R v Chalmers
[2011] QCA 134
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- Appeal Determined (QCA)
- R v Chalmers[2011] QCA 134
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R v Chalmers[2011] QCA 134
Reported at [2013] 2 Qd R 175
R v Chalmers[2011] QCA 134
Reported at [2013] 2 Qd R 175
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Appeal against Conviction |
ORIGINATING COURT: | |
DELIVERED ON: | 21 June 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 May 2011 |
JUDGES: | Margaret McMurdo P, Chesterman JA and Cullinane J |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of two counts of unlawfully and indecently dealing with a child under the age of 12 years – where the appellant argued the verdicts were unsafe and unsatisfactory on the basis that the child’s accounts given to police officers following the incident and a year later at trial were not reconcilable – whether the jury could have been satisfied beyond reasonable doubt of the appellant’s guilt CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR UNSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of two counts of unlawfully and indecently dealing with a child under the age of 12 years – where the appellant argued the trial judge failed to comply with the requirements of s 9B of the Evidence Act 1977 – where the appellant argued the trial judge misdirected the jury with respect to the definition of “grievous bodily harm” – whether the complainant was competent to give evidence – whether the evidence was required to be given on oath or unsworn – whether the complainant's evidence was admissible Criminal Code 1899 (Qld), s 668E(1) Evidence Act 1977 (Qld), s 9, s 9A, s 9B, Pt 2 Div 4, s 93A Davies and Cody v The King (1937) 57 CLR 170; [1937] HCA 27, applied |
COUNSEL: | J Treviño for the appellant |
SOLICITORS: | Legal Aid Queensland for the appellant |
[1] MARGARET McMURDO P: I agree with Chesterman JA that this appeal against conviction must be allowed.
[2] A review of the whole of the evidence, which is relevantly set out in Chesterman JA's reasons, demonstrates that it was open to the jury to be satisfied beyond reasonable doubt that some improper sexual contact occurred between the appellant and the five year old complainant on 14 November 2009. But on that evidence, it was not possible for the jury to be satisfied beyond reasonable doubt that either of the two particularised counts charged against the appellant occurred. It follows that the guilty verdicts "can not be supported having regard to the evidence"[1]: M v The Queen[2] and MFA v The Queen.[3] The appeal must be allowed, the convictions set aside, and verdicts of acquittal entered.
[3] I take a slightly different view to Chesterman JA about the application to this case of s 9, s 9A and s 9B of the Evidence Act 1977 (Qld). Those provisions are set out in Chesterman JA's reasons at [40]. The primary judge's concern about the complainant's giving of evidence disclosed in the trial transcript and summarised by Chesterman JA at [42] to [44] of these reasons raised only the question of the competency of the complainant to give evidence in the proceeding on oath: see s 9(1)(b). Neither a party to the proceeding nor the judge raised the question of the complainant's competency to give evidence in the proceeding at all: see s 9(1)(a) and s 9A. Section 9A only "applies if … an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness in the proceeding to give evidence".[4] Until that issue is raised by a party or the court, under s 9(1) every person, including a child, is presumed to be both competent to give evidence in a proceeding[5] and competent to give evidence in a proceeding on oath.[6] It is important to note that both counsel, and perhaps the judge, would have been familiar with the recordings of the complainant's evidence under Pt 2 Div 4 and s 93A Evidence Act. Neither counsel nor the judge raised the question of the competency of the complainant to give unsworn evidence in the proceeding nor suggested that he may be unable to give an intelligible account of events which he had observed or experienced.[7] The judge, in raising the question of the competency of the complainant to give evidence in the proceeding on oath, invoked s 9B, but in my opinion not s 9A. As, in my view, s 9A was not raised in this case, the complainant was presumed to be competent to give unsworn evidence under s 9(1)(a).
