R v BBR [2009] QCA 178

SUPREME COURT OF QUEENSLAND

CITATION: R v BBR [2009] QCA 178

PARTIES: R v BBR (appellant)

FILE NO: CA No 294 of 2008 / DC No 2416 of 2008

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: Orders delivered ex tempore on 15 May 2009 / Reasons delivered on 19 June 2009

DELIVERED AT: Brisbane

HEARING DATE: 15 May 2009

JUDGES: Keane and Chesterman JJA and A Lyons J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Delivered ex tempore on 15 May 2009

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where one of the complainants gave evidence but was deemed not competent to take an oath – where pre-trial judge failed to explain the duty to speak the truth as required by s 9B(3) of the Evidence Act 1977 (Qld) – whether this amounted to a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where trial judge gave directions to the jury on circumstantial and propensity evidence – whether these directions were inadequate / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the testimony of one of the complainants appeared to be internally inconsistent – where case turned on basis of complainant’s testimony – whether the jury was adequately directed as to the need to scrutinise the complainant’s evidence / Criminal Code 1899 (Qld), s 668E(1A) / Evidence Act 1977 (Qld), s 9, s 9A, s 9B, s 21AK(3), s 21AU, s 93A / Oaths Act 1867 (Qld), s 37 / Oaths Act Amendment Act 1884 (Qld), s 2 / Lau v The Queen (1991) 6 WAR 30; (1991) 58 A Crim R 390, applied / R v Brooks (1998) 44 NSWLR 121; (1998) 102 A Crim R 367, applied / R v Brown [1977] Qd R 220, distinguished / R v Hayes [1977] 1 WLR 234, considered / R v Starrett (2002) 82 SASR 115; [2002] SASC 175, applied / Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, applied

COUNSEL: C L Morgan for the appellant / M J Copley SC for the respondent

SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent

1. KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Chesterman JA. I agree with those reasons.

2. CHESTERMAN JA: On 30 October 2008 the appellant was convicted, after a three day trial, of one count of indecent treatment of his niece S on 29 December 2005, and four counts of indecent treatment of another niece, K on dates between 26 December and 31 December 2005. S and K were sisters. At the time of the offences S was 11 years 11 months old and K was seven years and 10 months.

3. The girls’ mother was the sister of the appellant’s wife. The appellant, his wife, and their two very young children were holidaying in a unit complex at Caloundra between Christmas and New Year 2005. The complainants were left with their aunt and the appellant for a few days because their parents had to return to work in Brisbane. The incidents which form the basis of the counts on the indictment all occurred in the swimming pool of the unit complex.

4. The children complained about the appellant to their mother on returning home. They were interviewed by police on 12 January 2006. The recording of their complaints was admitted as their evidence in chief against the appellant on his trial pursuant to s 93A of the Evidence Act 1977 (“the Act”). The pre-recording of the girls’ evidence pursuant to s 21AK(3) of the Act occurred before a District Court judge on 17 October 2006. The delay in the appellant’s trial and conviction is explained, at least partly, by the fact that there was an earlier trial which resulted in the jury’s disagreement.

5. The indictment contained nine counts, all of the indecent treatment of a child under 12 who was under the appellant’s care. S was the complainant named in counts 1 to 4. The appellant was acquitted of three of those counts and convicted of one. K was the complainant named in counts 5 to 9. The appellant was acquitted of one of those and convicted of the other four.

6. The children complained that while playing with them in the swimming pool the appellant touched them between the legs, in the area of the vulva, over their bathing suits on frequent occasions. K said that the appellant had also touched her by moving his hand under her bikini pants on two occasions.

7. The Crown summarised the prosecution case with respect to each count in these terms:

“Count 1 – Not Guilty

The appellant threw S up into the air whilst they were both in the pool. To do that he lifted her up out of the water. As he lifted her up he had one hand on her back and the right hand was between her legs. She had togs on. Either his thumb or one of his fingers kept pushing on her vagina, it was as if he was trying to put his finger in her vagina. It did not go in, beyond perhaps his fingernail, but it felt really uncomfortable. After he threw her she moved away towards her aunty and the appellant pretended that they were playing a game.

When cross-examined the complainant agreed she had thought it was an accident when he touched her vagina the first time.

The same thing occurred three or four more times that afternoon.

