The Queen v Travis Muller
[2013] ACTCA 15
•28 March 2013
THE QUEEN v TRAVIS MULLER
[2013] ACTCA 15 (28 March 2013)
EVIDENCE – Competence – witness not competent to give sworn evidence – whether witness competent to give unsworn evidence – what court must tell witness – whether s 13(5) Evidence Act 2011 (ACT) requires that witness understand – whether court may inquire into witness’s understanding – witness’s lack of understanding no basis for finding witness incompetent to give unsworn evidence.
APPEAL – Application for leave to appeal against interlocutory decision – trial judge erred in finding complainant incompetent to give unsworn evidence – appeal allowed – admissibility of complainant’s evidence remitted to trial judge.
Evidence Act 2011 (ACT), ss 13, 21, 137, 165, 165A
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40F, 40Q, 40S
Legislation Act 2001 (ACT), Dictionary
Supreme Court Act 1933 (ACT), s 37E
R v Cooper (2007) ACTSC 74
SH v R [2012] NSWCCA 79
Stephen Odgers, Uniform Evidence Law (10th ed, Lawbook Co, 2012)
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 72 - 2012
No. SCC 407 of 2011
Judges: Penfold and Dowsett JJ and Nield AJ
Court of Appeal of the Australian Capital Territory
Date: 28 March 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 72 - 2012
) No. SCC 407 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: THE QUEEN
Applicant
AND: TRAVIS MULLER
Respondent
ORDER
Judges: Penfold and Dowsett JJ and Nield AJ
Date: 14 February 2013
Place: Canberra
THE COURT ORDERS THAT:
That the applicant have leave to appeal against the decision of Higgins CJ made on 12 December 2012, that in the trial of the respondent, for the offence of allegedly committing an act of indecency against the complainant, the complainant is not a competent witness to give unsworn evidence.
That the appeal be allowed.
That the Chief Justice’s decision, that the said complainant is incompetent to give unsworn evidence at such trial, be set aside.
That the question of the admissibility of the complainant’s evidence otherwise be remitted to the Chief Justice for determination in accordance with the reasons of this Court.
IN THE SUPREME COURT OF THE ) No. ACTCA 72 - 2012
) No. SCC 407 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: THE QUEEN
Applicant
AND: TRAVIS MULLER
Respondent
ORDER
Judges: Penfold and Dowsett JJ and Nield AJ
Date: 28 March 2013
Place: Canberra
THE COURT ORDERS THAT:
The appellant file and serve an appropriate notice of appeal within seven days after the publication of these reasons.
IN THE SUPREME COURT OF THE ) No. ACTCA 72 - 2012
) No. SCC 407 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: THE QUEEN
Applicant
AND: TRAVIS MULLER
Respondent
Judges: Penfold and Dowsett JJ and Nield AJ
Date: 28 March 2013
Place: Canberra
REASONS FOR JUDGMENT
PENFOLD J:
I have had an opportunity to read the judgment prepared by Dowsett J, and gratefully adopt his Honour’s description of how this matter arose.
I agree with Dowsett J’s conclusion that the trial judge, in deciding that the complainant was not competent to give unsworn evidence because he was unable to explain what he understood by his Honour’s statement that it was important to tell the truth, was in error. I agree with that conclusion for the reasons set out in Dowsett J’s judgment at [39] to [46]. There is no basis in s 13(5) of the Evidence Act 2011 (ACT) for the court to rely on an unsatisfactory answer to a question about any of the matters set out in ss 13(5)(a), (b) or (c) as a ground for finding that a proposed witness is incompetent to give unsworn evidence.
As noted by Dowsett J at [41], this does not make it undesirable for a judge to try to ensure that the proposed witness has understood the directions given under s 13(5); however, it does mean that a judicial doubt about that understanding does not provide a basis for preventing the person giving unsworn evidence. Of course, a judge who seeks to investigate a proposed witness’s understanding of the s 13(5) directions needs to frame his or her questions in language and sentence structure appropriate to the age and apparent comprehension of the proposed witness. There will be many cases in which a person (especially a child) who has been found not to be competent to give sworn evidence will struggle with abstract concepts, and may be very reluctant, especially in a court-room environment, to respond to an open question asking for his or her understanding of an abstract concept. Such a person might nevertheless understand the basic propositions put to them in compliance with s 13(5) quite adequately for the purpose of giving his or her evidence.
The above comments are my reasons for joining in the orders made by the Court of Appeal on 14 February 2013.
I also agree with the further order proposed by Dowsett J, that the appellant file and serve an appropriate notice of appeal within seven days after the publication of these reasons.
I certify that the preceding five (5) paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Sameena Ahmad
Date: 28 March 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 72 - 2012
) No. SCC 407 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: THE QUEEN
Applicant
AND: TRAVIS MULLER
Respondent
Judges: Penfold and Dowsett JJ and Nield AJ
Date: 28 March 2013
Place: Canberra
REASONS FOR JUDGMENT
DOWSETT J:
THE CRIMINAL PROCEEDINGS
The respondent is charged that on 13 August 2012, at Canberra in the Australian Capital Territory, he committed an act of indecency on a male person under the age of ten years. On 12 May 2012 the matter was set down for trial, such trial to commence on 15 April 2013. On 12 December 2012 the Chief Justice conducted a pre-trial hearing pursuant to s 40Q of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the “Miscellaneous Provisions Act”). One purpose of the hearing was to consider the admissibility of a pre-recorded interview of the complainant, conducted in the course of the police investigation of the alleged offence. Another purpose was to record any further evidence from the complainant. Pursuant to s 40S of the Miscellaneous Provisions Act, the evidence of a witness given at such a hearing is to be recorded. The recording is admissible at the trial.
