Child witnesses

Priestley JA

At 122

I agree with the reasons and conclusions of Grove J including his addendum concerning what is required by s 13(2)(b) of the Evidence Act 1995.

Grove J

At 123

The appellant was convicted on two counts of having sexual intercourse with a child under the age of ten years and one count of aggravated indecent assault after a trial at Penrith District Court. He was sentenced to an effective total term of six years penal servitude.

The focus of the appeal is upon a single aspect of the trial expressed in the ground of appeal as wrongful admission of evidence of the complainant “due to failure to comply with s 13 of the Evidence Act 1995”. The statement of the ground does not comprehensively cover the issues involved but both parties were content to argue the matter in a broader frame of reference.

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On 19 May 1997, the indictment was presented, the appellant was arraigned and a jury was empanelled. After preliminary directions by his Honour and an opening by the Crown Prosecutor the jury withdrew. In the absence of the jury exchanges occurred between the learned presiding judge, counsel and the C complainant whom I shall refer to as “C”:

At 124

Later in the day C entered the witness box and was examined by the Crown Prosecutor. She was not sworn. For reasons which it is not now necessary to examine, the jury was discharged.

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It is fundamental to our system of trial that a person may not be convicted other than upon sworn evidence and, unless the material emanating from C was available to be deliberated upon by the jury pursuant to some express statutory warrant, there was an absence of evidence upon which conviction of the appellant could be sustained.

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As appears in the foregoing chronicle the learned presiding judge appears to have presumed that as C was under twelve years of age at the time of trial (she was in fact aged ten years and nine months) that she was incompetent to give evidence. Such incompetence is not presumed at law.

At 125

On one view, which I would primarily adopt, the miscarriage of this trial can readily be perceived. Although his Honour expressed himself to be embarking upon an inquiry as contemplated by s 13(2) the questions and answers addressed to and answered by C were compatible with an inquiry at common law as to whether a child was competent to give evidence. His Honour's explicit finding was that he did not have any doubts as to the competency of C to give evidence (emphasis added). On that finding, she ought to have been sworn and because she was not, the answers which she articulated before the jury did not amount to an evidential resource which could be acted upon by that jury.

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Whilst the questioning of C forcefully established that she understood the difference between the truth and a lie there was no material from which it could be concluded that she did not appreciate that she was under an obligation to give truthful evidence. It is true that that direct question was not addressed to her although what she said strongly suggests that she would have so understood. The critical circumstance is that there was simply no evidence to establish that she was incapable of understanding the obligation and therefore  was not a person for whom the special provision in s 13(2) was available as the introductory words of the subsection make plain in the statement: “(2) a person who because of subsection (1) is not competent to give sworn evidence …” (the various emphases are added).

Sperling J

At 127

I agree with the orders proposed by Grove J. My reasons are as follows:

His Honour's assumption that the complainant was not competent to give sworn evidence by reason only of her age was, in my opinion, erroneous. The complainant was known by his Honour to have been under twelve years of age. That was correct. He thought she was eleven years old. That was not quite correct. She was in fact a little under eleven years of age. Materially, his Honour assumed that any child under the age of twelve was not competent to give sworn evidence.

There was no warrant for that assumption. Section 12 provides that every person is competent to give evidence except as provided by the Act. That must mean competent to give sworn evidence in the ordinary way. Section 13(1) provides the only exception. The exception arises if the person is incapable of understanding that he or she is under an obligation to give truthful evidence. An incapability of understanding that obligation cannot be inferred from the mere fact that the person is under twelve years of age, as his Honour believed it could, nor from the fact that the person is under eleven years of age for that matter. Some children of under twelve years of age or under eleven years of age would understand that obligation, some might not.

Grove J

1. This is an appeal against conviction upon two counts after a trial before Christie DCJ and a jury at the Coffs Harbour District Court. The offences charged involve sexual misconduct towards a young child who was in fact the granddaughter of the appellant. The convictions were followed by the imposition of terms of imprisonment.

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4. The complainant at the time was aged eight years of age. The Crown Prosecutor mentioned to his Honour, "And I won't be asking that the complainant be sworn, your Honour, she's only eight". His Honour's response was to say, "Yes, I understand".

5. The child was then brought to what I might describe for convenience as the witness position and upon arrival his Honour inquired of her whether she could see and he then had this exchange with her:

"Q. (E), there is a gentleman about to stand up who wants to ask you a number of questions. You understand that?