[4] But as the judge clearly raised the question as to whether the complainant could give evidence on oath in the proceeding, s 9B was clearly applicable. It followed that the judge should have proceeded under s 9B(2) in determining whether the complainant, who was by then six years old, was competent to give evidence on oath. If the judge found the complainant was not competent to give evidence on oath under s 9B(2) (as curiously defined in that sub-section), as neither a party nor the judge raised the question whether the complainant was competent to give unsworn evidence in the proceeding, the judge under s 9B(3) was then required to explain to the complainant the duty of speaking the truth. This will not always be an easy task, especially with the very young or those with serious intellectual incapacities. The following fictitious exchange is an example of how that requirement must be met in such circumstances:
"JUDGE: Now, Jane, what colour is your hair?
JANE: Black.
JUDGE: Well, Jane, if I said your hair was blonde, would that be the truth.
JANE: No.
JUDGE: And Jane, if I said you're hair was black, would that be the truth?
JANE: Yes.
JUDGE: Well, Jane, when you answer the questions you are asked today, it is really important that you tell the truth. If you don't tell the truth, it could cause big trouble. Do you understand?
JANE: Yes."
[5] The judge's failure to comply with s 9B(2) and (3) means that the complainant's evidence was not received according to law. This has resulted in a fundamental irregularity in the trial. Had the appeal not succeeded on the first ground, it would have been necessary to allow the appeal on this ground and order a retrial: see R v BBR.[8]
[6] Subject to these observations, I agree with Chesterman JA's reasons. I also agree with the proposed orders.
[7] CHESTERMAN JA: After a two day trial the appellant was convicted in the District Court at Cairns on 1 March 2011 of: (i) unlawfully permitting himself to be indecently dealt with by a child under the age of 12 years on 14 November 2009 at Bayview Heights in Queensland and (ii) unlawfully and indecently dealing with the child at the same time and place. On each count he was sentenced to imprisonment for six months to be served as an intensive correction order. He appeals against his conviction on the grounds that:
(i) The verdicts were unsafe and unsatisfactory;
(ii) The trial judge failed to comply with the requirements of s 9B of the Evidence Act 1977; and
(iii) The trial judge erred in failing to direct the jury of the need to scrutinise the complainant’s evidence with great care before convicting.
[8] The facts alleged as constituting count 1 were that the appellant placed the child’s hand on his penis and moved the hand up and down. The facts said to constitute count 2 were that the appellant licked the area of the child’s penis on the outside of his shorts.
[9] The complainant child was the son of a friend of the appellant’s. The child’s parents had separated and he spent weekends with his father (“GE”) who appears to have kept something of an open house, extending hospitality to a circle of friends and providing accommodation for some of them, and their boyfriends and/or girlfriends.
[10] The boy in question was born on 2 August 2004 and was five at the time of the alleged offences and when he provided a statement to police pursuant to s 93A of the Evidence Act 1977 (“the Act”). He was six when cross-examined by way of pre-recorded evidence for the purposes of the trial.
[11] On 13 November 2009 the child’s father hosted a 21st birthday party for one of the young people living in his house. It appears to have been a boisterous affair which took its toll on those who attended. The next day, the day of the alleged offences, there was a more subdued gathering at the house. The appellant had not attended the birthday party, but the following night, 14 November 2009, he went to a local bowls club where he drank for an hour or two. On his way home he called on GE and spent some time in the house. Most of the occupants were drinking sedately in an outdoor entertainment area. The child was in the house watching television and playing with his toys. The appellant spent most of his time in the lounge room but did on occasions go outside to speak to the others. He drank some more at the house and conceded in cross-examination when he gave evidence that he was a little drunk. Both he and the child said that they played hide and seek. He might have played a video game as well.
[12] Shortly before 10.00 pm GE left to drive another guest, a female friend, to her home. He was gone about half an hour.
