Grindrod v R [1999] WASCA 44

Evidence - Young child - Competence to give evidence on oath - Whether trial Judge had complied with Evidence Act 1906, s 106B(2) - Use of leading questions

Evidence Act 1906, s 106B(2), s 106I Sch 7

Respondent : Acting State Director of Public Prosecutions

Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493

Little v The Queen, unreported; CCA SCt of WA; Library No 970601; 1 October 1997

Rabey v R [1980] WAR 84

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

1 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Ipp J. I am in agreement with those reasons and with the orders which his Honour proposes.

2 IPP J: Three grounds of appeal are raised in this appeal against conviction. They are as follows:

(1) The trial miscarried, or there was a miscarriage of justice, because video-taped testimony of a child under the age of 12 years (taken pursuant to s 106I and s 106K of the Evidence Act 1906) was admitted into evidence despite the fact that the indictment presented at the trial was a different indictment to that on which the prosecution proceeded when taking the video-taped testimony.

(2) The learned trial Judge erroneously directed the jury that certain evidence was capable of supporting the prosecution case (when that evidence was entirely neutral).

(3) The learned trial Judge did not make sufficient enquiry before forming an opinion, pursuant to s 106B of the Evidence Act, that the complainant (a child under the age of 12 years) was competent to take the oath.

3 I turn, firstly, to the ground concerning the effect of the different indictment.

4 The material before this Court does not disclose the date when the complaint against the appellant was first made pursuant to s 42 of the Justices Act 1902. It is apparent, however, that the appellant was initially charged, by indictment dated 13 January 1998, with four counts of indecent dealing. Three of these counts concerned the child, "JD". The fourth count concerned the child, "AD". Of the three counts relating to JD, two were for indecent dealing by kissing (the allegation being that the appellant inserted his tongue into the child's mouth), and one was for indecent dealing by rubbing the child's vagina. The count involving AD alleged indecent dealing by kissing.

5 By notice of motion dated 14 January 1998, the prosecution sought orders under s 106I and s 106K of the Evidence Act that the evidence of JD and AD (both being children under the age of 12 years) be given at a pre-trial hearing. Section 106I(1) provides:

"Where any Schedule 7 proceeding has been commenced in a Court, the prosecutor may apply to a judge of that Court for an order directing -

(a) that the affected child's evidence-in-chief be taken, in whole or in part, and presented to the court in the form of a video-taped recording of oral evidence given by the affected child; or

(b) that the affected child's evidence be taken at a pre-trial hearing."

Section 106K empowers the Court to give appropriate directions for the giving of video-taped oral evidence by an "affected child".

6 Orders were duly made as sought, and the evidence of JD and AD was taken a pre-trial hearing on 21 April 1998. Both children were questioned by the learned Judge in order to determine their competency to give evidence on oath. His Honour decided that each was so competent and each gave sworn testimony. JD gave evidence that on two occasions the applicant kissed her and put his tongue into her mouth. She gave no evidence capable of supporting the count of indecent dealing involving the rubbing of her vagina. The child AD gave no evidence capable of supporting the charge relating to her.

7 Thereafter, the Crown substituted a fresh indictment (dated 2 June 1998) for the indictment dated 13 January 1998. The fresh indictment differed from the first indictment in that it contained only two counts, namely the two counts of indecent dealing by kissing, involving the child JD. It is not apparent how that substitution was effected. It is sufficient to state that when the trial proceeded on 12 January 1999 the appellant was arraigned on the fresh indictment. The appellant was represented by counsel (not counsel who appeared on appeal) who did not object to the fresh indictment. At a directions hearing on 6 January 1999, counsel for the prosecution and counsel for the appellant arrived at an agreement concerning the manner in which the video-taped evidence of JD was to be edited and used at the trial. Counsel for the appellant was quite content for the video-taped evidence in this form to be tendered in evidence at the trial. Accordingly, on 12 January 1999, when the trial commenced, the video-taped evidence of JD was admitted pursuant to s 106I of the Evidence Act.

8 It was common cause that the trial of the appellant was a "Schedule 7 proceeding" (within the meaning of s106I(1)) as it fell within cl 1 of Schedule 7 to the Evidence Act. Clause 1 of Schedule 7 provides that "[a] proceeding comes within the provisions of this Schedule" if it is "a proceeding in which a person stands charged with [certain defined offences]". The offence of indecent dealing falls within the defined offences.

9 Counsel for the appellant submitted that the trial had miscarried because:

"The [video-taped] evidence was taken in proceedings which were proceedings on a particular indictment. The evidence was then used in proceedings which were not proceedings on that indictment."