1. Yes.

1. And you understand that you are here to respond to his questions truthfully?

1. Yes."

The complainant was neither sworn nor affirmed.

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9. One, therefore, has to look at what information the trial judge had before the Court at Coffs Harbour. It is true that subs(7) of s 13 permits the Court to inform itself as it thinks fit, but the only information before the Court related to the age of the complainant - as I have recited, the remark of the Crown Prosecutor - and the acknowledgment by the complainant that she understood her obligation to tell the truth.

10. It is obvious, therefore, that there was no evidence which could sustain a finding and indeed no information which could sustain a finding that the complainant was a person incapable of understanding that in giving evidence she was under an obligation to give truthful evidence.

Hulme J

20. The jury clearly believed what the complainant, though not sworn or having made an affirmation, said. It is inconceivable that the taking of an oath or the making of an affirmation would have made the slightest difference to what she said. Certainly there is nothing to suggest it would have, and there is no conceivable ground for thinking that had she made an oath or taken an affirmation or had the steps envisaged by s13 been taken, the jury's verdict would have been any different.

21. There is, thus, much in favour of the view that no substantial miscarriage of justice has occurred and the Court should apply the proviso to s6 of the Criminal Appeal Act.

22. However, this Court in R v Brooks (1998) 44 NSWLR 121 has made it clear that the deficiency or defects which occurred in this case are of a nature so fundamental that the proviso should not be applied.

Greg James J

24. I agree with the orders proposed and the reasons given by the presiding judge. I add only this for myself, it was in response to the supplementary submissions on behalf of the applicant that the Crown submitted that regard could be had to the silence of the applicant's counsel at trial, bearing in mind the applicant's relationship to the witness, for the purpose of testing whether some adequate inquiry had been made; whether there was some consent or waiver which might have permitted the course taken at trial for the witness to provide material to the Court on an unsworn basis.

McClellan CJ at CL

1. I agree with Latham J

Johnson J

2. I agree with Latham J.

Latham J

3. The Director of Public Prosecutions appeals against a decision of Maguire QC DCJ’s (the trial judge) at Campbelltown District Court on 17 February 2006, pursuant to s 5F(2) of the Criminal Appeal Act 1912, on the ground that the trial judge erred in finding that the complainant, a girl aged seven years and ten months, was not competent to give unsworn evidence, according to the criteria required by s 13(2) of the Evidence Act 1995, concerning alleged sexual assaults upon her by the respondent.

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26. I pause to note that the form of the questioning undertaken by the Crown Prosecutor was entirely consistent with the method suggested at 6.3.2 of the Equality Before the Law Bench Book (Judicial Commission of NSW, June 2006). Simple questions assume that the language within the question is as simple and direct as possible. Phrases including “regarding” or “concerning” should be avoided, along with phrases which suggest agreement, or include the use of the negative, for example, "it's true isn't it?" or "is that not true?" Hypothetical questions, questions involving abstract concepts, multi-faceted questions (questions incorporating more than one proposition), legal jargon and passive speech should also be avoided: see Cashmore, Problems and Solutions in Lawyer-Child Communication (1991) 15 Crim L J 193-202.

27. The pitfalls of complex language can be overcome by direct questions such as "do you know what the truth is?" and "do you know what a lie is?" followed by a request to the child to provide an example of each. This was substantially the approach adopted by the Crown prosecutor. It stands in marked contrast to the approach taken by the trial judge at the next trial.

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38. Arguably, the complainant demonstrated by her reference to "being sent to a girls’ home" and “getting into trouble” that she understood the obligation to tell the truth in the proceedings, in so far as a failure to do so would result in some form of disciplinary action. That was, in effect, the submission that was made to the trial judge by the Crown Prosecutor at the end of this sequence of questions. Putting that issue to one side, it was inappropriate to further question the complainant on an accusatory basis, that is, that someone had put such a notion "into her head". The tenor of the trial judge's questioning suggests that he had formed a strong view about the reliability of the complainant's evidence and that he allowed that view to influence the inquiry, which should have focused upon the statutory criteria under s 13(1) and (2) and nothing else.

