The High Court has allowed an appeal against a decision of the ACT Court of Appeal on unsworn evidence given by children. GW was convicted of several counts of committing acts of indecency upon or in the presence of R and H, his children. In a pre-trial hearing, pursuant to s 13 of the Evidence Act 2011 (ACT), Burns J ruled that R, a six year old, was not competent to give sworn evidence on the basis that while she said she understood the difference between truth and falsehood and the obligation to tell the truth, Burns J was ‘not satisfied’ that she had the capacity to understand that giving evidence involves the obligation to give truthful evidence. Defence counsel did not make any objection to Burns J’s statement or decision at the pre-trial stage, but requested at the trial stage before Penfold J that her Honour advise the jury that R was not giving sworn evidence. Penfold J declined to do so then, and refused defence counsel’s later request that her Honour give a warning on sworn and unsworn evidence in her summing up to the jury.
The ACTCA upheld the respondent’s appeal against his conviction on the basis that R’s unsworn evidence should not have been admitted by Burns J, who misapplied s 13, and that Penfold J erred in failing to direct the jury appropriately on that evidence, and should have given a warning on reliability. Before the High Court the Crown sought to show that the ACTCA gave an artificially strict interpretation to the requirements of s 13, and that the requirement of a direction on reliability, which the Crown contended is based in the ACTCA’s identification as ‘the underlying policy that gives primacy to sworn evidence’, is contrary to the requirements of Uniform Evidence Act statutes and subsequent case law on the provisions on children’s evidence.
The Court allowed the appeal in a unanimous judgment (French CJ, Bell, Gageler, Keane and Nettle JJ). The Court held that the meaning of ‘obligation’ within s 13 is to be understood in its ordinary meaning of being legally or morally bound to something — here, to give truthful evidence — and that a child may understand the general obligation to tell the truth without understanding what it means to give evidence in court, let alone understanding concepts of legal or moral obligation. R’s affirmative answer to the question put to her about whether she understood she had to tell the truth did not necessarily convey that she did have the capacity to understand that she was under that obligation (see at ), and Burns J still needed to be affirmatively satisfied that she did not have the requisite capacity before he turned to admit her evidence unsworn (at ). The Court held that the Court of Appeal’s analysis of Burns J’s approach to the s 13 test was based on the pre-2008 legislative position: s 13 does not condition the admission of unsworn evidence on the witness’s understanding of the importance of telling the truth and the only purpose of the examination was to assess R’s competence to give sworn evidence about a fact (at ). Contrary to the respondent’s submissions and the Court of Appeal, Burns J’s comments did not suggest that he misapprehended the test as meaning the ‘default’ position was to take R’s evidence unsworn, and while he did not express his conclusions in the precise terms of the statute, in the circumstances that could not support a finding that Burns J was not satisfied on the balance of proababilities that R lacked capacity (see at ). Turning to the adequacy of directions, the Court held that the Court of Appeal erred in holding that Penfold J was required to give additional directions on the reliability of R’s evidence given it was unsworn because the Evidence Act does not treat unsworn evidence as a kind of evidence that might be unreliable, nor was there any common law requirement to either to caution the jury in accepting R’s evidence because it was unsworn or to direct the jury to take into account the differences between sworn and unsworn evidence in assessing R’s evidence (at , see also ff). The proceeding has been remitted to the Court of Appeal for consequential orders on sentencing (see ).
|High Court Judgment|| HCA 6||3 March 2016|
|High Court Documents||The Queen v GW
|Full Court Hearing|| HCATrans 325||10 December 2015|
|Special Leave Hearing|| HCATrans 267||16 October 2015|
|Appeal from ACTCA|| ACTCA 15||24 April 2015|
|Trial Judgment, ACTSC
|| ACTSC 108||26 March 2014|
Note that both the trial and appeal decisions have been temporarily removed from Austlii.