In the course of the hearing counsel for the respondent questioned the competence of the complainant to give evidence. The point was raised in relation to both the recorded interview and any further evidence to be given at the preliminary hearing.
The Chief Justice found that the complainant was competent to give unsworn evidence at the time of the recorded interview and “provisionally” received it into evidence at the trial. His Honour concluded that the complainant was not competent to give unsworn evidence at the preliminary hearing.
LEAVE TO APPEAL AND ORDERS
The Director of Public Prosecutions (the “Director”) anticipated difficulty at any subsequent trial. In particular, he considered that there might be a submission that the trial should not proceed because the respondent would not be able to cross-examine the complainant. He therefore sought leave to appeal against his Honour’s decision, it being interlocutory.
On 6 February 2013 Burns J referred the Director’s application to this Court, and ordered that the parties file submissions dealing with both the question of leave to appeal and also with the “substantive matters”. Unfortunately, no notice of appeal has been filed. However paras 14 and 15 of an affidavit filed in support of the Director’s application for leave to appeal are as follows:
14. The Crown asserts the following general questions arise:
(a)the interpretation and application of subsection 13(3) of the Evidence Act 2011;
(b)the interpretation and application of subsection 13(5) of the Evidence Act 2011;
15.The Crown asserts the following specific questions arise:
(a)whether Higgins CJ erred in his interpretation and application of subsection 13(3) of the Evidence Act 2011;
(b)whether Higgins CJ erred in his interpretation and application of subsection 13(5) of the Evidence Act 2011.
Fairly clearly, the question in issue is the correctness of the Chief Justice’s decision that the complainant was incompetent to give unsworn evidence at the preliminary hearing. The “questions” identified in the affidavit are, in effect, the grounds upon which such decision is said to be erroneous. Section 37E of the Supreme Court Act 1933 (ACT) provides for appeals from orders. The term “order” is defined to include “a judgment, decree, direction or decision”.
Before us, both the question of leave and the substantive grounds of appeal were argued.
The respondent did not suggest that the Director’s fears as to the future conduct of the trial were unfounded. Given the age of the complainant it is plainly of great importance that the prosecution be resolved as soon as is practicable. Further, the point is of considerable importance, going to the basis upon which unsworn evidence may be received from children and others. Finally, the Chief Justice’s decision seems to be inconsistent with a decision of the New South Wales Court of Criminal Appeal, SH v R [2012] NSWCCA 79. Clearly, it was desirable that we dispose of this matter quickly. Having discussed the matter, we concluded that we should make appropriate orders and publish our reasons at a later date. On 14 February 2013 I made the following orders on behalf of the Court:
·that the applicant have leave to appeal against the decision of Higgins CJ made on 12 December 2012, that in the trial of the respondent, for the offence of allegedly committing an act of indecency against the complainant, the complainant is not a competent witness to give unsworn evidence;
·that the appeal be allowed;
·that the Chief Justice’s decision, that the said complainant is incompetent to give unsworn evidence at such trial, be set aside;
·that the question of the admissibility of the complainant’s evidence otherwise be remitted to the Chief Justice for determination in accordance with the reasons of this court to be published at a later date.
I now publish my reasons for joining in those orders.
COMPETENCE
Concerning competence, s 13 of the Evidence Act 2011 (ACT) (the “Evidence Act”) provides:
Competence – lack of capacity
(1)A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability) –
(a)the person does not have the capacity to understand a question about the fact; or
(b)the person does not have the capacity to give an answer that can be understood to a question about the fact;
and that incapacity cannot be overcome.
(2)A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.
(3)A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, the person is under an obligation to give truthful evidence.
(4)A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.
(5)A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person that –
(a)it is important to tell the truth; and
(b)the person may be asked questions that the person does not know, or cannot remember, the answer to, and that the person should tell the court if this happens; and
(c)the person may be asked questions that suggest certain statements area true or untrue and that the person should agree with the statements that the person believes are true and should feel no pressure to agree with statements that the person believes are untrue.
(6)It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
(7)Evidence that has been given by a witness does not become inadmissible only because, before the witness finishes giving evidence, the witness dies or ceases to be competent to give evidence.
(8)For the purpose of deciding a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience.
THE PRE-TRIAL HEARING
At the pre-trial hearing, there was discussion concerning “proposed redactions” of the recorded interview. Counsel for the prosecution suggested that the recorded interview not be played at that stage. His Honour invited her to tender it. Counsel for the respondent then indicated that “we are objecting the admissibility of it”. His Honour said that he would have to view the recording in order to consider its admissibility. Counsel said, “But on the voir dire I don’t object, your Honour, yes”. The recording was then tendered, accompanied by a transcript “as an aide memoir”. After further discussion concerning proposed deletions, counsel for the respondent said, concerning the recorded interview:
And the submission is that before that can be entered into evidence your Honour has to rule on admissibility and that there are two stages to that admissibility question … .
…
… And we say there’s two steps to admissibility that your Honour has to address.
Firstly, there is the issue of competency of the complainant at the time he gave the interview and then the admissibility of fairness, s 137 of the Evidence Act.
Section 137 of the Evidence Act provides:
In a criminal proceeding, the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
Counsel then suggested that s 40F of the Miscellaneous Provisions Act (relating to the admissibility of the recorded interview) “brings in” questions of competence. Counsel also pointed out that s 40F(2) authorizes the Court to refuse to admit all or any part of any audio-visual recording. Counsel then said, at AB 61 ll 15-19:
Your Honour needs to determine competency in relation to the complainant at the time he gave the record of interview and, secondly, competency in relation to giving evidence in this court in this hearing directly.