Count 2 – Not Guilty

On the next afternoon, which was on the Wednesday, they were in the pool again. S was at the deep end of the pool and she suggested they do some back flips. She suggested this to stop him from touching her. The appellant said he would throw her up in to the air and she would do a back flip. The first time he did nothing. On the second time she was ‘pretty sure’ he did ‘something’, he grabbed her by the right leg and by the back of the neck. When asked what he did next she said she was not really taking any notice, she was just swimming around.

She said that before she suggested a back flip he had touched her vagina. After the back flip she thought he only touched it once more that day. However, she could not remember about it.

Count 3 – Guilty

On the Thursday when they were in the pool S sat on the appellant’s lap as he rested against the wall of the pool. He touched her vagina with his finger.

She thought he did that a couple of times that day but was not sure.

When cross-examined about this count, she said that he touched her vagina for a couple of seconds.

Count 4 – Not guilty

On the Friday the appellant only did it once. S said it was when she was down the deep end of the pool, she was only there for a short time because she knew he would do it again. When asked what he did to her down the deep end she said she could not really remember. She thought he threw her up when K asked him to create some waves and that was when he did it. In response to a leading question she said that he put his finger in her vagina.

K said that the appellant played with ‘our’ rude parts every day.

Count 5 – Guilty

K was swimming in the pool and the appellant got her leg and held it so forcibly that it hurt. He then took one hand off her leg and reached up and played with her vagina on the outside of her togs. She asked him to stop.

Count 6 – Guilty

The second time that he fiddled with it K was in the deep end. He grabbed her legs, her head went under the water and whilst it was under the water he touched her vagina with one hand. His other hand was near her neck, it was pressing her down.

Count 7 – Guilty

K got away from the appellant, however, he touched her a third time that day. On this occasion he grabbed her by the belly, then by the knee and then he touched her vagina. She tried to flick his hand away from her vagina but he punched her hand and that cracked her ‘pinkie’. She said ‘ow, that hurt’. He still touched her vagina outside her togs. He used three fingers to do this. Her head was below the water.

Count 8 – Not guilty

On the Friday he touched K in the middle part of the pool. The appellant put two fingers under her togs and fiddled with her vagina. Her vagina felt really weird, it felt like blood would come out of it. She felt really sick, like stuff would come out of her ears and her eyes would pop out and blood would come out of her nose.

Count 9 – Guilty

The appellant pulled K down to the deep end, he held her with his left hand and he used two fingers to fiddle with her vagina. On this last occasion he pulled her bikini bottoms down. He also slapped her backside with one hand.”

8. Leave was given to amend the notice of appeal by substituting the following grounds from those initially raised:

(a)The judge who presided at the pre-trial hearings did not comply with s 9B(3) of the Act;

(b)The directions given on the circumstantial evidence were inadequate;

(c)The directions given as to propensity evidence were inadequate;

(d)The directions with respect to the need for scrutinising K’s evidence with particular care were insufficient;

(e)The judge erred in directing the jury with respect to s 23 of the Criminal Code.

Grounds (b) and (c) are inter-related.

9. At the conclusion of the hearing of the appeal on 15 May 2009 the appeal was allowed, the convictions set aside and a re-trial ordered. The court indicated that it would deliver reasons later.

10. Section 9 of the Act provides that, subject inter alia to, ss 9A and 9B every child is presumed to be competent to give evidence on oath. Section 9A provides:

“(1)This section applies if, in a particular case, an issue is raised … about the competency of a … witness … to give evidence.

(2)The [witness] is competent … if, in the court’s opinion, [she] is able to give an intelligible account of events which … she … observed or experienced.

(3)Subsection (2) applies even though the evidence is not given on oath.”

11. Section 9B provides:

“(1)This section applies if, in a particular case, an issue is raised … about the competency of a … witness … to give evidence on oath.

(2)The [witness] is competent to give evidence … on oath if, in the court’s opinion, [she] understands that –

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

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

(3)If the [witness] is competent to give evidence … but is not competent to give the evidence on oath, the court must explain to the [witness] the duty of speaking the truth.”

12. The complainants’ evidence was pre-recorded in accordance with subdiv 3 of div 4A of the Act. It was taken by means of an audio visual link between the court and a room in which were the complainants with a support person. Witness, judge and counsel, communicated by means of the audio visual link. The public was excluded by an order made pursuant to s 21AU of the Act.

