William Simmons v R No. SCCRM 96/376 Judgment No. 6043 Number of Pages 17 Evidence

[1997] SASC 6043

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

MATHESON, PERRY AND NYLAND JJ

Evidence - appeal against conviction on 2 counts of unlawful sexual intercourse with a person under the age of 12 years - evidence given at trial by 3 children then aged 8, 7 and 6 years - ruling by the trial Judge that their evidence be assimilated to evidence given on oath - discussion of the requirements of s12 of the Evidence Act 1929 and the approach to be followed by the trial Court to unsworn evidence of children - held that the trial Judge erred in directing that the evidence be assimilated - appeal allowed and retrial ordered. Evidence Act 1929 ss6(1)(b), 3 and 12; Oaths Act 1978 (UK) ; Evidence Act (WA) s106B(2), referred to. Omichund v Barker (1744) Willes 538; Attorney-General v Bradlaugh (1885) 14 QBD 667; R v Schlaefer (1992) 57 SASR
423; R v Hayes [1977] 2 All ER 288; R v Chapman [1980] Crim LR 42; R v Kemble
(1990) 91 Cr App R 178; Lunn Criminal Law (South Australia) (Butterworths) Vol 1 para [1030.5] page 2076; Cheers v Porter (1931) 46 CLR 521; R v Brasier
(1779) 1 Leach 199; R v Whittingham (1988) 49 SASR 67; Revesz v R Butterworths unreported judgments BC 9605013, 18 October 1996; Re Attorney-General's Reference No 2 of 1987 (1987) 46 SASR 275; R v Hickman (1993) 60 SASR 415; R v B and D (1993) 66 A Crim R 192, considered.

ADELAIDE, 24 January 1997 (hearing), 28 February 1997 (decision)

#DATE 28:2:1997

Appellant

Counsel: Ms M Shaw QC

Solicitors: Craig Caldicott

Respondent R

Counsel: Mr S Millstead QC

Solicitors: DPP (SA)

Appeal allowed.

PERRY J

1. The appellant appeals against his conviction on two counts of unlawful sexual intercourse with a person under 12 years of age. The convictions followed a trial in the District Court before a judge and jury.

2. The information upon which the appellant was brought to trial, as well as alleging the two counts upon which the appellant was convicted, charged two further counts (numbered 3 and 4) of sexual intercourse involving the same child. All four counts were said to have been committed on the same occasion. At the conclusion of the case for the Crown, the jury acquitted the appellant of counts 3 and 4 by direction of the trial judge.

3. Their verdict on the other two counts was unanimous.

4. The alleged victim, a child whom I will call Naomi, was born on 19 January 1988. She was, therefore, seven years of age at the time of the offending which was said to have taken place on 16 June 1995. She was eight years of age at the time of the trial. The appellant was a married man aged 29 years at the time of trial.

5. It was alleged that the offences took place at about 9.00 pm on the evening of the day in question. Earlier in the evening, Naomi, who had been visiting a friend's house, was given permission to stay overnight. The two eldest children of the family who lived at the house where she was visiting, whom I will call by their first names, were Bekki, then aged six and Jade, then aged just five years. They were both a year older when they gave evidence.

6. After the evening meal, the three girls had baths and changed into their pyjamas (in the case of Naomi, a nightie with no pants). They went into the lounge room of the house to play.

7. The two adults who lived at the house spent most of the evening in another room, which was a billiard or games room. At about 8.00 pm the appellant and two other men visited the house. It was common ground that at some stage during the evening, the appellant went into the lounge room where he played with the three girls. During the course of this he was seen brushing Naomi's hair.

8. The first count upon which the appellant was convicted is alleged to have occurred while he was alone in the lounge room with the three girls. It was alleged that while the appellant was seated on the lounge with Naomi, he began to rub her in the area of her vagina and penetrated her vagina with one of his fingers.

9. The second count upon which he was convicted is alleged to have occurred a little later in the evening when the three girls had been put to bed. It is alleged that the accused entered the bedroom and, while Naomi was in bed, he again rubbed her in the area of her vagina and penetrated it with his finger.

10. At the trial, evidence was given, inter alia, by Naomi and the two other girls of various observations they made and things which happened when they were in the lounge room and in the bedroom.

11. The evidence of Bekki did not advance the prosecution case as she conceded that she had not seen anything untoward and was concentrating on the television.

12. Jade, however, gave evidence that she had seen the appellant, while he was in the lounge room, touch Naomi in her "private parts", that is, between her legs.

13. A medical practitioner, Dr Blake, gave evidence of having conducted a genital examination of Naomi about two days after the alleged incident. He noticed what he described as a small streak of red going up from the opening of the urethra towards the clitoris. He thought it unlikely to have been caused by anything other than some form of trauma to the area. He thought that it was "consistent with some sort of digital rubbing of the area".