[13] During his absence the appellant was alone with the child in the lounge room. In that period the child spoke to Michael Whiteman, one of the house guests, in the presence of Sedel Creamer, his girlfriend, who heard him say that “(the appellant) won’t leave (him) alone.” Mr Whiteman said, in reassurance, “Don’t worry about it, I’ll tell him to stop”. Ms Creamer heard nothing else and did not herself speak to the child. She did not see the appellant after the conversation. Mr Whiteman was not called as a witness.
[14] In cross-examination counsel for the defence put to Ms Creamer that she had said in her police statement that the child had also said “he won’t leave me alone. He wants to touch my willy”. She agreed she had told police that but said she had not heard those words spoken.
[15] Another member of the household, Charlie Inglis, gave evidence that he saw the child speak to Mr Whiteman. He did not hear what was said but he “pulled (the child) aside … and … asked him ‘Did (the appellant) … ask you to lick his willy?’ The child replied “No, no, no”. Mr Inglis then said to the boy “I’m not going to get you in trouble. I just want to know.” The child then said “Yes, yes, he did”.
[16] When GE returned Mr Inglis spoke to him. The appellant was still at the house but left almost immediately, saying he was going home. GE did not accost him with any impropriety. He put his son to bed and “asked him what had been going on”. The child “told (him) straight up (the appellant) licked his willy.”
[17] The appellant gave evidence. He denied both charges and denied licking the child, and that the child had touched his penis, with or without his encouragement. He denied leaving the house hurriedly when GE returned. He agreed that he had played hide and seek with the boy and that at times during the evening he was alone in the lounge room with him.
[18] During his interview for the purposes of recording his evidence pursuant to s 93A of the Act the boy said:
“[POLICE OFFICER]:Did you tell (Mr Inglis) about something that happened last night?
[CHILD]: Um, no, ‘cause nothing happened. Only a couple of friends came over and (the appellant) and we had a little sort of … party.
…
[POLICE OFFICER]: Okay. Tell me more about playing with (the appellant). What happened? Tell me everything … .
[CHILD]: Sometimes we play the Xbox together but I only have 90 games.
…
[POLICE OFFICER]: Were (the appellant) and you playing together last night?
[CHILD]: Um, yeah, we were [INDISTINCT] each other, once we saw each other in my room. … And we playing hide and seek. … And that’s about it. … And he licked my willie too.
[POLICE OFFICER]: … Tell me all about what he did with your willie?
[CHILD]: He licked it and he wanted to lick it again but I said “No”. And once I told my daddy he said I was a good boy.
[POLICE OFFICER]: … Tell me everything about … why (the appellant) licked your willie?
[CHILD]: I do not know but he just wanted to but I don’t know ‘cause I didn’t ask him why. … I just stayed away from him when he wanted to and I said “No”.
[POLICE OFFICER]: … tell me all about (the appellant) licking your willie? What did he do?
[CHILD]: Um, he just licked it but I said “No”, and he didn’t lick my Willie ‘cause (the appellant) was good once he came into the lounge room.
[POLICE OFFICER]: Okay. Well, whereabouts in the house did (the appellant) lick your willie?
[CHILD]: … in the living room on the long sofa.
…
[POLICE OFFICER]: Okay. And what were you wearing last night?
[CHILD]: Um, nothing, not even a T-shirt. No. I just watched TV but (the appellant) asked me – he wanted his Xbox back … ‘cause I had it … too long.
…
[POLICE OFFICER]: One thing I … want to talk to you about … Is (the appellant) licking your willie … Tell me how he did that?
[CHILD]: He just asked me but I said “No”, then he licked it before I even said no.
[POLICE OFFICER]: Okay. And when he licked it what did he use to lick it? What part of his body?
[CHILD]: Tongue.
…
[POLICE OFFICER]: And did you have a pair of shorts on?
[CHILD]: Um, yes, I did.
[POLICE OFFICER]: … When (the appellant) licked your willie were your shorts on or off?
[CHILD]: Um, it was on ‘cause I don’t like people seeing me naked.
…
[POLICE OFFICER]: So … you said that it happened on the long couch?