13. S gave evidence first. She was at the time 12 years and eight months old. The prosecutor raised the possibility that she might not understand the nature of an oath. The judge then questioned S:

“Can you hear me? – Yep.

You’re going to be asked some questions now and you’re going to be asked to give some answers? – Yep.

Now in giving those answers it’s very important that those answers be the truth? – Yep.

Do you know what the truth is? – Yes.

What’s the truth? – It means not telling a lie.

And do you think something would happen to you if you told a lie? – Yes.

What do you think would happen to you? – I’ll get in trouble.

By whom? – I don’t know.

Do you believe in God? – No.

I think that puts an end to it.”

14. His Honour then expressed himself “satisfied as to S’s intelligence” which was apparent “from that brief questioning”. The judge directed the bailiff to administer an affirmation which, being done, S gave evidence and was cross-examined.

15. K, who was then nine years and seven months of age, was next tendered as a witness. The judge asked the prosecutor:

“What about any oath or affirmation of K? … I assume there’d be no need to swear the witness in or an affirmation even.

[PROSECUTOR] No, ... she’s nine years of age and … clearly of sufficient intelligence to understand the nature of the proceedings …

[DEFENCE COUNSEL] … I don’t think actually being at that age … she can [take an oath]

HIS HONOUR: No

[PROSECUTOR] … I’m content for her evidence simply to be taken without it being sworn … .”

16. K then was questioned by the prosecutor. She was asked her name, age, where she went to school and her grade. She then confirmed that she had spoken to police and told them the truth. Having been shown some photographs and asked about them she was cross-examined.

17. It will be observed at once that the learned judge did not explain to K “the duty of speaking the truth” which s 9B(3) requires a judge to do if the decision is made that the witness “is not competent to give the evidence on oath”.

18. The appellant’s counsel submitted that the learned judge’s failure to give the explanation vitiated the trial process because the statutory precondition to the reception of the child’s evidence had not been satisfied. The consequence is submitted to be that K’s evidence was not properly before the court and the jury should not have had regard to it.

19. The submission is supported by authority and should be accepted.

20. R v Brooks (1998) 44 NSWLR 121 concerned s 13 of the Evidence Act 1995 (NSW). It provided that a person who was incapable of understanding that in giving evidence he or she was under an obligation to give truthful evidence was not competent to testify but that such a person could give unsworn evidence if:

“(a)the court is satisfied that the person understands the difference between the truth and a lie; and

(b)the court tells the person that it is important to tell the truth; and

(c)the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding.”

21. Brooks was convicted on two counts of having sexual intercourse with a child under the age of 10. The only point on appeal was whether the complainant’s evidence had been rightly admitted pursuant to s 13. The trial judge determined that the complainant was intelligent and could give a truthful account of what had happened but did not regard her as competent to give sworn evidence, partly because of her age. She was then 11. The complainant gave unsworn evidence but the judge did not tell her that it was “important to tell the truth” as required by s 13(2)(b). The convictions were quashed.

22. Priestley JA thought (122) that:

“It is … well-established that ‘evidence’ not given under oath or under some lawful alternative sanction is not admissible evidence, and it follows that the trial in the present case in which non evidence of that kind played a material part was not a trial according to law.”

23. Grove J who gave the principal judgment said (124):

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

His Honour went on (125, 126):

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

Reference to s 13(2) can only be had once it is first established that the intended witness is incapable of understanding that he or she is under an obligation to give truthful evidence … before … unsworn evidence can be put before a court the requirements of s 13(2)(b) and s 13(2)(c) must be fulfilled.

The critical circumstance is that there was simply no evidence to establish that she was incapable of understanding the obligation and therefore was not a person for whom the special provision in s 13(2) was available”.

[24] There was no evidence on the point because the judge had not directed any questions to the witness as to her understanding of the obligation to give truthful evidence.

[25] The judgments in Brooks stand as authority for two propositions. Both are relevant to this appeal but it was only the second which figured in the appellant’s submissions. That proposition is that where a statute permits the giving of unsworn testimony on certain conditions those conditions must be satisfied before the evidence can be given. Where a condition is that the judge give an explanation or admonition of some kind to the witness the explanation or admonition must be given.