14. When questioned by a police officer, the accused denied all the allegations of sexual interference.

15. In his consolidated grounds of appeal, the appellant advances a number of criticisms of the learned trial judge's summing up. However, as will be seen, in my opinion the complaints which the appellant makes with respect to the learned trial judge's ruling as to how the evidence of the three young girls was to be treated, having regard to the relevant provisions of the Evidence Act 1929, are determinative of the appeal.

16. Before coming to the relevant rulings made by the learned trial judge, I will briefly summarise the rules applicable to the taking of evidence from young children.

17. At common law all witnesses were required to take the oath; a witness could not give evidence except on oath.

18. At common law, it used to be the case that a person was not competent to take an oath unless he or she believed in God and that God would reward or punish "according to our deserts, in this world or the next".

19. It is doubtful if that is the test now, even at common law. It is in my opinion not the case, as I will explain, under the Evidence Act.

20. As to the common law, in the United Kingdom in R v Hayes , Bridge LJ observed (giving the unanimous judgment of the Court of Appeal): "It is unrealistic not to recognise that in the present state of society amongst the adult population the divine sanction of an oath is probably not generally recognised. The important consideration, we think, when a judge has to decide whether a child should properly be sworn is whether the child has a sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth which is involved in taking an oath over and above the duty to tell the truth which is an ordinary duty of normal social conduct." I do not understand that dictum to be limited in its application to the position of a child.

21. In Chapman , the Court of Appeal (Roskill and Ormrod LJJ and Bristow J) commented on the construction to be applied to s1(3) of the Oaths Act 1978 (UK) which reads: "(3) In the case of a person who is neither a Christian nor a Jew, the oath shall be administered in any lawful manner".

22. In that case, the evidence of a 16 year old child was given in aid of a prosecution against his mother for murder of her husband. The trial judge failed to observe that when taking the oath the child did not take the testament in his hand, as required by s1(1) of the Oaths Act. An application for leave to appeal against the conviction was refused. The report reads in part: "Held refusing the application, that the words in s1 of the Oaths Act 1978 were directive so that, although they should be complied with, failure to comply did not necessarily invalidate the whole of the taking of the oath. The efficacy of an oath must depend on it being taken in a way, binding and intended to be binding, upon the conscience of the intended witness. ..."

23. In Kemble , the Court of Appeal (the Lord Chief Justice and Owen and Auld JJ), after citing Chapman with approval, went on to say: "We take the view that the question of whether the administration of an oath is lawful does not depend upon what may be the considerable intricacies of the particular religion which is adhered to by the witness. It concerns two matters and two matters only in our judgment. First of all, is the oath an oath which appears to the court to be binding on the conscience of the witness? And if so, secondly, and most importantly, is it an oath which the witness himself considers to be binding upon his conscience?"

24. If there was otherwise to be any doubt about it, it appears to me that the demise of the old common law test must be taken to follow from the terms of s6 of the Evidence Act which reads, in part: "6(1) An oath shall be administered and taken as follows-

(a) the person taking the oath shall hold a copy of the Bible (being a book that contains the New Testament, the Old Testament, or both) in his hand and, after the oath has been tendered to him, shall say "I swear";

(b) in any other manner and form which the person taking the oath declares to be binding on his conscience;

or

(c) in any other manner or form authorised or permitted by law.

(2) Where an oath has been lawfully administered and taken, the fact that the person taking the oath had no religious belief, or that the oath was not taken so as to be binding on his conscience, shall not affect, at law, the validity or effect of the oath.

(3) ........"

25. While the word "oath" is generally understood to include an appeal to God, it does not necessarily involve such a process. See, for example, the definition of the word in the Shorter Oxford English Dictionary: "1. A solemn appeal to God (or to something sacred) in witness that a statement is true, or a promise binding; an act of swearing; a statement or promise corroborated by such an appeal, or the form of words in which such a statement or promise is made. b. Loosely applied to an asseveration not involving a ref. to God or anything sacred 1600.

2. ..."

26. The words in s6(1)(b) of the Evidence Act "in any other manner and form which the person taking the oath declares to binding on his conscience" must be taken to sanction the administration of an oath in which there is no reference to God. It seems to me that the position reached in the United Kingdom having regard to Hayes, Chapman and Kemble (supra) should be regarded as the law in South Australia. But for reasons which I will explain, that is probably not the case.

