Sean Clarke[1] v The Queen

Sean Clarke appealed against his conviction for incest and related offences, arguing that the trial judge erred in cautioning the jury about the reliability of the evidence of child complainants and the reliability of recorded evidence. The case was heard in the Court of Appeal, where the appeal was against the conviction. The central legal issues were whether the trial judge's comments about the reliability of the children’s evidence and the recorded evidence were appropriate and whether these comments contravened statutory provisions that aim to protect the credibility of child witnesses. The court examined the statutory provisions in the Criminal Procedure Act 2009 and the Evidence Act 2008, which prohibit judges from casting general doubt on the reliability of children's evidence or the recording of that evidence. The court found that the trial judge's remarks, although not intended to single out children specifically, were general enough to imply that children's memories and interpretations are inherently unreliable, which is contrary to the legislative intent to protect the credibility of child witnesses. The remarks potentially placed the evidence of child witnesses in a special category due to their age, which is not aligned with the spirit of the legislative provisions. Therefore, the appeal was dismissed, and the application for leave to appeal was refused. The court did not find that the trial judge's comments posed a risk of influencing the jury adversely to the defence.