Counsel then suggested that if the complainant was to give evidence at the trial (that is before the jury) the question of competence would again be raised. He also identified an “issue of fairness” concerning the opportunity of the defence to cross-examine the complainant, referring to an English decision, and to the Chief Justice’s decision in R v Cooper (2007) ACTSC 74. I will refer to that decision at a later stage. Counsel then submitted that pursuant to a decision of the High Court it was not possible for the Court to “permit a waiver of the competency rules”. At AB 65 ll 37‑40 counsel said:
So we say that’s what your Honour has to first do on the voir dire and then, of course, if it’s admitted it can become evidence in the hearing in all ways.
At AB 68 ll 29-40 counsel submitted:
What we say the consequence [of the decision in Cooper] is, your Honour, is that at both times – if one gets to the position of s 13(4) then subs (5) requires the Court to tell the person, and the effect of that in the light of Cooper must be – and there can be no purpose to (b) and (c) unless this is the case, in our respectful submission, it is required that the Court not only ascertain that the witness understood and accepted – understood, but also accepted in the way that you expressed it in Cooper the obligation to tell the truth.
And that’s emphasized by (b) and (c), because those words can be meaningless – are absolutely meaningless unless there’s some response from the witness that indicates that they’re capable of understanding.
At AB 70 ll 3-8 counsel said:
But they’re the issues, your Honour, yes. And so we say your Honour would need to see the video and would then need to work out – and one of the issues how one ascertains at the time of the interview whether the person was capable of being competent – was competent to give unsworn evidence. And that has to be a real issue
… .
At AB 71 ll 43-44 the Chief Justice asked counsel for the prosecution how the matter should proceed. At AB 72 ll 9-41 the following exchange appears:
PROSECUTOR: Your Honour I accept, given the age of the complainant, that your Honour would need to be satisfied about his capacity to give sworn evidence and the way I would have anticipated proceeding today is once … .
HIS HONOUR: Now, just to stop you there. Just to see where we’re at, you said, “to give sworn evidence”.
PROSECUTOR: Well, firstly, …
HIS HONOUR: The young person is yet to give sworn evidence. This is unsworn evidence.
PROSECUTOR: Well, if I could go back a step, your Honour?
HIS HONOUR: Yes.
PROSECUTOR: In terms of the evidence that he would give at the pre-trial hearing today in addition to his recording your Honour would probably want to be satisfied, given his age. There is that presumption of competence generally.
HIS HONOUR: Yes.
PROSECUTOR: Then, your Honour, in terms of the order of things that your Honour needs to be satisfied about, your Honour must firstly be satisfied he’s competent to give sworn evidence and how that is defined … .
HIS HONOUR: Well if the witness is competent to give sworn evidence then I don’t think, given the statutory provisions, that there be any objection to the witness in accordance with the statute giving part of the evidence by way of a pre-hearing interview with police subject, of course, to the redaction question.
PROSECUTOR: Yes, so … .
HIS HONOUR: Quite different as a concept.
PROSECUTOR: So if your Honour finds him to be competent to give sworn evidence today then – well, the authorities aren’t clear. ….
Reference was then made to a New South Wales case in which it had been said that the competence of the witness is to be determined at the time at which the person is called to give evidence. Counsel for the prosecution suggested that this indicated that competence at the time of the recorded interview was not relevant. There was then a discussion of the different statutory provisions in New South Wales and the Australian Capital Territory. The point of the discussion seems to have been that the police interview, if given in evidence, would be unsworn testimony, and that the question of competence only related to the pre-trial hearing.
THE RECORDED INTERVIEW
Having viewed part of the recording, his Honour said at AB 83 ll 42-45:
Okay, well I’ve viewed it, I think, sufficient to that. It does – and I appreciate that this is a matter of impression, it’s about as far as one can go at this point – but it does not seem to me that the witness demonstrates any incompetence to give an account of that which he is relaying.
His Honour continued at AB 84 ll 4-9:
I mean there are some things in there which frankly I think are irrelevant. That’s the difficulty with this kind of interview, of course. I mean the police obviously want to put the witness at his ease and they go into a lot of things that strictly speaking you wouldn’t go there if you were giving evidence directly. For example questions and answers about the games that he was playing on his birthday.
Counsel for the prosecution again submitted that the recorded interview should not be played at the preliminary hearing, but that it should be tendered. Counsel also indicated that she proposed to call the complainant to ask some additional questions. At AB 84 ll 23-24 counsel for the respondent indicated that the Chief Justice had still to comply with s 13(5) in connection with the recorded interview.
Counsel for the prosecution then said, at AB 84 l 45 – AB 85 l 3:
Well, your Honour, then that leaves the issue about if your Honour has found the complainant to be competent, in terms of whether the recording is to be played today or can be tendered and what to do about the proposed redactions.
There was apparent agreement about the redactions. At this point, then, it seems that the Chief Justice had found that the complainant was “competent” at the time of the recorded interview. However counsel for the respondent submitted that his Honour had still to determine whether the complainant was competent to give evidence “today”.
THE ENQUIRY AS TO COMPETENCE
His Honour suggested that the process of determining competence was “part of the examination” to be conducted by counsel for the prosecution and then said at AB 85 ll 42-45:
That’s in two parts. One is as to the giving of – I mean in a previous case it was agreed that the witness was not competent to give sworn evidence. And the question was whether the witness was competent to give unsworn evidence.
His Honour enquired as to whether there was agreement that the complainant was incompetent to give sworn evidence and was told that there was not. His Honour then indicated that the complainant should be called. Before the complainant gave evidence counsel for the prosecution asked, at AB 88 ll 30-31:
Would it now be where your Honour would be assessing competence …?
