R v RAG

Criminal Appeal Act 1912 LEGISLATION CITED: Evidence Act 1995 Evidence (Children) Act 1997

Brown, Barwick, Brown v R [2006] NSWCCA 69 R v Ambrosoli (2002) NSWLR 603; [2002] NSWCCA 386 R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 R v Brooks (1998) 44 NSWLR 121; (1998) 102 A Crim R 367 R v Caine & Anor (1993) 68 A Crim R 233 R v Haddad & Treglia [2000] NSWCCA 352 CASES CITED: R v Lavender [2002] NSWCCA 511 R v Lisoff [1999] NSWCCA 364 R v Loc Huu Phan [2003] NSWCCA 205 R v Milakovic [2004] NSWCCA 199 R v O'Neill (2001) 122 A Crim R 510 R v Pavia (1993) 67 A Crim R 364 R v Steffan (1993) 30 NSWLR 633 R v Stevenson [2000] WASCA 301

PARTIES: Director of Public Prosecutions (Appl) RAG (Resp)

COUNSEL: D Arnott SC (Appl/Crown) J Stratton SC (Resp)

SOLICITORS: Director of Public Prosecutions (Appl/Crown) Legal Aid Commission of NSW (Resp)

IN THE COURT OF CRIMINAL APPEAL 2006/442

McCLELLAN CJ at CL JOHNSON J LATHAM J

26 OCTOBER 2006 R v RAG Judgment 1 McCLELLAN CJ at CL : I agree with Latham J. 2 JOHNSON J : I agree with Latham J. 3 LATHAM J : The Director of Public Prosecutions appeals against a decision of Maguire QC DCJ's (the trial judge) at Campbelltown District Court on 17 February 2006, pursuant to s 5F(2) of the Criminal Appeal Act 1912, on the ground that the trial judge erred in finding that the complainant, a girl aged seven years and ten months, was not competent to give unsworn evidence, according to the criteria required by s 13(2) of the Evidence Act 1995, concerning alleged sexual assaults upon her by the respondent. 4 Senior Counsel for the respondent submits that an appeal does not lie against the decision, either under s 5F(2) or s 5F(3A). The jurisdictional issue assumed some prominence in the respondent's argument, no doubt because it was recognised (and faintly acknowledged during the hearing of the appeal) that the merits of the trial judge's decision were difficult to defend in the light of the somewhat unusual background to the proceedings that were before the trial judge on 17 February. On that day, the complainant came before the District Court to give evidence in the respondent's trial for the fifth time, there being four previous inconclusive trials where the complainant's competency to give unsworn evidence had been established. 5 The alleged offences were said to have taken place on 9 December 2004 when the complainant was six years old. The Crown case was that the respondent, a 26-year-old cousin of the complainant's mother's partner, was babysitting the complainant on that occasion and exposed the complainant to a pornographic DVD. The complainant went to bed and fell asleep, but awoke some time later to find her pyjamas and underpants around her ankles and the respondent licking her vagina and touching her vagina with his fingers. The complainant immediately reported the matter to her mother when the latter arrived home later that evening (although the terms of the complaint were somewhat general) and was interviewed by police the next day. 6 The evidence against the respondent included the results of DNA analysis from material taken from the inside crotch of the complainant's underpants worn on the night of 9 December 2004. The analysis linked that material to two persons, namely the complainant and the respondent. The respondent denied any sexual misconduct towards the complainant in the course of his interview with police and maintained that position throughout the various trials. The defence explanation for the DNA evidence resided in an assertion by the respondent that, some days before 9 December 2004, he had helped the complainant's mother fold the household washing, including the complainant's underpants. 7 As a result of the trial judge's ruling, the Crown indicated its intention to appeal, on the basis that the ruling had eliminated or substantially weakened the Crown case. The trial was stood over to Monday 20 February. The respondent was served with a notice of appeal on 22 February. It appears that the jury was discharged at that time or shortly thereafter. Accordingly, at the time of the appeal, there was no trial pending before the District Court. I turn to a consideration of the respondent's arguments with respect to the application of s 5F(2) and (3A).

