The Queen v GW [2016] HCA 6: Unsworn Evidence Given by Child
Wednesday 2 March 2016 @ 11.47 a.m. | Crime | Legal Research
In The Queen v GW [2016] HCA 6 delivered today (2 Mar 2016), the High Court has unanimously allowed an appeal by the Director of Public Prosecutions for the ACT (the DPP) from [2015] ACTCA 15, decided on 24 April 2015, a decision of the ACT Court of Appeal. The High Court has found that the Uniform Evidence Legislation (the UEL) is "neutral" in its treatment of the weight that may be accorded to evidence "whether it is sworn or unsworn".
Background to the Proceeding
This case involves GW, the father of two young girls (R and H), born to M during her marriage to GW. A domestic incident on 29 March 2012 gave rise to cause for the police removing M from the family home, at which point GW then obtained an interim domestic violence order against M. The order prevented M from seeing their children during the ensuing days. At the time the two daughters were, in the case of R, five years old and in the case of H three years old. The two daughters, R and H, were removed from GW’s care on 2 April 2012 and placed in foster care. The removal of the two daughters followed a complaint made to the authorities on behalf of M.
At Trial
In R v GJ (No 1) [2014] ACTSC 108 (24 March 2014), GW was tried on charges of having committed acts of indecency upon both girls (R and H) between 29 March 2012 and 2 April 2012. The evidence relied on by the prosecution in that trial included "unsworn evidence" given by R at a pre-trial hearing before Justice Burns on 6 August 2013 and that evidence was given after Justice Burns had determined, under the Evidence Act 2011 (ACT) (the Evidence Act) section 13, that R was not competent to give sworn evidence. Section 13 deals with competence and lack of capacity and subsection (1) provides:
". . . A person is not competent to give evidence about a fact if, for any reason
(including a mental, intellectual or physical disability)—
(a) the person does not have the capacity to understand a question about the fact;
or
(b) the person does not have the capacity to give an answer that can be understood
to a question about the fact;
and that incapacity cannot be overcome.
Further Section 13(3) provides:
. . . A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, the person is under an obligation to give truthful evidence.
The determination by Justice Burns was made upon his Honour stating that:
“. . . because of the difficulty in truly gauging the level of her understanding . . . I am not satisfied that she has the capacity to understand that in giving evidence today she has an obligation to give truthful evidence” (“the finding”).
At trial, GW was found guilty by a jury of one out of the six acts he was charged with (namely count no. 3). On 14 July 2014, Justice Penfold sentenced GW to imprisonment for two years, the first three months to be served in periodic detention and the remainder suspended upon a good behaviour bond.
On Appeal
In [2015] ACTCA 15, decided on 24 April 2015 (judgment not available), GW appealed against his conviction, on grounds which included that Justice Penfold should not have admitted the unsworn evidence of the child R and in the alternative, that her Honour had failed to properly direct the jury in relation to that evidence.
The Court of Appeal (Murrell CJ, Refshauge and Ross JJ) by a unanimous decision allowed the appeal and ordered a retrial for GW with respect to count no. 3. The Court of Appeal held that the child R’s unsworn evidence should not have been admitted as Justice Burns had made a ". . . subtle but important error in making the finding". The Court of Appeal held that, in applying the Evidence Act section 13(3), the correct question for Justice Burns to answer was whether the child R lacked the capacity to understand that in giving evidence she was under an obligation to give truthful evidence. Justice Burns however, in the view of the Court of Appeal, had mistakenly treated unsworn evidence, rather than sworn evidence, as the default position.
Also their Honours held that, if the child R’s unsworn evidence had been admissible, Justice Penfold ought to have warned the jury that that evidence might be unreliable because it was unsworn evidence. This was in view of both the general primacy of sworn evidence and that in the trial of GW the most fundamental task for the jury was the assessment of the reliability of the child R’s evidence.
On Appeal to the High Court
On 16 October 2015 special leave to appeal to the High Court was granted (see [2015] HCATrans 267 and see [2015] HCATrans 325 for earlier hearings) on grounds which included the following:
The Court of Appeal erred in holding that where a witness has given unsworn evidence the jury should be directed as to the differences between sworn and unsworn evidence and that, in assessing the reliability of the witness’ evidence, they should take into account that the witness was giving unsworn rather than sworn evidence.
On 3 November 2015, GW filed a notice of contention, the ground of which was:
The Court of Appeal erred in its refusal to make an order under the Court Procedures Rules 2006 (ACT) rule 5531 (Appeals to Court of Appeal—grounds of appeal against conviction or sentence) by permitting the following ground of appeal:
“(g) the trial judge erred in failing to give any direction to the jury regarding the potential significance for other counts of a finding in respect of a count that a reasonable doubt existed as to the guilt of the accused”.
The High Court Decision
In its decision, the High Court has held that the pre-trial judge's failure to express his conclusion about the child R's capacity to give sworn evidence in the terms of the UEL (section 13) did not support a finding that his Honour was not satisfied that the child R was not competent to give sworn evidence.
Further, the question of whether the pre-trial judge was satisfied that the child R lacked the capacity to give sworn evidence ". . . turned on a consideration of all the circumstances, including that the pre-trial judge took into account that R was a six year old child and examined R to determine her competence to give sworn evidence, allaying concerns about his Honour's misapprehension of the 'default' position."
The High Court also held that the UEL is neutral in its treatment of the weight that may be accorded to sworn and unsworn evidence and found that accordingly, the trial judge was not required to direct the jury as defence counsel sought. The fact that child R did not give sworn evidence was "not material" to the jury's assessment of the reliability of her evidence - no direction was required by the UEL or the common law. See paragraph [54]:
"The Court of Appeal was right to say that the most difficult task that the jury had to undertake was the assessment of the reliability of R's evidence. As a matter of practical reality, neither the fact that R did not take an oath or make an affirmation before giving her evidence, nor that she was not subject to the sanctions that may apply to the failure to adhere to the oath or affirmation, was material to the assessment of whether R's evidence was truthful and reliable such that the jury could accept and act upon it."
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Sources:
The Queen v GW [2016] HCA 6 (2 March 2016) and judgment summary
Evidence Act 2011 (ACT) s 13 as reported in the TimeBase LawOne Service