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46. To compound the problems already besetting the inquiry, the trial judge then allowed the respondent's counsel to cross examine the complainant, over the objection of the Crown Prosecutor, on the evidence she had given before Sides QC DCJ in September 2005, in order to suggest that the complainant's allegations were the product of a bad dream. The respondent's counsel was then permitted to cross-examine the complainant on the basis that she had spoken to her mother on the subject of the respondent's alleged assistance with the washing. None of this cross examination went to the issue that the trial judge was required to determine for the purposes of s 13 of the Evidence Act. More importantly, it is doubtful whether counsel for the accused should question a child in a competency inquiry: see R v Caine & Anor. (1993) 68 A Crim R 233 at 238. That much was conceded by the respondent's Senior Counsel on the hearing of this appeal.

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55. In my view, the Crown's submissions in this Court have been made good. Having determined to embark upon a fresh inquiry as to competency, the trial judge failed to address the question whether the complainant was competent to give sworn evidence, pursuant to s 13(1), before turning his attention to the criteria under subsection (2). There was evidence available from the complainant that she understood the importance of, and the obligation to tell the truth, yet the trial judge dealt with that aspect of the inquiry as some support for the proposition that the complainant had been improperly influenced by her mother.

56. The trial judge then relied on irrelevant matters in reaching his decision that the complainant was not competent to give unsworn evidence. The prospect that the complainant's evidence had been tainted by her mother, the suggestion that the complainant's mother had threatened the complainant in any way and the possibility that the allegations were the product of a dream, were all outside the legitimate scope of the inquiry. In addition, the trial judge ignored relevant answers that were capable of establishing that the complainant understood the difference between the truth and a lie.

McClellan CJ at CL

1. The appellant has been charged with one count of sexual intercourse with a child under the age of 10 years. A question has arisen at his trial as to whether the record of an interview with the complainant is admissible in evidence. The offence allegedly occurred in August 2003 when the complainant was aged five years and three months. She is now aged nine years.

2. The complainant was interviewed at the time of the alleged offence and a sound recording was made. The Crown now seeks to tender the recording as the complainant’s evidence in chief pursuant to s 9(1) of the Evidence (Children) Act 1997. Before the trial judge defence counsel objected to the tender. It was submitted that before the interview could be admitted the trial judge must be satisfied, beyond reasonable doubt that, at the time she gave the interview, the complainant was competent to give evidence. This submission was maintained in this Court.

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11. The meaning of these subsections is plain. A person is presumed to be competent unless the contrary is proved. Any question of competence may be raised by the defence and the inquiry contemplated by subs (7) may be undertaken. Neither the defence nor the prosecution carries an onus. It is for the court to determine whether it is satisfied that there is proof that a person is incompetent. That question must be determined on the balance of probabilities s 142(1). Although reference was made to reports of the Australian Law Reform Commission and the common law (R v Yacoob (1981) 92 Cr App R 313 and R v T (1998) 102 A Crim R 222) the issue must be determined having regard to the relevant provisions of the Evidence Act: see R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700.

12. It is apparent from his Honour’s reasons that he has approached the resolution of the question of the complainant’s competence in accordance with the requirements of the section. No error has been revealed.

Howie J

15. I agree with McClellan CJ at CL

Harrison J

16. I agree with McClellan CJ at CL

Grove J

1. This is an appeal against conviction following trial of the appellant before Solomon DCJ and a jury at Lismore District Court on an indictment charging sexual intercourse with a child under the age of ten years contrary to s 66A of the Crimes Act 1900. The date of offence was specified as lying between 21 March 2006 and 13 April 2006. The trial took place between 18 and 27 September 2007.

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3. The appellant relies upon a single ground of appeal namely:

“His Honour erred in allowing the oral testimony of the complainant to go before the jury as there was no material upon which it was open to his Honour to displace the statutory presumption that the complainant was competent to give sworn evidence.”

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7. All persons, including children, are presumed competent to give evidence: s 12. There is no fixed rule, either at common law or by statute, as to an age below which a child will be presumed to be incompetent to give sworn evidence: R v Brooks (1998) 44 NSWLR 121. It would be erroneous to presume incapacity merely because of the tender years of an intended witness: R v JTB [2003] NSWCCA 295. An accused may only be convicted upon evidence which is admissible, that is to say in the case of oral testimony, on oath or affirmation or pursuant to an alternative lawful sanction. Section 13 provides such an alternative.

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11. The determination required by s 13 (1) is a matter of judgment and inevitably includes assessment and impression. His Honour was able to listen to the complainant being interviewed and to observe her demeanour as she responded to his questioning. Although, as I have said, it would be erroneous to assume incapacity only by reason of age, it would nevertheless be potentially relevant to make an assessment of maturity. Nowhere did he say that he presumed that she was incapable simply because of her age and there is no reason to infer that he did. It has not been shown that his Honour’s discretionary judgment has miscarried.

