RA v R NON PUBLICATION ORDER

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

R v Ellis (2003) 58 NSWLR 700 CASES CITED: R v T (1998) 102 A Crim R 222 R v Yacoob (1981) 92 Cr App R 313

PARTIES: RA (Appl) The Crown

COUNSEL: C T Loukas/I H Nash (Appl) D C Frearson SC (Crown)

SOLICITORS: Aboriginal Legal Service (Appl) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/3311

McCLELLAN CJ at CL HOWIE J HARRISON J

Non publication order. The Court has made the following orders: 1. that there be no publication of the name of the appellant or of any matter that would identify him; 2. that the appellant be referred to in any record of these proceedings as "RA"; 3. that the name of the complainant, and any material apt to identify the complainant, not be published. 1 McCLELLAN CJ at CL: The appellant has been charged with one count of sexual intercourse with a child under the age of 10 years. A question has arisen at his trial as to whether the record of an interview with the complainant is admissible in evidence. The offence allegedly occurred in August 2003 when the complainant was aged five years and three months. She is now aged nine years. 2 The complainant was interviewed at the time of the alleged offence and a sound recording was made. The Crown now seeks to tender the recording as the complainant's evidence in chief pursuant to s 9(1) of the Evidence (Children) Act 1997. Before the trial judge defence counsel objected to the tender. It was submitted that before the interview could be admitted the trial judge must be satisfied, beyond reasonable doubt that, at the time she gave the interview, the complainant was competent to give evidence. This submission was maintained in this Court. 3 Before the trial judge and in this Court the Crown submitted that the competence of the complainant to give evidence was only required to be considered at the time she was called to give evidence at the trial. The Crown submitted that the court was not required to consider whether the complainant was competent at the time she gave the interview. 4 For reasons which I have set out below the trial judge determined that the complainant's interview was admissible in the proceedings. His Honour was however, persuaded that the question of when the competence of the complainant was required to be determined was an issue which justified consideration by this Court and accordingly indicated that he was prepared to provide a certificate pursuant to s 5F(b) of the Criminal Appeal Act 1912. Although his Honour made his decision on 23 May 2007 his certificate was only provided on the morning of the hearing and it would appear that when he signed the certificate he did not have access to his original judgment. Three grounds were included in the certificate being:

"1. I erred in holding that the complainant was competent to give evidence in the form of a recording of a previous representation.

2. I erred in holding that the defence had the onus on the balance of probabilities of proving lack of capacity.

3. I erred in not addressing the tests in both s 13(1) and s 13(2) Evidence Act 1995." 5 These grounds go beyond those which his Honour originally contemplated would justify consideration by this Court. In fact ground 2 misstates his Honour's finding with respect to the correct approach to the question of onus. 6 When delivering his reasons his Honour said: "The question is fairly raised because the child was only five at the time of making the recording and because there are a number of unclear answers in the course of her communication with the police officer, particularly on the subject of whether she understood the difference between telling the truth and telling a lie. Mr Nash argues that the burden of proof that she is incompetent does not lie with him, but his raising the issue means that the court has to satisfy itself of her competence. I think there is force in what he says. He cites the Victorian decision in Kane v Anor reported in 1993 68 A Crim R which in turn picks up the Victorian Full Court decision of Lyons (1899) 15 Victoria Law Reports 15, which say that 'counsel for an accused does not have the right to ask questions of a witness concerning that witness' competence.' And that earlier report refers to a practice which I think I have observed in this State. It is open to counsel to suggest to the judge questions which might be asked of a witness when examining, in terms of the witness' competence. But no right to cross-examine exists in either counsel, and it is for the court to satisfy itself as to this question. To that extent I suppose it is analogous to a fitness to plead hearing. The burden does not lie on either party, but the court has to be satisfied on the ultimate question. The difference in this case being that there is a presumption that she is competent, and that presumption has to be dislodged by proof on the balance of probabilities. It will return to that later. I do not express any view about her competence now, because I have not yet heard from her. If it be necessary to determine her competence, or rather to determine whether she has been proved to be incompetent at the time of making the recording in 2003, I would express myself to be on this evidence, at this stage, unpersuaded. True it is, that she gives some answers which are difficult to understand, until one looks at the questions which are asked, the hypotheses which were put to her, and so on. The police officer put the child, bearing in mind that she is five and he is a figure of authority, in an impossible position in asking her whether she could agree that her mother was telling lies in certain circumstances, and so on. I do not regard her answers in the recorded interview as demonstrating that she did not have an understanding of the difference between truth and a lie, so that I would not be persuaded she has been proved to be incompetent at the time of making the recording. As I said that is a tentative view, it maybe that there is further evidence which could be called in respect of this question, and so on but, at this stage, I would not be satisfied that she has been proved to be incompetent. It is likely in my view, of course, that assuming she is judged to be competent to give sworn or unsworn evidence at this time, that any question arising as to the validity of the recorded interview made in 2003 could be resolved by her adopting that recording now, but it seems to me the question posed by the accused is an important one, bearing in mind that this evidence formulated four years or more ago will become her evidence at the time of the trial. At this stage, on both bases, on the preliminary question of her competence, I would rule in favour of the crown. Maybe the time to determine the question is now, but even if I be wrong on that and that competence back in 2003 is an issue, I would not be satisfied on this evidence that she has been proven to be incompetent, and on either basis therefore, I would admit the recording." 7 From his Honour's reasons the following is evident:

