W v The Queen

The applicant, W, sought special leave to appeal to the High Court of Australia against a decision of the Court of Criminal Appeal of South Australia. The Court of Criminal Appeal had ordered a retrial of the applicant's case. The applicant argued that this order was erroneous and that the conviction should have been quashed with an acquittal substituted.

The central legal issue before the High Court was whether the Court of Criminal Appeal erred in ordering a retrial, specifically in light of section 12(3) of the South Australian Evidence Act. The applicant contended that this section operated to bar the offence, rendering a retrial impermissible. This involved determining the proper application of section 12 of the Evidence Act, which governs the evidence of young children, and its interplay with the evidence given by the accused.

The applicant's argument was that the witness, a 12-year-old girl, was a "young child" for the purposes of the Evidence Act. While the trial judge allowed her evidence on oath, the Court of Criminal Appeal found that this was an error and that her evidence could not have been assimilated under section 12(2) of the Act. If assimilated, her evidence would not have required corroboration. The applicant submitted that, by force of logic and law, section 12(3) should have applied, which would have barred the offence, particularly given that there was no corroboration of the child's evidence and the accused had given sworn evidence denying the charges. The applicant relied on the authority of *Gerakiteys* in support of this submission.

The High Court made an order that the applicant's name not be published and that the proceedings be retitled to use only the initial letter of the surname.