McClellan CJ at CL

17. I agree with Grove J

Buddin J

18. I agree with Grove J

Campbell JA

1. The Appellant was convicted at a trial held in the District Court in August 2009 of four offences involving a sexual assault against a child. The one child was involved in all of the charges. That child was seven years of age at the time of the assaults. She was aged seven years and nine months when she was interviewed by police, and eight years eight months at the date of the trial.

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16. Section 13 provides an exception to that general condition of competency to give evidence. Its logical starting point is the presumption, established by section 13(6) that a person is “not incompetent because of this section” unless the contrary is proved. Section 13 deals with two different types of incompetence – not being competent to give evidence about a fact (at all), and not being competent to give sworn evidence about the fact. The presumption established by section 13(6) applies to both of the ways in which a person might be “incompetent because of this section”.

17. Section 13(1) enables lack of competency to give evidence about a fact to be established in two alternative ways. One is if the person does not have the capacity to understand a question about the fact, and that incapacity cannot be overcome. The other is if 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.

18. Section 13(1) and (2) recognise that some people might be competent to give evidence about one fact, but not competent to give evidence about another fact. The question about whether a person is not competent to give evidence thus needs to be decided on a fact-by-fact basis, or possibly by reference to classes of facts, unless there is reason to believe that, concerning any fact at all concerning which that person might be called on to give evidence, the tests laid down in section 13(1)(a) or (b) are satisfied, and the incapacity cannot be overcome.

19. If a person is competent to give evidence about a fact (because the presumption of competency to give evidence about that fact is not displaced), a question may then arise about whether that person is not competent to give sworn evidence about the fact. Section 13(3) has the effect that a lack of competency to give sworn evidence about the fact will arise “if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.”

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23. An effect of section 13(7) is that (as happened in Pease v R [2009] NSWCCA 136) a judge might be able to satisfy himself or herself of the matters necessary to decide whether a presumption of competency under section 13 has been displaced by listening to a recording of a police interview with the child. Even if an informal method of proof such as is permitted by section 13(7) were used, it would still be necessary for the judge to address the question posed by section 13(1) before finding that a person was not competent to give evidence about a particular fact, and to address the test posed by section 13(3) before finding that a person who is competent to give evidence about a fact is not competent to give sworn evidence about that fact.

24. Concerning the previous version of section 13, this Court decided in RA v R [2007] NSWCCA 251 at [11]:

“Neither the defence nor the prosecution carries an onus. It is for the court to determine whether it is satisfied that there is proof that a person is incompetent. That question must be determined on the balance of probabilities s 142(1).”

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40. While the present version of section 13 differs in some respects from the version that was being considered in R v Brooks, it remains the case that section 21 permits only one exception to the requirement that a witness in a proceeding must either take an oath or make an affirmation before giving evidence. That exception is if the person “gives unsworn evidence under section 13”. It is possible to give unsworn evidence “under section 13” only if two separate conditions are satisfied. The first is that the presumption of competency to give sworn evidence that arises from section 13(6) has been displaced, through a decision being made that the test for being not competent to give sworn evidence, set out in section 13(3) has been met. In other words, it is possible to give unsworn evidence “under section 13” only if there is material that the judge has considered, on the basis of which the judge has decided that the witness does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. The second condition for giving unsworn evidence “under section 13” is that the judge has informed the witness of the matters in paras (a) (b) and (c) of section 13(5).

41. In the present case, the judge did not address the first of these conditions at all. Even if the judge accepted implicitly the statement of the prosecutor that “given her age it may well be an issue”, that does not go beyond recognising that there might be a question that needed to be decided about competence. The judge did not take up the prosecutor’s suggestion of asking the questions that are relevant to section 13(3), “as to her understanding of her obligation to be truthful in the court”. The judge was informed of the opinion of both the prosecutor and counsel for the defence that she seemed competent, and was informed that in the police interview she had demonstrated an “understanding of truth and lies”. There was no material before the judge to suggest that she did not have the capacity to understand that in giving evidence she was under an obligation to give truthful evidence.

