MK v R

Judgment 1HOEBEN CJ at CL: Offences and sentence Between 25 September and 4 October 2012 the applicant was tried before Quirk DCJ and a jury for the following offences: Count 1 - Take without consent and with intent to obtain an advantage being an indecent assault contrary to s 86(1)(b) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 14 years. Counts 2 and 3 - Indecent assault on a person under 16 namely 6 years contrary to s61M(2) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 10 years and a standard non-parole period of 8 years. 2On 4 October 2012 the jury returned with a verdict of guilty of each offence. On 23 July 2013 the applicant was sentenced for those offences as follows: In relation to Count 1, a fixed term of imprisonment of 12 months commencing 9 April 2011 and expiring 8 April 2012. In respect of Counts 2 and 3, imprisonment with a non-parole period of 2 years commencing 9 April 2011 and expiring 8 April 2013 with a balance of term of 12 months to expire 8 April 2014. 3As can be seen, those periods of imprisonment have now expired. 4The 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. Ground 2 - The verdict was unreasonable and cannot be supported having regard to the evidence. Ground 3 - The trial miscarried by reason of the Crown and the trial judge reversing the onus of proof, misstating the identification evidence and inviting the jury to adopt false logic which overstated the probative force of the identification evidence. Crown case and evidence at trial 5The 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. 6The complainant described her assailant as having a distinctive facial decoration, being three pieces of jewellery, like earrings, on his cheek. The applicant had such an adornment. The complainant said he also had short black hair and described his clothing. 7A Mazda car bought by the applicant on 29 December 2010 was parked in front of the unit block where the complainant and her family lived on 6 February 2011 from some time in the afternoon on that day until a man (not the applicant) came and drove it away some time after the complainant disclosed the offences to her father. 8The Crown case was circumstantial and based on facts largely not disputed. The complainant made immediate complaint of having been grabbed by a strange man in the undercover car-park beneath her family unit, dragged to a different part of the car-park where the offences took place. Her playmate, CL, who was also 6 years old gave evidence that a strange man had told him to go and collect leaves and that when he returned, the complainant ran to him from a dark part of the car-park crying and told him that a man had put something like a rock in her mouth. It was not suggested to either witness that the incident did not occur. 9It was also not in dispute that at about the same time a vehicle owned by the applicant, a grey Mazda, was parked in the building's car-park in a way that blocked access to a resident's garage. Some time after the resident had called triple 0 to complain about the vehicle an unidentified man, who was not the applicant (and was said by the Crown not to be the applicant or the perpetrator), and who was attempting to sell ladies' handbags to residents, drove the vehicle away. 10The applicant was interviewed by the police three days after the accident and denied any involvement. He indicated that many other people regularly drove his car. When police located the car that morning, it was being driven by the applicant's uncle and the applicant's mother was a passenger. 11The Crown's case relied upon three things: (1)The extent to which the applicant fitted the various descriptions of the perpetrator given by the complainant and CL. (2)The circumstance that a car owned by the applicant was at the location of the incident and removed by a person other than the applicant some time after the incident. (3)The police record of interview with the applicant. 12The Crown relied upon identification evidence from the complainant and CL and upon hearsay evidence of descriptions given by the complainant and CL to others immediately following the incident. The Crown case depended upon the jury rejecting parts of the complainant's evidence and that of CL to the extent that it was inconsistent with the appearance of the applicant. 13Before the jury and this Court was a 10 minutes video of the location of the incident (the residential building's car-park) (exhibit A). 14The complainant's record of interview was recorded less than 24 hours after the assault and was played to the jury. The complainant gave little meaningful evidence during the first hour of the interview when she was on her own with a female police officer. After a 25 minute break, the interview resumed, this time with the complainant's mother in the room. On occasions the complainant appeared to communicate with her mother through non verbal signs and on occasions looked to her mother before answering questions about the incident. On occasions her mother would prompt her by nodding with whispered words and signs. From my viewing of the interview I would agree that in relation to the actual offending, her mother did prompt her by moving her hands in a downward motion as though pulling down the complainant's pants. 15In the recorded interview, the complainant said that the assailant had "one of the things you put on your ears" in his cheek and said there was "one big one and one little, medium and one small" (MFI 2 Q and A 366 and 367; MFI 4, Q and A 78 and 79). The complainant was unable to remember which side of the face they were on but she appeared to specify the right side of her cheek a little above her mouth as the location of those items. 