27. It is of course true, as was pointed out by Matheson J in Schlaefer that the common form of oath administered in courts in South Australia involves the words "so help you God". But it seems to me that if proper effect is to be given to s6(1)(b) of the Evidence Act, a witness should be permitted to swear an oath in whatever other "manner and form" the person declares to be binding on his or her conscience. The requirements of s6(1) of the EvidenceAct oblige the court to find an appropriate form of words in such a case. The traditional forms of words used in courts cannot govern the meaning of the relevant provisions of the Act where those provisions are clear.

28. Legislation, the first example of which was passed during the reign of William IV, and which was directed towards enabling Quakers, who objected to the taking of an oath, allowed evidence to be given by affirmation. The legislation was gradually extended to witnesses in general.

29. The present position in South Australia as to affirming is to be found in the Evidence Act 1929s6(3), whereby a witness may make an affirmation instead of an oath "in all circumstances in which, and for all purposes for which, an oath is required or permitted by law".

30. If it appears to a judge that a person does not understand the obligation of an oath "he may permit that person to give evidence without an oath and without formality" (Evidence Act s9). Before any such informal evidence is received, the judge must explain or cause to be explained that the intending witness "is required to be truthful in anything" that he or she may say before the court (Evidence Act s9(2)). When informal or unsworn evidence is received under that provision, it has "such weight and credibility as ought to be given to evidence given without the sanction of an oath" (s9(6)).

31. At common law an infant might take an oath and give evidence provided that he or she has a "sufficient knowledge of the nature and consequences of an oath ... their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the court".

32. In the case of a "young child", that is, a child of or under the age of 12 years (Evidence Act s4), the taking of evidence is now governed, to the exclusion of the common law, by s12 of the Evidence Act, which is in the following terms: "(1) A young child who is to give evidence before a court is not obliged to submit to the obligation of an oath unless-

(a) the child is of or above the age of seven years;

and

(b) the judge is satisfied that the child understands the obligations of an oath.

(2) If a young child, who is not obliged to submit to the obligation of an oath, is to give evidence before a court and-

(a) the child appears to the judge to have reached a level of cognitive development that enables the child-

(i) to understand and respond rationally to questions;

and

(ii) to give an intelligible account of his or her experiences;

and

(b) the child promises to tell the truth and appears to understand the obligations entailed by that promise,

unsworn evidence of the child will be treated in the same way as evidence given on oath.

(3) In any case in which unsworn evidence of a young child is not assimilated under subsection (2) to evidence given on oath-

(a) the child's evidence will be evaluated in the light of the child's level of cognitive development;

and

(b) a person who has been accused of an offence and has denied the offence on oath cannot be convicted of the offence on the basis of the child's evidence unless it is corroborated in a material particular by other evidence implicating the accused.

(4) A young child who is called as a witness is, while giving evidence, entitled to have present in the court, and within reasonable proximity, a person of his or her choice to provide emotional support (but the person must not interfere in the proceedings).

(5) Unless the court otherwise allows, a witness or prospective witness in the proceedings cannot be chosen under subsection (4) to provide emotional support for a young child."

33. In applying the section, it is necessary for the trial judge first to determine whether or not the proposed child witness should be sworn. To do that, the judge must address the question whether the proposed witness understands the obligation of an oath.

34. Commonly, a judge addressing that issue will do so on the basis of answers to questions put by him to the child. Certainly, that was always the procedure at common law.

35. However, I see no reason why the judge should be limited to determining the matter on the basis of responses given to questions put by him alone. There is no reason, for example, why the judge should not have access to a transcript of previous proceedings at which the child might have given evidence indicating that the child did or did not understand the obligation of an oath, or to statements or depositions which might throw light on the matter.

36. Furthermore, a child may be more comfortable in answering questions put by counsel for the Crown with whom he or she might have developed a rapport by reason of the steps taken to prepare the child to give evidence.

37. Of course, it is the judge, not anyone else, who must be satisfied about the matter. But I do not accept the proposition that in discharging his or her role the judge is confined simply to questioning the child.

38. The section does not in any way confine or limit the process by which the judge is to be satisfied of the requirements imposed by it. There is no reason to construe the section so as to impose any rigid procedure.

39. On the contrary, it is for the judge to devise the procedure best fitted to determine the question, having regard to the circumstances of the particular case. I can imagine that exceptionally this might involve permitting counsel for the accused to cross-examine on the voir dire as to that issue. However, ordinarily that would not be permitted, as it would be apt to put undue stress on the child.

40. I make it clear, however, that in the ordinary course the matter should be dealt with on the basis of a short voir dire hearing at which the judge puts relevant questions to the child.

41. If by whatever process the judge chooses to follow in determining whether or not the child understands the obligation of an oath, the decision is against the taking of an oath, it then becomes necessary for the judge to address the requirements of s12(2).