[26] R v Starrett (2002) 82 SASR 115 was a similar case. Section 9 of the Evidence Act 1929 (SA) provided that if a judge determined that a person did not have sufficient understanding of the obligation to be truthful in giving sworn evidence the judge might permit the witness to give unsworn evidence provided that:

“(a)the judge –

(i)is satisfied that the person understands the difference between the truth and a lie; and

(ii)tells the person that it is important to tell the truth; and

(b)the person indicates that he or she will tell the truth.”

[27] Starrett was convicted of one count of indecent assault and two counts of unlawful intercourse with an eight year old girl. At the commencement of the trial the prosecutor informed the court that the child would not take an oath nor affirm but instead:

“… your Honour will ask her some questions about telling the truth in court today”.

[28] When the child was called to give evidence the judge did not ask her any questions. The prosecutor asked her age and whether she knew what it meant to tell the truth and elicited from her a promise to tell the truth and an acceptance that it was “very important” that she tell the truth. The Court of Criminal Appeal pointed out that the trial judge did not ask any questions of the child about the matters referred to in s 9, nor tell her that it was important to tell the truth as required by s 9(2)(a)(ii). Doyle CJ said (119):

“The legislative provisions found in s 9 cannot be dismissed as mere matters of form. Parliament has made it plain that evidence is to be given on oath, unless the presumption that the witness is capable of giving sworn evidence is rebutted. Parliament has also made it plain that appropriate enquiries are to be made before a decision is made as to whether evidence is given sworn or unsworn. The history of this legislation and of the approach of the courts to these issues makes its plain that these are important matters in our system of trial.”

[29] Importantly the Chief Justice said (120):

“But s 9(2)(a)(ii) requires that the judge ‘tells the person that it is important to tell the truth’. The judge did not do this. … There are obvious reasons why Parliament has required that the judge tell the witness that it is important to tell the truth, and that the witness indicate to the judge that the witness will tell the truth.”

[30] His Honour then said (121):

“Such authority as there is suggests … that this is an irregularity that gives rise to a miscarriage of justice. The trial was not conducted according to law. The appellant was entitled to such a trial. The departure from the requirements of the law is not a trifling one, nor is it a departure on a matter that can be regarded as a mere matter of form.”

[31] The case of Lau v The Queen (1991) 58 A Crim R 390 is to the same effect. The case was one of unlawful and indecent assault upon an 18 year old woman with an intellectual handicap. Section 100A of the Evidence Act 1906 (WA) provided that where in a criminal proceeding the court:

“… is satisfied that a person who is tendered as a witness does not understand the nature of, or the obligation imposed by, an oath or solemn affirmation but does understand –

(a)that he is required to speak the truth … and

(b)that he will be liable to punishment if he does not do so,

the evidence of that person may be received without an oath and without formality.”

[32] In the Court of Criminal Appeal Seaman J said (395):

“… the requirements of the section must all be fulfilled before unsworn testimony may be received. It is to be observed that the complainant was never asked any question directed to her understanding of the nature or obligation imposed by an oath or solemn affirmation. In my view no materials were introduced … which could, as a matter of law, have satisfied the learned judge that she did not have an understanding of those things.”

[33] His Honour concluded that the error was one of law and was of such significance that the trial had miscarried.

[34] Owen J said (419, 420):

“The primary task of a trial judge, in determining the competence of a witness under s 100A, is to decide whether or not the witness understands the nature of, or the obligation imposed by, an oath or solemn affirmation. If, and only if, the trial judge forms the view that the witness does not understand the nature of, or the obligation imposed by, an oath or solemn affirmation, can the trial judge then proceed to consider whether or not the witness is competent to give unsworn evidence.

However, once it becomes apparent that an inquiry is necessary, there must be strict adherence to the prescriptions in s 100A.”

[35] Pertinently, and importantly, his Honour remarked (421-422):

“This appeal raises problems of great complexity and significance. The law has a duty to protect handicapped people. The community at large no doubt presumes that the justice system is capable of so doing. The trial process must not place unnecessary burdens on handicapped witnesses and it must not place unnecessary barriers in the way of such witnesses. On the other hand, the accused has an inviolable right to a fair hearing conducted in accordance with law. As always, a delicate balance must be struck. In this case, the trial judge showed a greater appreciation of, and concern for, the position of the complainant and he limited the extent of the inquiry. Regrettably … the right of the accused to a fair trial according to law may have been compromised and the trial process miscarried.”