The Jurisdiction of the Court under s 5F(2) and (3A). 8 Section 5F is headed "Appeal against Interlocutory Judgment or Order". Section 5F(2) of the Criminal Appeal Act provides for a right of appeal in the Director of Public Prosecutions to this Court against an interlocutory judgment or order given or made in proceedings on indictment in the Supreme or District Court. Section 5F(3) provides for an appeal by leave, or by certification by the relevant judicial officer, where an accused wishes to challenge an interlocutory judgment or order. Section 5F(3A) provides for a right of appeal in the Director of Public Prosecutions to this Court against rulings on the admissibility of evidence where the ruling eliminates or substantially weakens the prosecution case. 9 The Crown's written submissions maintained that the trial judge's decision rejecting the competency of the complainant to give unsworn evidence was interlocutory in the sense that it did not dispose of the matter to finality, and that it was a judgment or order because the decision had "the effect of excluding all or substantially all of the evidence to be led by the prosecution, so that the Crown case is effectively brought to nothing" : R v Lavender [2002] NSWCCA 511 at [8]. As to the former proposition the Crown relied upon R v Pavia (1993) 67 A Crim R 364, and as to the latter proposition the Crown also relied upon R v Bozatsis & Spanakakis (1997) 97 A Crim R 296, R v O'Neill (2001) 122 A Crim R 510 and R v Lisoff [1999] NSWCCA 364. 10 The respondent's objection to jurisdiction under s 5F(2) rests upon this Court's decisions in R v Steffan (1993) 30 NSWLR 633, wherein it was held that a ruling on evidence was not a judgment or order within the meaning of that provision. Further, the respondent submits that this Court should not entertain the appeal under s 5F(3A), because the decision did not substantially weaken the prosecution case. It is also contended that the question of the complainant's competency will, in any event, fall to be redetermined by the trial judge or another judge, should the Crown pursue the prosecution of the respondent at another trial : see R v Milakovic [2004] NSWCCA 199. 11 The reliance by both the Crown and the respondent upon decisions of this Court that have canvassed the circumstances under which a ruling on the admissibility of evidence may amount to a judgment or order for the purposes of s 5F(2) and (3) assume that the trial judge's decision in the instant case was a ruling on the admissibility of evidence. In my view, the decision was not of that character. Section 13 of the Evidence Act appears in Chapter 2 titled "Adducing Evidence", under Part 2.1 "Witnesses", Division I "Competence and Compellability of Witnesses". Chapter 3 of the Evidence Act deals with the admissibility of evidence. I am fortified in that view by the fact that the Court in R v Milakovic recognised the importance of the structure of the Evidence Act to the characterisation of a decision under s 38 of that Act, not being a ruling on the admissibility of evidence. 12 Reliance upon the authorities referred to by the Crown and by the respondent in argument is, in my view, misplaced. The subject of the appeal in Steffan (albeit prior to the introduction of the Evidence Act) was a decision as to the admissibility of conversations, which the accused sought to have excluded on the basis that they were illegally obtained. Similarly, Lisoff, Bozatsis & Spanakakis, O'Neill and Lavender were all concerned with rulings under Chapter 3 of the Evidence Act. 13 In Lisoff, a distinction was drawn between a ruling relating to the admissibility of evidence in an appeal brought by an accused person under s 5F, and a ruling on the admissibility of evidence that effectively destroyed the substance of the Crown case, prompting an appeal by the Crown. The former was consistently held by this Court to be outside the scope of s 5F, because such a ruling was not an interlocutory judgment or order : see Steffan at 512 and the discussion in Lisoff at [18]ff. In the latter circumstance, it was said that such a ruling may amount to an interlocutory judgment or order. 14 Lisoff and the decisions of this Court in a similar vein, namely R v Bozatsis & Spanakakis, R v Haddad & Treglia [2000] NSWCCA 351, O'Neill, and R v Loc Huu Phan [2003] NSWCCA 205 all preceded the enactment of s 5F(3A), a provision which was clearly designed to specifically address the circumstances upon which those authorities were based. The recognition by the legislature of the need for a distinct category of appeal by the Crown, against such rulings on the admissibility of evidence, suggests that the distinction drawn in Lisoff and maintained in the decisions that followed was somewhat artificial. There is now a transparent distinction within s 5F itself between judgments or orders on the one hand, and rulings on the admissibility of evidence on the other. 15 The trial judge's decision in the instant case was a judicial act that determined an identifiable or separate part of the proceedings, namely the competency of the complainant : see Steffan at 636A ; Bozatsis & Spanakakis at 303. The finding that the complainant was not competent to give unsworn evidence was final, in the sense that it was not subject to review in the course of those proceedings, unlike rulings on the admissibility of evidence : Bozatsis & Spanakakis at 303. The decision may have had the consequence that the complainant's evidence was not admitted, but the substance of the decision was of an altogether different character. It was a judgment and it was also interlocutory, in the sense that it did not finally determine the proceedings between the Director and the respondent : Pavia at 368. 16 Accordingly, the appeal is properly brought under s 5F(2). The Complainant's Competency Over the Course of Four Trials 17 The complainant first gave unsworn evidence in the course of a trial commencing on 26 September 2005 before Sides QC DCJ. The jury was discharged prior to the conclusion of the evidence, owing to an apprehension of juror misconduct. 18 The second trial commenced on 31 October 2005 before Nicholson SC DCJ. Once again, the complainant gave unsworn evidence. The jury acquitted the respondent of one charge, but was unable to reach a decision in relation to the remaining counts. That jury was discharged on 7 November 2005. 19 The third trial commenced before Coorey DCJ on 6 February 2006. The complainant was again considered competent to give unsworn evidence. However, the jury was discharged before any evidence was received following the disqualification of his Honour on the basis of apprehended bias, based upon the respondent's alleged conduct towards his Honour's associate whilst travelling on the train to Campbelltown. 20 The fourth trial commenced on 7 February 2006 before the trial judge. An inquiry was conducted in relation to the competency of the complainant and she was found to be competent to give unsworn evidence. The whole of the evidence at trial was concluded and the jury had retired to deliberate upon their verdicts, when the trial judge received a note from a juror which resulted in the discharge of that jury on 10 February 2006 for reasons which are not presently relevant. 