16She said that the assailant's hair was short, that he was wearing shorts which were black. She said that the man was skinny and had white skin. She could not remember if he had any other marks or earrings. She said "At the end, when I looked behind he was gone" and she did not see where he went. 17In cross-examination the complainant said that she did not hear the man say anything to CL. She said that she did not know where in the garage he took her, but it was not the area where there was a toilet. She said that when she told her father what had happened on the night of the assault, she said that the man had three earrings, or three little bits of jewellery on his top lip. Her memory was that the man had bits of jewellery on his lip and she said she remembered that the colour of the jewellery was silver. She remembered that she did not see any other marks on his face and that he did not have any spots or freckles on his face. 18She did not remember telling her dad that the man had pictures on his arm and did not remember if he had pictures on his arm. She said by comparison with her father, whom she described as "in the middle" in terms of being fat or skinny, that the man was skinny and shorter than her father. She remembered saying the man had white skin and when asked said it was lighter skin than her own. She said the man was not wearing anything on his head. 19In re-examination the Crown asked about the location of the jewellery on the man's face. She pointed to "her left cheek area" which for the record the applicant's counsel described as "just to the side of the mouth and just above - from the cheekbone - jawbone up", to which the Crown responded "I don't think it's meant to be precise". The complainant said there were three pieces of jewellery and agreed with the statement that they ranged in size. 20CL's interview with police, which was video recorded two days after the incident on 8 February 2011, was shown to the jury. CL said: "The day before yesterday I went to my friend's house and then, and then my friend and me were playing on the balcony with a ball and then fell on the ground and then we went to the garage and picked it, then a man came - he said that, he said to me that go and pick me some leaves from over there and then, and then he took and then he took my friend away. - And when he, then I was looking for her and then I came up and said to my dad and my, and my, and my other friend said that I can't find my friend, they too went running down to find her. And then she was crying and someone else and my friend said that the man put something like this in her mouth and then she spit it out." (At this point CL squeezed his lips open with his hand.) (MFI 4, p 5-6) 21After more questions, the following exchange occurred (MFI 4, p 7): "Q.78 Yeah. Can you tell me what the man looked like? Can you describe him from his head to his toes? A. He is, his shirt was blue and he had a diamond here. [He pointed with his hand to his forehead above his right eyebrow.] Q.79 He had a what? A. A diamond. Q.80 Okay. A. And his shorts were I think brown. Q.81 Is there anything else you can remember about him? A. (No audible reply) Q.82 No. Can you tell me more about his blue shirt? A. There was nothing on it. Q.83 Was it like short sleeved or long sleeved or something ...? A. Short sleeves. And shorts on. Q.84 Do you know what colour hair he had? A. He had black. Q.85 Mmm. A. But they were spikey. [At this point CL pulled his hands straight up from his scalp indicating hair standing up.] Q.86 Was the man tall or short or -? A. Tall. Q.87 Tall and was he a fat guy or a skinny guy or something else? A. Like a little bit fat. [CL gestured around his stomach] Q.88 And can you remember what colour skin he had? A. He had skinny. Q.89 Do you remember what colour his skin was? A. [No audible reply.] [CL shook his head] Q.90 No? Was there anything else about him that you remember? A. [No audible reply] [CL shook his head] Q.91 You said he had a diamond where .... A. Here. [CL again indicated the space on the right side of his forehead between his eyebrow and his hairline and clearly above his eyebrow.] Q.92 ... Was that? Okay do you remember what side of his face it was on? A. No. Q.93 Was there anything else on his face? A. [No audible reply] [CL shook his head.]" 22CL said that when he came back and was looking for the complainant, she and the man were hiding "at the end of the garage, there's a door, they went in there", although he did not see them go in there (MFI 4, p 9). He said that the complainant was crying because the man put a rock in her mouth, but she spat it out and he, CL, knew this because she had told him (MFI 4, pp 10-11). He did not see the man touch her (MFI 4, p 12). He went upstairs to alert his and the complainant's fathers, who came down looking for the complainant. After they found her, they went off in the car looking for the man around the neighbourhood. 23In cross-examination CL said that the man grabbed the complainant's hand and he saw them "go into this dark place where nobody goes. It's like a secret place, and that's where they went" (26/9/12 T.97). He said the dark place is "open in the middle" (T.97). (It was accepted that this would describe the corridor at the farthest point inside the garage, which had a bathroom down a long corridor to the right and a staircase leading to a patio and fenced garden, down a long corridor to the left - the corridor of which does appear to "open in the middle" (exhibit A). 24CL said that the man was about as tall as the complainant's father and "a little bit fat" like the complainant's dad. He gave evidence that the man had a diamond on his forehead and pointed to both sides of his face, but then said that it was on the right side of the man's face (26/9/12 T.99). He said the diamond was "up and next to" the man's eyebrow when asked if it was above, next to, or below the eyebrow and said there was only one (T.99). He said the man had a tattoo all around his right arm, which CL demonstrated by twisting his hand around his arm. He said that this tattoo was closer to the man's shoulder than to his hand, that it was a picture not writing and that the man had no tattoos on his left arm or on his hands (26/9/12 T.99-100). 