Supreme Court of SA|2002-06-13

R v STARRETT No. SCCRM-02-68 [2002] SASC 175 (13 June 2002)

CRIMINAL LAW --- PARTICULAR OFFENCES --- OFFENCES AGAINST THE PERSON --- OTHER OFFENCES AGAINST THE PERSON --- SEXUAL OFFENCES CRIMINAL LAW --- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION --- APPEAL AND NEW TRIAL CRIMINAL LAW --- EVIDENCE --- EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS

Evidence Act 1929 (SA) s 6(3), s 9, s 12, s 12A, s 34I;

Juries Act 1927 (SA) s 7(4);

Criminal Law Consolidation Act 1935 (SA) s 353(1);

Evidence Act 1995 (NSW) s 12, s 13;

Supreme Court Rules O 58, r 26, referred to.

R v Brooks (1998) 44 NSWLR 121;

Caine (1993) 68 A Crim R 233;

R v Brown [1977] Qd R 220;

Andrews v Armitt (1971) 1 SASR 178;

R v Henderson [1966] VicRp 8; [1966] VR 41, discussed.

Crampton v The Queen [2000] HCA 60; (2000) 176 ALR 369;

R v Climas [1999] SASC 457; (1999) 74 SASR 411;

R v Simmons [1997] SASC 6561; (1997) 68 SASR 81;

R v Schlaefer (1992) 57 SASR 423;

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79;

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

Attorney-General's Reference No.2 of 1987 (1987) 46 SASR 275;

R v Pahuja (1987) 49 SASR 191;

Bromley v The Queen (1986) 161 CLR 319;

R v Schlaefer (1984) 37 SASR 207;

R v Hester [1973] AC 296;

R v Brasier (1799) 1 Leach 199; 168 ER 202, considered.

Counsel: MR P BREBNER - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Judgment No. [2002] SASC 175

On Appeal from DISTRICT COURT (HIS HONOUR JUDGE ALLAN)

(Court of Criminal Appeal: Doyle CJ, Perry and Lander JJ)

Court of Criminal Appeal: Doyle CJ, Perry and Lander JJ

DOYLE CJ: The appellant was tried by a District Court Judge, sitting without a jury, on one count alleging indecent assault on J, a girl of the age of seven years, and on two counts alleging unlawful sexual intercourse with a person under twelve years of age, that person again being J. When the matter came to trial J was eight years of age.

The Judge convicted the appellant on each count.

The appellant appeals against his conviction. The first ground is that the Judge erred in the application of s 9 of the Evidence Act 1929 (SA) ("the Act"). The second ground is that the Judge erred in failing to direct himself that it was unsafe to convict on J's evidence, unless that evidence was corroborated. The third ground is that the Judge erred in his treatment of one aspect of the medical evidence. The fourth ground is that the verdict is unsafe, in the sense that the Judge should have had a reasonable doubt about the appellant's guilt. This ground relies mainly on the age of J, the absence of any corroboration, some inconsistencies between her evidence and her statement to the police, and some inconsistencies in her evidence.

The appellant is a male nurse. At the relevant time he was working at a hospital. In May 2001 J was a patient in the hospital. She stayed there several nights. J was then aged about seven years eight months. She was in Grade 3 at school. Her evidence was that the offences occurred one night, when the appellant was on duty. The appellant and one other nurse were on duty in the ward in question. The evidence of the other nurse was that there were occasions when A was alone in the immediate vicinity of J. Accordingly, he had the opportunity to commit the offences alleged. J made a complaint about the appellant's conduct when her mother visited her about 8am the next morning. A doctor examined J later that day. The doctor found what he described as a possible abrasion in the lower part of J's vagina.

9.(1) A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.

(2) If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that-

(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.

(3) In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.

(4) If unsworn evidence is given under this section in a trial by jury, the judge-

(a) must explain to the jury the reason the evidence is unsworn; and

(b) may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(5) A justice to whom it appears that a person who desires to lay a complaint or information does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence may ascertain by inquiry the subject matter of the complaint or information and reduce it into the appropriate form, and any action or proceedings may be taken on the complaint or information in all respects as if the complainant or informant had deposed to the truth of the contents on oath or affirmation."

