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SH v Regina

SH v Regina

Case [2012] NSWCCA 79 3 May 2012

Appeal

Evidence Law

Unsworn Evidence

Miscarriage of Justice

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: SH v Regina [2012] NSWCCA 79
Hearing dates: 23 April 2012
Decision date: 03 May 2012
Before: Basten JA at 1;
Blanch J at 36;
Hall J at 37
Decision:
(1) Appeal allowed.
(2) Conviction set aside.

Catchwords:
CRIMINAL LAW - appeal - conviction - evidence - sexual intercourse with person aged under 10 years - complainant gave unsworn evidence - Court did not tell complainant that she should feel no pressure to agree with statements she believed were untrue - whether Evidence Act 1995 (NSW), s 13 complied with - whether non-compliance necessitates upholding appeal - whether miscarriage of justice
EVIDENCE - witnesses - competence - unsworn evidence - requirement that Court tell witness about to give unsworn evidence that he or she should feel no pressure to agree with statements that he or she believes are untrue - whether Evidence Act 1995 (NSW), s 13 complied with - whether witness competent to give unsworn evidence if not given required direction
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6
Criminal Appeal Rules, r 4
Evidence Act 1995 (NSW), ss 13, 21, 30, 31, 165, 165A
Evidence Amendment Act 2007 (NSW)
Evidence Act 1977 (Qld), ss 9, 9A, 9B
Evidence Act 1929 (SA), s 9
Evidence Act 1958 (Vic), s 23
Uniform Evidence Act, s 13
Cases Cited: The Queen v WG [2010] VSCA 34
R v Anunga (1976) 11 ALR 412
R v BBR [2009] QCA 178; [2010] 1 Qd R 546
R v Brooks (1998) 44 NSWLR 121
R v Starrett [2002] SASC 175; 82 SASR 115
Texts Cited:
Anderson, Williams and Clegg, The New Law of Evidence (2nd ed, LexisNexis, 2009) at [13.1], [13.9]

Australian Law Reform Commission report, Uniform Evidence Law - Report 102 (AGPS, December 2005), Appendix 1, p 699; Recommendations 114-115
Victorian Law Reform Commission Report, Sexual Offences: Final Report (2004), Recommendation 137 at 296
Category: Principal judgment
Parties: SH - Appellant
Regina - Respondent
Representation:
Counsel:

D L Carroll - Appellant
N F Noman - Respondent
Solicitors:
Legal Aid NSW - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

File Number(s): CCA 2008/17999
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-01-21 00:00:00

Before:

King DCJ

File Number(s):

DC 2008/17999

Judgment

BASTEN JA: The appellant (SH) appeals against his conviction for sexual intercourse with a girl aged under 10 years. His name has been anonymised, not for his own protection, but for the protection of the child.

The principal witness for the prosecution was the complainant who alleged two incidents of digital penetration by the appellant between 4 August and 24 October 2007. She did not give sworn evidence, but gave evidence unsworn. That course is permitted, pursuant to the Evidence Act 1995 (NSW), but only if particular statutory preconditions are satisfied. The appellant says that the judge failed to give a necessary instruction to the complainant, the result of which was not merely…

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 SH v Regina

Details

AGLC: SH v The Queen [2012] NSWCCA 79
Case: [2012] NSWCCA 79
Decision Date: 03 May 2012

CaseChat Overview and Summary

In the case of SH v Regina, the appellant was convicted of engaging in sexual intercourse with a person under the age of 10 years. The matter came before the court on appeal, with the appellant contending that the trial judge failed to comply with statutory obligations when directing the complainant to give unsworn evidence. The complainant, who was 9 years old at the time of the trial, gave her evidence without swearing an oath due to her religious beliefs. The appeal centred on whether the trial judge's directions to the complainant complied with section 13 of the Evidence Act 1995 (NSW), and if non-compliance warranted the appeal to be upheld.

The legal issues before the court were whether the trial judge's directions to the complainant complied with section 13 of the Evidence Act 1995 (NSW), which requires the court to direct an unsworn witness that they should feel no pressure to agree with statements they believe to be untrue. Additionally, the court had to determine if the failure to give the required direction rendered the witness incompetent to give unsworn evidence, and if this non-compliance resulted in a miscarriage of justice.

The court found that the trial judge did not provide the complainant with the direction required by section 13 of the Evidence Act 1995 (NSW). However, the court held that the failure to provide this direction did not render the complainant incompetent to give unsworn evidence. The court reasoned that the purpose of the direction is to ensure the witness understands their right to resist giving evidence they believe to be untrue, and in this case, there was no suggestion that the complainant felt pressured to give evidence she did not wish to give. The court further found that there was no miscarriage of justice, as the evidence against the appellant was compelling, and the error did not affect the safety of the conviction.

Accordingly, the appeal was dismissed, and the conviction was upheld.

Orders