42. A question arises as to whether or not the inquiry postulated by s12(2) must be performed before the young child gives evidence, and whether any ruling as to whether or not the child's evidence is to be treated in the same way as evidence given on oath must be made before the child begins giving evidence.

43. I have found that a difficult question. Obviously the question whether the child should be obliged to take an oath must be made before the child begins giving evidence. But does the same apply to the ruling as to assimilation or not?

44. The process of determining whether or not a child has reached the level of cognitive development referred to in s12(2)(a), particularly as to his or her ability to "give an intelligible account of his or her experiences", would be assisted if, before ruling on the matter, the judge had the benefit of hearing the child give his or her evidence before the jury.

45. Once a decision is made that a young child is not to give evidence on oath, there would not appear to be any reason why a ruling as to the manner in which the child's evidence is to be treated needs to be given ahead of the taking of evidence from the child. I cannot see that a ruling one way or the other on that issue would adversely affect the ability of counsel for the accused to cross-examine the witness.

46. As to the jury's evaluation of the evidence, there is no reason why it could not be explained to a jury that the child is not being sworn because of the judge's view as to his or her ability to understand the obligation of an oath, but that the judge would give a ruling as to how the jury was to evaluate the child's evidence as some convenient stage of the trial after the evidence has been given, and before the jury considered its verdict.

47. But the words in s12(2) "if a young child .... is to give evidence before a court ..." tend to suggest that the subsection addresses the situation before the child commences the giving of evidence.

48. The answer, I think, is that on a proper construction of the section the trial judge should give a ruling as to the status of the child's evidence once the decision has been taken that the child is not to give evidence on oath, and before the child commences giving evidence before the jury.

49. That decision should immediately be communicated to counsel, but there is no need for it to be communicated then to the jury. Instead, if he or she thought fit to do so, the trial judge might give an explanation to the jury along the lines which I have indicated.

50. The overriding principle to which effect must be given is that the trial must be fair. Any ruling given before the child gives evidence should not be permitted to govern the jury's approach to the child's evidence if, after the child has given his or her evidence, it appears that the ruling was given on the basis of an appreciation of the child's ability to give evidence which was not borne out by the manner in which he or she subsequently gave evidence.

51. In my view, in the interest of ensuring a fair trial, having made a ruling that a child's evidence is to be assimilated to evidence given on oath, a trial judge has a discretion to revoke that ruling if at the conclusion of the child's evidence it appears that any impression which the judge had formed from such inquiry as he undertook before making the ruling, was not soundly based.

52. However, I do not think that it can work the other way. I do not think that it would be proper to allow a discretion to convert a ruling that the unsworn evidence of the child was not to be assimilated to evidence given on oath to a ruling that it should be so treated. To allow that would be to act to the detriment of the accused, and would produce an undesirable element of instability in the trial process.

53. The next question is as to the test to be applied by the court in determining whether the level of understanding postulated by s12(2) has been reached in the particular case.

54. While the application of s12(2)(a) to the circumstances of a particular case may not always be easy, the test which it envisages is clearly set out in the subsection. The subsection must be left to speak for itself. It would be wrong to put a gloss on the subsection by any attempt further to define its meaning.

55. There is perhaps more difficulty posed by s12(2)(b). It was put by Mrs Shaw of counsel for the appellant that the requirements of that subsection would not be met unless the judge was satisfied that the child's perception of the "obligations" entailed by the promise to tell the truth elevated the obligations above and beyond what would ordinarily be understood by a promise to tell the truth in an ordinary social context.

56. Certainly, the legislation in some jurisdictions has been framed in terms which would lead to such an approach. For example, the Evidence Act 1906 (WA) provides, inter alia:"106B(2) A child who is under the age of 12 years is competent to take an oath or make a solemn affirmation if in the opinion of the court or person acting judicially the child understands that- 1. the giving of evidence is a serious matter;

and

(b) he or she in giving evidence has an obligation to tell the truth that is over and above the ordinary duty to tell the truth."

57. While neither the words appearing in the Western Australian provision which I have underlined nor any equivalent words appear in the South Australian section, the words in the South Australian subsection "... understand the obligations entailed by that promise" must be construed with due regard to the fact that the words identify one of the elements in a provision which, if satisfied, will lead to evidence being treated in the same way as evidence given on oath.

58. The law has traditionally placed great store upon the sanctity of the oath: see King CJ in Whittingham : "The law depends upon the solemnity attaching to the taking of the oath or affirmation to impress upon the minds of witnesses the importance of telling the truth in the witness box, and indeed the crucial importance of telling the truth in the witness box by comparison with other, everyday occasions on which the sanction and solemnity of the oath are not invoked."