21 Thus, the complainant had been found competent to give unsworn evidence on four occasions over a period of five months. In particular, in the course of the first week of February 2006 the complainant had been found competent to give unsworn evidence by the same trial judge who came to preside over the fifth trial less than a fortnight later. It is relevant therefore to have regard to the nature of the inquiry conducted by the trial judge on 7 February. 22 On 7 February, the Crown Prosecutor raised with the trial judge the procedure under s 13 of the Evidence Act 1995. The trial judge indicated that he was content for the Crown Prosecutor and defence counsel to ask questions of the complainant addressed to the criteria under s 13(1) and (2). Accordingly the Crown Prosecutor asked the complainant the following questions :- Q. Do you know why you are here today? A. Yes. Q. Why are you here? A. Because what Rodney done. Q. Do you know what the truth is? A. Yes. Q. Are you going to tell this court the truth about what Rodney did? A. Yes. Q. Why do you have to tell the truth about what Rodney did? A. Because people will be proud of you and stuff. Q. If you don't tell the truth about what Rodney did what will happen to you? (No verbal reply) Q. Do you know or you don't know? A. I don't know. Q. Do you know what a lie is? A. Yes. Q. What is a lie? A. A lie is when you're saying something and then you are actually lying to them. Q. What do you mean by that? A. Like say that, say that someone was wearing a yellow shirt and they weren't really, and someone said that they wore a yellow shirt but they weren't really, that's a lie. Q. Are you able to say what is the difference between the truth and a lie? A. Yes. Q. Could you do that please? A. Well the truth is when you actually say something and it's the truth, like you are trying to say, tell someone that they are wearing a yellow shirt and they really are, so that's the truth and a lie is when you are saying that they have a yellow shirt on but they don't really and you are lying to them. Q. If the judge was to say to you that it is important to tell the truth, or if I was to say to you it's important to tell the truth, do you understand what that means? A. Yes. Q. And what do you understand, those words "it's important to tell the truth" means? A. It's important to tell the truth because then you will, then everybody will be proud of you. Q. And will you promise us that you won't tell lies? A. Yes. 23 Thereafter, the respondent's counsel at trial asked some questions of the complainant that sought to elicit the distinction between a lie and a mistake. The trial judge then confirmed with both counsel that the presumption of competency to give sworn evidence had been displaced by some of the child's answers and continued :- Having heard the child answer questions from both counsel I find that she is not competent to give sworn evidence but I am also satisfied that she understands the difference between the truth and a lie and I shall therefore tell her that it is important to tell the truth. She has already acknowledged to the Crown that she will not tell lies in the proceedings but I think I should give her that direction myself pursuant to paragraph (b). [A reference to s 13(2)(b).] 24 Accordingly, the complainant was informed directly by the trial judge that it was important to tell the truth. The complainant confirmed that she would not be telling any lies in the course of her evidence. 25 These exchanges addressed each of the criteria under s 13, namely that the complainant was not capable of understanding the obligation to give truthful evidence (s 13(1)), but the court was satisfied that the complainant understood the difference between the truth and a lie (s 13(2)(a)) and informed the complainant that it is important to tell the truth (s 13(2)(b)), and the complainant acknowledged that she would not be telling lies in the proceedings (s 13(2)(c)). Thus, the appropriate procedure for ensuring that admissible evidence could be received by the court in the form of unsworn evidence from the complainant was followed : see R v Brooks (1998) 44 NSWLR 121 ; (1998) 102 A Crim R 367. 26 I pause to note that the form of the questioning undertaken by the Crown Prosecutor was entirely consistent with the method suggested at 6.3.2 of the Equality Before the Law Bench Book (Judicial Commission of NSW, June 2006). Assessing a child or young person's understanding of the difference between the truth and a lie can only be reliably undertaken by posing simple questions, preferably after putting the child at ease by a series of questions concerning their age, schooling and favourite pastimes. Simple questions assume that the language within the question is as simple and direct as possible. Phrases including "regarding" or "concerning" should be avoided, along with phrases which suggest agreement, or include the use of the negative, for example, "it's true isn't it?" or "is that not true?" Hypothetical questions, questions involving abstract concepts, multi-faceted questions (questions incorporating more than one proposition), legal jargon and passive speech should also be avoided : see Cashmore, Problems and Solutions in Lawyer-Child Communication (1991) 15 Crim L J 193-202. 27 The pitfalls of complex language can be overcome by direct questions such as "do you know what the truth is?" and "do you know what a lie is?" followed by a request to the child to provide an example of each. This was substantially the approach adopted by the Crown prosecutor. It stands in marked contrast to the approach taken by the trial judge at the next trial. The Fifth Trial 28 On Friday 17 February 2006 the matter came back before the trial judge. Both the Crown Prosecutor and defence counsel were the same as in the previous trial. 29 Following some discussion in relation to the proposed exclusion of certain questions and answers in the record of interview, the Crown Prosecutor submitted that "there is no need to revisit the issue as to whether the child should give sworn or unsworn evidence because this trial is proceeding before your Honour. That is to say, it's different if this was a trial that was now proceeding without your Honour having dealt with the issue before. I don't see, with respect, the need or any legislative requirement to revisit the issue afresh." 30 The trial judge responded :- Well I do. In the circumstances of this case the ruling I made on Tuesday of last week was made following the answers she gave to questions. Since that time it has become clear from the evidence of the child that her evidence in one respect had been tainted by the intervention of the mother. That is beyond argument. Now there has been a considerable hiatus since the child last gave evidence and given what is said to be a reluctance on the part of the mother to have her giving evidence today and indeed a reluctance on the part of the child to her giving evidence today, I think fairness demands that I should revisit the issue. 31 It should be noted at this point that, even assuming contamination of the complainant's evidence by her mother, questions relating to the credibility of the complainant and the weight to be attached to her evidence were matters for the jury and bore no relationship to the competency of the complainant to give unsworn evidence : see Brown, Barwick, Brown v R [2006] NSWCCA 69 ; R v Stevenson [2000] WASCA 301. Furthermore, the "considerable hiatus" was a period of some days, not weeks, months or years. Nor could a child's quite understandable reluctance to undergo the ordeal of a trial for the fourth time figure in any way in an assessment of her competency. 