His Honour responded, “Yes”.
The proceedings then continued as follows:
HIS HONOUR: [Name of complainant], can you hear me?
[COMPLAINANT]: Yes.
HIS HONOUR: And do you know what I am?
[COMPLAINANT]: Yes.
HIS HONOUR: What am I?
[COMPLAINANT]: A judge.
HIS HONOUR: Very good. Can you see, [the prosecutor]? She is the lady who just stood up?
[COMPLAINANT]: Yes.
HIS HONOUR: And do you know what her role is?
[COMPLAINANT]: No.
HIS HONOUR: She’s what we call the prosecutor. What do you understand that to mean?
[COMPLAINANT]: Yes.
HIS HONOUR: Well, she appears to present the case which relates to that which you told the police about last year. Do you remember speaking to the police last year?
[COMPLAINANT]: Yes.
HIS HONOUR: And you made statements concerning [the respondent]. Do you remember making statements that concerned him?
[COMPLAINANT]: Yes.
HIS HONOUR: Now, what I have to ask you is some questions about the giving of evidence in this case. First of all do you know what sworn evidence is?
[COMPLAINANT]: No.
HIS HONOUR: Do you know what the Bible is?
[COMPLAINANT]: Yes.
HIS HONOUR: And what is the Bible?
[COMPLAINANT]: The Bible is a book that tells you about the Lord.
HIS HONOUR: Yes. And what is your understanding of – you use the term, “the Lord,” what is your understanding of that?
[COMPLAINANT]: I don’t know.
HIS HONOUR: Okay. Now, do you have any religious belief yourself? Do you attend church?
[COMPLAINANT]: Yes.
HIS HONOUR: And which church do you attend? I don’t mean the name of the church but what religion?
[COMPLAINANT]: I can’t remember.
HIS HONOUR: And, … [Name of complainant], if you were to tell, say, promise to God that you would tell the truth what would you understand that you would be doing?
[COMPLAINANT]: I don’t know.
HIS HONOUR: Don’t know, okay. So, just to put it in another way, if you were to promise to tell the truth and promise to God to tell the truth, what do you think would happen if you did not tell the truth?
[COMPLAINANT]: The next day I would have a bad day.
HIS HONOUR: Sorry, you what?
[COMPLAINANT]: The next day I would have a bad day.
HIS HONOUR: The next day you’d have a bad day.
I think, counsel, I now have to go to subsection (5).
[COUNSEL FOR THE RESPONDENT]: I think that’s right, your Honour.
HIS HONOUR: Well, [name of Complainant], we’ll come to another question then. You realise you’re going to be asked some questions today about what happened last year. Is that right? Is that your understanding?
[COMPLAINANT]: Yes, yes.
HIS HONOUR: Now, do you understand that it is important that you tell the truth about what happened?
[COMPLAINANT]: Yes.
HIS HONOUR: And what do you understand by the term, “Tell the truth,” what would you understand that to mean?
[COMPLAINANT]: I don’t know.
HIS HONOUR: You don’t know, okay. Well, if I said to you that telling the truth was saying what happened but not saying that something did happen if it didn’t, what would you say to that?
[COMPLAINANT]: Maybe I tell the truth or not.
HIS HONOUR: Now, if you were being asked questions and you didn’t know the answer to the question what should you do?
[COMPLAINANT]: Say, “I don’t know.”
HIS HONOUR: Right, and if you think you should know but you just can’t remember at the moment what should you do?
[COMPLAINANT]: “I can’t remember.”
HIS HONOUR: And, of course, that would mean that you would tell the Court that you couldn’t remember something or if you do not know the answer to the question. Is that right?
[COMPLAINANT]: Yes.
HIS HONOUR: Now, you may be asked questions which invite you or ask you to say whether what has been put in the question is true or untrue. Like, is it true that you went to school yesterday?
[COMPLAINANT]: Yes.
HIS HONOUR: So, you’re [sic] answer would be “Yes” if you did, right?
[COMPLAINANT]: And, “No” if I didn’t.
HIS HONOUR: And no if you didn’t and if you couldn’t remember whether you went to school or not what would you say?
[COMPLAINANT]: “I can’t remember.”
HIS HONOUR: Exactly. And if it was suggested to you by someone, “Look you didn’t really go to school yesterday, did you,” what would you say to that?
[COMPLAINANT]: “I was lying”.
HIS HONOUR: Well, now, if somebody said to you, “Look, you didn’t go to school yesterday,” and you knew you did what would you say?
[COMPLAINANT]: “I did go to school yesterday”.
HIS HONOUR: Now, if someone puts to you something that you don’t agree with you don’t have to agree with them just because they put that to you. Do you understand that?
[COMPLAINANT]: Yes.
HIS HONOUR: Okay. And you think you could do that do you? Like, if somebody said to you, as I just used the example there, “Look, you didn’t really go to school yesterday, did you,” and you know you did what would you say?
[COMPLAINANT]: I don’t know.
HIS HONOUR: You don’t know. All right.
Any questions you want to have asked?
[COUNSEL FOR THE RESPONDENT]: No your Honour.
HIS HONOUR: [Name of counsel for the prosecution].
[PROSECUTOR]: Your Honour, perhaps I should have raised this before your Honour went to subsection (5) but could any questions be asked about promises to tell the truth of court, rather than in terms of promises to the Lord?
HIS HONOUR: That’s not part of the section.
[COUNSEL FOR THE RESPONDENT]: No, no.