His Honour’s observations apply with equal force to child witnesses.

[36] The Act contains provisions which aim to preserve the balance between protecting child witnesses from and against hostility from those, or the representatives of those, accused of committing offences on them, while preserving the right of an accused to a fair trial. The provisions of div 4A of the Act, the purposes of which are to limit “the distress and trauma which might otherwise be experienced by a child when giving evidence” are, perhaps, the best example. Section 21AW is a provision aimed at preventing prejudice to an accused from the manner in which children are protected when giving evidence. Non-compliance with the section amounts to an error of law, of a serious or fundamental kind, in the trial process which leads inevitably to the quashing of any convictions. See R v Hellwig [2007] 1 Qd R 17.

[37] Sections 9, 9A and 9B have much the same features as the sections of div 4A. They facilitate the testimony of children inter alia who are too young to appreciate the nature of an oath, but in allowing such witnesses to give unsworn testimony the Act provides safeguards for an accused. The safeguard in question is that contained in s 9B(3). Before the unsworn testimony can be received the judge must explain to the child “the duty of speaking the truth”.

[38] If the explanation is not given an accused’s rights have been jeopardised. A safeguard, required by the statute, to ensure that the trial is fair has been omitted. The balance which Parliament has insisted be held between the interests of the child witness and the accused has not been kept because of the removal of the counterweight.

[39] I would agree with the characterisation of the statutory requirement expressed in the cases: the evidence is not admissible unless the statutory precondition is satisfied. K’s testimony was not properly tendered and the jury could not have lawfully acted upon it. Its reception has vitiated the trial which was not conducted according to law.

[40] I have not overlooked the point that the recorded statements made by the complainants to the police were admissible in evidence pursuant to s 93A and were in fact tendered at the trial as part of the evidence in chief of each girl. Obviously s 9B did not apply to the taking of the police statements which were themselves admissible. However, a condition of the admissibility of the statements is that the maker of the statements, the complainants, be available to give evidence at the trial. Availability must mean that the maker is called to give evidence, at least where an accused requires it. The condition cannot be satisfied merely by proving that the maker of a statement is alive and well and in the jurisdiction.

[41] When the maker of a statement is called to satisfy the condition found in s 93A(1)(b) the requirements of s 9B must be applied. Indeed their importance is amplified by the fact that the evidence in chief has been taken in the absence of the accused and without the need to conform to the laws of evidence. It is obviously imperative that a child witness who gives unsworn testimony in answer to questions put on behalf of the accused exercising his only right to test the evidence be given the statutory, judicial, explanation that she must speak the truth.

[42] Senior counsel for the Crown referred to the authority of R v Brown [1977] Qd R 220 in aid of the submission that the court should apply the proviso in s 668E(1A) of the Criminal Code 1899 and sustain the convictions notwithstanding the judge’s failure to deliver the statutory explanation.

[43] Brown was convicted of rape. Two of the witnesses at his trial were children who were questioned by the trial judge to determine their competence to take an oath and were shown to be intelligent, with an appreciation that they were required to tell the truth and that punishment could follow if they did not. However neither child was shown to have a belief in God or in the consequence of telling a falsehood in the presence of a Deity. Both children were sworn.

[44] The Court of Criminal Appeal held that the children should not have been sworn: their lack of belief in a Divine Being meant that the oath was not binding on their consciences. Instead they should have been required to affirm pursuant to s 2 of the Oaths Act Amendment Act 1884 (now s 37 of the (Consolidated) Oaths Act 1867). By majority the Court applied the proviso and dismissed the appeal. The evidence against Brown showed him to be guilty, “without doubt”.

[45] Brown was concerned with the common law as to taking sworn evidence from a witness without religious convictions. The authority says nothing about non-compliance with s 9B(3) of the Act. It was not concerned with the question of statutory requirements for the giving of evidence and a failure at trial to comply with the statute. Brown does not detract from the authority of Brooks, Starrett or Lau. It is a case of a different kind.

[46] Although the argument was limited to the failure of the judge to give the explanation required by s 9B(3), which is sufficient to quash the convictions, the appeal raises the other point mentioned in the cases. It is that s 9B provides a test, different from the common law, for determining whether a witness is competent to give evidence on oath. It is only if the witness does not satisfy the statutory test for competence that he or she is permitted to give unsworn evidence. In such a case the need (“duty”) to speak the truth must be explained to the witness.