The kernel of the argument was that an indictment is an essential element of a "proceeding" as this term is used in cl 1 of Schedule 7. On this basis, once the original indictment was substituted by a fresh indictment, a new and different proceeding came into being. The video-taped evidence was led in a proceeding in respect of which the first indictment was an essential element. Once that indictment was substituted by the fresh indictment, the video-taped evidence could not be used in the different proceeding which resulted from the fresh indictment.

10 I am not persuaded, however, that an indictment is such an essential part of a proceeding as was argued. According to s 106A, the term "proceeding" in s 106I and Schedule 7 means:

"Any civil or criminal proceeding or any examination in any Court or before any person acting judicially, and includes a preliminary hearing under the Justices Act 1902 and a pre-trial hearing under s 106K."

Section 106A defines a "Schedule 7 proceeding" as "a proceeding that comes within the provisions of Schedule 7".

11 It follows from the definition of "proceeding" and "Schedule 7 proceeding" that there are at least three kinds of Schedule 7 proceedings in which the presentation of an indictment will or may not occur. The first is a preliminary hearing. The second is a summary proceeding in which a person stands charged with having committed an offence referred to in cl 1(a) of Schedule 7. The third is a pre-trial hearing under s 106K. In this regard it is to be noted that, although s 106I refers to an application to "a judge" for an order directing that the affected child's evidence be taken - and under s 106K a "judge" who hears an application under s 106I(1)(b) may make appropriate directions orders - "judge" is defined by s 3 of the Evidence Act to include a stipendiary magistrate and also any justice or justices of the peace. Thus, evidence given pursuant to an order made under s 106I may be used in several kinds of proceedings where no indictment has been presented. This, in effect, negates the argument advanced on the appellant's behalf.

12 While a trial of an indictable offence may be deemed to have begun when the accused is called upon to plead to the indictment (R v Diaz [1982] WAR 60 at 63, Cicchino (1991) 54 A Crim R 358), that is immaterial to the determination of what constitutes a "proceeding" under Schedule 7. In the light of the broad definition of "proceeding" in s 106A and the fact that a proceeding may be a Schedule 7 proceeding even if it is a preliminary hearing that takes place before an indictment has been presented, or a summary proceeding where no indictment is presented, or a pre-trial hearing under s 106K, it cannot be said that a "proceeding" commences when an indictment is presented.

13 It seems to me that, generally, a "proceeding" will be commenced by the making of a complaint pursuant to s 42 of the Justices Act. In the present case there is no suggestion that the offences described in the complaint were in terms different to the offences with which the appellant was charged under the fresh indictment. From the time that the complaint was made until the appellant was convicted and sentenced on the fresh indictment he was the subject of a proceeding in which he was charged with the same offences, namely the two offences of indecent dealing involving the kissing of the child JD.

14 In my opinion, the substitution of the first indictment did not materially alter the character of the proceeding commenced by the complaint. The proceeding remained the same even although, in terms of the fresh indictment, the prosecution did not proceed with two of the counts that were, presumably, contained in the complaint and, in fact, were contained in the first indictment, As there was no change in regard to the two counts that remained, and no additional counts were added by the fresh indictment, it cannot be said, in my view, that the fresh indictment terminated the proceeding which had been commenced by the complaint. Accordingly, in my opinion, the pre-trial hearing pursuant to which the video-taped evidence of the child was taken, was part of the same proceeding as the trial of the appellant; that proceeding having been commenced by the complaint.

15 The argument that a miscarriage of justice had occurred was based on what counsel for the appellant described as the forensic unfairness to the appellant resulting from the prosecution's failure to proceed with the third count of indecent dealing involving the child JD. It was submitted that, by not proceeding with the third count, the Crown deprived the appellant of the opportunity of directing the jury's attention to the fact that the Crown had charged the appellant with the third count but JD had given no evidence to support it. This, it was said, might have cast some doubt on the reliability of JD's evidence. It was submitted that the prejudice caused by the loss of this opportunity was exacerbated by the trial Judge's statement to the jury that:

"As you have been told, what it is relevant to is what we call consistency and the Crown says to you, 'this girl has been consistent. She told her mother soon after and she has told the same story since and she has told the same story to you on the video tape. She has been consistent. She is only 6 or 7 but she has consistently told the story'. That of course, as I have said, doesn't make the story true or it doesn't make it false, but it is something that the Crown says you should bear in mind."

Counsel for the appellant submitted that, had the third count not been left out of the fresh indictment, the claims of consistency could not have been made.