[PROSECUTOR]: Of subsection (4) in terms of obligation to tell the truth. It’s an example.
HIS HONOUR: Yes, that’s subject to subsection (5) though.
[PROSECUTOR]: Yes, but, subsection (3) where your Honour’s made - - -
[COUNSEL FOR THE RESPONDENT]: Perhaps it should be in the absence of the witness then, your Honour.
HIS HONOUR: Yes.
Can we just turn the witness off for the moment.
We’ll come back to you in a moment, [Name of complainant], okay? The screen will go blank for a little while.
[PROSECUTOR]: Your Honour’s questions where they pertained to subsection (3) asked about, “You understand making a promise to the Lord to tell the truth,” and understanding what the Bible was?
HIS HONOUR: Yes. We didn’t have – I was not able to elicit an understanding of that.
[PROSECUTOR]: Well, your Honour, perhaps asking the witness about what he understands the law to be would be a little difficult. I was wondering whether questions about the court itself.
HIS HONOUR: [Name of counsel for the prosecution], I am sure it is a very difficult question for a lot of people.
[PROSECUTOR]: Yes.
HIS HONOUR: I understand that, but in any event it’s a question of whether a promise enforced by swearing on the Bible or whatever other sacred book is appropriate would lead the witness to believe that there is an obligation to tell the truth. That’s the whole purpose of the oath, of course.
[PROSECUTOR]: And he was asked what would happen if he didn’t keep that promise, and – bad day.
HIS HONOUR: Yes. He’d have a bad day the next day.
[PROSECUTOR]: Well, given his age that could infer that he knows there would be negative consequences.
HIS HONOUR: Yes, he agreed there would be a negative consequence although it doesn’t – it wasn’t one from which I could infer that he would feel an obligation. So I think we can’t be satisfied about subsection (3). Subsection (5) is of course a different issue and there I have some difficulty finding out from him – I mean we can tell him it is important to tell the truth, but whether he understand that is - - -
[COUNSEL FOR THE RESPONDENT]: Well, he clearly doesn’t your Honour, with respect.
HIS HONOUR: Well, we’ll come back to that.
[PROSECUTOR]: Well, your Honour, this discussion was already raised this morning about whether the provision itself actually requires comprehension. It is just informing the witness. There is no additional criteria that the witness be told and comprehend.
HIS HONOUR: Well, that’s just silly isn’t it? What’s the point of telling someone something if they don’t comprehend it? I’ll give you a good example of that, and it is one which has been dealt with in courts of appeal and it is a reason why procedures have changed.
It used to be enough to say, “Now you understand, accused, that you don’t have to say anything, but whatever you do so may be taken and given in evidence. Do you understand that?” And the witness says, “Yes.” The next question is, “What do you understand by that,” these days because there have been plenty of cases where the witness has said that, but not understood it. And of course you must have an understanding of the warning in order for the warning to be effective.
And it is the same here. I mean, the witness might be told that it is important to tell the truth but if the witness doesn’t know what on earth you mean by that; how does it help you. It doesn’t help the court.
[PROSECUTOR]: Well, perhaps then some questions in terms of why it might be important to tell the truth.
HIS HONOUR: Yes, of course, that’s what you’d ask.
[PROSECUTOR]: Yes, so perhaps some additional questions in that vein.
HIS HONOUR: Well, I will ask some additional questions then about that aspect of it. Right, can we have the witness back?
[COUNSEL FOR THE RESPONDENT]: Your Honour, that does presuppose that he understands that it is important to tell it in the first place.
HIS HONOUR: No, but that’s what the enquiry would be directed to.
[COUNSEL FOR THE RESPONDENT]: Yes, thank you, your Honour.
HIS HONOUR: Right, [Name of complainant], we’re back on screen again, you can hear me.
[COMPLAINANT]: Yes.
HIS HONOUR: Great. All right. Now, I said to you earlier that you understand that you are here to be asked some questions and do you understand – and I have to tell you that it is important to tell the truth in answer to any question you are asked.
[COMPLAINANT]: Yes.
HIS HONOUR: Now, no doubt you hear what I have said, and the question then is what do you understand by what I have said?
[COMPLAINANT]: Yes.
HIS HONOUR: What do you understand?
[COMPLAINANT]: I understand that …(inaudible)…
HIS HONOUR: Sorry, could you speak up a little because we’re having a little difficulty hearing you.
[COMPLAINANT]: Okay. I understand most of the stuff that you were saying.
HIS HONOUR: Yes, well what I am asking you [name of COMPLAINANT] is, what do you understand by me telling you that it is important to tell the truth. What does that mean to you?
[COMPLAINANT]: I don’t know.
[COUNSEL FOR THE RESPONDENT]: That has to be an end - - -
HIS HONOUR: I appreciate that. All right.
Okay, well thank you [Name of complainant]. We’ll just terminate the transmission at this point.
Thank you, the transmission can be terminated.
[COUNSEL FOR THE RESPONDENT]: Well, clearly, you [sic] Honour, in those answers he just doesn’t satisfy the minimal test.
HIS HONOUR: Well, certainly not today.
[COUNSEL FOR THE RESPONDENT]: I don’t disagree with what’s implied in what your Honour said, but at the moment that’s the position. He’s clearly – he’s not competent to give evidence.
HIS HONOUR: Well, I think that leaves you, [Name of counsel for the prosecution], in a situation where the record of interview is admissible but evidence about it from the witness is not.
[PROSECUTOR]: Is your Honour formally finding him to be incompetent to give unsworn evidence?
HIS HONOUR: Yes, yes, on the basis of the answers given.
[PROSECUTOR]: On the basis that when he was asked, “What do you understand when I tell you it is important to tell the truth?”
