at that time.
Accordingly, the trial Judge declined to allow the prosecution to lead the recordings of the prescribed interviews as the complainant’s evidence in chief. Her Honour also indicated that she would, when the complainant was called to give evidence, ‘make whatever inquiries are necessary, of course, in accordance with the provisions of s 9.’
On the following day, the trial Judge questioned the complainant in the following terms:
Q.    Good afternoon [the complainant].
A.    Good afternoon.
Q.    You can see and hear us.
A.    Yep.
Q.    Yes.
A.    Mm-hmm.
Q.    All right, I'm going to ask you some questions before we start. My name is Judge Davison and I am the judge who is hearing this trial. You have been asked to come here today to be a witness in the trial. Do you understand that.
NOT ANSWERED
Q.    Yes. When questions are asked of you, you need to say 'Yes' or 'No' in a big loud voice because we type down what you say and no-one can type down a nod of your head. Do you understand that.
A.    Yep.
Q.    Very good, thank you very much. Can you tell me how old you are now.
A.    Seven, turning eight on April the 13th.
Q.    Seven going on eight on when.
A.    I'm turning eight on April the 13th.
Q.    April the 13th, very good.
HER HONOUR: Can we have some more volume please and can you get the screen working in the dock?
HER HONOUR
Q.    So you go to school.
A.    Yep.
Q.    What school do you go to.
A.    [RPS].
Q.    Sorry, I couldn't hear that, what school.
A.    [R].
Q.    [RPS], and what year are you in.
A.    Year 3.
Q.    What's your teacher's name.
A.    Miss [E].
Q.    Miss.
A.    [E].
Q.    [E], all right. Do you like going to school.
A.    Yes.
Q.    What's your best subject.
A.    Maths.
Q.    Have you liked doing maths for a long time now.
A.    Yep.
Q.    Very good. Now, do you - do you understand, do you think, the difference between telling the truth and telling a lie.
A.    Yes.
Q.    If I was to say to you that you went to [ESPS], would that be true or would it be a lie.
A.    A lie.
Q.    What would be the truth.
A.    That I went to [RPS] near [E] - near [HP].
Q.    Do you understand that it's wrong to tell a lie.
A.    Yep.
Q.    Do you promise to tell the truth in court today when you're giving evidence.
A.    Yep.
Q.    Pardon.
A.    Yep.
Q.    Yes. All right. And I need to also tell you how important it is that you tell the truth, so can you listen carefully to what I'm going to say.
A.    Yep.
Q.    When you give evidence in court it is very important that you tell the truth, because people will listen to what you say and they may believe it and then act on it as the truth. They may do things because they believe you are telling the truth. Do you understand what I'm saying.
A.    Yep.
Q.    And because that - take your hand out of your mouth. Because that can happen, it is very important that you tell the truth about everything in court that you're asked today. Do you understand that.
A.    Yep.
Q.    Do you promise to do that.
A.    Yep.
Q.    All right. Now, when you're giving evidence, if you don't know the answer to a question you say 'I don't know', if you don't understand what someone's saying to you please tell me that you don't understand, just say 'I don't understand what that means'. Do you think you can do that.
A.    Yep.
Q.    If you need to have a break, if you need to go outside and have a bit of a walk around, go to the toilet, have a drink of water then please just tell me that you need to have a break.
A.    Yep.
Q.    Can you do that.
A.    Mm-hmm.
Q.    All right. Now, first of all, you're going to be asked some questions by Mr Foundas, have you met Mr Foundas today, Michael Foundas.
A.    Yeah.
Q.    You might remember him when you can see him on the screen. He's going to ask you some questions first and then when he's finished a man by the name of Mr Hill is going to ask you some questions –
A.    Mm-hmm.
Q. - and the same rules apply in relation to each of them. You must tell the truth. If you don't know the answer you say you don't know, if you don't understand you say you don't understand. All right.
A.    Mm-hmm.
Q.    Do you have any questions you want to ask me.
A.    No.
HER HONOUR: I'm satisfied that in this case [the complainant] can give unsworn evidence in relation to these matters.
HER HONOUR
Q.    So listen carefully, [the complainant], we're about to start. Sit up straight, put your hands on the table, concentrating.