Section 12 now comprises only subsections (4) and (5) and they provide as follows:

"12(4) A young child who is called as a witness is, while giving evidence, entitled to have present in the court, and within reasonable proximity, a person of his or her choice to provide emotional support (but the person must not interfere in the proceedings).

(5) Unless the court otherwise allows, a witness or prospective witness in the proceedings cannot be chosen under subsection (4) to provide emotional support for a young child."

"12A. There is no rule of law or practice obliging a judge in a criminal trial to warn the jury that it is unsafe to convict on the uncorroborated evidence of a child if the child gave sworn evidence."

Immediately before opening briefly on the facts, the Prosecutor said to the Judge:

"The other matter raised yesterday is the taking of the oath for J. J will not take an oath nor affirm: instead your Honour will ask her some questions about telling the truth in court today. I am ready now to open for the prosecution."

We were informed that the reference to the "other matter raised yesterday" is a reference to a brief discussion in open court between the Judge and counsel. It is not suggested that any evidence relevant to s 9 was put before the Judge then, or that anything of substance was decided. There is no apparent basis for the Prosecutor's statement that J would not take an oath or affirm. This was, of course, for the Judge to decide, and there is no suggestion that any decision had been made by the Judge to that stage.

After a short opening the Prosecutor called J. The questioning proceeded as follows:

Q. I'd like to ask you some questions about telling the truth in court today. All right"

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

The Prosecutor then asked some simple questions the effect of which was to ascertain whether J knew if a certain proposition was true or was a lie. The Prosecutor then said:

"Q. Do you promise to tell the truth in court today?

Q. Do you realise that it is very important that you tell the truth in court today?

Prosecutor: Unless your Honour has any queries, I have covered the issues that are raised in s.9.

His Honour: No, I don't have any queries, Mr Prosecutor."

There is no record in the transcript or in the Judge's reasons for his verdict of the Judge having made a determination that J was not capable of giving sworn evidence, or of a determination that J should be permitted to give unsworn evidence. The Judge did not ask any questions of J about these matters, nor did the Judge say to J "that it is important to tell the truth": s 9(2)(a)(ii).

The Judge outlined the relevant facts, and the allegations by J. He noted that J's evidence was inconsistent with her statement to the police in relation to the sequence of acts of which she complained. He noted that there were other inconsistencies of detail in her evidence. He noted also that one matter complained of was not mentioned in evidence-in-chief, and emerged only in cross-examination.

In apparent response to a submission by counsel for the appellant at trial that the Judge should give himself a warning for the purposes of s 9(4) the Judge said:

"As I said, the prosecution case rests on the evidence of J. I have taken a cautious approach to my assessment of it. I have looked at it against the background of the other evidence, including that of the accused. I am conscious that it contains inconsistencies and that it is inconsistent in certain areas with what she told the police ..."

The Judge went on to find that J's evidence was consistent in substance, and satisfied him of guilt beyond reasonable doubt.

A consideration of this ground requires an understanding of the background against which s 9 of the Act operates.

R v Brasier (1799) 1 Leach 199; 168 ER 202 is taken as establishing that at common law testimony could be received only on oath, and that a child could give sworn evidence "provided such infant appears ... to possess a sufficient knowledge of the nature and consequences of an oath." Over the intervening years, there have been many statutory changes to this simple position. The law has been gradually liberalised, by permitting evidence on oath or on affirmation, by permitting different forms of oath, and by permitting evidence to be given unsworn in certain circumstances. Particular provisions have been enacted relating to the evidence of children. The South Australian provisions as they now stand on these matters are set out above.

Despite these changes, the case law demonstrates that the courts have continued to attach importance to the basis upon which evidence of witnesses is received (be it sworn or affirmed on the one hand, or unsworn on the other hand), to the means by which the court determines the basis upon which the evidence is to be received, and to the eligibility or entitlement of a witness to give evidence on a particular basis. I refer, by way of illustration only, to some of the South Australian cases dealing with these matters: Attorney-General's Reference No.2 of 1987 (1987) 46 SASR 275; R v Schlaefer (1992) 57 SASR 423; R v Simmons [1997] SASC 6561; (1997) 68 SASR 81 and R v Climas [1999] SASC 457; (1999) 74 SASR 411.