HIS HONOUR: He said, “I don’t know.”
[PROSECUTOR]: He said, “I don’t know.” Your Honour, could he not be asked why would it be important to tell the truth rather than trying to explain a concept of the importance of telling the truth? Giving a concrete example such as - - -
HIS HONOUR: Well, we don’t want to lead the witness, that’s the point.
[COUNSEL FOR THE RESPONDENT]: Your Honour has gone as far as it is possible.
HIS HONOUR: Well, don’t interrupt [Name of counsel for the respondent].
[PROSECUTOR]: Given his age, your Honour, I appreciate questions such as this do seem quite esoteric in terms of the concept of truth and promises, but sometimes when examples are given if your Honour was to say, am I wearing a red tie or a blue tie those sorts of things might – red, I understand, on this occasion your Honour, it may assist a seven year old boy in terms of examples which he can give tangible answers to and understand.
HIS HONOUR: I don’t know. It is very difficult. I mean, I appreciate it could be the occasion and there may be other reasons why [the complainant] is not able to give what I would think would be a satisfactory answer to the questions asked so that you could be sure that the – at least as sure as you need to be which is not beyond reasonable doubt, of course, only on the balance of probabilities that the test in subsection (5) is satisfied and you can only go on what the witness has said.
[COUNSEL FOR THE RESPONDENT]: And unfortunately, your Honour, you can’t get past, “What does it mean?” “I don’t know.”
HIS HONOUR: Well, thank you, [Name of counsel for the respondent]. I did hear it.
[COUNSEL FOR THE RESPONDENT]: Yes, thank you, your Honour.
[PROSECUTOR]: If that is your Honour’s ruling then the evidence-in-chief interview with police, the interview recording can be admitted under the Miscellaneous Provisions Act.
HIS HONOUR: It is admissible evidence, yes.
[PROSECUTOR]: The addition - - -
HIS HONOUR: Well, having seen it, at least not in its entirety but certainly a large percentage of it, I think at the time the witness was capable of recounting what in his memory occurred.
[PROSECUTOR]: Well, the Crown would be relying on that as his evidence-in-chief. What additional questions I had today are largely immaterial therefore there would be no further examination-in-chief by the Crown.
HIS HONOUR: Yes. I am not sure though where that leaves the next question which is, where does that leave the cross-examination?
[PROSECUTOR]: Yes, your Honour.
HIS HONOUR: All right, well thank you very much.
[PROSECUTOR]: Thank you, your Honour.
HIS HONOUR: Well, do we need to take that any further today?
[COUNSEL FOR THE RESPONDENT]: I did miss what your Honour said.
HIS HONOUR: Do we need to take it any further today is the question.
[COUNSEL FOR THE RESPONDENT]: I missed the bit before that your Honour, sorry.
HIS HONOUR: Well, I said that leaves open the question of what about cross-examination.
[COUNSEL FOR THE RESPONDENT]: Yes. The answer to that is no, your Honour, because quite clearly there is nothing to cross-examine on.
HIS HONOUR: There is the police interview and that which is said there. That’s all right, if you don’t - - -
[COUNSEL FOR THE RESPONDENT]: The difficulty with that is your Honour, is the logical difficulty under the legislation.
HIS HONOUR: Well - - -
[COUNSEL FOR THE RESPONDENT]: Yes, precisely.
HIS HONOUR: The legislation does make things very difficult.
[COUNSEL FOR THE RESPONDENT]: And the solution with - - -
HIS HONOUR: And indeed, I mean there are cases you know where what is evidence of the alleged act is what a young child says, rather than going into any question of whether it is evidence of the truth of what is said.
[COUNSEL FOR THE RESPONDENT]: Yes, that is correct, your Honour, yes. Your Honour, I think that both sides would need to consider exactly what the next step is rather than to rush to it.
HIS HONOUR: Well, there is no need to do that.
[COUNSEL FOR THE RESPONDENT]: I am not suggesting your Honour was suggesting we should, what I’m saying is that there are a number of issues that I can see arising in relation to it and a number of ways it might proceed, yes.
HIS HONOUR: All right, well at this point I have ruled that the evidence of the record is, under the legislation, apparently admissible and that’s where it stands at the moment.
[COUNSEL FOR THE RESPONDENT]: Yes, and I suppose in one sense your Honour could adjourn these proceedings or simply terminate these proceedings and they can be reactivated in another way.
HIS HONOUR: Well, anybody could make an application for some further - - -
[COUNSEL FOR THE RESPONDENT]: Precisely, that’s what I meant in that sense, so - - -
HIS HONOUR: So, you’re saying, you don’t apply at this point for any further order but you want to consider your position.
[COUNSEL FOR THE RESPONDENT]: I think that’s what we need to do with respect, your Honour, yes.
HIS HONOUR: All right, well, it means you have performed your task [name of Prosecutor].
[PROSECUTOR]: Yes, your Honour, so your Honour has said the interview DVD is apparently admissible.
HIS HONOUR: Yes.
[PROSECUTOR]: Is your Honour ruling it is admitted in evidence now?
HIS HONOUR: Well, we aren’t at the trial yet.
[COUNSEL FOR THE RESPONDENT]: That’s right.
[PROSECUTOR]: No, but it can be tendered at the pre-trial.
HIS HONOUR: Yes, it can be tendered.
[PROSECUTOR]: Has your Honour ruled - - -
HIS HONOUR: It has been tendered.
[PROSECUTOR]: Well, it was tendered on the application regarding competence. I formally tender that at the pre-trial hearing now.