59. It seems to me to follow that if unsworn evidence is to be equated with evidence given on oath, an understanding of the obligation entailed by a promise to tell the truth which precedes the giving of the unsworn evidence must necessarily be demonstrated in terms which indicate an awareness on the part of the witness of the solemnity of the occasion and that the "obligations entailed" by the promise are obligations which are elevated beyond what might be assumed to attach when such a promise might be given on a social or everyday occasion.

60. On the other hand, it cannot be that the requirement is, at least in the case of a child of or above the age of seven years, that the level of understanding of the "obligations entailed" by the promise to tell the truth must equate with an understanding of the obligation of an oath, otherwise such a child would presumably be permitted to give evidence on oath under s12(1). The presence or absence of a religious belief or belief in God, while not irrelevant, would, in my view, not necessarily have to be demonstrated in order to justify the administration of an oath to a child of seven or older. I have already given the reasons why that should be so when discussing s6 of the Evidence Act. If an oath is administered to a child, it should be administered according to s6. The section would make little sense if a religious belief was irrelevant to the question whether or not an adult should be permitted to take an oath, whereas a religious belief in terms of the old common law rule should be taken to be a prerequisite if a child's evidence is to be taken on oath.

61. I must accept that the view which I have expressed does not accord with the view of this Court as laid down in Schlaefer (supra). In that case, it was held that belief in God and an expectation that God will reward or punish in this world or the next was necessary before a witness (including a child witness) could take the oath.

62. The point was not fully argued in this case. Neither is a ruling on it one way or the other essential to the decision in this case. Notwithstanding the views which I have expressed, for the time being the law must be taken to be as laid down in Schlaefer.

63. Whatever view of the law is correct, it would not be proper to equate the evidence to be given by such a child to evidence given on oath unless the judge is satisfied in terms of the statutory prescription. The difference may well be that in order to allow a child of or above the age of seven years to give evidence on oath, the child must be able satisfactorily to declare that the taking of the oath, in whatever form it might be administered, is "binding on his (or her) conscience" (s6(1)(b)). Short of that, the child's evidence may, in the discretion of the court, be assimilated to evidence given on oath if the child, by some other means, "appears to understand the obligations entailed" by his or her promise to tell the truth.

64. A further question arises as to whether counsel for the accused should be heard on the question whether or not the evidence of a young child should be assimilated to evidence given on oath.

65. If the unsworn evidence of a young child is not so assimilated, the effect of subs(12)(3) is that the accused cannot be convicted on the basis of the child's evidence "unless it is corroborated in a material particular by other evidence implicating the accused". The question of assimilation or not is, therefore, a matter of no little importance from the point of view of the conduct of the defence. It follows that counsel for the accused should not be denied the right to be heard on the matter if counsel wishes to put a submission.

66. The appellant complains (consolidated grounds of appeal, grounds 5 and 6) that the learned trial judge erred in assimilating the evidence of the three child witnesses, Naomi, Jade and Bekki.

67. It is necessary to consider those grounds of appeal against the background of the observations which I have so far made and in the light of the course taken by the learned trial judge at the trial.

68. Before the Crown opening there was a brief discussion between counsel and the learned trial judge as to the need to have regard to s12 with respect to the evidence of the three children. During the course of that discussion, counsel for the appellant submitted that if the question arose as to whether or not Naomi's evidence was to be assimilated, the decision should be taken at the conclusion of her evidence, not at the voir dire stage. The learned trial judge indicated that he was not prepared to accept that proposition.

69. After the opening by counsel for the Crown and at the stage when the prosecutor wished to call Naomi, the learned trial judge, in the absence of the jury, proceeded to conduct what he described as a "preliminary inquiry" by examining her. After answering some introductory questions as to her schooling, she indicated that she believed in God but did not go to church or to Sunday school. She was not sure what the Bible was. The examination proceeded as follows: "Q. Do you know what telling the truth means.

A. It means being good.

Q. Do you understand what telling a lie means.

A. It means you're being bad.

Q. Just that. What do you do when you tell a lie.

A. I'm not sure.

Q. You know we want to ask you about certain things that happened.

A. Yes.

Q. You know about that, don't you.

A. Yes.

Q. Are you going to tell the truth when we ask you questions about that.

A. Yes.

Q. What do you mean by telling the truth about those things.

A. I'm not sure.

Q. Are you going to make anything up, or are you going to say what actually happened.

A. What actually happened.

Q. What do you think will happen to you if you make something up when talking to us in this court about what happened, if you just make something up.

Q. I'm not sure.

Q. Do you think you will get into trouble

A. Yes.

Q. Do you think if you make something up that is just like telling a lie to one of your friends at school, or do you think it's more serious than that.