Latham J

63. I agree with Campbell JA

Price J

64. I agree with Campbell JA

Basten JA

2. The principal witness for the prosecution was the complainant who alleged two incidents of digital penetration by the appellant between 4 August and 24 October 2007. She did not give sworn evidence, but gave evidence unsworn. That course is permitted, pursuant to the Evidence Act 1995 (NSW), but only if particular statutory preconditions are satisfied. The appellant says that the judge failed to give a necessary instruction to the complainant, the result of which was not merely that her evidence was inadmissible, but that she was an incompetent witness. In such circumstances, it was submitted, the conviction must be set aside despite the fact that no objection was taken on that ground to her giving evidence, and that there may have been no substantial miscarriage of justice.

3. The appellant's challenge was limited to the alleged failure of the judge to tell the prospective witness about each of the factors set out in sub-s 13(5) of the Evidence Act. To assess that challenge it is necessary to identify the context of that provision.

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7. Section 13 was amended by the Evidence Amendment Act 2007 (NSW) ("the 2007 Amendment Act"), which commenced operation on 1 January 2009. In its old form, s 13(2) permitted a person to give unsworn evidence if the Court were satisfied that the person understood the difference between the truth and a lie: s 13(2)(a). That required an evaluative judgment. That requirement appears to have been deliberately removed because of the lack of clear differentiation between that test and the test of understanding an obligation to give truthful evidence, necessary to give sworn evidence.

8. This ambiguity is to be resolved in favour of the conclusion that there is no discretionary power to refuse to allow a child to give unsworn evidence, if the court is satisfied as to the capacity to understand a question and give a comprehensible answer, in accordance with sub-s (1). That conclusion follows from both the structure of the section and by reading sub-ss (4) and (5) together. Thus, sub-s (5) does not use equivocal language, but, subject to identified preconditions, states that a person who is not competent to give sworn evidence "is" competent to give unsworn evidence. That language, together with the absence of any attempt to specify criteria relevant to the exercise of a discretion, demonstrate that no discretionary power was intended.

9. In its form prior to the 2007 Amendment Act, the Court was not merely obliged to tell the witness that it was "important to tell the truth" but the prospective witness was required to indicate "by responding appropriately when asked" that he or she would not tell lies. The practical consequence of that dual requirement was that trial judges gave the instruction as a question and required a response. Perhaps counter-intuitively, the present form of sub-s (5) requires judicial instruction but no response. Nevertheless, it is understandable that, as occurred in this case, a judge is likely to seek a response to ensure that the instruction has been noted and understood.

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23. Section 13, it should be noted, is not directly concerned with the interests of a witness of limited competence, such as a young child: it is concerned with the public interest of obtaining evidence relevant to the determination of a criminal charge. There are other provisions which protect the interests of a child witness in sexual offences such as the present, including those which provide for the recording of evidence and the absence of the child from the court room to a different place linked by closed circuit television. It is not correct to treat the operation of s 13 as involving a balance between the interests of the child witness and those of the accused: cf BBR at [38].

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35. On the other hand, to seek to avoid the consequences of non-compliance would be inconsistent with the approach referred to in the authorities discussed above. If reliance upon the statement by the prosecutor in the course of asking questions of the witness on the voir dire were to be treated as an adequate compliance with sub-s (5) in one respect, it would be difficult to draw a line in respect of other requirements of sub-s (5). On the other hand, ignoring the part played by the prosecutor, it would be difficult to draw a line based on the omission by the trial judge of some element of the instruction, as opposed to other elements. Rather than take such a course, the appropriate conclusion is that the complainant was not competent to give unsworn evidence because, it having been concluded that she did not have sufficient capacity to understand the obligation to tell the truth, she was not given the directions required by s 13(5) in full. In the words of Doyle CJ in Starrett, the trial was not conducted according to law, as was the appellant's entitlement, and accordingly the conviction should be set aside.

Blanch J

36. I agree with Basten J

Hall J

37. I agree with Basten J

McClellan CJ at CL

1. I agree with Fullerton J

Johnson J

2. I agree with Fullerton J

Fullerton J

12. The appellant was the complainant’s stepfather. He commenced a relationship with the complainant’s mother when the complainant was 3 years of age and moved into the family home when she was 6. The appellant and the complainant’s mother subsequently had two children who were aged 8 and 9 at the time of the offences.

13. The charges relate to two discrete incidents that occurred in the family home in February 2007 when the complainant was 14 and then again either just before or just after her 15th birthday in October 2007. She was 17 years of age when she gave evidence.

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15. The way the trial judge suggested the jury should assess the complainant’s evidence is the subject of the second ground of appeal. In summary, the appellant submitted that his Honour provided the jury with a discursive commentary on children, and the evidence of children, which exceeded the legitimate bounds of judicial comment and was liable to be understood by the jury as requiring them to view the complainant’s evidence in a particular way, deflecting them from making their own assessment of her credibility and reliability.