HIS HONOUR: Let me just see where the – I am just going to check the wording of that. No, that’s the next step actually. If you look at section 40F, you have got the audio visual recording and it may then be played at the hearing of a proceeding for the sexual offence to which it relates, and if it is played at the hearing, be admitted. And what I am ruling is that at that time in my view it should be admitted.
[PROSECUTOR]: I see, so it is provisionally admitted at this stage.
HIS HONOUR: In effect, yes, it is not really admitted or not because you haven’t reached that point but when you do you can take – you have my ruling that it would be admissible.
[PROSECUTOR]: As the court pleases.
HIS HONOUR: And it is subject of course to the redaction that’s been agreed.
[PROSECUTOR]: Yes.
HIS HONOUR: Which is under subsection (2), in effect, because I have said those parts that should be redacted are not admissible and of course that recording is simply played without the witness’ presence or being able to be seen and you have given the appropriate notice already under section 40J, so that should cover it.
[COUNSEL FOR THE RESPONDENT]: As the court pleases.
HIS HONOUR: Okay, I adjourn these proceedings.
R v COOPER
Before turning to the proper construction of s 13 of the Evidence Act it is appropriate that I say something about the decision of the Chief Justice in Cooper, to which decision I have previously referred. Cooper was tried, by Judge alone, on a charge of assault. The prosecution sought to call as a witness an eight year old child to give evidence of what he had heard of an altercation between his mother (who was the complainant) and Cooper. A question arose as to the child’s competence as a witness. Section 13 of the Evidence Act was then in the following form:
Competence: lack of capacity:
(1)A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence.
(2)A person who because of subsection (1) is not competent to give sworn evidence is competent to give unsworn evidence if:
(a)the Court is satisfied that the person understands the difference between the truth and a lie; and
(b)the Court tells the person that it is important to tell the truth; and
(c)the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding.
(3)A person who is incapable of giving a rational reply to a question about a fact is not competent to give evidence about the fact, but may be competent to give evidence about other facts.
(4)A person is not competent to give evidence about a fact if:
(a)the person is incapable of hearing or understanding or communicating a reply to, a question about the fact; and
(b)that incapacity cannot be overcome.
(5)It is presumed, unless is contrary is proved, that a person is not incompetent because of this section.
(6)Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.
(7)For the purpose of determining a question arising under this section, the Court may inform itself as it thinks fit.
In Cooper it was common ground that the witness was not competent to give sworn evidence, either on oath or by way of affirmation. His Honour considered whether he should give unsworn evidence, observing that:
[The child] could understand that, not being 12 years of age, it would be a lie to say that he was of that age but said that he did not know what it meant to break a promise to tell the truth.
Whilst he asserted that he understood that it was important to tell the truth in the proceedings it was not apparent that he regarded it as an obligation or a matter of great significance.
At [51]-[53] his Honour said:
51Ms Jones referred to R v Brooks (1998) 44 NSWLR 121; 102 A Crim R 367. In that case the Court of Criminal Appeal held that “evidence”, not being sworn or affirmed by virtue of s 13(1) of the Evidence Act was not admissible, notwithstanding s 13(2). In that case, however, the trial judge had failed first to find the witness incompetent to give sworn evidence.
52Grove J in that case adverted to the provisions of s 13(2) of the Evidence Act. Those provisions apply only if the witness is not competent to give sworn evidence. That implies that the witness does not understand or does not accept that he or she is under an obligation, religious or civil as the case may be, to give truthful evidence.
53The giving of unsworn evidence is an option only if ss 13(2)(a), (b) and (c) of the Evidence Act are satisfied. I take that to require that the court be satisfied that the prospective witness understands the difference between the truth and a lie, though there is inherently a difficulty in accepting that, if the witness is, simultaneously, incapable of understanding that he or she is “under an obligation” to give truthful evidence. However, that is certainly a possible state of mind that a witness may have, that is, that the witness intends to tell the truth even if not obliged to and appreciates that he or she is under a duty, even if only a moral duty, to do so.
At [62]-[63] his Honour continued:
62Once lack of capacity to give sworn evidence is found to be present, the question that remains is not only of the capacity to give unsworn evidence but also of the fairness to the accused in allowing it. In the case of a minor child, under the age of 10, there is, in my view, also a question of the interests of the child. By way of example, it would, in some cases, be damaging to a young child to force him or her to give evidence against a parent, without any compelling public interest in requiring it. That discretion is not necessarily satisfied because the child himself or herself does not object to giving evidence.
63To my mind, the child [X], though able to give to Ms Jones examples when questioned of what was a truthful statement and what was a lie, did not seem to understand why it was important to tell the truth rather than a lie. I appreciate that is not an easy concept but it is a significant one. The provision requiring the court to tell the person proposing to give unsworn evidence that it is “important” to tell the truth, is not a mere ritual. The court has to be satisfied that the witness not only accepts but also understands that obligation. I was not satisfied that [X] had a sufficient understanding of that concept. I therefore ruled that s 13(2) of the Evidence Act had not been satisfied.
Whilst s 13(2)(a), as it then was, clearly required the court to be satisfied that the person understood the difference between the truth and a lie, s 13(2)(b) did not, in terms, impose any requirement that the court be satisfied that the person had understood that it was important to tell the truth. However s 13(2)(c) required that the person be asked whether he or she would not tell lies in the proceeding, and that the person respond “appropriately”. Whether a response was appropriate was a matter for the Court.
The three steps were part of one, overall process. How each step was to be performed was a matter for the judge in question and might vary, depending upon his or her perception of the person being questioned and the nature of the case. In my view it would be quite artificial to isolate explanation of the meaning of truth and the importance of telling the truth from extracting an “appropriate” undertaking to tell the truth. I consider that when his Honour spoke of “being satisfied that the witness not only accepts but understands that obligation (to speak the truth)”, he was merely paraphrasing the requirement for an “appropriate” response to the question contemplated by s 13(2)(c).
