The Queen v GJ [No. 1] - [2014] ACTSC 108

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v GJ [No. 1]
Medium Neutral Citation:	[2014] ACTSC 108
Hearing Date(s):	24 March 2014
DecisionDate:	24 March 2014
ReasonsDate:	26 March 2014
Before:	Penfold J
Category:	Judgment
Catchwords:	EVIDENCE – Witnesses – competence to give sworn evidence – competence to give unsworn evidence – whether docket judge’s decision to take unsworn evidence from complainant was in error – no defence objection to taking unsworn evidence made at the time of docket judge’s decision – defence agreement to abide by docket judge’s pre-trial rulings in event that trial listed before a different judge – defence objection to admission of pre-recorded unsworn evidence made early in trial starting several months later – whether defence could withdraw agreement to taking of unsworn evidence or agreement not to challenge pre-trial rulings – whether decision to take unsworn evidence could have been appealed earlier – whether decision to take unsworn evidence could have been appealed if made during trial – whether failure to rule on defence objection would lead to jurisdictional error – arrangements for children to give evidence at pre-trial hearings – interests of justice – pre-recorded unsworn evidence given by complainant admitted at trial.
Legislation cited:	Criminal Procedure Act 1986 (NSW), s 130A Evidence Act 2011 (ACT), ss 13, 13(3), 13(4), 13(5), 13(6) Evidence (Miscellaneous Provisions) Act 1991 (ACT) Explanatory Statement for the Sexual and Violent Offences Legislation Amendment Bill 2008 (ACT)
Cases cited:	Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531 R v Shalala, Zoudi and El-Azar [2007] VSCA 199 RJ v The Queen [2010] NSWCCA 263 Ubertini v Saeco International Group Spa [2013] VSC 468
Decision:	The complainant’s unsworn evidence given at a pre-trial hearing is admitted.
Parties:	The Queen (Crown) GJ (Accused)
File Number(s):	SCC 55 of 2013

Introduction

GJ is on trial before a jury for six charges of acts of indecency involving two sisters who were aged five and three at the time of the alleged offences.

Pre-trial taking of evidence

After the allegations were first made, the children spoken to police and the conversations were recorded in accordance with provisions of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) rendering recordings admissible as the children’s evidence-in-chief. The older child subsequently attended a pre-trial hearing on 6 August 2013 at which she was cross-examined. Before that cross-examination, the judge to whom the matter had been docketed undertook an inquiry for the purposes of s 13 of the Evidence Act 2011 (ACT). His Honour questioned the child about the matters raised in s 13(3) of the Evidence Act, which provides that a person is not competent to give particular evidence if he or she “does not have the capacity to understand that in giving evidence he or she is under an obligation to give truthful evidence”.

Having questioned the child,…

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 The Queen v GJ [No. 1]

Details

AGLC: The Queen v GJ [No. 1] [2014] ACTSC 108
Case: [2014] ACTSC 108
Decision Date: 24 March 2014

CaseChat Overview and Summary

The case of The Queen v GJ [No. 1] involved the Crown prosecuting the defendant, GJ, for a criminal offence. The central issue was whether the complainant's unsworn evidence, recorded at a pre-trial hearing and admitted at the trial, was admissible. The complainant, who was a child, had given her evidence unsworn as per the arrangements made for children to testify at pre-trial hearings. The defence objected to the admissibility of this evidence at the beginning of the trial, arguing that the docket judge's decision to allow the unsworn evidence was in error and that the decision should have been challenged earlier. The court had to determine whether the defence could withdraw from their agreement to abide by the docket judge's pre-trial rulings and whether the decision to take unsworn evidence could have been appealed at an earlier stage.

The legal issues before the court included the competence of the child to give unsworn evidence, the binding nature of the defence's agreement to abide by pre-trial rulings, and the potential for jurisdictional error if the court failed to rule on the defence's objection. The court examined whether the decision to take unsworn evidence could have been appealed when it was made and whether it could be appealed during the trial. The interests of justice and the admissibility of the pre-recorded unsworn evidence were also critical considerations.

In its reasoning, the court found that the defence had agreed to abide by the docket judge's pre-trial rulings, including the decision to allow the complainant to give unsworn evidence. The court held that the defence could not withdraw from this agreement and that the decision to take unsworn evidence could not be appealed during the trial. The court concluded that the failure to rule on the defence's objection would not lead to a jurisdictional error. The interests of justice, particularly the welfare of the child complainant, favoured admitting the pre-recorded unsworn evidence. Consequently, the complainant’s unsworn evidence given at a pre-trial hearing was admitted at the trial.

Orders

Orders of the court

The complainant’s unsworn evidence given at a pre-trial hearing is admitted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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