25The complainant's father, HR, gave evidence that on 6 February 2011 at about 8 or 8.30pm, the complainant told him she was going downstairs to collect her ball which had fallen over the balcony. A few minutes later CL came up and said "Someone is pulling [the complainant] around down there" after which he and CL's father immediately ran down. When he reached the last step of the staircase and turned into the garage [the complainant] was running up the car-park driveway towards him from the farthest area in the garage where the toilet is. He said after the complainant calmed down, she told him that the man pulled her and put something in her mouth which she spat out. He asked where the man was and she pointed to the garage area. 26HR waited for the man to come out and when no-one came out, went in to look for him and saw that it may have been possible for the man to exit out of the back of the car-park. (The video, exhibit A, confirms this.) HR, his wife, CL's father and the complainant and possibly CL got into CL's father's car to drive around the neighbourhood to try to locate the man. 27They returned home after 20-30 minutes driving around. He cuddled the complainant on the sofa and she told him, in a mixture of English and Hindi, that the man "touched my susu and put something in my mouth. It was on a stick ... and I spit it out. It was disgusting." 28After this conversation, HR took the complainant back down to the car-park for a walk and to throw some rubbish out and noticed a car parked in front of two garages on the left hand side of the car-park. He asked his neighbour if anyone owned the car and was told no-one knew who owned it and that it was blocking the garage of his neighbour who needed access to it. He recorded the car's registration. It was a grey Mazda 3 sedan. He did not remember seeing it when he went down to look for his daughter in the first instance but did not positively remember that it was not there. 29HR's neighbour rang triple 0 to complain that a car was parked blocking his garage. The call was played to the jury (exhibit D). The neighbour also told the operator that someone had "teased" one of his neighbour's daughters. HR gave evidence that his neighbour rang his doorbell to tell him a man had come to collect the car. HR rushed back down and saw one man driving the car away. The neighbour rang triple 0 again and reported the assault on the complainant. 30In chief, HR was asked if the complainant or CL told him anything about the man on the evening of the incident. HR said "About tattoos. She mentioned about that and about the rings on eyebrows or something like that" (27/9/12 T.114). He said he thought that she told him when they were in the car. He could not remember what CL told him about the man. In cross-examination he said that the complainant told him about the piercings on the man's upper lip on the right side and about the tattoo on the man's right arm. 31CL's father, SL, gave evidence consistent with HR's. He said he could not recall which of the children gave the "exact" description because the children were talking together at the same time. He made out that the man "was wearing shorts and he was wearing I think a blue t-shirt or something ... and he had some piercing in his face, yeah, and some don't know a tattoo or so" (27/9/12 T.130). 32Detective James gave evidence of responding to the triple 0 call. He said that the complainant told him "The man pulled my pants down. He touched my privates. He had pictures on his arms and three piercings on his face" (T.137-138). In cross-examination he agreed that a police "SIDS" record relating to the incident contained a description of a person of interest as "tattoos on his right arm ... wearing white t-shirt with black pattern ... three piercings on right ear ... shorts and shoes" (27/9/12 T.140-141). In re-examination Detective James said that he had not been told anything about the earrings over the radio. 33The applicant, who was aged 20 at the time, was interviewed at the Auburn Police Station on the afternoon of 9 February 2011 by Senior Constable Williams, who had interviewed the complainant and CL, and Constable Bingham. The ERISP was played for the jury (T.200 - exhibit J). 34In the ERISP the applicant appears to have dark, or very tanned skin, at least as dark as that of the complainant at the time of her interview on 7 February 2011. In that regard the trial judge in her summing up said that his skin was "much darker than the complainant at the time" (SU 17). 35Other matters to emerge from the ERISP are that the applicant appears to be of average build, his hair was very short almost shaved and could not be described as "spikey". He was wearing a white t-shirt with reflective silver writing on it. He had words tattooed on the length of both sides of both forearms and across both hands. He did not appear to have any band tattooed around his upper arms. He appeared to have an earring in his right ear and he had a distinctive mole in the centre of his forehead. 36Most particularly, the ERISP showed that the applicant had three diamond like dermal implants, running from the corner of his left eye to the top of his cheekbone, extending for a distance of about 1-1 ½ inches (2.5-3.8 cms). The top diamond implant is the largest in size, the second is smaller and the third is smaller again. The applicant appeared to have no other jewellery on his face and no piercings were obvious. 37In the interview the applicant said he could not remember his movements on Sunday, 6 February 2011 (i.e., three days before the interview). The applicant said his mate, Hussein or "anyone", could have had his car on that day. He would not provide police with the last name of Hussein. Later in the interview the applicant said that he did not drive or use the car at all. He said that his family (his mother, uncle and brother) and Huss and a couple of other boys normally used the car. 38Towards the end of the interview, the applicant said that police were saying that his car was there at the relevant time but it had "nothing to do with me because the car's not under my name and like everyone, a lot of people use that car you know what I mean". Correspondence and papers in the name of the applicant from the time period around February 2011 were located by police when the car was searched. 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. 39In order to understand the submissions, it is necessary to set out s13 of the Evidence Act 1995 (NSW) and the evidence which was adduced from the complainant and CL in relation to their capacity to give evidence. 