Under this appeal ground, the appellant contends that the questioning by the trial Judge reveals that no inquiry was in fact conducted under s 9(1) as to whether the presumption had been displaced. The appellant submits that her Honour made no inquiry as to the complainant’s understanding of the solemnity of taking an oath, or making of an affirmation, and did not in fact determine that he did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. Thus, despite her Honour’s explicit statement to the contrary, the appellant contends that her Honour made no determination that the presumption in s 9(1) was rebutted and the complainant does not have sufficient understanding of the obligation to be truthful entailed in sworn evidence. Accordingly, the appellant contends her Honour permitted the complainant to give unsworn evidence when all the requirements for doing so had not been met; and where there has been a substantial irregularity such that the trial was not conducted according to law, there has been a miscarriage of justice and it is not appropriate to apply the proviso.[8]
[8] R v Starrett (2002) 82 SASR 115 at [27]-[28], [32]-[33] per Doyle CJ and [64]-[65] per Lander J; R v French (2012) 114 SASR 287 at [35] per Sulan J (Gray and White JJ agreeing).
Contrary to the appellant’s contention, we are satisfied that the trial Judge made a determination under s 9(1). We have reached that conclusion for the following reasons.
First, as outlined above, it must be borne in mind that the relevant inquiry was not confined to the trial Judge’s questioning of the complainant but included her earlier consideration of the prescribed interviews including the third interview conducted in February 2023 (about one month earlier). It was implicit in her Honour’s earlier ruling as to the admissibility of the interviews under s 13BA of the Evidence Act that her Honour considered the complainant was not then capable of giving sworn evidence bearing in mind his very young age at the time of the recording of the interviews, and his responses to the questions posed by the interviewer. Whilst the first two interviews were conducted about two years before the trial, they were still relevant as part of a continuum of information as to the complainant’s cognitive abilities which informed his capacity to understand the obligation to be truthful in giving sworn evidence at the trial. That is, the complainant’s cognitive abilities and maturity was relevant to his understanding of the importance of telling the truth in court by comparison with other extra curial occasions and informed his appreciation of the legal consequences of his failure to tell the truth for the accused person.
In addition, the third interview was only conducted one month earlier and, for that reason, was particularly relevant to the determination under s 9(1).
Secondly, while it is to be accepted that the questioning conducted by the trial Judge immediately before he gave evidence was directed towards the requirements of s 9(2), her Honour also appeared to express her reservations as to whether the complainant had a sufficient understanding of the solemnity of taking an oath or affirmation, and the obligation to be truthful entailed in giving sworn evidence. In particular, in an attempt to emphasise the importance of telling the truth in court, her Honour instructed the complainant as follows:
Q. When you give evidence in court it is very important that you tell the truth, because people will listen to what you say and they may believe it and then act on it as the truth. They may do things because they believe you are telling the truth. Do you understand what I'm saying.
A. Yep.
That her Honour phrased her instruction to the complainant in those terms, to our mind, revealed her reservations as to the complainant’s ability to understand the solemnity of the oath, and the obligation to be truthful entailed in giving sworn evidence.
Moreover, the questions asked of the complainant as to whether he understood the difference between telling the truth and telling a lie, and whether he promised to tell the truth in court, underpinned the broader question of whether he had a sufficient understanding of the solemnity of the oath and the obligation to be truthful entailed in giving sworn evidence. If a witness does not understand the difference between a truth and a lie or is not prepared to tell the truth in court, he or she will necessarily not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. Those questions, although primarily directed towards an inquiry under s 9(2), remained relevant (but not determinative) of the question of whether the complainant understood the solemnity of giving evidence on oath or by affirmation, and the special duty to tell the truth in court given that there may be serious legal consequences for an accused person should he fail to do so.
In addition, it was to be expected that the trial Judge’s questioning would focus on the complainant’s capacity to give unsworn evidence given that he was still very young at the time of giving evidence having not yet turned eight years of age, and both parties implicitly proceeded on the basis that he was not capable of giving sworn evidence by directing their submissions entirely towards the question of whether he could give unsworn evidence. Whilst her Honour was still required to make a determination as to the complainant’s capacity to give sworn evidence, the narrow compass of her questions on this issue reflected not only the very young age of the complainant but the approach of both counsel at trial.