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 it plain that these are important matters in our system of trial.

The starting point in this trial was that J was presumed capable of giving sworn evidence unless the Judge determined otherwise, applying the criteria set out in s 9(1) of the Act.

I would expect that usually the Judge would question the witness before a determination is made under s 9(1). I accept that in some cases it may be appropriate for counsel to do so instead of the Judge, particularly if counsel has talked to the witness before trial, and there is some reason why it is preferable for counsel to undertake the questioning. The Judge is not limited to questioning the witness. It is plain from s 9(3) that the Judge can receive and rely on information supplied from other sources. In other words, while one would usually expect the Judge to make a determination on the basis of questions asked by the Judge, there is no hard and fast rule to this effect.

But it is essential that the Judge make a determination, if the witness is not to give sworn evidence, and it is desirable that the determination be recorded in the transcript, with brief reasons. The reasons need be no more than a few lines.

In the present case, there is no record of the Judge making a determination that J could not give evidence on oath. The Prosecutor's statement, at the start of the opening, that J would not give sworn evidence, is capable of suggesting that the Prosecutor had made a decision to that effect. It is not the function of the Prosecutor to do so, and I hesitate to conclude that that occurred. It is possible that the Prosecutor's statement reflects an unrecorded intimation or determination by the Judge that J was not capable of giving sworn evidence. But on appeal neither counsel suggested that this was so. In any event, there is no basis upon which the Judge could have made such a determination at that stage. There is no suggestion that the Judge had material before him which would have enabled him to make that determination at that stage. Nor was J so young that one could say that a determination to that effect could be made, even without any other material.

I conclude that at the stage when J entered the witness box, no determination had been made.

What is recorded in the transcript raises the possibility that the Judge made a determination, unrecorded, that J could not give sworn evidence, once the Prosecutor indicated that he had "covered the issues". If that is what happened, the procedure is unsatisfactory. The determination should have been recorded. But in any event none of the questions that the Prosecutor asked were directed to the issue of whether J did not "have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence." There was no question at all about the significance of giving evidence on oath or affirmation. Either form of sworn evidence is equally acceptable: s 6(3) of the Act. Nor was it open to the Judge simply to accept a statement or assurance by the Prosecutor that J was not capable of giving sworn evidence. To do that would be to transfer the Judge's responsibility to counsel.

I conclude that the evidence of J was taken irregularly. It was given unsworn, when no proper basis was made out for doing so. I do not know what the outcome would have been if the Judge had followed the appropriate procedure. I cannot conclude that the Judge would necessarily have determined that J should have been permitted to give her evidence unsworn.

There is a further difficulty, although of a lesser order. I accept that the answers given by J to the Prosecutor suggest that she met the requirements of s 9(2)(a)(i), if a determination was made that she was not capable of giving sworn evidence. If that determination had been made, it was open to the Judge to decide that she should be permitted to give her evidence unsworn, on the basis of questions asked by counsel, although usually it would be better if the Judge asked the questions. 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. A question from counsel to the same effect is not sufficient. 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.

What is the consequence of the error in permitting J to give her evidence unsworn?

By s 7(4) of the Juries Act 1927 (SA) the Judge's decision on the question of guilt "will, for all purposes, have the same effect as a verdict of a jury." The Judge's verdict of guilt rests on the acceptance of the evidence of J, given unsworn as a result of a failure to comply with the requirements of s 9 of the Act. The circumstances of the case were such that it is possible that J's evidence might have been given unsworn, if the correct procedure were followed, but in the particular circumstances the giving of the evidence unsworn reflected a substantial irregularity.

What effect does that irregularity have on the verdict? The power of this Court to interfere on appeal with a verdict includes the power to set aside a verdict if "on any ground there was a miscarriage of justice": s 353(1) of the Criminal Law Consolidation Act 1935 (SA). That appears to me to be the relevant ground in the present case.

