Rout v The King

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.