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95. The complaint is not that his Honour’s remarks breached the prohibition in s 165A of the Evidence Act although parts of the extract above are, in my view, capable of such a reading. That section operates to prohibit a trial judge from warning a jury that children as a class, or by reason of their immaturity, are unreliable witnesses, or that their evidence is less credible or reliable or that it requires more careful scrutiny than the evidence of adults. The complaint is that the trial judge’s commentary had the potential to deflect the jury from their task of assessing the complainant’s credibility.

96. In my view that complaint is well founded. Despite defence counsel’s failure to ask his Honour to make clear to the jury that his views about child witnesses were by way of comment only and that they were not obliged to assess the complainant’s evidence by reference to them, the extent of his Honour’s commentary and its content, coupled with the real risk that the jury might have been inclined to a view adverse to the accused because of it, satisfies me that leave should be granted to permit this ground of appeal to be argued.

97. A trial judge has a wide discretion to offer guidance to a jury as to how to approach the evidence of a child witness which should be tailored to meet the particular circumstances of the case and the issues that the jury are likely to encounter in their deliberations. Save only where a trial judge is satisfied that the evidence of a particular child may be unreliable in a particular respect, and that there is a need for the jury to exercise caution in assessing the evidence thereby invoking the exception in s 165A(2) of the Evidence Act, it is important that a trial judge refrain from suggesting an approach to the assessment of a child’s evidence in such a way that it has the appearance of a direction of law.

Basten JA

4. The four grounds of appeal relied upon before this Court were:

"1. A miscarriage of justice was occasioned as a result of the Crown Prosecutor's closing address to the jury.

...

3. The learned trial judge erred in failing to direct the jury that they could not use the evidence of acts alleged against one complainant as tendency evidence with respect to the acts against the other complainant.
4. The verdicts of the jury are unreasonable or cannot be supported by the evidence.
5. A miscarriage of justice was occasioned by the failure of the appellant's counsel to lead medical evidence supporting the appellant's evidence that he was unable to kneel at the time of the offences."

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40. The complaints about the prosecutor's address ranged across a number of different issues. The primary complaint, however, was that the prosecutor purported to tell the jury, on the basis of his experience and expertise, that children, generally, can be relied upon to tell the truth. Thus he said at Tcpt, 03/09/12, p 4(10):

"A great many people would have difficulty accepting a child's word over an adult saying that they are wrong. No[w] there is no evidence in the trial and as far as the Crown knows, no evidence at all that children are any more or less likely to tell lies on their oath in a court. [SG] and [TG] are nine. Some people would say well, kids fantasise. The Crown says to you that you know, you know, from your own childhood from your children or grandchildren, that kids know the difference between their fantasies and what happened to them in real life."

41. Subsequently, in dealing with the police interviews with the complainants, the prosecutor noted that some questions were repeated and asserted that "it is dangerous to repeatedly ask little kids the same question because they get the impression they've given you the wrong answer and will change it": Tcpt, p 12(25). In fact, SG did not change her answers: this, the prosecutor said, indicated that SG "was a very honest witness": Tcpt, p 12(40).

42. Referring to the apparent consistency of her answers in cross-examination the prosecutor submitted, at some length, that SG came through "unscathed" which was "a difficult thing", given the length of the questioning: Tcpt, p 13(35)-(45). The prosecutor further stated (Tcpt, p 13(20)):

"In the Crown's respectful submission to you it would be within your knowledge of children that well and truly exceeded her attention span, which is about 20 or 30 seconds. But in any event she said there, she did her best, she listened [to] those questions and she agreed with them because there isn't any dispute."

43. These passages may be assessed together. Given the relative brevity of the trial, the prosecutor's address was somewhat prolix and, to an extent, argumentative. There is no doubt that the prosecutor was entitled to identify circumstances which tended to demonstrate the reliability and credibility of the complainants; that included a consideration of the statements made in the police interviews and the effectiveness or otherwise of the cross-examination. However, it was not appropriate for the prosecutor to purport to call in aid his own experience with children giving evidence in court to suggest that children were or were not generally truthful. Such statements were inappropriate for two reasons: first, the task of the jury was to consider, against their general experience, whether these particular complainants were telling the truth and were reliable in the evidence they gave for the purpose of the proceedings. The prosecutor's opinions were an irrelevant distraction. Secondly, and more significantly, by calling in aid the authority of his office, the first statement at least had a tendency to suggest that there was particular information, not within the knowledge or experience of the jury, suggesting that these complainants should be believed. To that extent, the remarks had a prejudicial tendency.