Thirdly, the trial Judge had the opportunity to see and hear the complainant during the prescribed interviews conducted over two years, and in court when questioning him. Her Honour had the benefit of seeing and hearing the complainant when assessing his responsiveness, cognitive abilities and maturity. Not all of the material relevant to her determination and relied on by the trial Judge will be readily apparent from a reading of the transcript.
For those reasons, we are satisfied that the trial Judge conducted an inquiry under s 9(1) and made a determination that the requisite presumption was in fact rebutted, before permitting the complainant to give unsworn evidence under s 9(2). Her Honour’s reasons for verdict, including the directions given pursuant to s 9(4) reinforce that conclusion.
In the alternative, the appellant contends that there was not an adequate evidentiary basis for the trial Judge to conclude that the complainant did not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. We do not agree. We are satisfied that there was a sufficient basis for her Honour to determine that the presumption in s 9(1) was rebutted.
It is to be emphasised, as outlined earlier, that by the time the complainant gave evidence, the trial Judge had viewed three prescribed interviews with the complainant. Her Honour had observed the complainant being questioned over a period of two years leading up to the trial with the first two interviews conducted in January 2021, and the third interview conducted only one month prior to the trial in February 2023. The interviews necessarily informed her Honour’s assessment of the complainant’s maturity and cognitive abilities at ages five and seven and were relevant to his ability to understand the obligation to be truthful entailed in giving sworn evidence at the time of trial.

As the trial Judge found, the complainant in his first two interviews was distracted, and did not respond positively, or at all, to various questions as to his preparedness to tell the truth. By the time of the trial, he was still a very young child, not yet aged eight, who gave single word answers (albeit, in the affirmative) to questions asked by her Honour as to his understanding of the importance to tell the truth in court. In addition, her Honour was required at one stage, during her questioning of the complainant, to ask the witness to respond verbally to the questions and to take his hand out of his mouth.
While s 9(1) and the presumption that a person is capable of giving sworn evidence applies to a person of any age, the presumption is of variable strength depending upon the characteristics of the person, including the person’s maturity, cognitive abilities and age. Given the complainant’s very young age, and limited responsiveness to some of the questions asked of him, and the fact that her Honour had the benefit of seeing and hearing from the complainant, we are satisfied there was an evidentiary basis for her Honour to conclude that while the complainant understood the difference between the truth and a lie, and had promised to tell the truth, he did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
In the further alternative, the appellant contends that her Honour gave inadequate reasons for finding that the witness did not have a sufficient understanding of the obligation entailed in giving sworn evidence.
After the trial Judge finished questioning the complainant, her Honour immediately said, ‘I’m satisfied that in this case [the complainant] can give unsworn evidence in relation to these matters.’ Subsequently, in her reasons for verdict, her Honour expanded upon this statement and gave reasons for her determination under s 9. We have earlier set out the relevant part of those reasons.
The trial Judge’s reasons, whilst not detailed, sufficiently outlined the basis upon which a determination was made that the presumption in s 9(1) was displaced, and the basis upon which the complainant could give unsworn evidence pursuant to s 9(2). Her Honour explained that after having viewed the prescribed interviews (which included the third interview conducted only one month prior to trial) and having spoken to the complainant, she was not satisfied that he had sufficient understanding of his obligation to be truthful as entailed in given sworn evidence but was satisfied ‘that he understood the difference between the truth and a lie, I told him that it was important to tell the truth and he indicated that he would tell the truth.’ Bearing in mind the very young age of the complainant, it was not necessary for her Honour to say anything further as to why the presumption was displaced; the determination was recorded in the transcript and sufficient reasons for that determination were provided at the time of verdict.
Finally, the appellant contends that the trial Judge did not properly consider whether the presumption in s 9(1) had been displaced in that she required that the witness did have a sufficient understanding of the obligation for sworn evidence to be given, rather than requiring satisfaction that the witness did not have that understanding. The basis for this contention is the words used by her Honour in her reasons for verdict that ‘[h]aving viewed the interviews and spoken briefly to [the complainant] I was not satisfied that he had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.’ (Emphasis added.)