32 The Crown Prosecutor immediately disputed that the evidence of the complainant had been tainted, but accepted that the trial judge was entitled to form his own view. As to the suggestion that the complainant was reluctant to give evidence, it appears from the transcript of 17 February (at pp 4-6) that on the previous day, the Crown had sought an adjournment of the trial so that the complainant could attend school and re-establish some normalcy in her life, in the light of certain physical symptoms indicating that the complainant was suffering from stress. That application was refused. In any event, the Crown was content to proceed with the trial on 17 February 2006. 33 Immediately after this discussion, the respondent was once more arraigned on an indictment containing one count of sexual intercourse with a child under the age of 10 years (cunnilingus), pursuant to s 66A Crimes Act 1900, and one count of aggravated indecent assault (touching on the vagina), pursuant to s 61M Crimes Act 1900. The jury was empanelled and the trial judge gave the usual introductory remarks to the jury concerning the conduct of the trial, their obligations as jurors and general procedure. There was a short adjournment, following which the Crown Prosecutor was invited to make his opening address. In the course of that address the Crown Prosecutor outlined the evidence he anticipated the complainant and her mother would give, together with the DNA evidence in support of the Crown case. Defence counsel then declined the opportunity to address and the trial judge asked the jury to retire. The trial judge then embarked on an inquiry under s 13 of the Evidence Act. 34 The trial judge began by asking the complainant (who was giving evidence from a remote location) if she knew why she was in court. The complainant replied, consistently with her answers in the previous trial, "because of what Rodney done." The trial judge then asked a series of irrelevant questions relating to the complainant's evidence the previous week, specifically whether the complainant remembered being questioned about certain DVDs and about how the washing is done at home. At that point, the trial judge asked :- Q. Do you know that the court expects you to tell the truth? A. Yeah. Q. What do you understand by the truth? A. That you have to tell the truth, otherwise you can sent to little girls home, something. (as transcribed) Q. When you say you have to tell the truth, what do you mean by telling the truth? A. I mean like if you don't tell the truth, it just means that you might get sent to a girls home or something or people just find out, then you'll get in trouble or something. Q. What you're telling me is what might happen if you don't tell the truth but what does it mean to tell the truth? A. I don't know. Q. What does it mean to tell a lie? (No verbal reply) Q. Can you answer that? A. No. 35 That these questions were framed by the trial judge on the basis that the complainant should be able to give a conceptual account or definition of what the truth was and what a lie was, is confirmed by the trial judge's remark immediately after these questions and answers were given. The CCTV system was turned off. The trial judge said "I have to be satisfied that the person understands the difference between the truth and a lie. She's unable to give me any concept of what the truth is, she's unable to give any answer as to what a lie is. Where does that leave us?" The Crown Prosecutor responded with a suggestion that the complainant should be asked questions "to determine whether [she understood] the difference between the truth and a lie as opposed to being able to articulate what it means to tell the truth." 36 The trial judge responded to this suggestion in turn by reliance upon s13(7) of the Evidence Act, namely that for the purpose of determining a question as to competency, the court may inform itself as it thinks fit. The trial judge then resumed the inquiry as follows :- Q. Since I last spoke to you, have you been talking to anybody else? A. No. Q. I'll ask you again, what is meant by telling the truth? A. I don't know. Q. Since you were last at court, last week, have you talked to anybody about the matter that the court case is concerned with? A. No. Q. Tell me, do you understand the difference between telling the truth and telling a lie? A. Yes Q. What's the difference? A. Well the truth means that you have to tell the truth or otherwise you will get sent to a girls' home and telling a lie is when your mum asks you if you stole money or something and you really did and you actually said you didn't. Q. Who first put in your head the idea that you might go to a girls' home? A. I don't know. Q. That's not something you read in a book, is it? A. No Q. Somebody must have suggested it to you? A. No Q. What do you understand by a girls' home? A. I understand by a girls' home that you get sent to, like, if your mum does something bad or something, you get taken away from your mum and go to a place where all these other little kids live. 37 The first three questions of those set out immediately above did not advance the inquiry. On the contrary, they may well have been interpreted by the complainant as intimidatory, given that they suggest that the complainant should not have been speaking to anyone at the remote location (despite the presence of a support person in accordance with s 20(2) of the Evidence (Children) Act 1997) and that the judge was growing impatient with the complainant for failing to satisfactorily answer his questions ("I'll ask you again, ..). A further irrelevant question, concerning any discussions the complainant may have had with others about the allegations, preceded the question with which s 13(2) was concerned. 38 Arguably, the complainant demonstrated by her reference to "being sent to a girls' home" and "getting into trouble" that she understood the obligation to tell the truth in the proceedings, in so far as a failure to do so would result in some form of disciplinary action. That was, in effect, the submission that was made to the trial judge by the Crown Prosecutor at the end of this sequence of questions. Putting that issue to one side, it was inappropriate to further question the complainant on an accusatory basis, that is, that someone had put such a notion "into her head". The tenor of the trial judge's questioning suggests that he had formed a strong view about the reliability of the complainant's evidence and that he allowed that view to influence the inquiry, which should have focused upon the statutory criteria under s 13(1) and (2) and nothing else. 39 The Crown Prosecutor maintained that the complainant had demonstrated that she understood the difference between the truth and a lie by the example she had provided. The respondent's counsel submitted that the complainant had demonstrated that she was able to understand the concept of a lie but had not demonstrated her understanding of the distinction between the truth and a lie. 40 The trial judge then said "what concerns me is that she has an understanding that what she says, if she gives evidence, could result in her being taken away from her mother and locked up somewhere." With respect to the learned trial judge, that was not the sense of the complainant's answers. The complainant clearly related a failure to tell the truth to a form of punishment. The trial judge either completely misunderstood the complainant's meaning or assumed that the complainant's evidence would not be truthful.