[CHILD]: Yeah, the long sofa.
…
[POLICE OFFICER]: Okay. And tell me whereabouts on the couch you were.
[CHILD]: Um, I was in the middle but I moved to the other side so he couldn’t lick it then he told me to scratch his willie… I didn’t even do any scratching but he told me to and I just went outside and that was it. I just had a little talk with the girl.
…
[POLICE OFFICER]: … you said you were in the middle of the couch.
[CHILD]: … I moved over to that side of the couch once he told me I had to scratch his – I didn’t want to – I better move over to this side of it.
…
[POLICE OFFICER]: Was that before or after Jason licked your willie?
…
[CHILD]: Um, after that.
…
[POLICE OFFICER]: Okay. And did you scratch his willie?
[CHILD]: Um, yeah, but he told me to scratch some more and I did but I moved over this side but he kept on telling me that.
[POLICE OFFICER]: Okay. Tell me everything right from the start … about scratching (the appellant’s) willie.
[CHILD]: Well, he just asked me every hour and again. … About one minute over another one minute and that was about it. … Then he just left the house when I had a little fun kissing Erin … and kissing Jess.”
[19] The police officer became concerned that the camera recording the interview may have been obscured and he restarted the questioning. During that part of the interrogation he asked:
“[POLICE OFFICER]: … you said … (t)hat (the appellant) licked your willie?
[CHILD]: Yeah. Every hour and again in one minute over another one minute over another one and another one over another one.
…
[POLICE OFFICER]: Okay. How many times did (the appellant) lick your willie?
[CHILD]: Um, five times – oh, no, one. One time he did that.
[POLICE OFFICER]: Only one time?
[CHILD]: Yeah, but when he said he said he wanted to do it again I said, “No.” … And he only did it that one time and that was it. … He was gone before I came back on the couch.
…
[POLICE OFFICER]: … you said that (the appellant) wanted you to scratch his willie.
[CHILD]: Yeah, I did it five plus five times or something.
[POLICE OFFICER]: Okay. Can you show me with your hand how you scratched his willie? Not – not on your own willie, but just how you – how you did it?
[CHILD]: He said “Scratch it harder. Harder.” Then he told me to move it.
…
[POLICE OFFICER]: Okay. Did you move it?
[CHILD]: Yeah. But (the appellant) made me move it. … He put his hand on me and said, “Move it”, then he moved my arm. … but that wasn’t very nice of him.
[POLICE OFFICER]: When (the appellant) said that, … what was (he) wearing last night?
[CHILD]: Um, he had a floppy white hat with five plastic little circles … .
[POLICE OFFICER]: …What about his shirt? What was he wearing on top?
[CHILD]: Um, on the other night he was wearing a shirt with his name on it.
[POLICE OFFICER]: Was that last night?
[CHILD]: The night before that night.
[POLICE OFFICER]: Okay. What was he wearing last night?
[CHILD]: Um, I think the same T-shirt over again … .
[POLICE OFFICER]: Okay. And what about on his … lower part of his body? On his legs; what was he wearing?
[CHILD]: Pants, but I didn’t know what colour … .
[POLICE OFFICER]: … when you said … that you were scratching (the appellant’s) willie. … Was his willie on the inside or the outside of his shorts?
[CHILD]: Right in the middle of his bum.
[POLICE OFFICER]: Okay. But was it … under his shorts or outside his shorts?
[CHILD]: Outside his legs and my pants have a name on it.
…
[POLICE OFFICER]: You know how you said just then … that (the appellant’s willie) was outside his shorts.
[CHILD]: Um, yeah … No it’s in the inside of his jocks and shorts.
…
[POLICE OFFICER]: Okay. Did you see (the appellant’s) willie last night?
[CHILD]: Um, yeah, he showed it to me. … One time like I said he can’t lick it one time.
…
[POLICE OFFICER]: Okay. What does his willie look like? You tell me what it looks like?
