R v Bugler[2014] QCA 143

SUPREME COURT OF QUEENSLAND

1. HOLMES JA:  I agree with the reasons of Philippides J and the order she proposes.

2. PHILIPPIDES J:

The issue

3. The appellant appeals against his conviction, after trial, of attempted rape of the male child complainant. The sole ground of appeal is that s 9B(2) of the Evidence Act 1977 (the Act) was not complied with in relation to the child complainant’s competency to give sworn evidence in a pre-recording proceeding held on 8 October 2013.  It was contended that the learned trial judge was required by s 9B(2) of the Act to form an opinion on that occasion as to the matters set out therein, notwithstanding that the judge had previously done so on 14 August 2013 at an earlier pre-recording proceeding of the complainant’s evidence.  The issue raised on the appeal was thus whether, in circumstances where inquiry had previously been made by the judge as to the competence of the child complainant to give sworn evidence, that inquiry ought to have been repeated on 8 October 2013.

Background

4. The conduct for which the appellant was convicted was alleged to have occurred on a date unknown between 23 November 2012 and 26 November 2012, when the complainant was six years old.  As at November 2012, the complainant was primarily cared for by his father.  Every second weekend the complainant stayed with his mother, with whom the appellant was friends.  On the weekend of 23 November 2012 to 25 November 2012, the complainant was in his mother’s care.  It was agreed that he could stay overnight in the appellant’s caravan.  Another boy also stayed in the caravan, but was not called as a witness.  On 26 November 2012, the complainant told his father that the appellant had rubbed his penis on the outside of the complainant’s leg and “tried to put it in [the complainant’s] bum crack”.  The complainant’s father informed the complainant’s mother of the allegations and arrangements were made for the complainant to speak to police.  On 27 November 2012, the complainant told police that the appellant got his private part, pulled his pants down, and “tried to put it in my bum crack”.  He also said that the appellant was also doing it when he was asleep.

5. At the first pre-recording of the complainant’s evidence on 14 August 2013, the judge was informed that the complainant would swear an oath. The complainant was sworn on oath, after the judge asked the following questions designed to address his competency to give sworn evidence:

“Do you understand it’s very important to tell the truth today?--- Yes.

Okay.  And can you tell me what it means to tell the truth?  What’s that phrase mean, telling the truth?---  It means that you got to tell the truth to people.

Okay.  Yeah.  You’ve got to say what actually happened?---  Yeah.

You can’t make anything up, okay.  So if I said that you were wearing a white shirt with a collar today, would that be the truth?---  No.

Okay.  So, … the reason it’s important to tell the truth is because you can get in trouble if you lie when you’re giving evidence, okay?---  Yep.

You can get in trouble off me and you can get in trouble off the police, so it’s really important that you only say what happened?---  Yep.”

6. On 8 October 2013, before the commencement of the trial, application was made to further cross-examine the complainant. (It appears that a recorded phone call had not previously been disclosed to the defence.) There was discussion between the judge and the lawyers as to whether the complainant had been sworn on the prior occasion when he previously gave pre-recorded evidence, during which the learned trial judge commented:

“Let me just see what happened.  All right.  It’s okay, I’ve got it here.  I’ve already told him it’s important to tell the truth.  In the first prerecording he’s already been instructed to tell the truth.”

7. Referring to R v WAU [2013] QCA 265, defence counsel suggested that the trial judge should question the complainant as to his understanding as to what an oath was.  When the judge pointed to the previous pre-recording of the complainant’s evidence, defence counsel responded that he did not “take issue” with any of that evidence.  The judge then asked some questions confirming the complainant understood what an oath was, but did not repeat the process of inquiry previously embarked upon.  The complainant thereafter swore an oath and the further pre‑recording was conducted.

8. The complainant was seven years of age at the time of the pre-recordings and the trial.

Relevant legislation

9. Sections 9, 9A and 9B are contained in Division 1A of Part 2 of the Act which is entitled “Competency of witnesses and capacity to be sworn” and provide as follows:

“9Presumption 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.

9ACompetency 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.