[47] The judge did not consider whether K was competent to give evidence by reference to the test set out in s 9B(2). No doubt his Honour was influenced by the child’s age and the fact that her older sister had declared that she had no belief in God. The judge probably thought, and it would have been reasonable to think, that K’s absence of belief reflected her parents’ attitudes or teachings which would have been applied commonly to both daughters. Section 9B however provides a different test to the common law.

[48] That test is explained interestingly and in some detail in Brown. At common law ignorance about, or disbelief in, the Deity deprived a witness of competence to testify. Wantstall ACJ said (221-222)

“The test is belief in a God and expectation that He will reward or punish in this world or the next.”

[49] D M Campbell J (who dissented in the result) said (227)

“A child of tender years cannot give evidence on oath unless it appears that he has sufficient knowledge of the nature and consequences of an oath: R v Brasier … Willes CJ … said that ‘nothing but the belief in a God and that He will reward or punish us according to our deserts is necessary to qualify a man to take an oath’.

E S Williams J said: (233)

“It can be seen that the essence of an oath involves a swearing before God to tell the whole truth and nothing but the truth with what might normally be expected the usual consequences that that person expects to follow from telling a falsehood in the presence of a Supreme Being.”

[50] Brown established that where a child was called to give evidence and was seen on questioning to be of sufficient intelligence and understanding to give an intelligible account of what he or she had seen or heard, but did not have the requisite religious belief to take an oath, the child could be given an affirmation pursuant to what is now s 37 of the Oaths Act. That provides:

“If any person tendered for the purpose of giving evidence … by reason of any defect of religious knowledge or belief … appears incapable of comprehending the nature of an oath, it shall be the duty of the judge … if satisfied that the taking of an oath would have no binding effect on the conscience of such person and that the person understands that he or she will be liable to punishment if the evidence is untruthful, to declare in what manner the evidence of such person shall be taken, and such evidence so taken … shall be valid as if an oath had been administered in the ordinary manner”.

This was the course approved by the High Court in Cheers v Porter (1931) 46 CLR 521.

[51] Section 9B of the Act has changed the law. It provides 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. Section 9A(2) provides that a person is competent to give evidence if he or she “is able to give an intelligible account of events … observed or experienced”. Section 9B takes the matter further and defines competence to give sworn evidence depending upon 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”.

[52] The new test appears to have come from the judgment of R v Hayes [1977] 1 WLR 234 in which the witnesses to alleged indecent acts committed by the accused were young boys. Bridge LJ (who gave the judgment of the court) said: (236-237)

“… if it is an awareness of that divine sanction which the court is looking for in a child of tender years, … that awareness was absent. The court is not convinced that that is really the essence of the court’s duty in the difficult situation where the court has to determine whether a young person can or cannot properly be permitted to take an oath before giving evidence. It is unrealistic not to recognise that, in the present state of society, amongst the adult population the divine sanction of an oath is probably not generally recognised. The important consideration, we think, when a judge has to decide whether a child should properly be sworn, is whether the child has a sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth, which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty of normal social conduct.”

[53] It is this test, no doubt suitable for an apostate society, which Parliament has chosen to determine competency to give evidence on oath. It is not the test applied by the learned judge. His Honour in fact made no enquiry of K to ascertain whether she was competent to give sworn testimony, whether by reference to the common law or to the Act. His Honour should have ascertained whether she understood that giving evidence was a serious matter, and that in testifying she had an obligation to tell the truth which was a more serious obligation than that which arose in her daily routine. The learned judge permitted K to give unsworn testimony without ascertaining whether she should, in terms of s 9B, be sworn. This was also an error of law affecting the trial and its outcome.

[54] Although the Act does not expressly say so it should, I think, be construed so as to permit a witness to give unsworn testimony only where it is demonstrated that the understanding described in s 9B(2) is absent. If a witness has that understanding he or she should be sworn (or affirmed if the witness objects to taking an oath – s 17 of the Oaths Act).

[55] By way of digression it may be surmised that s 37 of the Oaths Act now has no purpose. The test for competency to give evidence on oath is that described in s 9B(2) so that any “defect of religious knowledge or belief” is no longer a bar to taking an oath.