Has there been a miscarriage of justice? There is no reason to think that the Judge's decision to accept J's evidence turned on the fact that it was unsworn rather than sworn, or to think that the irregularity affected the outcome of the case. On the other hand, I regard the irregularity as a substantial one.

Such authority as there is suggests to me 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.

In R v Henderson [1966] VicRp 8; [1966] VR 41 an accused was committed for trial at sessions to commence on 1 July 1965, but due to an administrative error he was presented for trial on 22 June. He appealed against sentence only. But Winneke CJ, with whom the other two Judges agreed, said that his tentative view was that the irregularity "may well be one going to the root of the case", giving rise to a substantial miscarriage of justice, and that it would not be an appropriate case in which to consider the application of the proviso: at 43. In R v Brown [1977] Qd R 220 the Court held that the Judge had erroneously administered an oath to two child witnesses, in circumstances in which the Judge could have permitted the children to give evidence on affirmation. The Judge had failed to apply the appropriate test in determining whether the children were competent to take an oath. In a sense, that case is the converse of the present case. The children gave evidence on oath when they should have given evidence on affirmation. The case could be regarded as different, because the evidence was given with a higher sanction (the oath) than was appropriate. Wanstall ACJ regarded this as an error which made the verdict liable to be set aside, but applied the proviso and dismissed the appeal. However, his decision appears to rest on a conclusion that the jury must have convicted the accused on a basis that did not require the support of the evidence of the children. Campbell J also held that there had been a substantial irregularity, and would have ordered a retrial. Williams J also regarded what occurred as an irregularity of substance, but he also was prepared to apply the proviso. In his view, as the children could have given evidence on affirmation, it could not have made any difference to the ultimate outcome had they done so.

In Caine (1993) 68 A Crim R 233 the Court of Criminal Appeal of Victoria held that the trial Judge had applied the wrong test in determining that a child was competent to give evidence on oath. However, because the manner in which the Judge had conducted the procedure could have led the jury to believe that the procedure was one reflecting a conclusion that the children had been found in law to be truthful, the Court set aside the convictions without deciding whether, had the only irregularity been the receiving of the evidence on oath, there had been a substantial miscarriage of justice: at 242.

In R v Brooks (1998) 44 NSWLR 121 the legislation was, in its fundamentals, similar to the Act. Section 12 of the Evidence Act 1995 (NSW) makes every person competent to give evidence, except as otherwise provided by the Act. The Court held that this gave rise to a presumption that every person, irrespective of age, was competent to give sworn evidence. Section 13 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 give sworn evidence, but might give unsworn evidence if the court were satisfied that the person understood the difference between the truth and a lie, was told by the court that it was important to tell the truth, and indicated by an appropriate response that the person would not tell lies. The trial Judge permitted the child in question to give evidence unsworn when, on the material before him, the evidence should have been given as sworn evidence. The Judge did not determine that the child was incapable of understanding that the child was under an obligation to give truthful evidence, and so there was no basis for a conclusion that the child could not or should not give sworn evidence. As in the present case, there was no objection at trial to the procedure that the Judge followed, nor was the Judge's failure to adhere to the appropriate procedure drawn to the Judge's attention. All members of the Court held that the appeal should be allowed, the convictions quashed and a new trial ordered. Priestley JA proceeded on the basis that the "evidence" of the child was, in the circumstances, not admissible evidence: at 122. Grove J took a similar approach. In the circumstances, the accused could not have been convicted other than upon sworn evidence: at 124. Sperling J took the same approach: at 128. No member of the Court regarded it as an appropriate case in which to apply the proviso.

Guided by that authority, I conclude that the irregularity is a substantial one. It gives rise to a miscarriage of justice. The trial has not been conducted regularly. Although the irregularity does not affect the credibility of the evidence, the departure from the proper procedures is fundamental, and makes it inappropriate to apply the proviso. This is what the High Court has described as a "radical or fundamental error", which may "go either to the form of the trial or the manner in which it was conducted": Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 373 Brennan, Dawson and Toohey JJ. I consider that it would not be appropriate to apply the proviso in the present case. As I have said several times, the irregularity is a substantial one. The basis upon which a witness gives evidence, sworn or unsworn, is a fundamental aspect of the trial system.