A. I'm not sure.

HIS HONOUR: Mr Birchall, unless counsel want me to take this matter further, I think I am in a position where we come into s12(3), namely, non-assimilated evidence.

MR BIRCHALL (counsel for the Crown) I wish to take the matter further.

HIS HONOUR: What do you want me to do?

MR BIRCHALL: Perhaps the accused should leave and the girl should leave and I can present my submissions to you in their absence - or in the absence of Naomi.

HIS HONOUR; Do you want me to ask any further questions at this stage?

MR BIRCHALL: I invite your Honour to ask the witness some more questions.

HIS HONOUR: About what?

MR BIRCHALL: About anything, really.

HIS HONOUR: What is concerning me is s12(2)(b).

MR BIRCHALL: Yes, perhaps on that topic.

HIS HONOUR:Q. Naomi, do you, when you are telling what happened, promise to tell the truth.

A. Yes.

Q. Do you know how serious it is that you tell the truth.

A. I'm not sure.

Q. Do you know that telling the truth in this courtroom - if you don't tell the truth is a very serious matter. Do you know that.

A. Yes.

Q. What do you understand by that.

A. I'm not sure.

Q. Do you know what I mean by - this might be a big word for you - the obligation to tell the truth. Do you know what that means.

A. No.

MR BIRCHALL: Must.

HIS HONOUR:Q. You have to tell the truth, you must tell the truth.

A. Yes.

Q. Do you understand that.

A. Yes.

Q. What do you think would happen to you if you didn't tell the truth; what do you think would be the -

A. I'm not sure.

Q. Do you think it's a bad thing if you don't tell the truth when you come to this court.

A. Yes.

Q. Have you been told that you must tell the truth when you come to this court.

A. Yes.

Q. And you are going to tell the truth, are you.

A. Yes. ........."

70. The learned trial judge then heard submissions as to what he described as the "category" in which Naomi should be treated. It was conceded by counsel that there was no proper foundation for her to be sworn.

71. As to s12(2), the learned trial judge commented that perhaps counsel for the accused "might have been right", and that the question whether her unsworn testimony was to be assimilated might best be left to the end of the Crown case. Mr Birchall for the Crown went on to submit that that was the preferable course.

72. Following some further submissions, during the course of which the learned trial judge toyed with the idea of asking some further questions of Naomi, he eventually decided not to do so and announced that his ruling was that he would assimilate her evidence.

73. That ruling was a discretionary ruling, and ordinarily this Court would not lightly interfere. This is particularly so when the ruling is, to a certain extent at least, based upon the learned trial judge's assessment of the proposed witness.

74. However, this Court must interfere if it appears that no proper foundation was laid for the ruling. In my opinion, that was the case here. In particular, in my opinion, the responses by Naomi to the questions put to her by the learned trial judge fell short of providing a proper foundation for the conclusion that she understood the obligations entailed by her promise to tell the truth.

75. It will be seen from her answers which I have underlined in the part of the transcript which I have reproduced above that she was not sure how serious a matter it was that she told the truth, that she did not understand the words "obligation to tell the truth", and that she was not sure what would happen to her if she did not tell the truth.

76. While she had earlier indicated that telling the truth meant "being good" and that telling a lie meant "being bad", looking at her response as a whole I am unpersuaded that they indicate a proper basis upon which the learned trial judge could hold that the requirements of s12(2) were satisfied. I would not want it to be thought that the mere fact that a child did not understand the meaning of the word "obligation" would necessarily mean that those requirements were unmet, if an understanding of the concept of an obligation was to be conveyed by other words. But it seems to me that the evidence given on the voir dire by Naomi fell far short of indicating that her understanding of the importance of telling the truth in court was something which stood on a higher plane of importance than the obligation to tell the truth in other less formal circumstances. There was no indication in her answers that she understood the serious and adverse consequences which might follow, for the accused in particular, if she was to fail to tell the truth.

77. It seems to me that, quite apart from the outcome of the other grounds of appeal, the inevitable result of the conclusion which I have reached as to this aspect of the matter is that there should be a re-trial. This is so, as if the ruling had been given which was called for on the basis of the voir dire examination, namely, that Naomi's evidence not be assimilated to evidence given on oath, there should then have been a direction to the jury that they should evaluate her evidence in the light of the conclusion which they reached as to her level of cognitive development, and that the appellant could not be convicted of any of the offences alleged on the basis of her evidence unless it was corroborated in a material particular by other evidence implicating the appellant (s12(3)).

78. Although the question is not without difficulty, it seems likely, on the present state of the law in South Australia, that the unsworn evidence of one child could corroborate the unsworn evidence of another.