16 In my opinion, the appellant's complaints in this respect are more apparent than real: cf Gipp v The Queen (1998) 72 ALJR 1012. In my view, any prejudice to the appellant was insignificant. It is noteworthy that at the trial counsel for the appellant made no complaint about the substitution of the indictment. Moreover, as mentioned, he expressly agreed to the edited video-taped evidence being admitted. In the circumstances I would not uphold the first ground of appeal.

17 I turn now to the second ground. Prior to the commission of the offence the appellant had been employed on two occasions by the parents of the two children as a babysitter, to look after them. The parents separated and the mother moved with her children to a different house. She hired the appellant again on two other occasions as a babysitter. On the occasion when the offences were alleged to have occurred the appellant gave JD and AD (and their sister) gifts of soft toys and did not charge the mother a fee for his services. In directing the jury the learned Judge dealt with these matters as follows:

"[Counsel for the prosecution] says 'Bear in mind when you are considering this evidence of hers a number of things: that she had been allowed to stay up later while the others were asleep; that she had slept in his bed; but there were other circumstances which of themselves might be capable of an innocent explanation but which you should bear in mind; that the three girls were given gifts of soft toys; that no money was charged when [their mother] later discussed the question of money with him. He said, "don't worry about it"."

"You will need to - no doubt you will - carefully look at all the evidence and you will need to see what sorts of things you think support her story or what sort of things you think don't support her story or are consistent with an innocent explanation. The Crown says, as I have said to you, that there are a number of things here which you should bear in mind which the Crown says to you tend to support the charges. [Counsel for the accused] says that's not so. They are - the matters the Crown talks about are innocent things and that there are a number of things which point towards innocence or at least create a reasonable doubt. No doubt those are all matters for you."

18 Counsel for the appellant submitted that the learned Judge erred in saying to the jury "no doubt those are all matters for you". Counsel argued that the question whether the matters in question tended to "support the charges" should not have been left to the jury.

19 JD's mother testified in giving evidence-in-chief that on the prior occasions that the appellant was hired to look after the children he was in fact paid. She was questioned (also in her evidence-in-chief) about a discussion she had with the appellant after the babysitting had been completed on the occasion when he was alleged to have committed the offences, and the following exchange occurred:

"We talked just briefly about the arrangements for payment and I asked him whether - you know, about the foster care, whether perhaps I might be able - because I had planned on using him the following weekend - to get the child care for free through the foster care system.

I think you said something about payment. What was the discussion there about payment?---Yes. I asked him how much it was for the weekend and he said not to worry about it."

In cross-examination it was put to the mother that she and the appellant discussed her need for "reduced fees" for babysitting and it was suggested to her that it was then that the appellant said to her that she did not have to pay at all, and she agreed with this. The mother was in financial difficulties at the time and she thought that this "was very generous of him". She was not questioned about the gifts of toys.

20 In his evidence-in-chief the appellant said that he had a box of toys with which children played when he looked after them. He testified, "the girls happened to take a fancy to a particular one and asked if they would (sic) take it home. I said okay". He was asked why he did that and replied: "Well, I thought the financial situation of the household - you know, there was no harm in just giving them a small soft toy". He was asked in cross-examination whether the children asked for the toys and he replied in the affirmative. He was not asked any other questions about the toys. The appellant gave no evidence-in-chief as to why he agreed not to charge for his services and was not cross-examined about this. There was no evidence as to whether the appellant had given presents to the children in the past.

21 In the circumstances, in my opinion, it was not open for the prosecution to argue that the gifts of the toys and the omission to charge tended to support its case. Any inference to this effect was entirely speculative and not based on the evidence, and there were other inferences reasonably available that were consistent with innocence. Importantly, counsel for the prosecution had not suggested to the appellant in cross-examination that his testimony as to why he gave the toys to the children was false, and had not put to him that he had agreed not to charge babysitting fees because he had committed the offences in question. In my opinion, in such circumstances it would be unfair to argue to the jury that the appellant's actions in these respects implicated him in the commission of the offences.

22 Counsel for the respondent pointed to the fact that the learned Judge told the jury that there was "no evidence which corroborates [JD's] account in the critical issue of whether he tongue kissed her, as I have called it, or not". The problem, however, is that by telling the jury that it was a matter for them whether the appellant's acts in giving the toys and waiving his fees "tend to support the charges", the learned Judge was, in effect, directing the jury that such evidence was indeed capable of corroborating JD's version. It has long been accepted that no particular language is necessary to describe what is meant by corroboration. In Khan v R [1971] WAR 44 Virtue SPJ (at 47) quoted authority to the effect that corroboration "is some independent evidence of some material fact which implicates the accused person and tends to confirm that he is guilty of the offence". Burt J (at 53) said that evidence of corroboration was "independent testimony which affects the accused by connecting or tending to connect him with the crime". The statement by the learned Judge in the present case that it was a matter for the jury as to whether the evidence of the gifts and the waiver of fees tended to support the Crown case, was, in effect, a statement that that evidence was capable of corroborating JD's testimony and the Crown case as a whole.