Accordingly, while it is most regrettable that the verdict should be set aside on what may appear to be a technicality, I consider that the Court has no choice other than to allow the appeal, set aside the conviction and to order a retrial. Hopefully, this decision will bring home to trial judges and to counsel the importance of paying appropriate attention to the requirements of the Act in relation to the giving of evidence. While the ultimate responsibility in this respect is that of the Judge, counsel in the case also have a responsibility to attend to the appropriate procedure. In the present case it is regrettable that neither the Prosecutor nor counsel for the Defence raised these matters with the Judge.

Before leaving this topic, I should refer to one other decision. In Andrews v Armitt (1971) 1 SASR 178 a child was permitted to give evidence unsworn in a civil action. At that stage, the common law rule applied in civil actions, and so the child had to give evidence on oath or not at all. At trial no objection was taken to the course followed, nor did counsel raise with the Judge the issue of how the child's evidence should be given. Bray CJ held that, in the circumstances, the evidence should be treated as if it had been regularly given: at 182. Mitchell J would have ordered a retrial, but in the circumstances was not prepared to dissent. Wells J, like Bray CJ, was prepared to disregard the irregularity. It appears that both members of the majority placed substantial reliance on the provisions of the then O 58 r 26 of the Supreme Court Rules, providing that a new trial should not be ordered unless there had been a "substantial wrong or miscarriage". My view is that greater flexibility in this respect is permitted to the court in a civil action, and I do not regard this decision as laying down a rule appropriate for application in a criminal case.

There is (or was) a common law rule, sometimes referred to as a rule of law and sometimes as a rule of practice, that a jury should be warned, in a criminal case, against acting on the uncorroborated evidence of a child, although they may do so if they are convinced that the witness is truthful and reliable: see R v Schlaefer (1984) 37 SASR 207 at 212 and 214 King CJ; R v Pahuja (1987) 49 SASR 191 at 200 King CJ, at 215-217 Cox J and at 222 Johnston J.

Mr Boylan, counsel for the appellant, argued that the common law rule continues to apply to children who give evidence unsworn, pursuant to s 9 of the Act, the common law rule having been abolished by s 12A of the Act only in relation to sworn evidence. Mr Brebner, counsel for the Director of Public Prosecutions, argued that the common law rule applied only to children who gave sworn evidence, because at common law that was the only way in which a child could give evidence.

We were not referred to any authority precisely on point, but having reviewed a number of the cases I consider that the common law rule applied whether the evidence of the child was sworn or unsworn. The position is complicated by the fact that in a number of jurisdictions there have been, from time to time, particular legislative provisions relating to the treatment of unsworn evidence of children. An example is to be found in an earlier form of s 13 of the Act, which provided that if a child gave evidence without an oath and without formality, and the accused denied the offence on oath, the accused could not be convicted unless the evidence of the child was corroborated in some material particular by evidence implicating the accused. Similar legislation could be found in the past in other Australian jurisdictions. See also R v Hester [1973] AC 296.

But it seems to me that the manner in which the common law principle has been expressed means that it should be regarded as applicable to sworn and unsworn evidence of children. The rationale for the common law rule has been variously stated. In broad terms the rationale is the immaturity of young children, their impressionability and their amenability to influence by adults: see, for example, Pahuja at 215 Cox J. However the rationale is stated, it applies as much to a child giving evidence unsworn as to a child giving evidence sworn, and arguably applies with all the more force to a child giving evidence unsworn. I say that because such a child is likely to be younger and more likely to be affected by the factors which constitute the rationale for the rule.

The common law rule was not abolished by s 34I of the Act: Pahuja. Nor, in its application to a child giving unsworn evidence, is it abolished by s 12A of the Act.