44. As counsel for the applicant accepted, the early remarks by the prosecutor with respect to the credibility of children generally probably involved an attempt, inept, unnecessary and inappropriate, to reflect the policy underlying s 165A of the Evidence Act 1995 (NSW) which prohibits a judge from warning the jury that "children as a class are unreliable witnesses" or that the evidence of children as a class is "inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults". For a prosecutor to wander into this territory without careful forethought risks putting the trial judge in the awkward position of needing to correct any inappropriate or distracting statement, without contravening s 165A(1).

45. Further, in commenting on the police interviewing technique and upon the cross-examination, he was implying that the "system" was unfair to child witnesses and the fact that their evidence was apparently unshaken was a stronger indication of their truthfulness and reliability than might otherwise have been the case. Again, it may be accepted that these statements had a prejudicial tendency, but it is difficult to treat them as significant. Whether the jury would have made anything at all of the proposition that the attention span of a nine year old was about "20 or 30 seconds" may be doubted.

Button J

72. I agree with Basten JA. On my own assessment of the evidence, the verdicts are not unreasonable or unable to be supported.

RS Hulme AJ

73. I agree with the orders proposed by Basten JA and, subject to one matter with his Honour's reasons.

74. I do not go as far as his Honour in concluding that "it is not possible to conclude that there was any realistic possibility of prejudice arising from" the Prosecutor's statements that were the subject of the First Ground of the Appeal.

75. The statements were grossly improper. They were calculated to put before the jury what in practical terms amounted to further evidence and the irrelevant and inadmissible Prosecutor's opinion. See also KNP v Regina [2006] NSWCCA 213; (2006) 67 NSWLR 227.

Hoeben CJ at CL

4. The applicant relies upon three grounds of appeal:

Ground 1 - The trial was not conducted according to law because the complainant and other child witness CL were not competent to give unsworn evidence.

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Crown case and evidence at trial

5. The Crown case was that on 6 February 2011 the applicant, who was a stranger to the 6 year old complainant, took her by the hand and pulled her underneath the unit block where she lived into a dark section where garages were located. This occurred after the complainant had gone downstairs with her friend, CL, to collect a ball that had gone over the edge of the balcony of the family's apartment. It was alleged that the applicant then removed her shorts and underpants and touched her genital area with his hands. He then touched her bottom with his erect penis.

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68. I have a concern about the process followed by her Honour in relation to the conclusion that the complainant and CL lacked the capacity to give sworn evidence. I appreciate that as in Pease, her Honour had watched some 10 minutes of the record of interview made by each of the children some 19 months before the trial. When giving her reasons, however, her Honour made no reference to any aspect of what she had seen. One is left with an impression that the primary basis for her Honour's conclusion were the questions which she put to the child witnesses.

69. Those questions are also a cause for concern. In the case of both the complainant and CL, they were brief in the extreme and expressed in terms of s13(3). In the case of the complainant, the abstract proposition was put as to whether she knew the meaning of the word "obligation". To the extent that there was any investigation of the complainant's understanding of the test in s13(3), it comprised the question "Do you know why it's important to tell the truth?". In accordance with the guidance provided in RAG, I am of the opinion that some further testing of the child witness' understanding of the obligation to give truthful evidence should have been carried out by the use of simple and concrete terminology, such as that described in that case.

70. In the case of CL, there is the additional problem of the sequence of reasoning. As was pointed out by the applicant in submissions and by reference to the analysis of s13 in both RJ and SH, the section is expressed in obligatory terms and requires a sequential mode of reasoning for there to be compliance with it. In the case of CL, as was properly conceded by the Crown, that sequential mode of reasoning did not take place. Her Honour proceeded directly to the s13(5) issue and only engaged in the preliminary but mandatory investigation as to competency to give sworn evidence, when reminded by the Crown. It was implicit in her Honour's approach that she had already reached a conclusion as to competency to give sworn evidence on the part of CL well before she asked the question expressed in terms of s13(3) to which reference has already been made.