41 The respondent's counsel took up this theme with a submission that the complainant's answers suggested that she felt constrained from departing from her previous evidence, lest she be placed in an institution and that the court would therefore entertain concerns as to the capacity of the complainant to give truthful evidence. Apparently in response to this wholly unfounded submission, the trial judge continued the questioning :- Q. You gave evidence last week? A. Yeah. Q. If you were to give evidence today and were to say anything different from what you said last week, what is your understanding of what would happen? A. Pardon? Q. If you gave evidence today and what you said today was different from what you said last week, what would you expect to happen? A. I don't know. [The trial judge then indicated to counsel that he proposed to deal with another matter.] Q. You've been asked last week and on previous occasions about having dreams? A. Yeah. Q. Is it possible that what you've in the past said about Rodney, did not actually happen but it's something you dreamed? A. No. Q. But you have said, that haven't you? A. Yeah. Q. If it was all a dream, telling it as being what happened would not be the truth, would it? A. Pardon? Q. If what you told the court Rodney did was really something that you dreamed, would telling that to the court be the truth or not? A. Not.

42 Following this series of questions and answers, the Crown Prosecutor renewed his submission that the complainant had clearly demonstrated that she understood the obligation to give truthful evidence and, in the alternative, that she understood the difference between the truth and a lie. This submission was well founded. In spite of a series of inappropriate abstract questions (as opposed to questions based upon concrete examples of the truth and a lie), and four inappropriate hypothetical and multi-faceted questions, the complainant had demonstrated that she understood the importance of telling the truth (in that sanctions might be applied if she failed to tell the truth) and the distinction between the truth and a lie (something that really happened as opposed to something that was imagined or invented). 43 Whilst the practical guidance set out in the Equality Before the Law Bench Book was not available to the trial judge in February 2006, the limits of a child's capacity to respond to complex questions has been the subject of a number of legal publications. In Report 102: Uniform Evidence Law (2005), the Australian Law Reform Commission stated at [4.41] :- The application of the competence tests in section 13 requires skilled questioning. Ideally a judicial officer should ask questions which are developmentally sensitive and not too difficult or abstract, particularly when questioning children, so that a person has the potential to demonstrate understanding. If a child is questioned in a way which fails to take account of his or her stage of development, he or she may find it impossible to demonstrate their understanding. An example is questioning which asks the child to define "the truth" or "a lie" or to discuss the moral implications of lying.