In my opinion the common law rule, in its application to a child giving unsworn evidence, should be treated as abrogated by s 9(4) of the Act. I consider that a necessary implication of the requirement, on request, to warn a jury of the need for caution is that there can be no rule requiring a warning, as a matter of course, of the danger of acting upon the uncorroborated evidence of a young child. If the common law rule were still applicable, then as a matter of course the Judge would be called upon to give a warning that would be, to my mind, a stronger warning than the warning required by s 9(4) of the Act. I appreciate that s 9(4) could be treated as directed solely to the significance of the fact that the evidence is unsworn. But it would be confusing for a jury to be given separate warnings related to the fact that the evidence is given unsworn and related to the maturity and impressionability of a child witness. It might be thought that there would be little point in giving the warning required by s 9(4), if the common law rule continued to apply. Furthermore, bearing in mind that s 12A and s 9 were enacted at the same time, I think it likely that the intention was to replace the common law rule entirely, and to make statutory provision for children giving evidence sworn and unsworn. It is for those reasons that I have concluded that a necessary implication from the enactment of s 9(4) is the displacement of the common law rule relating to unsworn evidence given by children.

But that does not mean that s 9(4) stands alone. In the background remains the common law requirement to warn or to caution a jury whenever necessary to avoid "a perceptible risk of miscarriage of justice arising from the circumstances of the case": Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 86 Brennan, Dawson and Toohey JJ, Bromley v The Queen (1986) 161 CLR at 319 Gibbs CJ and at 325 Brennan J. See also Crampton v The Queen [2000] HCA 60; (2000) 176 ALR 369 at [39]- [45] Gaudron, Gummow and Callinan JJ; at [125]-[130] Kirby J. I consider that this common law requirement should not be regarded as abrogated by or as inconsistent with the requirements of s 9(4) of the Act. The requirement to warn or to comment will depend upon the circumstances of the case. It will arise only if there is a particular matter calling for a warning or comment. It does not arise simply because the witness is a child. The circumstances of the case will dictate the matters by reference to which the warning or comment is made, and the strength of the warning or comment. This requirement is different from a requirement as a matter of course, in all cases, to give a warning. This requirement can also be seen as operating consistently with s 9(4) of the Act.

I return now to the present case. The Judge was asked to, and did, warn himself of the need for caution as required by s 9(4) of the Act. The former common law requirement to warn himself against conviction on J's evidence, as it was uncorroborated, no longer applies. But was there a need for the Judge to give himself a warning or a reminder (by way of comment) about particular dangers in acting on the evidence of J, being dangers that arose in the circumstances of the case?

Factors which might have called for a warning or comment are the age of J, the fact that the prosecution case depended almost entirely on her evidence, the fact that her evidence was unsworn and uncorroborated, and the inconsistencies in her evidence to which I have already referred. Each of these matters was referred to by the Judge. None of these factors are matters which, in my opinion, would have required a warning to a jury. I say this because, in the end, each of them is a matter within common experience, which a jury would know and understand. Had the case been tried before a jury I consider that an appropriately expressed comment or caution would have sufficed. In my opinion that comment or caution would appropriately have been related to the combined effect of the factors identified by me.

As far as I am aware this Court has not yet decided whether or not common law requirements for warnings or cautions which apply when a case is tried before a jury apply with equal force when a case is tried by a judge sitting alone. No submissions were put on that question in this case. Assuming for present purposes that the same approach is taken whether a case is tried before a judge or before a jury, in the present case the Judge reminded himself of the need for caution. There is no reason to think that that reminder referred only to the fact that J's evidence was given unsworn. Accordingly, I consider that in this respect the Judge did all that was required.

For those reasons I reject the second ground of appeal.

This raises a relatively minor matter. The doctor who examined J referred to finding a possible abrasion. In his reasons, when the Judge referred to the doctor's examination, he spoke of an abrasion. Strictly, that was an error. But the significance of the doctor's finding is that it was a finding of something which could have been the result of penetration of the vagina by a finger. And in the Judge's reasons he referred to the abrasion simply as something that could have been caused by penetration with a finger. To my mind, it cannot be said that the Judge gave more weight to the possible finding than was appropriate. I reject this ground.

The submission that the verdict is unsafe and unsatisfactory rests upon the combined effect of the matters to which I have already referred when considering the need for a caution or warning.