23 In my opinion the learned Judge erred in this aspect. In the light of the conclusion to which I have come in regard to the third ground of appeal, it is not necessary to consider whether, notwithstanding this error, no substantial miscarriage of justice occurred.

24 The third ground of appeal asserts that the learned trial Judge:

"failed to make sufficient enquiry to be satisfied that the complainant understood that the giving of evidence was a serious matter and that the complainant had an obligation to tell the truth over and above the ordinary duty to tell the truth."

25 This ground is based on s 106B of the Evidence Act which provides:

"(1) A child who is under the age of 12 years may in any proceeding, if the child is competent under subsection (2), give evidence on oath ... or after making a solemn affirmation ...

(2) A child who is under the age of 12 years is competent to take an oath or make a solemn affirmation if in the opinion of the Court or person acting judicially the child understands that -

(a) the giving of evidence is a serious matter; and

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

26 The enquiry undertaken by the learned Judge in regard to the competency of JD was in the following terms:

All right. Now, I have to ask you some questions before we hear further from you. How old are you, [JD]?---7.

What is your favourite subject at school?---Don't have one.

Do you understand what it means to tell the truth?---Yes.

If I said to you that you were 7 years old, would that be true?---Yes.

Do you know the reason why you have come here today instead of going to school? You wouldn't go to school today, would you? You would be on holidays?---Yes.

Do you know the reason you have come to this court today?---Yes.

What is that reason?---Because Nigel did something wrong.

All right. Do you think that what is happening here today is important?---Pardon?

Do you think that what is happening here today is important?---Yes.

Do you understand that you will have to answer some question about what happened?---Yes.

Do you think you will be able to tell us everything you know about what happened?---Yes.

Do you know why you have to answer these questions?---No.

You don't know why you have to answer these questions?---No.

All right. Do you think it's important you answer these questions truthfully?---Yes.

Do you understand that it is very important to do that?---Yes.

And that the reason it is very important is because you are in court today? I didn't hear you then? Do you understand that it is very important to answer questions truthfully because you are in court today?---Yes.

Yes. It seems to me, having heard from [JD], that I am of the view that [JD] has complied with the requirements of section 106B(2) and is competent to give evidence on oath."

27 Counsel for the appellant pointed out that almost all the information on which the learned Judge relied came simply from the child answering "yes" to questions from his Honour. When asked whether she knew why she had to answer questions "about what happened" she replied in the negative. It was submitted that the enquiry undertaken by the learned Judge was inadequate to determine the competency of JD to give evidence on oath.

28 Counsel for the respondent conceded that the examination was constituted virtually entirely by leading questions. He submitted, however, that the demeanour of the child was important, and this is borne out by decisions such as R v X (1990-91) Cr App Rep 36 at 41. Generally speaking, the form of the question will not be determinative, and the reaction and response evoked from the child will be critical: Hoogwerf (1992) 63 A Crim R 302 (at 303). The problem, however, is that it would have been extremely difficult to judge demeanour over the very brief period during which the learned Judge asked the child some 22 questions, 14 of which were answered "yes", two "pardon", two "no" and two of the remainder with monosyllabic replies.

29 The significance of a judge's opinion under s 106B as to whether a child is competent to give evidence on oath was emphasised by Owen J in Revesz v The Queen, unreported; CCA SCt of WA; Library No 960607; 18 October 1996 as follows:

"It is obviously a matter of grave importance to the running of a criminal trial that the evidence of witnesses generally, but particularly the evidence of persons of very tender years, should be received properly. For this reason the enquiry to which sections 106B and 106C is directed assumes considerable significance."

30 The importance of a finding of competency under s 106B is underlined by s 106C, which provides:

"A child under the age of 12 years who is not competent to give evidence under s 106B may give evidence without taking any oath or making a solemn affirmation if the Court or person acting judicially forms the opinion, before the evidence is given, that the child is able to give an intelligible account of events which he or she has observed or experienced."

31 Where the Judge concerned determines that a child is not competent to give evidence under oath under s 106B, but is able to give evidence as contemplated by s106C, the judge will inevitably tell the jury that he or she has come to such a conclusion. It seems to me that the jury, ordinarily, would then draw the inference from the judge's decision that, although the child was able to give an intelligible account of the relevant events, less weight should be attached to the child's testimony than would be the case were the judge to have determined that the child was competent to give evidence on oath. In the circumstances the decision made by the Judge concerned under s 106B is of vital importance to the trial.