[CHILD]: It’s like a bit fat willie. …. It’s only not that fat.”
[20] When cross-examined for the purpose of pre-recording his evidence for trial the child did not mention the appellant licking his shorts in the vicinity of his genitals. The evidence was:
“… And (the appellant) didn’t do anything to you at all, did he?-
[CHILD]: He did.
[DEFENCE COUNSEL]: What?
[CHILD]: He touched my willy and done the wrong thing.
[DEFENCE COUNSEL]: And what was the other thing? -
[CHILD]: He was touching my willy.
[DEFENCE COUNSEL]: Yes, and do you say that’s all he did? -
[CHILD]: Yep.
…
[DEFENCE COUNSEL]: … and you’re quite sure that … that was the only thing that he did, he didn’t do any other thing, other than touch your willy?-
[CHILD]: Yep.”
[21] Any uncertainty about what the appellant was said to have used to touch the child’s penis was cleared up by the prosecutor in re-examination. She said:
“… you told (defence counsel) that (the appellant) touched your willy, do you remember that? - Yep.
And can you just tell the Court what he touched your willie with? – His hands.
…
And do you know how long that went for? – Ten minutes.
… And are you good at telling the time? – No.
So, was it a long time or a short time? – Long time.
… And did anything happen before or after he touched your willy? … No.”
[22] The appellant relies for his first ground of appeal on the stark inconsistency between the child’s account given to the police officers and what he said about a year later when questioned by the appellant’s counsel at trial. It is not possible to reconcile the two accounts. The explicit evidence on the later occasion was that the only misconduct by the appellant was his touching the complainant’s penis with his hand. That act is not the subject of either count in the indictment. Moreover the child was adamant that nothing else occurred, thereby repudiating the prosecution of the offences charged.
[23] The appellant as well points to the accounts given at the house to the witnesses of preliminary complaint. None of these versions corroborates the offences actually charged.
[24] Ms Creamer said only that the child complained that the appellant would not leave him alone. Even if one accepts that she adopted the proposition put to her by defence counsel, that what she had told the police officer was correct, all the child said in addition was that the appellant “wanted to touch” the complainant’s penis. This is consistent with what the boy said in cross-examination but not with what he said earlier.
[25] Mr Inglis’ recollection was that he asked the child if the appellant had asked him “to lick his willy” and received an initial denial but a subsequent affirmation. Putting the hesitation to one side the account is the reverse of what the indictment alleged, that the appellant licked the child.
[26] The account given to the father was consistent with the complaint the subject of count 2 but it was made in response to a question and after the child had spoken to Mr Whiteman, Ms Creamer and Mr Inglis and given different versions. As well the boy did not tell his father that the appellant had importuned him to stroke the appellant’s penis.
[27] The test for determining whether a conviction is unsafe and unsatisfactory, or unreasonable, in the words of s 668E of the Code, is that found in the judgments in M v The Queen (1994) 181 CLR 487. The test is whether an appellate court thinks, upon the whole of the evidence, that it was open to the jury to be satisfied beyond reasonable doubt the accused was guilty, even though there was evidence which would support the conviction. According to Mason CJ, Deane, Dawson and Toohey JJ (492-3):
“The question is one of fact which the court must decide by making an independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which the jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.” (Footnotes omitted)
[28] Their Honours referred to Davies and Cody v The King (1937) 57 CLR 170 for the proposition that a Court of Criminal Appeal:
“…will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because … there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.” (At 180)
[29] Their Honours concluded (494):
“If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.” (Footnote omitted)
[30] The application of the test to the evidence in the case against the appellant leads to the conclusion that the evidence is unsatisfactory and insufficient to allow a finding of guilt beyond reasonable doubt.
[31] I have not set out the whole of the contents of the child’s interview. There are many passages in which he answered non-responsively and digressed haphazardly onto topics concerning his toys and his relationships with members of the household. The observation involves no criticism of the child or his evidence. His manner of answering is probably explicable by his very young age. It does, however, show that some caution is needed when attributing reliance to his testimony.
