The Queen v Travis Muller

[2013] ACTCA 15

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:

1. 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.

1. That the appeal be allowed.

1. That the Chief Justice’s decision, that the said complainant is incompetent to give unsworn evidence at such trial, be set aside.

1. 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:

1. 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…