The question as to whether the presumption in s 9(1) of the Evidence Act has been rebutted is, in essence, a binary question; that is, either a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence or the person does have the requisite understanding. Thus, when the trial Judge said she was not satisfied the complainant had sufficient understanding, she was in effect, indicating that she had reached the conclusion that she was satisfied that he did not have a sufficient understanding, and the presumption was displaced. In addition, and in any event, we are satisfied that it is evident that her Honour did in fact reach a positive satisfaction that the presumption was displaced, notwithstanding that she did not use the precise language of the legislative provision to express it. Her Honour had regard to the young age of the complainant, the volume of the material as to his cognitive abilities, as well as the questions asked of him which were either directly or indirectly focused on this issue, in reaching her conclusion that the presumption was displaced. Whilst we accept that there is a theoretical distinction between not being satisfied that a person has the requisite understanding, and being positively satisfied that they do not have that understanding, we are not satisfied that there is any practical significance in this distinction in the circumstances of the present case. Moreover, for the reasons outlined earlier, there was an evidentiary basis for that determination.
We grant permission to appeal but dismiss this ground of appeal.
Ground 3 – the rejection of the appellant’s denials
Under this ground of appeal, the appellant contends that the trial Judge’s reasons for rejecting his denials in the interview were inadequate; and further, her Honour failed to take into account the appellant’s intellectual disability when assessing his denials in the interview. The latter aspect of this ground of appeal is, in effect, a particular of the first.
The appellant was interviewed by the investigating officer about the alleged offending on 15 August 2021. He was aware of the allegations prior to his interview with police. During the interview the appellant said as follows:
·He was working at Bedford doing woodwork during the period in which the offending occurred.
·He suffered from a global delay, anxiety and depression; and had difficulties reading and writing.
·He later accepted that he had been alone with the complainant in the middle bedroom whilst the complainant’s mother was getting a tattoo.
·He denied touching the complainant’s penis or performing fellatio upon him.
As outlined earlier, the appellant did not give evidence at trial.
During closing addresses, the prosecutor referred to the appellant’s interview and submitted that the appellant’s concession that he had been alone with the complainant, in the middle bedroom, at the relevant time supported the prosecution case, and that he had an opportunity to commit the offence. The prosecutor also submitted that his denials should be rejected. Defence counsel, whilst conceding that the appellant had the opportunity to offend, submitted the appellant’s denials were compelling, noting that the appellant had been candid in his interview, and he presented as ‘a very simple young man doing his best to assist the police.’
In her reasons for verdict, when considering the appellant’s denials, the trial Judge said:
The accused in his interview denied the allegations. He was aware that the allegation had been made prior to his conversation with the police officers. In his interview, he said that he had been told by his stepmother, (KH). He admitted that he and the complainant had been in a room together on their own whilst Ms G was getting the tattoo done. There is no reason to think that the accused was not describing the same day as the complainant. In the interview, he describes (NK) being in the house but in the kitchen at that time.
I remind myself that it is not for the accused to disprove the commission of this offence. It is for the prosecution to prove beyond reasonable doubt that the accused did commit the offence. The choice is not as to whether I prefer the account given by the complainant or the accused. I must be able to reject the denial given by the accused as not being reasonably, possibly true. To this extent, it is his denial that he committed an act of fellatio with the complainant that I must be able to reject. I do reject his denial. I do not find that it is reasonably, possibly true that he did not have sexual intercourse with the complainant. I am satisfied that the complainant’s account was a fulsome account with sufficient detail that enables me to reject the denial of the accused. There is opportunity for the accused to have committed the offence and I accept the evidence of the complainant beyond reasonable doubt, notwithstanding the fact that the complainant is a young child and his evidence is unsworn.
The appellant contends that the trial Judge erred by reasoning to a ‘wholesale rejection’ of the appellant’s denials without any reasoned analysis of the interview. The appellant submits that her Honour’s reasons amounted to a finding that having accepted the complainant’s evidence beyond a reasonable doubt, she therefore rejected the denials. In particular, the appellant submits the reasons were inadequate by reason of her Honour failing to have regard to:
·The appellant’s ‘appropriate and compelling demeanour, and apparent efforts to assist police to the best of his ability.’