79. What is commonly described as a "full" corroboration warning would have been necessary, with assistance given by the trial judge as to what might, as a matter of law, be properly be regarded as evidence capable of amounting to corroboration. Naturally enough, in light of the ruling which was in fact made by the learned trial judge, no such direction was given.

80. Given the view which I hold as to this aspect of the matter, it is strictly unnecessary for me to deal with the other grounds of appeal. As, however, the appellant may be presented again for re-trial, I will make brief mention of one or two other matters of concern.

81. Having ruled in favour of assimilating the evidence of Naomi, the learned trial judge did not go on to give any direction to the jury as to the approach which it was to take in evaluating her evidence. This left the jury in the position where, having seen the child give evidence without being sworn, they were offered no assistance as to how that should affect their treatment of her evidence. There would seem to be little point in the learned trial judge going through the process of reaching the view that her evidence should be assimilated, unless he went on to explain to the jury what that meant.

82. Any such direction, that is, as to how the jury should treat her evidence in the light of the ruling made as to its assimilation, should not, of course, be couched in terms which would run the risk of suggesting to the jury that the witness's evidence should be given any more weight than it deserved. There would be no such risk if the jury was simply to be told that although she had not been sworn, they were to treat her evidence as though she had given it on oath, but that what they were to make of her evidence was entirely a matter for them, and they should treat her in that respect as they treated any other witness who had been sworn.

83. That is not to say, of course, that a warning might, nonetheless, be necessary to the effect that the jury should treat the evidence with special caution for other reasons. I deal with the question of a warning later in these reasons.

84. After questioning the proposed witness Bekki in the absence of the jury, the learned trial judge ruled against her taking the oath, but held that her evidence should likewise be assimilated to evidence given on oath.

85. During the course of questioning Bekki, the following passage is recorded in transcript: "Q. Do you believe in God.

A. Yes.

Q. Do you believe in heaven and hell and all that sort of stuff.

A. Yes.

Q. You know what a lie is.

A. Yes.

Q. Tell me what a lie is.

A. It's when you say something that's not true.

Q. Good girl. Do you know that it's important that you not tell lies.

A. Yes."

86. The words "all that sort of stuff" were not only an inappropriate choice of language, likely to be offensive to some people, but were not apt to convey anything of relevance to the inquiry. The expression "good girl" was apt to encourage the witness to maintain, should there be further questioning, the position she had reached in the answer which the expression immediately followed, out of the not unnatural desire, evident with many children, to say what she thought would please an adult directing questions to her.

87. After some further questioning, the learned trial judge said: "Mr Birchall and Mr Kelly, I don't think this witness should take the oath because of her age really, I think she is just seven and the obligation of the oath is a little bit different, but she seems very intelligent to me. I think her evidence should be assimilated, that's the view I hold."

88. With respect to the learned trial judge, the expression "she seems very intelligent to me" followed immediately by the ruling made in favour of assimilation does not encourage me to think that the learned trial judge directed his attention to the requirements of s12(2).

89. In the case of the witness Jade, before she gave evidence, although the learned trial judge asked her a number of questions, he did not question her about her belief in God or as to religious matters, taking the view that she was in any event unable to give evidence on oath. In my opinion, that was a correct construction of s12. It has been held that although s12(1) speaks of a young child not being "obliged to submit to the obligation of an oath", this should be construed to mean, in the context of the section as a whole, that a young child under the age of seven years is not permitted to give evidence on oath. The section operates as a prohibition against the taking of an oath by a child under the age of seven years.

90. After he had questioned the child, the learned trial judge said that he was "very uncomfortable" about allowing Jade to give evidence at all. Following protestations from Mr Birchall of counsel for the Crown, he said: "The only way I would allow her to give evidence is if you made an application to call her briefly on the voir dire so I could judge for myself the intelligibility of her account."

91. Following further discussion with counsel, he then permitted Mr Birchall to lead Jade on the voir dire as to her recollection of the events on the night in question. Without giving to counsel for the accused the opportunity to put any contrary submission, the learned trial judge then ruled that Jade could give unsworn evidence which was to be assimilated with evidence given on oath. When counsel for the accused went on to indicate that he was intending to present some submissions to the contrary, the learned trial judge indicated that it was a matter for him to make the ruling, and not for counsel.

92. While that is perfectly true, the learned trial judge might have been assisted by submissions on the topic. I have already indicated that counsel for the appellant, if he or she wishes to be heard on the question of assimilation, should be permitted an audience on the question.