44 In The Future of Competency Testing for Child Witnesses (1991) 15 Crim L J 186, Parkinson noted that :- [T]he difficulty with competency testing is in its administration. How does the court assess whether a child does understand the difference between the truth and a lie? Questions need to be framed in a way which young children with limited skills of language can understand and answer. Young children do not understand abstract concepts, and questions need to be asked which avoid ambiguities and abstractions. Even the word "truth" is ambiguous. Its double meaning is revealed by examining its opposites -- a falsehood and a lie. One may make a false statement without intending to deceive. Thus, for a young child, the notion of a lie is more concrete than the notion of truth, and the child's declaration …. is consequently framed in the negative: "I will not tell lies". The manner in which a competency test is administered may thus affect the way in which a child's ability to distinguish between the truth and a lie is perceived. Furthermore, if a child responds in the affirmative to the question, "do you understand the difference between the truth and a lie?", it does not necessarily mean that the child does understand it. The child need only answer "yes" and the court will be little the wiser. On the other hand, if the child is asked, "what is the truth?" or "what is a lie?" a competent child witness may still not be able to give a satisfactory answer. Such a question asks for a definition. A young child's ability to distinguish between the truth and a lie may be much greater than his or her ability to define that distinction. A young child cannot be expected to explain an abstract concept. 45 A more comprehensive treatment of the language and conceptual barriers erected by the inappropriate use of language towards child witnesses appears in Problems and Solutions in Lawyer-Child Communication by Judy Cashmore, referred to at par 26 above.