[32] It is true that he gave a more or less coherent account of the two episodes which form the basis of the charges in the indictment, but there are however some odd features in the accounts. The offences are said to have occurred when the appellant and the child were alone in the lounge but there were several other adults just outside and there was movement of persons in and out of the house at relevant times. It is, one might think, unlikely that the appellant would pursue the child in the manner described and persist in his pursuit in that environment. The boy’s account was that the touching went on for “a long time”.
[33] There are some features of the child’s account in relation to count 1 which suggest the child had no real recollection of what was said to constitute the offence. Despite the police officer’s best endeavours it is not at all clear that the child did say the appellant’s penis was exposed outside his shorts. His description appears to be of a penis in its correct anatomical location, rather than an account of what he saw by reference to an item of clothing. There is also his contradictory descriptions that the appellant’s penis was fat and not fat.
[34] These criticisms by themselves might not amount to much but they take on added significance when one compares his account given to the police officers with what he said to Ms Creamer and Mr Inglis. Those accounts lend no support to the offences charged.
[35] The respondent relies on a number of cases, R v Hopwood [2001] QCA 565, R v Broadwater [1996] QCA 450 and R v FQ [2008] QCA 68 for the proposition that discrepancies between versions offered by child witnesses at different times are reasonably to be expected, and that a statement admitted pursuant to s 93A of the Act may itself support a conviction where a different version is given at trial, and that whether such inconsistencies make a child’s evidence unreliable is something best left to the jury. None of these cases is anything like the present. In Hopwood there was no inconsistency. The complainant there having given an interview tendered pursuant to s 93A of the Act could not remember the incident at all by the time of the trial. In Broadwater the discrepancies were minor and the court (Pincus JA, Derrington and Ambrose JJ) said:
“We … do not propose to discuss those parts of the outline in which the point taken is that the complainant did not in all respects, when examined at the trial, support what she had said when interviewed shortly after the incident. This is, … a very common phenomenon in relation to young children who are sexually assaulted and illustrates one of the advantages of the system based on s. 93A … .”
In FQ the President said:
“[6]It is not unusual for statements taken under s 93A from children … to be inconsistent, either internally, when compared with their other evidence or when contrasted to independent evidence. Whether such inconsistencies mean that a statement of the child … cannot safely be relied upon is often a difficult issue and one with which juries must routinely grapple. The question of reliability is generally best left for the jury to determine … . That said, there may be occasions when a s 93A statement is so patently unreliable that it is appropriate to exercise the discretion … to exclude it from … evidence … .”
[36] There was no objection here to the tender of the s 93A interview. What is said, rightly in my opinion, is that the complainant child has given such different and contradictory accounts of the appellant’s alleged conduct that it is not safe to rely on any particular one to the exclusion of others. This is not a case of internal inconsistencies or discrepancies. It is a case of stark incompatibility and an account, latest in time, which expressly rejected the conduct alleged in the indictment.
[37] Each case must turn on its own facts. Whether a verdict is unreasonable must depend upon the nature and extent of the discrepancies. That fact that the jury is the primary tribunal of fact for determining the reliability of evidence does not relieve an appellate court of its obligation to make its own assessment of the evidence, as M mandates.
[38] In this case the complainant is very young and his tender age must have affected his capacity to give a reliable account. The appellant denied his guilt on oath. He appears to have been an unimpressive witness judging by the jury’s rejection of his testimony, but there is nothing in his evidence which might afford corroboration for the prosecution, or which might operate as any form of partial admission. The circumstances in which the offences were said to have been committed, the early discrepant account given to members of the household, and the subsequent account which retracted what was said in the police interview, mean, I think, that the jury could not reasonably act on the complainant’s testimony. There is a significant possibility that an innocent man has been convicted. The verdicts are accordingly unreasonable, and must be set aside.