40Section 13 relevantly provided: "13(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): (a) the person does not have the capacity to understand a question about the fact, or (b) 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. (2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact 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. (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact. (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person: (a) that it is important to tell the truth, and (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and (c) 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 feel no pressure to agree with statements that he or she believes are untrue. (6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. ... (8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience." 41The relevant parts of the transcript are: "HER HONOUR: Well, the question is does the witness[understand] what "under an obligation to give truthful evidence" is. Now, how is that elicited from a child? I'm thinking might it be better that I actually watch some of the interview and ask some questions, because how am I going to assess her sophistication by just asking those questions that are routinely asked, really, to fit within the exception under s 13(5) I mean, have you got suggestions? CROWN PROSECUTOR: No, no, I agree with that. I think your Honour should watch at least part of the recorded interview with the child, and then your Honour should explore the likelihood that she would give evidence unsworn. The likelihood is that she wouldn't be able to be give sworn evidence. HER HONOUR: No, but in reality, even though the authorities say age alone is not sufficient, because every age - a person is assumed to be competent. So I must actually have some other method assessing her. Do you agree, Ms Hall, with all of this? HALL: I do. HER HONOUR: Yes Should I ask her just a few questions, preliminary, just perhaps to make her feel comfortable? Unfortunately, I can't sit beyond 4.00 this afternoon for other reasons but I can certainly watch some of the interview tomorrow morning before coming back on. But if I ask her some questions now just to - or should I watch it in court now for ten minutes and then ask her some questions? I don't mind either way. Would that be sufficient, do you think? Ten minutes? CROWN PROSECUTOR: I would have thought if you watched it for ten minutes, you would get a feel for how she is. ... HER HONOUR: I might just ask things like, "Do you understand what obligation to give truthful evidence is?" That might be some way of - well, that's a test. DVD PLAYED TO COURT CROWN PROSECUTOR: Would your Honour be assisted by a transcript? HER HONOUR: I think that might be enough. If you can just stop that now. Can we switch through to [the complainant]. ..." (After some preliminary questions and remarks to put the complainant at ease, the following exchange took place between her Honour and the complainant.) "HER HONOUR: Do you understand that it's very serious though. Even though it's - it's quite serious. COMPLAINANT: Yeah. HER HONOUR: What you're going to be asked about. How old are you today? COMPLAINANT: Eight. ... HER HONOUR: Sorry, XXX. You're going to be asked questions about what you told the police lady a couple of years ago. COMPLAINANT: Yeah. HER HONOUR: You know that. Do you understand what telling the truth is? COMPLAINANT: Yes. HER HONOUR: But you don't understand what the word "obligation" is, do you? COMPLAINANT: No. HER HONOUR: You understand it's important to tell the truth. Do you know why it's important to tell the truth? COMPLAINANT: No. ... HER HONOUR: If you're asked a question tomorrow and you don't know the answer, then what do you think you should say? Say I say to you, "What's 25 multiplied by 50?" COMPLAINANT: I don't know. ... HER HONOUR: "I don't know." Right. So if you're asked a question tomorrow about something that happened some time ago, those things that happened downstairs that you say that happened when you dropped the ball - remember those things? COMPLAINANT: Yeah. HER HONOUR: So if you're asked a question and you don't know the answer, what will you say? COMPLAINANT: I don't know. HER HONOUR: You know that that's okay to say that, don't you? COMPLAINANT: Mm-hmm. HER HONOUR: It's okay to say, "I don't know." Is that okay? You know that? If you're asked a question and you can't remember the answer, you can't remember what happened, what do you think you should say to that? COMPLAINANT: I don't remember. HER HONOUR: That's very good. That's what you should say. It doesn't matter if you don't remember. You understand that, don't you? It doesn't matter if you [don't] know or you don't remember. COMPLAINANT: Yeah. HER HONOUR: What if someone asks you a question, but you don't agree with it? Say someone says, "Your top is red?" what do you say? COMPLAINANT: No. HER HONOUR: You say, "No. My top's blue." That's what you'd say, wouldn't you? COMPLAINANT: Yeah. HER HONOUR: Do you understand that you can do that when you're asked questions? COMPLAINANT: Yeah. HER HONOUR: Even if it's by a lady in a wig and who looks quite maybe serious. Do you understand that? COMPLAINANT: Yes. HER HONOUR: You understand that if someone says to you, "Your top is red," it's very important that if you don't believe that, that you should say so. Do you understand that? COMPLAINANT: Yes. HER HONOUR: So if someone asks you questions - it's not just about silly things like your top, the colour of your top, but about what happened a couple of years ago, and you don't agree with what the question is, it's important that you don't have to agree. You understand that, that you don't have to agree with what's in the question. Do you understand what I'm saying or am I being a bit - going on too long? What does that nod mean? COMPLAINANT: I understand. HER HONOUR: So you understand that you are under no pressure to agree with anything that's asked of you. Do you understand that? COMPLAINANT: Yes. HER HONOUR: Mr Crown, do you think I've asked enough questions or is there some aspect CROWN PROSECUTOR: I don't know whether your Honour has covered 5A. It's important to tell the truth. HER HONOUR: I thought I - yes, the most important, Mr Crown. I might have overlooked that one. XXX, do you understand that even though you don't have to agree with everything, and if you've forgotten something, you have to say you forgot it, and if you don't agree, you can say you don't agree, but do you understand that the most important thing is that you must tell the truth. Do you understand that? COMPLAINANT: Yes. HER HONOUR: Even if you don't know why that is but you understand that you must tell the truth. Do you understand