1. His Honour did not hold that the defence had the onus of proving lack of capacity of the complainant.

2. Although his Honour did not express a concluded view about the matter he was inclined to the view that the competence of the complainant was only required to be assessed at the time she gave evidence. Notwithstanding this view, his Honour considered the evidence before him in relation to the interview and concluded that on the balance of probabilities, he was not satisfied that the statutory presumption that she was competent to give evidence had been displaced.

3. Because the necessary evidence was not before him his Honour expressed no view as to whether the complainant was competent to give evidence at the trial. 8 In these circumstances it is unnecessary for this court to resolve the question of whether the competence of a witness whose prior interview is tendered must be determined at the time the interview is given. Resolution of that question will require careful consideration of s 13 of the Evidence Act together with s 9 of the Evidence (Children) Act 1997. My tentative view is that the competence of the witness is only required to be determined at the time that person is called to give evidence. If competent the recording of the interview made in accordance with s 9 will be admissible in evidence, subject to s 15 of that Act. That section provides that "if it is satisfied that it is not in the interests of justice for the child's evidence to be given by a recording" the court may make an order to that effect (s 15(2)). If, notwithstanding s 15 the recording of the interview is admitted into evidence the weight to be given to it may vary depending upon the age of the witness and other matters relevant to the truthfulness and reliability of their evidence revealed by the interview and any cross-examination of the witness. 9 With respect to the issue of competence s 12 of the Evidence Act indicates that except as otherwise provided by the Act every person is competent to give evidence. Section 13 of the Act provides for the resolution of any question as to the competence of a witness. Section 13(5) is in the following terms: "It is presumed, unless the contrary is proved, that a person is not incompetent because of this section." 10 Subsection (7) provides: "For the purposes of determining a question under this section the Court may inform itself as it thinks fit." 11 The meaning of these subsections is plain. A person is presumed to be competent unless the contrary is proved. Any question of competence may be raised by the defence and the inquiry contemplated by subs (7) may be undertaken. Neither the defence nor the prosecution carries an onus. It is for the court to determine whether it is satisfied that there is proof that a person is incompetent. That question must be determined on the balance of probabilities s 142(1). Although reference was made to reports of the Australian Law Reform Commission and the common law (R v Yacoob (1981) 92 Cr App R 313 and R v T (1998) 102 A Crim R 222) the issue must be determined having regard to the relevant provisions of the Evidence Act: see R v Ellis (2003) 58 NSWLR 700. 12 It is apparent from his Honour's reasons that he has approached the resolution of the question of the complainant's competence in accordance with the requirements of the section. No error has been revealed. 13 Although it was apparent when the matter was heard by the trial judge that an appeal would be made to this Court it was not filed within time. An explanation for the delay has not been provided although there is nothing to suggest that the applicant himself was at fault. 14 In these circumstances I would grant leave to appeal but dismiss the appeal. 15 HOWIE J: I agree with McClellan CJ at CL. 16 HARRISON J: I agree with McClellan CJ at CL. **********

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