W v The Queen

This matter concerns an application for special leave to appeal to the High Court of Australia, brought by the applicant, W, against the respondent, The Queen. The dispute centres on the admissibility of a child's evidence in a criminal trial and the subsequent jury directions.

The central legal issue before the High Court was whether the Court of Appeal had erred in its assessment of a child witness's understanding of the nature of an oath, as required by section 101 of the relevant legislation. Specifically, the court considered the appellate court's power to draw its own inferences of fact from undisputed evidence when determining if a trial judge had correctly formed an opinion on a child's capacity to take an oath. The court also considered the implications of such a determination for the admissibility of the child's evidence and the directions to be given to the jury.

The applicant argued that the Court of Appeal had correctly inferred from the child's answers that the child did not understand the nature of an oath, and that the examination conducted by the trial judge was insufficient. The applicant contended that, had the trial judge formed this opinion, the child's evidence could not have been received on oath, and the jury should have been directed that a conviction could not be secured on the child's uncorroborated testimony. The applicant relied on the principle that an appellate court can substitute its own inference of fact for that of the trial judge if it believes a wrong inference has been drawn from undisputed facts, citing *Warren v Coombs*.