93. Another ground of appeal complains that the learned trial judge erred in directing the jury that the evidence of Dr Blake who examined Naomi two days later was "consistent with" her account in the witness box. The learned trial judge observed as to this: "The Crown urges upon you that his evidence shows a consistency with the evidence that Naomi has given. She says certain events happened, and lo and behold, on the Crown case, it so happens on an objective examination by an expert that there are certain findings that are consistent with her story in this court. Now they are matters that are for you to assess. As I say, and as I warn you, it's not for Dr Blake to decide this matter, it is for you, but his evidence is before you and the Crown puts it on the footing of showing consistency with, and indeed supporting the evidence of what Naomi says, but if there is any explanation which you may think leads you to the view that the findings of Dr Blake are consistent with an innocent explanation, so be it, that's a matter for you to assess."

94. Mrs Shaw contended that the learned trial judge erred in failing to direct the jury that "consistent with" did not mean "support", and that although the findings by Dr Blake might indicate some interference by someone, it did not point to the appellant.

95. The evidence of Dr Blake as to the condition which he observed on his examination of the opening of the urethra was an item of circumstantial evidence which the jury was entitled to take into account. But in the strict sense in which the word "corroboration" is used, it did not amount to corroboration of her allegations, as it was not evidence which necessarily pointed to the appellant as being responsible for the condition.

96. I think it would have been better if the learned trial judge had made it clear to the jury that Dr Blake's evidence, while consistent with some interference having taken place, did not implicate the appellant .

97. In my opinion, the ground which asserts that the learned trial judge erred in failing to "warn the jury adequately as to the dangers in convicting the accused on the unsupported evidence of children" was also made out. Although the learned trial judge directed the jury to "scrutinise very carefully" the evidence of the three young children. Although the terms of any warning in such cases is very much a matter for the discretion of the trial judge , the circumstances of the case called for a more extended warning. In particular, the learned trial judge should have adverted to the risk of concoction and contamination, and to inconsistencies in the various accounts of what had transpired. Some attempt should be made to explain the rationale for the warning.

98. I repeat the observations which I made in Hickman : "Whether or not any such warning should have been reinforced by reference to considerations arising from the age of T is a separate question. As I have indicated the requirement for such a warning, in the case of child witnesses, has been unaffected by the passage of s34(i) of the Evidence Act. ..... in determining whether such a warning should be given the trial judge should take into account the age of the witness at the time of the alleged offending: see R v B and D (1993) 66 A Crim R 192, per King CJ (Duggan J concurring) (at 195):'I think that the age of the child at the time of giving evidence is the predominant consideration in determining whether a corroboration warning should be given. The reasons commonly given for the warning, namely susceptibility of children to influence by adults, the tendency to confuse fantasy with fact and youthful irresponsibility, are all directed to the degree of maturity existing at the time of giving evidence. It is clear, however, that the judge is entitled to take into account the age of the child at the time of the alleged offence: B v the Queen (1992) 175 CLR 599 at 617. ........"

99. I went on to say: "In my opinion some sort of warning based upon T's age at the time of the alleged offending was necessary. In the case of the evidence given by children who, at the time of giving evidence, are of tender years the warning should normally be a full corroboration warning. In cases such as this, it is in the discretion of the trial judge whether or not a full corroboration warning or something falling short of that, tailored to the particular circumstances, is required."

100. In this case, all three child witnesses were of tender years. There were discrepancies in their account of the matter, which it is unnecessary for me to go into now, which should have been highlighted by the learned trial judge. Although he quoted long extracts from the evidence, in particular of Naomi and of the accused, reading long passages to the jury from the transcript of evidence is no substitute for succinctly summarising and identifying for the benefit of the jury particular issues upon which there are serious conflicts in the evidence.

101. I would allow the appeal, quash the convictions and direct a new trial.

MATHESON J

102. I agree with the orders proposed by Perry J and generally speaking I agree with his reasons. Perhaps the time has been reached when Parliament should review the law relating to the nature and quality of an oath taken in a court having regard to contemporary attitudes and beliefs but for the present I adhere to what I said in R v Schlaefer (1992) 57 SASR 423.

NYLAND J

103. I have read the draft reasons for judgment of Perry J. This case highlights the problems which arise in administering the rules applicable to the taking of evidence from young children. In my opinion, it is often very difficult to make an adequate assessment of a child's level of cognitive development as a result of a relatively short examination by a person who is a stranger to the child in a courtroom setting. I therefore wish to add my support to the comments made by Perry J as to the appropriate procedure. I also cannot see any reason why a judge should be limited to determining the matter on the basis of responses given to the questions put by him/her alone, provided that the judge ensures that the procedure devised in a particular case is that best fitted to determine the question and one that would not place undue stress on the child. For the reasons expressed by Perry J, I agree that the appeal should be allowed, the convictions quashed, and that there should be a new trial.