46 To compound the problems already besetting the inquiry, the trial judge then allowed the respondent's counsel to cross examine the complainant, over the objection of the Crown Prosecutor, on the evidence she had given before Sides QC DCJ in September 2005, in order to suggest that the complainant's allegations were the product of a bad dream. The respondent's counsel was then permitted to cross-examine the complainant on the basis that she had spoken to her mother on the subject of the respondent's alleged assistance with the washing. None of this cross examination went to the issue that the trial judge was required to determine for the purposes of s 13 of the Evidence Act. More importantly, it is doubtful whether counsel for the accused should question a child in a competency inquiry : see R v Caine & Anor. (1993) 68 A Crim R 233 at 238. That much was conceded by the respondent's Senior Counsel on the hearing of this appeal. 47 At the conclusion of this cross examination the trial judge said :- Mr Crown, I made a ruling last week under section 13, unaware of the material on page 23 of the transcript before his Honour Judge Sides, on 27 September. It seems to me that it's at least open to conclude from those answers or some of them, that the child is saying, when I gave the account I did of the accused's behaviour, it is possible that it didn't happen but it was just a dream. That, in a child, would be an issue of fact that the jury would have to determine but before we get to that stage, does it not go to whether she understands the difference between the truth and a lie, particularly having regard to the answers she's given this morning to the direct questions about truth and lies . If her state of mind is that it's okay to relate something to the jury as a fact which may in fact be fiction, reduced by a dream, then does that not raise an issue that she doesn't comprehend the difference between truth and untruth. 48 The Crown Prosecutor squarely refuted that suggestion, and in my view correctly so. The Crown Prosecutor submitted that the trial judge could be comfortably satisfied that the complainant understood the difference between the truth and a lie, not only on the basis of her responses to questions asked that morning but also on the basis of the inquiry carried out by his Honour on 7 February 2006 at the commencement of the previous trial. The Crown Prosecutor correctly submitted that the cross-examination before Judge Sides QC, that lay the foundation for a submission to the jury that the complainant's allegations were the product of a dream, was not relevant to the question posed by s 13, although it was doubtless relevant to the acceptance by the jury of the complainant as a witness of truth. 49 There then followed an exchange between the Crown Prosecutor and the trial judge that revealed the latter's opinions with respect to the credibility of the complainant and her mother. It is necessary to set out parts of this lengthy exchange, in order to deal with a submission advanced by the respondent's Senior Counsel on this appeal, namely that this Court would be satisfied from the terms of the trial judge's judgment on this issue, that these aspects of the complainant's evidence did not materially affect the outcome of the inquiry. Crown Prosecutor: And she's also told your Honour that she understands there are, they're not her words, but adverse consequences for someone that doesn't tell the truth. His Honour: That's something that's been impressed upon her by the mother, with whom she has colluded . Crown Prosecutor: With respect, I don't know what to make of what's fallen from your Honour. Is your Honour making a finding that the mother and child have colluded. His Honour: Well there is evidence of that . Crown Prosecutor: There is evidence that they spoke about the matter, your Honour, in circumstances where there has been four trials. The child has given evidence a number of times. His Honour: Yeah, well they spoke about it, where the mother implanted in the child's mind, material which would serve adversely to affect part of the defence case. Crown Prosecutor: I am unable to accept that proposition that has fallen from your Honour. That suggests that your Honour's formed a dim view of a witness who has not put any evidence before your Honour on this particular point, that being the - His Honour: No, the mother wasn't cross examined about it in the fourth trial. …… the child has had that influence brought into her little head and she is also being threatened by the mother with being removed and locked up in certain circumstances . Crown Prosecutor: Your Honour, with the greatest of respect, I am deeply troubled by what is falling from your Honour in relation to the adverse view that your Honour has of the mother. I mean she hasn't given any evidence about these matters. His Honour: I'm concerned only about the state of mind of the child. This is an inquiry under section 13. Whether it be true or whether it be not true, the child is telling me that her mother said something to her about an issue in the case and the child is also telling me that the mother told her that if she didn't tell the truth she could be removed from the hearth and home and locked up somewhere. That in the context that she really has given the most unsatisfactory answers today about her understanding of the truth and a lie, and that it is beyond argument that at the trial in September and indeed, well, on the record of interview on the day after, which became her evidence at these trials, there is no qualification given by her to the evidence as possibly not being the fact, but may be fiction stemming from a dream. Put all those together and it suggests that this little six-year-old, as she was, an eight-year-old as she now is, doesn't understand what's expected of her. …….. His Honour: There's a huge amount of material that has come before me this morning that wasn't before me when I made the ruling last week under section 13 because I made that ruling in ignorance of this whole dream scenario and the evidence that the child had undoubtedly given before Judge Sides and what was said further by the child when taken to those matters last week. All of that goes to section 13 and I'm bound to revisit it and I'm bound to take matters into account. 50 As noted by the Crown Prosecutor, there was no evidence of the matters reproduced in bold above, despite the trial judge's assertion to the contrary. At no stage did the complainant say or suggest that her mother had threatened her or that her understanding of the consequences of not telling the truth derived from her mother. In fact, the complainant had earlier rejected the proposition that any one person had influenced her understanding in that regard. 