that? COMPLAINANT: Yes. HER HONOUR: You know it's very important that you tell the truth, do you? COMPLAINANT: Yes. HER HONOUR: Okay. So what's the most important thing when you're answering questions tomorrow, when the lady with the wig and the glasses asks you questions? What's the most important thing, do you think? COMPLAINANT: Um. HER HONOUR: Well, just tell me any of the things that you think, if you can remember, tomorrow, what you should do when you're asked questions tomorrow. COMPLAINANT: Telling the truth. HER HONOUR: That's right. That's very good. And there are some other things. That's the most important. ..." (25.9.2012 - T.51-55) 42Her Honour then delivered a brief judgment as follows: "HER HONOUR: Yes. I am satisfied that although XXX is not competent under s 13, she fits within the exception under s 13(5) and is able to give unsworn evidence under that section. I think it is 13(5), isn't it? I had better use the right words, all right. I was just trying to -- CROWN PROSECUTOR: 13(3), I think. HER HONOUR: Sorry. Is it 13(3)? ... HER HONOUR: No, no. I'm sure you're right. Yes. I find that under s 13(1) XXX is not competent to give evidence but is competent to give unsworn evidence under s 13 -- CROWN PROSECUTOR: 13(3)." (25.9.2012 - T.55.21) 43In relation to the witness CL, the following evidence was adduced as to his competence. "HER HONOUR: I'll take ten minutes to go through these steps, then half an hour and any further questions, it will be close to 4.00. So don't worry about it. We're going to have played ten minutes or so of this interview without anyone else being in Court - in the absence of the jury, I should have said. DVD PLAYED TO COURT HER HONOUR: That might be sufficient. Now if we can switch through to the remote room, please. CLOSED-CIRCUIT TELEVISION ACTIVATED HER HONOUR Q. Hello, CL. CL. Hi. Q. Can you see me? CL. Yes. Q. I'm the lady with the wig on. CL. Yes. Q. And you can hear. CL. And glasses. Q. And glasses. That's right. Chris, do you know why you're here today? CL. No. Q. Okay. You're here today - do you remember you spoke to the police officer 18 months ago, more than a year ago. CL. Yeah. Q. And you told her what you saw or heard CL. Yeah. Q. --one day when you were playing with XXX. CL. Yes. Q. You've been asked to come back here and then you will be asked a few questions about that. CL. Yeah. Q. Do you know that's why you're here? CL. Okay. Q. Do you know it's very important why you're here today? CL. No. Q. When the police lady talked to you, she talked to you about telling lies and the truth. Do you remember that? CL. Yes. Q. She told you it was important to tell the truth, did she? CL. Yes. Q. Do you remember that or not? CL. Yes. Q. I'm telling you now that it's very important that you only tell what really happened, the truth, today. Right? CL. Yeah. Q. Do you understand that? CL. Yeah. Q. There will be another lady with a wig and glasses. CL. Yeah. Q. And she'll ask you a few questions. CL. Yes. Q. That's after the video is shown. If you don't remember anything, what should you say if you're asked a question that you don't remember? Do you know what to say? CL. No. Q. It's really important if you don't remember about something and you're asked a question about it, then you should say, "I don't remember," okay? CL. Okay. Q. It's okay to say, "I don't remember." Do you realise that? I'm telling you that now. CL. Yes. Q. If you're asked a question that you think that what's said is untrue - like if someone said to you that your shirt that you're wearing today is red, right? CL. Yes. Q. Is your shirt red? CL. No, it's white. Q. So if the other lady with the glasses and the wig said, "Chris, your shirt is red, isn't it?" what would you say? CL. It's grey. Q. You'd say, "No, it's not. It's grey" or "it's white." Okay? CL. Yeah. Q. You understand that you can do that. CL. Yeah. Q. You can say when you think something is wrong or not true. CL. Yes. Q. You don't have to agree with anything at all in a question. You don't have to feel that you should agree. Do you understand that? CL. Okay. Yes. Q. So if anything is said to you while you're answering questions today and you don't agree with it, you should say so. CL. Okay. Q. Okay? CL. Yes. Q. If you don't know something, if you're asked a question that you just don't know the answer to - like, you might be asked - I don't know what sort of question, but say I said to you, "What was the date on Monday of this week?" would you know the answer to that? CL. No. Q. So what would you say if I said, "Chris, can you tell me the date of Monday of this week?" what would you say? CL. I don't know. Q. "I don't know that one" or "I don't know." That's good. HER HONOUR: Is there anything further, Mr Crown? CROWN PROSECUTOR: I may have missed it, your Honour, but subs (3) of s 13 requires your Honour to form a view about the obligation to give truthful evidence. HER HONOUR: Yes. Thank you, Mr Crown. Q. CL, do you understand what these words mean, that you are under an obligation to give truthful evidence? Do you know what those words mean? CL. No." (26.9.2012 - T.87-90) 44The following exchange then took place between CL and her Honour before the jury: "HER HONOUR" Q. Good afternoon, CL. Hello CL. I'm back again. CL. Yes. Q. As I indicated to you when the jury wasn't here or as I said to you, I'm sorry, we're going to be playing a video and then you'll be asked some questions. All right? CL. Okay. Yeah. Q. Do you know that today you're going to be asked questions about something that happened with XXX over a year ago? CL. Yes. Q. Do you know that it's very important to tell the truth? CL. Yes. Q. You know the difference between telling the truth and telling a lie, don't you? CL. Yes. Q. Do you know that if you are asked questions that you don't know the answer to, what do you do then? CL. I don't know. Q. You say, "I don't know". That's good. If you don't remember what happened, what do you say then? CL. I just say, "I don't know." Q. "I don't know" or "I don't remember." CL. Yeah. Q. You know that if you don't agree with a question, you don't have to agree with it. Do you understand that? CL. Yeah. Q. If you think something is wrong that's not true in the question, you can say, "No, that's not right" or "That's not true." You understand that? CL. Yes." (26.9.2014 - T.92.12) 45Her Honour gave a brief judgment in relation to the competency of CL: "HER HONOUR: I find under s 13 (1) that CL is not competent to give sworn evidence, but under s 13(3) that he is competent to give unsworn evidence." (26.9.2012 - T.90.36) Submissions as to Ground 1 46The applicant submitted that in order for a witness to be competent to give unsworn evidence the Court must first conclude that the witness was not competent to give sworn evidence because the witness did not have the capacity to understand that in giving evidence he or she was under an obligation to give truthful evidence (Evidence Act 1995 - s13(3)). He submitted that the starting point when assessing competence to give sworn evidence under s13(3) was the presumption that unless the contrary was proved, a person is not incompetent because of that section (s13(6)). 