[39] That conclusion is enough to dispose of the appeal but because of the importance of the second ground argued I will say something about it.
[40] Sections 9, 9A and 9B of the Act provide:
“9 Presumption as to competency
(1) Every person, including a child, is presumed to be –
(a) competent to give evidence in a proceeding; and
(b) competent to give evidence in a proceeding on oath.
(2) Subsection (1) is subject to this division.
9A Competency to give evidence
(1)This section applies if, in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness in the proceeding to give evidence.
(2) The person is competent to give evidence in the proceeding if, in the court’s opinion, the person is able to give an intelligible account of events which he or she has observed or experienced.
(3) Subsection (2) applies even though the evidence is not given on oath.
9B Competency to give sworn evidence
(1) This section applies if, in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness in the proceeding to give evidence on oath.
(2) The person is competent to give evidence in the proceeding on oath if, in the court’s opinion, the person understands that°–
(a) the giving of evidence is a serious matter; and
(b) in giving evidence, he or she has an obligation to tell the truth that is over and above the ordinary duty to tell the truth.
(3)If the person is competent to give evidence in the proceeding but is not competent to give the evidence on oath, the court must explain to the person the duty of speaking the truth.”
[41] Section 9A applied because the trial judge raised the issue of the complainant’s competence to give evidence. He was right to do so because of the complainant’s age. On appeal, counsel for the respondent conceded that he was just old enough to testify. The test for competency set out in s 9A(2) is whether the complainant was “able to give an intelligible account of events which he … observed …”. If the court forms the opinion that the witness is competent to give evidence there is then a question whether evidence is to be given on oath or unsworn. The test for competency to give evidence on oath is that set out in s 9B(2). The witness is competent to give evidence on oath if he understands that:
“(a)the giving of evidence is a serious matter; and
(b)in giving evidence he has an obligation to tell the truth that is over and above the ordinary duty to tell the truth.”
If the witness has that understanding he or she is to be sworn. If the witness does not have the understanding but satisfied the test for competency found in s 9A(2) the witness may give unsworn evidence. In that case “the court must explain to the person the duty of speaking the truth”.
[42] It is not clear that any of the trial judge, prosecutor or defence counsel were aware of the relevant provisions of the Evidence Act. When the pre-recording of the complainant’s evidence commenced a recording of the s 93A interview between police officers and the complainant was tendered. The trial judge then said:
“Now, in view of his age, it’s pointless me even talking to him about an oath, I would have thought, do you agree with that?”
[43] The prosecutor agreed, as did defence counsel. His Honour then said:
“I’ll just explain to him he’s going to be asked some questions, he should tell the truth.”
Again the prosecutor agreed with that suggestion.
[44] The child then appeared via closed circuit television link. His Honour ascertained his name and said:
“(Name), I’m the Judge? - Hey.
And I just wanted to talk to you for a little bit. Do you know why you’re here today, to answer some questions? – No.
…
This is a case involving (the appellant) do you know who (the appellant) is? Now, I see you’re nodding your head, you’re going to be asked some questions about (him) today. Now, because we’re in Court, I’m just going to ask you to listen to the questions and just answer the questions – do you know what it means to tell the truth? – Yes.
And when you’re asked these questions, will you tell the truth when you’re here this morning? – Yes.”
[45] His Honour then explained that the complainant would be questioned by two people and advised the support person present with the complainant to interrupt if she thought he needed assistance. Having introduced counsel, the judge went on:
“Now, he’s a man that represents (the appellant) in this case and he’ll ask you some questions after (the prosecutor) has finished asking you some questions. So, as I said to you, (name), if you just listen to the questions and just answer them truthfully. Okay … ? – Okay, yep.”
[46] No objection was taken on the appeal that the trial judge had not made any inquiry to satisfy himself as to s 9A(2), that the complainant was competent to give an intelligible account of the events he observed. It may be thought that his answers at interview showed that with some digressions and unresponsiveness he could give such an account. In any event he appeared to do so when cross-examined (though the account was different to that earlier given) so the subsection could be taken to have been satisfied.