[56] It may be pointed out that this error also affects the testimony of S who was affirmed upon the judge ascertaining that she had no belief in God. That was irrelevant to the statutory test for competency to give sworn evidence. The consequence of that error may be of no moment. An affirmation is as binding on a witness as an oath, S was affirmed, and appears to have the requisite understanding. In that respect the case is similar to Brown.

[57] The failure of the primary judge to comply with s 9B has deprived the appellant of a proper trial, that is one conducted according to law, with evidence tendered according to the law’s prescriptions. It is not therefore an appropriate case for the application of the proviso. See S v The Queen (1989) 168 CLR 266 at 277 per Dawson J and 282 per Toohey J. The High Court in Weiss v The Queen (2005) 224 CLR 300 accepted that there are some errors affecting a trial with respect to which the proviso cannot be applied. The errors here are, I think, of that kind.

[58] Enough has been said to explain why the appeal was allowed. Some other points were argued which should be dealt with, if briefly, to provide assistance to the trial judge should the prosecuting authorities determine to try the appellant a third time.

[59] The appellant complained about the directions given to the jury on the use of circumstantial evidence and propensity evidence. The prosecution’s argument was that indecency was proved by the circumstances that:

(i)each girl was touched on the vulva on numerous occasions, including the nine times which were the subject of the indictments;

(ii) all the touching occurred in the swimming pool;

(iii) the incidents of touching occurred over the same five day period;

(iv)in the case of K the touching increased in seriousness to include the insertion of fingers into the vagina.

The circumstances were said to show that the touching was intentional and had sexual overtones so that it was indecent, not inadvertent or innocent.

[60] The trial judge gave a very brief exposition of the use to which circumstantial evidence might be put, typical of what is said to juries in cases which are not circumstantial ones. The particular complaints are that the trial judge did not expressly direct the jury that:

(i)guilt should not only be a rational inference drawn from facts but should be the only rational inference that could be drawn in the circumstances; and

(ii)that if there were any reasonable hypothesis consistent with innocence the jury should acquit.

[61] The trial judge gave this direction on propensity evidence:

“… you may use the evidence of the complainants in combination, but only in the limited way I’m about to tell you. You must look at all the evidence to see if the prosecution has provide its case on each charge against each complainant and you must be satisfied that the evidence of each complainant is credible and reliable before you can use that complainant’s evidence in any way.

… The prosecution argue that there is no reasonable view of the evidence of the two complainants other than that the accused is guilty as alleged …. The prosecution says there is no reasonable view when you look at the evidence of K and you look at the charges against S that the accused is other than guilty as allege …

That is because the Crown says there are what they call striking similarities between the two cases and the similarities that the Crown points to are that it happened in the pool; it happened whilst they were in the accused’s care; and it happened whilst others were present in the pool, other members of the family but not right next to the particular complainant; it happened whilst they were pretending to play games in the pool; it happened in circumstances where it was made to seem like an accident … both the complainants were young children and generally they were touched on the vagina usually through the clothes.

… The evidence of any one complainant whom you accept is credible and reliable can be used by you as a circumstance which might confirm, support or strengthen the evidence of the other complainant, but only if you are satisfied … that there is no reasonable view of it other than the accused is guilty of the offences involving that complainant”.

[62] Her Honour then warned the jury against “propensity reasoning” to convict if satisfied that some of the evidence convinced the jury that the appellant was of bad character or was likely to do the things his nieces alleged against him.

[63] The complaint, which I think is justified, is that the jury should have been directed specifically that the only permissible use of the evidence of each complainant in the case against the other, and the evidence of each complainant about the incidents involving her, when considering the other incidents, was to establish the touching was deliberate: that it had happened too often to be accidental, inadvertent or innocent. That, it seems to me, was the only use to which the evidence of the other complaints of touching could be used by the jury when considering each separate count. This was not, obviously, a circumstantial case. Each child gave direct, first hand evidence of the appellant’s touching, which she observed and experienced. The context in which the offences occurred, an uncle playing with his nieces in a swimming pool to amuse them on holidays, gave rise to the possibility that the touching was unintentional, inadvertent, and occurred in the course of horseplay which had no sexual content. The frequency with which the girls were touched around the crutch might well tend to displace inadvertence as an explanation.

[64] The evidence of touching on other occasions was not “propensity” evidence; nor was it “similar fact” evidence. It was circumstantial evidence to be used only for the purpose I have described and the jury should have been told that in plain terms; not confused by reference to “striking similarities” or “propensity”.