I am satisfied that it was open to the Judge to make a finding of guilt beyond reasonable doubt, notwithstanding the presence of these factors. They are not factors as to which it can be said that everything is disposed of by the Judge's assessment of the demeanour of the witness. While the impression that J made on the Judge is a significant matter, that in itself is not a complete answer to doubts that might arise by reason of the factors identified. But in my opinion it remains the case that it was open to the Judge to be satisfied beyond reasonable doubt. The factors relied upon are not of such force that, in my opinion, one could conclude that notwithstanding the impression that J made on the Judge, it was not open to him to be satisfied beyond reasonable doubt. Accordingly, I would reject the fourth ground.

For those reasons the appeal should be allowed, the verdict should be set aside, and a retrial should be ordered. It is regrettable that a retrial should be necessary on what may seem to be a technical point. But the point is one which I regard as fundamental to a criminal trial.

PERRY J. I agree with the reasons published by Doyle CJ and with the order which he proposes. I share his regret as to the circumstances which have arisen in this case, which oblige the Court to order a retrial.

At the same time, I recognise that there may be some difficulty in determining how a trial judge should approach the task of determining whether the proposed witness has a "sufficient understanding of the obligation to be truthful entailed in giving sworn evidence": (ss 9(1) and (2) of the Evidence Act 1929). More particularly, a question arises as to whether or not the judge must still have regard to the proposed witness's belief in God and belief in the expectation that God will reward or punish in this world or the next, as to which, see R v Simmons [1997] SASC 6561; (1997) 68 SASR 81 per Perry J at 82 et seq.

The question was not argued in this case, and will have to await a suitable occasion upon which it may be addressed.

LANDER J. The common law required evidence taken in Court to be given on oath: R v Climas (Question of Law Reserved) [1999] SASC 457; (1999) 74 SASR 411 at 423.

Provided a child understood the nature and consequences of an oath a child of any age could give evidence on oath: R v Brasier (1779) 1 Leach 199; 168 ER 202.

The Evidence Act 1929 (SA) (the Act) has amended the common law to allow a Court to receive unsworn evidence from persons including children; s 9 of the Act.

However, it is only permissible for a Court to receive unsworn evidence if the procedure prescribed by s 9 of the Act itself is followed.

A Court can only receive unsworn evidence if the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, and the judge is satisfied that the person understands the difference between the truth and a lie, and the judge tells the person that it is important to tell the truth and the person indicates that he or she will tell the truth.

In my opinion, all four requirements must be satisfied before the Court can receive unsworn evidence.

If those requirements are not met the evidence cannot be received.

The requirements will not be met if the judge does not make a determination or is not satisfied that the person understands the difference between the truth and a lie or the person indicates that he or she will not tell the truth on being told that it is important to tell the truth.

The requirements will not be met if the judge fails to make a determination or to satisfy himself or herself that the person understands the difference between the truth and a lie or fails to tell the person that it is important to tell the truth.

In this case there is no record that the judge made the determination, or if he did that he was satisfied that J understood the difference between the truth and a lie, or that he had told J that it is important to tell the truth.

It seems to me whether the requirements are not met because the judge is not satisfied that the person understands the difference between the truth and a lie or because the judge fails to observe the procedure under the section does not matter much. The end result is the evidence is not admissible.

In my opinion, in this matter J's evidence was neither sworn or unsworn. In those circumstances it was not evidence that the judge could rely upon.

In those circumstances this was not a trial according to law. The appellant is entitled to have his trial conducted according to law.

I agree that the appeal therefore has to be allowed and that there must be re-trial.

I agree with the reasons of the Chief Justice.

Evidence Act 1929(SA)s 6(3), s

Juries Act 1927(SA)s 7(4)

Criminal Law Consolidation Act 1935(SA)s 353(1)

Evidence Act 1929(SA)s 6(3), s

Juries Act 1927(SA)s 7(4)

Criminal Law Consolidation Act 1935(SA)s 353(1)

R v STARRETT No. SCCRM-02-68 [2002] SASC 175

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Judgment (100 paragraphs)

R v STARRETT No. SCCRM-02-68 [2002] SASC 175 (13 June 2002)

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Legislation Cited (6)

Cases Cited (12)