9BCompetency 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.

…”

Discussion

10. Section 9(1) of the Act creates a statutory presumption that every person, including a child, is competent both to give evidence in a proceeding and to give it on oath but is subject to the provisions in Division 1A which follow s 9. Sections 9A and 9B are only engaged when an issue is raised by a party to the proceeding or the court, in the case of s 9A as to competency to give evidence, and in the case of s 9B as to competency to give sworn evidence.

11. In the present case, s 9A(2) of the Act, which specifies that a person is competent to give evidence if he or she “is able to give an intelligible account of events … observed or experienced”, was not engaged as no issue was raised by the court or by either party as to the complainant’s competency to give evidence.

12. However, s 9B did become applicable. Although neither party to the proceeding raised any question at the 14 August 2013 pre-recording as to the complainant’s competency to give evidence on oath, the issue was raised by the judge, who through the process outlined above, embarked on the inquiry contemplated by s 9B(2) of the Act.  The test addressed by that inquiry centres upon whether there is an understanding that giving evidence is serious and that it involves an obligation to tell the truth “over and above the ordinary duty to tell the truth”.  In that regard, s 9B changed the law as to competency to give sworn evidence by providing “a test of competence to give evidence which has nothing to do with the witness having an understanding that giving false testimony will incur, or run the risk of incurring, a divine sanction.”  (See R v BBR [2010] 1 Qd R 546 at 559, R v Chalmers [2013] 2 Qd R 175 at 186-7.)

13. In the present case, the learned judge, after questioning the complainant at the first pre‑recording, clearly proceeded on the basis that she was satisfied that the complainant had the understanding required by s 9B(2) and was therefore competent to give evidence on oath, whereupon that occurred.  It was not disputed that the complainant’s answers indicated that he understood that the giving of evidence was a serious matter, and that he had an obligation to tell the truth that was over and above the ordinary duty to tell the truth.  Indeed, consistently with the approach by defence counsel, who told the judge that he did not take issue with the earlier pre-recording, the judge’s determination in that regard was not challenged.

14. Rather, the appellant’s argument was that, in the circumstances of this case, the s 9B(2) inquiry ought to have been repeated on 8 October 2013, because of the complainant’s age, the gap of two months in the complainant giving evidence and given that the focus of the second pre-recording of evidence concerned an allegation that the complainant had told his mother and another person that another adult, X, indecently touched him, then recanted that allegation.  But, as the respondent correctly argued, the judge, having already been satisfied that the complainant was competent, and no issue having been raised by either counsel casting doubt upon that opinion, and in the absence of the judge herself raising the issue again, s 9B was not further engaged.  The judge was entitled to have regard to her questioning of the complainant on 14 August 2013 and she did so with the tacit approval of defence counsel.  And the judge, already having been satisfied on 14 August 2013 that the complainant was competent to give sworn evidence, clearly remained so satisfied.  Nothing pointed to by the appellant in submissions demonstrated that the judge ought to have raised the issue of competency to give sworn evidence again.

15. The further questioning of the complainant by the judge on 8 October 2013 did not engage s 9B. What occurred was simply that the judge directed some questions to the complainant as to his understanding of an oath as a result of a suggestion by defence counsel. As the respondent submitted, that course seems to have resulted from a misunderstanding of the decision of R v WAU, which concerned the giving of unsworn evidence by a complainant without the trial judge first assessing the complainant’s competency to give sworn evidence.  That decision reaffirmed what was said in R v BBR at 559 that an understanding of swearing an oath is irrelevant to determining competency to give sworn evidence.  Questions directed to that matter did not raise the issue with which s 9B(2) is concerned.  There was therefore no issue raised by either counsel or the questioning of the judge on 8 October 2013 to cause the judge to alter her previous finding that the complainant was competent to give evidence on oath.  Furthermore, since the complainant was sworn, there was no requirement under s 9B(3) that the trial judge explain the duty of telling the truth (R v BBR).

Conclusion

16. The appeal should be dismissed.

17. DALTON J:  I agree with the order proposed by Philippides J and with her reasons for it.