32 In Hamilton v The Queen unreported; CCA SCt of WA; Library No 970082; 4 March 1997, Malcolm CJ said:

"In my opinion, it is most important that the jury should hear the child's answers and have the opportunity to observe the demeanour of the child when questioned by the Judge. These matters are relevant to the weight which the jury may attach to the evidence of the child."

"Because of the significance of the enquiry, it is important that it be sufficiently detailed to enable an opinion to be formed with confidence."

The learned Chief Justice explained, by the following remarks, what he meant by a "sufficiently detailed" enquiry:

"First of all, it must be remembered that upon first being questioned by a Judge a child is likely to be very nervous and, possibly, frightened. Consequently, in my opinion, it is desirable that the child be first asked a series of questions designed to overcome that nervousness such as questions about age, birthday, the school attended, the grade the child is in and the number of children in the class. If leading questions are avoided, this gives the child the opportunity to give a substantive answer. It may also be helpful to enquire about any particular friends at school, whether the child has a favourite subject or a favourite television programme. Against the background of these questions, the witness might then be asked, 'do you understand what it means to tell the truth?' A number of different questions could then be asked to probe the answer to give examples such as, 'have any of your friends told you something that was not true?' The witness could be asked whether he or she tells the truth to his or her teacher at school as well as a question such as, 'do you sometimes make things up?' The consequences of not telling the truth at school could be explored. The witness could be asked, 'do you know the reason why you have been brought here today instead of going to school?', 'do you think it is important for you to be here today?', 'can you tell me why?' Questions could also be asked to ensure that the witness understands that he or she will have to answer questions about some things that are said to have happened to them some time ago. Questions could also be asked to determine whether the witness understands why these questions have to be asked and answered to bring out whether he or she understands the importance of answering the questions truthfully and the consequences of not doing so."

34 The enquiry undertaken by the learned Judge in the present case did not follow the outline expounded by the learned Chief Justice. The series of leading questions that were asked, in my opinion, did not enable his Honour to determine with any reliability whether JD was competent to give evidence under oath. I do not think that a series of questions to which a child answers merely "yes" or "no" and gives monosyllabic answers to other questions is a sufficient guide to competency. The seriousness and importance of the decision required under s 106B demands more than that. The reaction and response evoked from the child to questions of that kind would be an unreliable guide to competency.

35 In my view it is essential that the examination take place along the lines suggested by Malcolm CJ in Hamilton v The Queen. Of course, I do not suggest that the very same questions need be asked. If judicial officers repeatedly ask the same questions there will be an incentive to coach witnesses before they testify. The questions should be of a kind that requires the child to answer them other than by replying "yes" or "no". Replies that fall into the latter category do not reveal whether the child has the required understanding of the matters referred to in s 106B(2). I appreciate that it is often difficult to induce a child of tender years to express himself or herself in sufficient detail to allow a judgment to be made as required by s 106B. That, however, should not preclude an appropriate attempt being made. If, having asked whatever questions are considered appropriate, inadequate responses are received, the Judge will have no alternative but to proceed to find the child not to be competent to give evidence under oath. While the consequences of such a decision may be that the jury will attach less weight to the evidence of the child (if an order is made pursuant to s 106C that the child give evidence without taking the oath), so be it. The enquiry should not be undertaken in any way that is cursory, perfunctory or mechanical.

36 In my opinion the enquiry undertaken by the learned Judge in this case was inadequate. In my opinion his Honour could not have been in a position to determine that the child understood that the giving of evidence was a serious matter and that she had an obligation to tell the truth that was "over and above the ordinary duty to tell the truth" as required by s 106B(2).

37 In Vine v The Queen, unreported; CCA SCt of WA; Library No 950423; 8 August 1995, the trial Judge omitted to make a finding that a child under the age of 12 years was competent to give evidence under s 106B. Rowland J said that this omission went "to the basic nature of the trial itself" and for that reason the proviso to s 689(1) of the Criminal Code was inapplicable. In my view, the same reasoning applies to the instance where a trial Judge fails properly to enquire whether a child is competent to give evidence under oath. In the circumstances, I would allow the appeal, set aside the convictions and direct a retrial.

38 OWEN J: I have seen the reasons for decision that Ipp J intends to publish. I agree with those reasons and with his Honour's conclusion that the appeal should be allowed, the conviction set aside and re-trial be held.