I am by no means persuaded that his Honour erred in Cooper. The criticism of this decision by the author of the tenth edition of Stephen Odgers, Uniform Evidence Law (10th ed, Lawbook Co, 2012) may be merely semantic. However, in view of the amendments made to s 13 I need not consider the correctness of the decision.
CONSTRUCTION OF S 13
In its present form, s 13(1) excludes a person from giving evidence about a particular fact in specified circumstances. There is no suggestion in this case that s 13(1) rendered the complainant incompetent to give evidence. Section 13(2) also has no present operation. Section 13(3) provides that a competent witness is not competent to give sworn evidence if he or she does not have the capacity to understand that he or she will be under an obligation to give truthful evidence. In this context, “sworn evidence” apparently includes evidence given by way of affirmation. Pursuant to s 21 of the Evidence Act, a witness must take an oath or make an affirmation before giving evidence. A witness giving unsworn evidence pursuant to s 13 is not obliged so to do. According to the Dictionary contained in the Legislation Act 2001 (ACT) (the “Legislation Act”), when used in legislation, the term “oath” includes “affirmation” and the words “swear an oath” or “take an oath” include “make an affirmation”.
I do not understand it to be in issue that for the purposes of s 13(5) unsworn evidence is evidence in respect of which no oath or affirmation has been taken or made. Subsection 13(4) provides that a person who is not competent to give evidence on oath or by affirmation may give unsworn evidence “subject to subsection (5)”. The word “may” seems to suggest that such a person might not be competent, even if s 13(5) is satisfied. However s 13(5) clearly provides that a person who is not competent to give sworn evidence will be competent to give unsworn evidence if the court has satisfied the requirements in ss 13(5)(a), 13(5)(b) and 13(5)(c). Thus s 13(4) should be construed as providing that the relevant person will be competent if the requirements of s 13(5) are satisfied. I understand this to be the approach taken by the New South Wales Court of Criminal Appeal in SH v R (supra).
As Basten JA pointed out in that case at [8], this construction leads to the conclusion that there is no discretionary power to exclude a child’s evidence, provided always that the requirements of s 13(1) have been satisfied. As his Honour suggested at [9], the absence of such power does not exclude the possibility of limited questioning of the proposed witness in order to determine whether he or she has understood the judge’s directions pursuant to s 13(5). However any want of understanding will lead only to further explanation, and not to the conclusion that the witness is incompetent to give unsworn evidence. Section 13(5) requires only that the directions be given, and not that they be understood or even acknowledged.
Sections 165 and 165A of the Evidence Act seriously truncate the circumstances in which a judge may explain to a jury the dangers inherent in the evidence of a child. One might well ponder the wisdom of such truncation. It may be worth considering whether it is appropriate or permissible for a trial judge to explain the concepts contained in s 13 to the jury and to perform the functions contemplated by s 13(5) in its presence or in recorded evidence which it will see.
Competence to give unsworn evidence depends upon:
· the potential witness not being incompetent pursuant to s 13(1);
· the witness being incompetent to give sworn evidence pursuant to s 13(3); and
· the judge having performed the functions prescribed by s 13(5).
Although it may be appropriate to ask questions in order to determine whether any further explanation is necessary, testing of the potential witness’s understanding of the judge’s directions is not part of the process prescribed by s 13(5). No particular level of understanding is required as a condition of admissibility, always assuming that ss 13(1) and 13(3) have been satisfied.
THE ERROR
The Chief Justice’s decision appears at AB 96 ll 9-12, although the subsequent exchange gives context to that decision. His Honour concluded that the complainant was not competent to give unsworn evidence. This conclusion was based upon the complainant’s answer “I don’t know” to the question:
(W)hat do you understand by me telling you that it is important to tell the truth? What does that mean to you?
That consideration was irrelevant to the question of the complainant’s competence to give unsworn evidence.
For these reasons I joined in the orders pronounced on 14 February 2013. I now propose a further order that the appellant file and serve an appropriate notice of appeal within seven days of the publication of these reasons.
I certify that the preceding forty-two (42) paragraphs numbered [6] – [47] are a true copy of the Reasons for Judgment herein of his Honour, Justice Dowsett.
Associate: Sameena Ahmad
Date: 28 March 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 72 - 2012
) No. SCC 407 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: THE QUEEN
Applicant
AND: TRAVIS MULLER
Respondent
Judges: Penfold and Dowsett JJ and Nield AJ
Date: 28 March 2013
Place: Canberra
REASONS FOR JUDGMENT
NIELD AJ:
I have read the judgments prepared by Penfold and Dowsett JJ.
I agree with the conclusion of Dowsett J and the orders that he proposed.
I agree with the additional comments of Penfold J.
I certify that the preceding three (3) paragraphs numbered [48] – [50] are a true copy of the Reasons for Judgment herein of his Honour, Justice Nield.
Associate: Alice Reynolds
Date: 28 March 2013
Counsel for the Appellant: Mr J White
Solicitor for the Appellant: ACT Director of Public Prosecutions
Counsel for the Respondent: Mr R Thomas
Solicitor for the Respondent: S & T Lawyers
Date of hearing: 13 February 2013
Date of orders: 14 February 2013, 28 March 2013
Date of judgment: 28 March 2013
Key Legal Topics
Areas of Law
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Criminal Law
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Evidence
Legal Concepts
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Appeal
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Procedural Fairness
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