[65] The last complaint with which it is necessary to deal is that the trial judge did not warn the jury sufficiently to scrutinise K’s evidence with particular care. The Crown case was, it is submitted, conducted on the basis that touching K inside her swimsuit was a circumstance raising an inference that all the earlier instances of touching on the genital area was indecent. The appellant submits that there were features of K’s evidence which should have been drawn to the jury’s attention specifically as indicating unreliability.

[66] This complaint, too, has substance. Indeed K’s evidence appears to be a good example of why the explanation mandated by s 9B(3) was required. The evidence seems to show elements of exaggeration, inconsistency and implausibility which an explanation of the importance of truthfulness and accuracy addressed to her may have removed. It is, of course, impossible to know what effect the explanation would have had, but K’s evidence indicates the need for it. This consideration shows that it would not be an appropriate case for the application of the proviso, if the nature of the error involved in admitting K’s evidence were such as to permit its use.

[67] S testified that she and K spoke one evening during their time with the appellant and his wife when they were in the bath together. S asked K whether the appellant “had been touching you where you don’t want to be touched”. K answered yes but, according to S, “did not sound very confident”. S did not believe her sister had been touched.

[68] K’s account of the conversation was vividly different. When S asked whether the appellant had been touching her (K’s) “rude part”, K said yes and they then spoke about telling their mother. S expressed some reluctance because she was embarrassed to say “vagina” but K said she did not care about embarrassment and that she would say “the vagina word”. One notes that when describing to police where she had been touched she used the word only when prompted.

[69] K also gave evidence she was greatly distressed by the appellant’s fondling and often tried to escape but could not. She wanted to complain to her aunt, the appellant’s wife and described herself as almost doing so several times. Nothing seems to have stopped her, there was ample opportunity but she did not say anything. Nor did K complain to her mother when she rang twice during the week to speak to them. Their grandmother picked them up from Caloundra and drove them to Brisbane, to the appellant’s house where she lived. S and K said nothing to her about the appellant’s behaviour.

[70] Childish reticence may explain this behaviour but the point is that K gave evidence that she was acutely distressed by the appellant’s touching and desperately wanted to complain about it to her aunt and mother. She did not mention it to her mother in the telephone conversations, nor to her aunt or to her grandmother. The complaint was only elicited by a direct question from the mother as she drove them home having collected them from their grandmother’s. The inconsistency may be explicable but it should have been drawn to the jury’s attention.

[71] K told the police officers that the appellant’s touching occurred on occasions when they went to the beach as well as when they were in the pool. When cross-examined during the pre-recording of her evidence she denied that she was ever touched when at the beach.

[72] K’s account of the two most serious occasions, the subject of counts 8 and 9 was dramatic and appears exaggerated. The jury acquitted on count 8 but convicted on count 9. Her description of the event is, I think, unintelligible.

[73] This was S’s account:

“He pulled me back down to the deep end, then holds me with his left hand … then … gets his two fingers on his right hand and starts to fiddle with my rude part … he took my undies down … he … was holding me and … he went like that and pulled the undies … my bikini bottoms but he pulled it like that and he pulled it down … he did it with, he did it um he held in front of the top then he did it both sides … I don’t know how he did it but he did it … when he pulled my bikini bottoms down I felt really really sick like the most sick I’ve ever felt in my whole life

Where did he put his fingers …

The whole everywhere … even at the bottom … he was like slapping (my bottom) … the back bit and he was fiddling with the front bit … and I tried to cry but it’s really hard to under water …”.

When cross-examined at the pre-trial hearing K said the appellant had not pulled down her bikini bottom.

[74] The account is apparently of the child being held against her will under water. It is difficult to understand how the appellant could have slapped the child on the bottom under water, or how he could have held her if his other hand was “on the front bit”. If her bikini bottoms were pulled down as she first described the appellant was presumably slapping her bare bottom and at the same time inserting fingers of the other hand in full view of those in and around the pool.

[75] The account may be implausible because incomplete but whatever the reason the jury should have been asked to scrutinise it carefully, as they should be on a retrial.

[76] Nothing need be said about s 23 of the Code except that it appears to have no application at all to this case.

[77] ANN LYONS J: I agree with the reasons of Chesterman JA.