47The applicant submitted that if a prospective witness was found not competent to give sworn evidence, before being competent to give unsworn evidence that witness must also be given the directions required by s13(5) in full. He submitted that both the finding of incompetence to give sworn evidence and compliance with s13(5) were strict requirements. If either was not complied with, the witness will not be competent, the trial will not have been "conducted according to law" and any resulting conviction must be set aside (SH v Regina [2012] NSWCCA 79; 83 NSWLR 258 at [35] per Basten JA (Blanch and Hall JJ agreeing). 48Applying those principles to the facts of this case, the applicant submitted that neither the complainant nor CL were competent to give unsworn evidence because it had not been proved that they were not competent to give sworn evidence and in any event, in relation to both children, s13(5) was not fully complied with. 49By reference to the complainant, the applicant submitted that the three questions directed to her competence to give sworn evidence did not comply with s13(3). Those questions were: "HER HONOUR: ... Do you understand what telling the truth is? COMPLAINANT: Yes. HER HONOUR: But you don't understand what the word "obligation" is, do you? COMPLAINANT: No. HER HONOUR: You understand it's important to tell the truth. Do you know why it's important to tell the truth? COMPLAINANT: No." (See [39], p15 hereof) 50The complainant was aged 6 years and 7 months at the time of the offence and 8 years and 2 months at the time of trial. The applicant accepted that her Honour had watched some 10 minutes of the complainant's record of interview made 19 months prior to trial. The applicant noted that it was not clear what, if any, effect watching this material had had on her Honour. In that regard, the applicant further noted that in MFI 2 (the complainant's interview of 6.02.2011) the following questions and answers were given: "Q.27 ... And what happens when somebody tells a lie? COMPLAINANT: Umm, you get a punishment from ... Q.28 You what, sorry? COMPLAINANT: You get a punishment from God. Q.29 Okay, so it's very important today that we only talk about the truth, which is things that really happened. COMPLAINANT: Okay." 51In relation to CL, the applicant submitted that the sequence of questioning was important. CL was aged 8 years and 10 months at the time of trial. The applicant submitted that her Honour appeared to have assumed that he was not competent to give sworn evidence and proceeded to ask a number of questions in accordance with s13(5). It was only when that process was completed and when prompted by the Crown, that the following exchange took place between her Honour and CL: "CROWN PROSECUTOR: I may have missed it, your Honour, but subs (3) of s 13 requires your Honour to form a view about the obligation to give truthful evidence. HER HONOUR: Yes. Thank you, Mr Crown. Q. CL, do you understand what these words mean, that you are under an obligation to give truthful evidence? Do you know what those words mean? CL. No." (See [41] p 20-21 hereof) 52The applicant noted that her Honour then gave judgment as to CL's competence to give evidence (see [43] hereof). 53The applicant submitted that the process followed by her Honour did not comply with s13. In that regard he relied upon that which was said by Campbell JA (with whom Latham and Price JJ agreed) in RJ v R [2010] NSWCCA 263 at [22] - [23]: "22 A feature of the way section 13 operates, which is important for the present case, is that the occasion for telling a potential witness the things listed in paras (a) (b) and (c) of section 13(5) only arises if the judge has first decided that the person is not competent to give sworn evidence. 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." The applicant submitted that because her Honour did not follow the specified process of reasoning in relation to CL, the requirements of s13 were not met so that by allowing CL to give unsworn evidence, the trial miscarried. 54The applicant submitted that in addition, the questions asked by her Honour did not involve an assessment in accordance with s13(1) and 13(3) because her Honour had simply used the terminology in s13(3) when testing the capacity of the complainant and CL and did not otherwise make any assessment of their competence. The applicant submitted that this was contrary to the observations of Latham J (McClellan CJ at CL and Johnson J agreeing) in R v RAG [2006] NSWCCA 343 where her Honour criticised the trial judge's complicated and abstract questioning of a child witness, including asking the child to define "truth" and "lie", in order to determine her competence to give unsworn evidence. It was held that it was not necessary for a child to be able to define "truth" and "lie" or other abstract concepts in order to demonstrate the ability to tell the difference between the two. 55The applicant submitted that in this case it was erroneous for her Honour to base her findings that the child witnesses were not competent to give sworn evidence on their inability to understand the meaning of the precise words of s13(3). The applicant submitted that her Honour should have made further inquiries in simple and direct terms as to the witness' understanding of their obligation. The applicant sought to contrast the questions put by her Honour with those of the police interviewers some 19 months previously when both children, then much younger, expressed an understanding of significant consequences if they told lies. The applicant submitted that in the circumstances the child witnesses were not given an opportunity to demonstrate their competence. 