·The appellant’s concession that he had been home with the complainant at the relevant time.
·The appellant’s ‘self-identified intellectual disability’ as a possible explanation for any perceived inconsistencies in his account.
The appellant contends that the trial Judge’s inadequate reasons were an error of law, and in any event resulted in a miscarriage of justice.
The principles applicable to the adequacy of reasons are well established and have been recently considered by this Court.[9] As Kiefel CJ, Keane and Edelman JJ observed in DL v The Queen:[10]
The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.
The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge's failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge's conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:
Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.
(citations omitted.)
[9] JGS v The Queen [2020] SASCFC 48; Lloyd v The King [2023] SASCA 106; Simpson (A Pseudonym) v The King [2024] SASCA 37.
[10] (2018) 266 CLR 1 at [32]-[33] per Kiefel CJ, Keane and Edelman JJ.
There is no doubt that the appellant’s denials in his record of interview were an important aspect of the defence case. In order to find the appellant guilty of the offence, the trial Judge was required to reject the appellant’s denials as being reasonably, possibly true.
In her reasons for verdict, the trial Judge summarised the appellant’s record of interview, including: his comments that he suffered from a global delay and other conditions; his concession that he was in the middle bedroom alone with the complainant at the relevant time; and significantly, his denials. Later, in the reasons, her Honour summarised the addresses of counsel including on the topic of the appellant’s denials. Her Honour also gave herself the orthodox directions as to the burden and standard of proof.
It was only after her Honour had summarised the content of the appellant’s interviews, including his denials, and counsels’ submissions on the topic, that she proceeded to directly consider the appellant’s interview and reject his denials as being reasonably, possibly true, in the terms outlined above.
In rejecting the appellant’s denials, the trial Judge explicitly referred to his admission that he was alone in a bedroom with the complainant while the complainant’s mother was getting a tattoo, and that he had an opportunity to offend against the complainant. Her Honour reminded herself (having directed herself earlier as to the burden and standard of proof) that ‘it is not for the accused to disprove the commission of the offence.’ Her Honour specifically cautioned herself against ‘choice reasoning’ when she said, ‘[t]he choice is not as to whether I prefer the account given by the complainant or the accused.’ Her Honour then rejected the appellant’s denials as being reasonably, possibly true. Her Honour was in effect saying that she was satisfied of the complainant’s evidence and the prosecution case beyond reasonable doubt, notwithstanding the appellant’s denials.
It is to be accepted that at this point in her reasons, the trial Judge did not refer to the fact, favourable to the appellant, that he had conceded he was alone with the complainant at the relevant time. However, the weight to be attached to that concession, as a positive fact, was tempered by his initial denial of having been at home and alone with the complainant. It is also true that her Honour did not, when rejecting the appellant’s denials, refer to his intellectual disability and mental health issues, but she had done so earlier in her reasons.
Ultimately the appellant was alleged to have committed a single, isolated sexual act on the complainant. The appellant’s denials were to the effect that it simply did not happen. There was no contextual evidence as to their relationship nor any evidence of grooming which could have been the subject of challenge by the appellant. Nor was this an incident which could give rise to an innocent explanation such as an accidental touching. In those circumstances, as one might expect, the appellant’s denials were bland and took the form of what was in effect a ‘blanket denial’. That is understandable and does not necessarily detract from their force, but it does inform what was required by the trial Judge in rejecting those denials as being reasonably, possibly true.
In the circumstances of this case, the trial Judge’s reasons in rejecting the appellant’s denials were not inadequate. Her Honour outlined the content of the appellant’s interview including his denials, outlined the submissions of counsel on the topic, and gave herself directions as to the burden and standard of proof. Her Honour also explicitly instructed herself against ‘choice reasoning’, and only then rejected the appellant’s denials as being reasonably, possibly true.
This Court is not frustrated in discharging its appellate function by virtue of these reasons, and there was no miscarriage of justice.
We dismiss this ground of appeal.
Conclusion
1. We grant permission to appeal but dismiss the appeal.