[47] The next question was to ascertain whether the complainant was competent to give evidence on oath. All involved, judge, prosecutor and defence counsel, agreed that he could not. But it is not clear by reference to what criterion the decision was made. In particular it is not clear whether his Honour had in mind the test set out in s 9B(2) or whether he thought competency to give sworn testimony should be determined by reference to the pre-existing common law. The difference was explained in R v BBR [2010] 1 Qd R 546 at [47] to [52]. At common law competency to give evidence on oath depended on a belief in a Deity, and whether the witness had an understanding that giving false testimony will incur, or run the risk of incurring, a divine sanction. Belief in a Divine Being who might deliver the sanction was essential to that competence. As BBR pointed out s 9B propounds a new and quite different test.
[48] If the complainant had the understanding described in s 9B(2) he had to give evidence on oath. It would have been an error to allow him to give unsworn testimony. See BBR at [53] to [54].
[49] There may be occasions where it is appropriate for prosecutor and defence to agree that a witness is not competent to give evidence on oath by reference to the statutory test. It may not in every case be necessary for the trial judge himself or herself to undertake an inquiry as to competence though it is the usual responsibility of the judge to determine whether a witness is competent.
[50] What happened in this case gives no basis for thinking that the concessions made by counsel, or the assumption made by the judge, were based upon the statutory test of competence.
[51] For that reason I would hold, following BBR, that the complainant’s evidence was inadmissible.
[52] There was a further objection to it. Unsworn testimony can only be received when the trial judge explains to the witness “the duty of speaking the truth”. A failure to give the explanation renders the evidence inadmissible. That was decided in BBR.
[53] The explanation involves two things: “duty” and “the truth”. Both concepts are no doubt difficult to explain to a young child but some attempt has to be made at it. As the example given by the President in the course of argument shows there are simple ways by which elementary concepts of truth and falsehood can be imparted and an understanding gained as to whether or not a child witness can distinguish between truth and falsehood with respect to matters of fact. Easy synonyms for “duty” can be found. The child can be told that he or she must “tell the truth” or that it is “very important” to tell the truth. No doubt other formulations are possible. In the present case the trial judge did not ascertain whether the complainant did understand the concept of truth. He merely asked the child if he knew what the truth was, and accepted the affirmative answer, without checking the child’s understanding. His Honour did say “just tell the truth”, but did not venture any explanation at all of what is truth, nor tell the child that he “must” tell the truth.
[54] BBR explained why this is important:
“[37] Sections 9, 9A and 9B have much the same features as the sections of div 4A. They facilitate the testimony of children inter alia who are too young to appreciate the nature of an oath, but in allowing such witnesses to give unsworn testimony the Act provides safeguards for an accused. The safeguard in question is that contained in s 9B(3). Before the unsworn testimony can be received the judge must explain to the child “the duty of speaking the truth”.
[38] If the explanation is not given an accused’s rights have been jeopardised. A safeguard, required by the statute, to ensure that the trial is fair has been omitted. The balance which Parliament has insisted be held between the interests of the child witness and the accused has not been kept because of the removal of the counterweight.
[39] I would agree with the characterisation of the statutory requirement expressed in the cases: the evidence is not admissible unless the statutory precondition is satisfied. K’s testimony was not properly tendered and the jury could not have lawfully acted upon it. Its reception has vitiated the trial which was not conducted according to law.
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[41] When the maker of a statement is called to satisfy the condition found in s 93A(1)(b) the requirements of s 9B must be applied. Indeed their importance is amplified by the fact that the evidence in chief has been taken in the absence of the accused and without the need to conform to the laws of evidence. It is obviously imperative that a child witness who gives unsworn testimony in answer to questions put on behalf of the accused exercising his only right to test the evidence be given the statutory, judicial, explanation that she must speak the truth.
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