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.