56The applicant submitted that s13(5) had not been complied with. He submitted that even if it had been proved on the balance of probabilities that both children were not competent to give sworn evidence, there had not been a compliance with s13(5) and as a result, the evidence of both child witnesses was given contrary to law. 57The applicant submitted that s13(5) required the court to tell the complainant and CL six things: (1)That it is important to tell the truth (s13(5)(a)). (2)That he or she may be asked questions that he or she does not know the answer to and that he or she should tell the court if this happens (s13(5)(b)). (3)That he or she may be asked questions that he or she cannot remember the answer to and that he or she should tell the court if this occurs (s13(5)(b)). (4)That he or she may be asked questions that suggest certain statements are true or untrue (s13(5)(c)). (5)That he or she should agree with the statements that he or she believes are true (s13(5)(c)). (6)That he or she should feel no pressure to agree with statements that he or she believes are untrue (s13(5)(c)). 58In support of that submission the applicant relied upon SH at [11] where Basten JA said: "11 Dealing with the content of paragraph (c), it appears that there are two limbs to the required instruction, each involving the idea of a 'suggestion', reflecting a common form of cross-examination. The prospective witness is advised to agree with those suggestions which he or she thinks are true, but "should feel no pressure to agree with" statements believed to be false." The applicant submitted that in this case her Honour did not tell the complainant or CL that they should agree with the suggested statements which they thought were true. The applicant submitted that her Honour also failed to tell the children, as required by s13(5)(c), that they may be asked questions that suggest certain statements were true or untrue. 59In relation to the s13(1) and s13(3) issue, the Crown submitted that her Honour under s13(8) was able to inform herself as she thought fit when determining the competence issue. The Crown noted that her Honour had watched a portion of the complainant's recorded interview with the police for the purpose of assisting her in making that assessment. The Crown had regard to the questions specifically put to the complainant in terms of s13(3). By reference to those matters, the Crown submitted that the determination by the judge of whether the complainant was not competent to give sworn evidence was a matter of judgment and inevitably included assessment and impression. On that issue, the Crown relied upon what was said by Grove J (with whom McClellan CJ at CL and Buddin J agreed) in Pease v R [2009] NSWCCA 136 at [8] - [11]: "8 The issue of testimony from the complainant was raised before the learned trial judge and the Crown Prosecutor correctly informed him that it would be necessary to determine whether the complainant was competent to give sworn evidence, and, if not, whether she could give unsworn evidence as sanctioned by s13. His Honour was authorized to investigate the matter as he saw fit: s13 (7). 9 His Honour first listened to an audio recording of an interview of the complainant by police. Near the conclusion of that interview she was asked some questions about "telling lies", "fibbing" and "telling the truth." After listening to the recording his Honour then asked a series of questions of the complainant (transcript 18 September 2007 pp 8-10). 10 The material showed that the complainant understood the difference between telling the truth and telling a lie, but it is apparent from the terms of s13(1) and 13(2) that there is a difference between being able to discriminate between telling the truth and telling a lie, and understanding the obligation to give truthful evidence. 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." 60The Crown submitted that her Honour had the benefit of being able to watch the complainant's demeanour when answering questions in the police interview and also when responding to her own questioning. She was able to make an assessment of any changes she could observe in the complainant between the time of the police interview and giving evidence before her and make an assessment of her overall maturity. The Crown submitted that importantly, at the time of giving her evidence, the complainant had indicated to her Honour that she did not understand why it was important to tell the truth. 61The Crown submitted that as a result there was material upon which it was open to her Honour to be satisfied that the presumption of competency under s13(5) had been displaced. The Crown noted that there were no submissions made by the Crown or the applicant's counsel at trial to the contrary. 62In relation to CL, the Crown noted that he was aged just over 7 years when he was initially interviewed by police on 8 February 2011 and at the time of giving evidence was aged 8 years and 10 months. The Crown noted that as in the case of the complainant, her Honour watched a portion of CL's recorded interview with the police for the purpose of informing herself on the issue of competence. In his recorded interview, CL had been asked what happens if someone tells a lie and he responded "You're in trouble". 63The Crown submitted that her Honour had the significant benefit, which this Court does not have, of making an assessment of the maturity of CL when answering her questions. In that regard, the Crown drew attention to the following exchange between her Honour and CL: "HER HONOUR: Q: Do you know it's very important why you're here today? CL. No." 64The Crown accepted that it was only after it was pointed out to her Honour that she needed to form a view about the capacity of CL to understand that he was under an obligation to give truthful evidence that her Honour asked CL the following questions: "Q. CL do you understand what these words mean, that you are under an obligation to give truthful evidence. Do you know what those words mean? CL: No." The Crown submitted that despite the sequence in which questions were put to CL, there was material upon which it was open to her Honour to be satisfied that the presumption of competency under s13(5) had been displaced. The Crown submitted that even if the sequence of questioning was important, it was still open to her Honour on the basis of the questions which she had asked before using the words in s13(3) to reach an opinion as to CL's competency to give sworn evidence. 