51 Even assuming that the complainant had been told by her mother that a failure to tell the truth in court might result in dire consequences, it is difficult to comprehend why the trial judge took such obvious exception to that state of affairs. It would be surprising if any child did not receive a substantial part of their understanding of the consequences of dishonesty from their parents, or those responsible for their long-term care. Moreover, from whatever source the complainant had received that information, it had effectively conveyed to the complainant that a person could be punished for deliberately misleading a court. That was nothing more than a reasonably accurate statement of the law. 52 Shortly thereafter, the trial judge delivered a judgment on the complainant's competency. In that judgment, the trial judge acknowledged that he had conducted an inquiry at the commencement of the fourth trial and had ruled that he was satisfied "on the material available to [him] then" that the complainant understood the difference between the truth and a lie. The judgment continued :- However, a great deal of material relevant to this inquiry emerged throughout the fourth trial and I took the view at the commencement of this trial that it was appropriate that I revisit the issue arising under section 13. I have done that. I have myself questioned the child and in addition to that, questions have been asked of her by counsel for the defence. [ His Honour then referred to the questions and answers appearing at par 25 above, and to the questions asked of the complainant by defence counsel, based upon the cross examination of the complainant at the first trial, which went to her credit in that trial.] Both of those facets of the child's evidence seem to me to evince a very strong suggestion that she does not know the difference between the truth and a lie. This is done in circumstances where on the day after the alleged offence she gave an account to police which has become, in effect, the evidence in chief at each trial. The account was given without any qualification. It was put forward as being what happened in circumstances where anyone reading the material now knows that she acknowledges, at least some of the time, that it might all be a dream. There are a couple of peripheral matters that perhaps throw some light upon her ability to focus on the importance of what she is saying and to focus upon the difference between the truth and a lie. One is that there emerged in the course of cross examination of the child at the fourth trial, as has been alluded to here this morning, the suggestion that the mother of the child has, at some stage, tampered with the child's evidence in so far as it touches upon the defence case in respect of one element of the Crown case. The other thing that emerged, I think, is this proposition that it was the mother who threatened the child that if she did not quote "tell the truth" she might be removed from the family home and taken into custody of some kind. My responsibility is to inquire into whether I am satisfied that this child understand the difference between the truth and a lie and I'm not so satisfied. 53 As noted above, the material that was said to have emerged in the fourth trial went to the possibility of contamination of the complainant's evidence and hence, only to questions of credit. The trial judge appears to have based his conclusion that the complainant did not know the difference between the truth and a lie upon two aspects only of the questions and answers during the inquiry, those being the trial judge's attempt to obtain from the complainant a definition of the truth and a lie and the defence counsel's exploration of the complainant's answers in the course of cross examination at the first trial. No reference was made by the trial judge to the questions and answers set out at par 36 and 41 above, being those questions and answers which demonstrated the complainant's understanding of the difference between the truth and a lie. 54 Consideration of the circumstances attending the alleged sexual assaults, and the fact that the complainant's previous evidence provided legitimate scope for a submission to the effect that the tribunal of fact could not be satisfied to the requisite standard that the assaults had actually occurred, were not relevant to the criteria underpinning s 13. It was erroneous to have regard to those matters. The trial judge's description of the suggestion of collusion between the complainant and her mother, particularly the unfounded proposition that the mother had threatened the complainant with removal from the family home, as "peripheral matters" is not accurate. The exchange between the trial judge and the Crown Prosecutor set out at par 49 above indicates, at the very least, that the trial judge relied heavily on these matters in rejecting the Crown Prosecutor's submissions. 55 In my view, the Crown's submissions in this Court have been made good. Having determined to embark upon a fresh inquiry as to competency, the trial judge failed to address the question whether the complainant was competent to give sworn evidence, pursuant to s 13(1), before turning his attention to the criteria under subsection (2). There was evidence available from the complainant that she understood the importance of, and the obligation to tell the truth, yet the trial judge dealt with that aspect of the inquiry as some support for the proposition that the complainant had been improperly influenced by her mother. 56 The trial judge then relied on irrelevant matters in reaching his decision that the complainant was not competent to give unsworn evidence. The prospect that the complainant's evidence had been tainted by her mother, the suggestion that the complainant's mother had threatened the complainant in any way and the possibility that the allegations were the product of a dream, were all outside the legitimate scope of the inquiry. In addition, the trial judge ignored relevant answers that were capable of establishing that the complainant understood the difference between the truth and a lie. 57 Error having been established, I would allow the appeal. Some further observations should be made. His Honour's finding that the complainant was not competent to give unsworn evidence need not have doomed the Crown case. The complainant became relevantly unavailable under s 4(1)(b) of Part 2 of the Dictionary to the Evidence Act, so that s 65(3) and (6) of the Evidence Act allowed for the admission of a transcript or recording of the complainant's evidence in the first, second and/or fourth trials as an exception to the hearsay rule. If that course was to be followed, reasonable notice to the respondent was required by s 67 of the Evidence Act, although that notice could be waived by the trial judge : s 67(4). There would appear to have been very little scope for the exclusion of that evidence : R v Ambrosoli (2002) 55 NSWLR 603 ; [2002] NSWCCA 386. 58 It was however understandable that the Crown preferred the complainant to give evidence in person. Nothing had materially changed between the first and fifth trial to adversely affect the complainant's competency, rather one might expect the complainant to have matured in her understanding over that length of time. The fact that the complainant may be required to undergo a further trial is indeed regrettable, given the history of the matter. However, the trial judge so misconceived his function under s 13 that the decision cannot be allowed to stand. 59 Accordingly, I propose the following orders :- 1. Appeal allowed. 2. Decision of Maguire QC DCJ of 17 February 2006 is set aside.

01/11/2006 - Incorrect citation - (Should have been Regina v RAG) - Paragraph(s) Citation 01/11/2006 - Citation R v RAG - Paragraph(s) Citation

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