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72. A decision on that issue is unnecessary because there was a failure by her Honour to comply with the provisions of s13(5)(c). The requirement of that subsection is clear. The court is obliged to tell the potential witness "that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should not feel pressure to agree with statements that he or she believes are untrue". Her Honour failed to give effect to the requirement to tell the child witnesses that he or she should agree with the statements that he or she believes are true. The important qualification to those "statements" is that they form parts of questions that suggest that they are either true or untrue. That is a qualitatively different proposition to a simple admonition that in giving evidence a proposed witness should tell the truth.

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74. A similar situation to that identified in SH has arisen here. Ground of Appeal 1 has been made out on the basis that s13(5) of the Evidence Act 1995, in respect of the complainant and CL, has not been complied with. It therefore follows that the trial was not conducted according to law, as was the applicant's entitlement, and accordingly the conviction should be set aside.

Fullerton J

134. I agree with Hoeben CJ at CL

Hamill J

135. I have had the considerable advantage of reading in draft the judgment of Hoeben CJ at CL.

136. I agree with his Honour's analysis and conclusion in relation to ground 1 and have nothing to add to his careful analysis of that ground of appeal. It follows that the appeal must be upheld.

French CJ, Bell, Gageler, Keane and Nettle JJ

1. The respondent was convicted following a trial in the Supreme Court of the Australian Capital Territory of the commission of an act of indecency in the presence of R, his daughter, R being a person under the age of 10 years. The offence is alleged to have occurred between 29 March 2012 and 2 April 2012. R was five years old at the time.

2. R's evidence was taken at a pre-trial hearing before Burns J on 6 August 2013. Following a voir dire hearing, Burns J determined that R's evidence should be received unsworn. The recording of R's unsworn evidence was tendered at the respondent's trial, which commenced on 21 March 2014 before Penfold J and a jury.

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13. It will be observed that competence to give evidence about a fact is confined to the person's capacity to understand a question about the fact and to give an intelligible answer to the question. It is only competence to give sworn evidence that requires the person to have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.

14. The s 13(6) presumption applies to both competence to give evidence and competence to give sworn evidence. In either case, the presumption will be displaced where the court is satisfied on the balance of probabilities of the contrary. Where the presumption of competence to give sworn evidence is displaced, a person who is competent to give evidence about a fact may give unsworn evidence about the fact provided that the court has told the person the things set out in s 13(5).

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26. Turning to the respondent's last submission first, "obligation" in s 13(3) is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound – in this case, to give truthful evidence. A child may agree that he or she understands that he or she is to tell the truth without having any understanding of what it is to give evidence in a court proceeding, much less of the concept of being morally or legally bound to give truthful evidence. Contrary to the respondent's submission, R's affirmative answer to the question "[a]nd do you understand that today in giving evidence you have to only tell us the truth? You have to tell us things that really happened, you understand that?" is not to be understood as necessarily conveying that R had the capacity to understand that, in giving evidence, she was under such an obligation.

27. There are many ways to explore whether a child understands what it means to give evidence in a court and the concept of being morally or legally bound to be truthful in so doing. Here, it would seem the prosecutor questioned R about her understanding of swearing an oath on the Bible or making an affirmation. Her lack of understanding of either was not determinative but it was not irrelevant to the formation of the opinion that she did not possess the capacity to understand the obligation. The suggestion that it may not have been open to Burns J to be satisfied that R, a six-year-old child, lacked that capacity is unsustainable.

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51. At the respondent's trial, the jury observed witnesses giving evidence on oath or affirmation as the case may be and may be taken to have heard those witnesses undertake to tell the truth, the whole truth and nothing but the truth. By contrast, the jury did not see R take an oath or make an affirmation before giving her evidence. It strains credulity to suggest that in order to avoid the risk of a miscarriage of justice it was necessary to instruct the jury that R's evidence had been received without the solemnity of an oath or affirmation or the possibility of sanction should it be intentionally false. It might be thought unlikely that it would occur to jurors to think a six-year-old child was at risk of prosecution for perjury regardless of whether the child's evidence was taken on oath or otherwise.

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56. The Evidence Act does not treat unsworn evidence as of a kind that may be unreliable. Had a direction been requested under s 165(2), there was no requirement to warn the jury that R's evidence may be unreliable because it was unsworn. Nor was there a requirement under the common law to warn the jury of the need for caution in accepting R's evidence and in assessing the weight to be given to it because it was unsworn. Nor was there a requirement under common law, falling short of a warning of that kind, to direct the jury to take into account the differences between sworn and unsworn evidence in assessing the reliability of R's evidence.