65In relation to compliance with s13(5) the Crown submitted that a proper reading of the questions put by her Honour to the complainant, in particular that even though she did not have to agree with everything which was suggested to her, the most important thing is that she must tell the truth, were sufficient to satisfy the section. The Crown submitted that the only matter relied upon by the applicant was that the complainant was not specifically told that she should agree with suggestions that were true if she believed them to be true. The Crown submitted that the effect of SH was that s13(5)(c) did not impose an obligation to give instruction in a particular form, but to a "particular effect". The Crown submitted that this had been achieved by her Honour's questions, in particular the emphasis on the need to tell the truth. 66The Crown submitted that while her Honour did not say to the complainant, that if a suggestion were made to her that she believed was true, she should agree with it, that information was conveyed by her Honour when the effect of other statements was taken into account. 67The Crown made the same submission in relation to CL. Consideration 68I 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. 69Those 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. 70In 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. 71It is, however, unnecessary to reach a conclusion on those matters. I have raised them not only in deference to the careful submissions made by the applicant, but also to note the concerns which I have as to the process which was followed by her Honour in determining the important preliminary issue of whether a witness was competent to give sworn evidence. 72A 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. 73The requirement for strict compliance with the "effect" of s13(5) was stated in SH as follows: "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. ... 11 Dealing with the content of paragraph (c), it appears that there are two limbs to the required instruction, each involving the idea of a 'suggestion', reflecting a common form of cross-examination. The prospective witness is advised to agree with those suggestions which he or she thinks are true, but "should feel no pressure to agree with" statements believed to be false. 12 ... That report provides limited guidance, but the idea behind the provision is tolerably clear: it is designed to limit the danger that persons with a limited understanding of the concept of truth telling may be confused or intimidated by the fact that a person with apparent authority is seeking agreement to a proposition. Similar concerns underlay the formulation of the rules for interrogation of Aboriginal persons in R v Anunga (1976) 11 ALR 412 (Forster J). Forster J noted the difficulty in dealing with people who do not understand English very well, a remark which also applies in respect of the language used in courts. His Honour continued at 414: "Another matter which needs to be understood is that most Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman." 13 Similar considerations may apply in respect of children. Although somewhat vaguely expressed, the key consideration underlying paragraph (c) appears to be a concern that the prospective witness should not feel under pressure to agree with statements put by adults in wigs and robes. Such instruction is required to be provided by the court, not by the person who is likely to be doing the questioning. ... 33 Despite the suggestion in the judgment on competence set out above, there is no doubt that the trial judge appreciated the need that he should give the instruction required by s13(5) and proceeded to do so. Although he did so by asking questions of the witness, that form of instruction should not be seen as inconsistent with the requirement of sub-s (5). However, what was missing from the final question in relation to suggestions was the exhortation not merely to say that a statement believed to be untrue is wrong, but that the witness "should feel no pressure to agree" with such a statement. 34 In my view that omission was a failure to comply strictly with the terms of sub-s (5). However, given the passage from the examination by counsel for the prosecution set out at [28] above in relation to not feeling under any pressure "because we are grown-ups in funny clothes", it is difficult to conclude that there was any substantial miscarriage of justice resulting from that omission. 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 s13(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." 74A 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. Ground 2 - The verdict is unreasonable and cannot be supported having regard to the evidence. 75The applicant submitted that the conflicts in testimony and inconsistencies in the description and identification of the applicant as the person who assaulted the complainant were such that the verdict against him was unreasonable. 76The applicant sought to establish that proposition by a detailed analysis of the identification evidence. He noted that in her record of interview, the complainant said that the man who assaulted her was white skinned, was skinny, had short black hair, wore black shorts and a white t-shirt with black writing, had three "the things you put on your ears" on his cheek, which she identified to be in the middle of her cheek above the lip and next to her nose, and that otherwise she did not remember any other marks or earrings. The applicant submitted that the complainant did not describe anything that could have been tattoos, she did not describe someone with dark or tanned skin, she did not describe any notable moles or marks on the assailant's face and she did not describe diamond jewellery or piercings on the side of the face or near the eye. 77By reference to the complainant's evidence at trial, the applicant noted the following identification features: