SH v Regina

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.