R v KERTAI [2010] NSWDC 264

R v KERTAI [2010] NSWDC 264

The accused did not satisfy the court that the matters relied on were circumstances particular to MN that affected the reliability of her evidence so as to warrant a s 165A warning. There was no basis to assume the shark reference was untrue; the witch reference was an attempt to describe emotional state rather than a belief in witches; and the child's willingness to lie to one parent at another parent's request was a commonplace matter whose significance for credibility was obvious to the jury without a special direction.

Jurisdiction
Australia
Judgment Date
16 November 2010
Procedural Posture
Criminal / Application for Direction to Jury Under S 165 A(2) of the Evidence Act After Evidence Closed and Before Addresses
Outcome
Application declined
Legal Topics
['jury Directions' 'child Complainant Evidence' 'reliability Warning' 'evidence Act 1995 S 165 A']
['criminal Law' 'evidence'] ['jury Directions' 'child Complainant Evidence' 'reliability Warning' 'evidence Act 1995 S 165 A']

Case Brief

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Procedural Posture

Criminal / Application for Direction to Jury Under S 165 A(2) of the Evidence Act After Evidence Closed and Before Addresses

Legal Issues

  1. 1 ["Whether the accused had satisfied the court that there were circumstances, other than solely the age of the child, particular to the child that affected the reliability of the child's evidence and warranted a warning or information under s 165A(2) of the Evidence Act." "Whether the complainant's references to a shark and a witch, and her willingness to lie to her mother about the accused's visits at her father's request, affected the reliability of her evidence so as to warrant the direction sought."]

Ratio Decidendi

The accused did not satisfy the court that the matters relied on were circumstances particular to MN that affected the reliability of her evidence so as to warrant a s 165A warning. There was no basis to assume the shark reference was untrue; the witch reference was an attempt to describe emotional state rather than a belief in witches; and the child's willingness to lie to one parent at another parent's request was a commonplace matter whose significance for credibility was obvious to the jury without a special direction.

Court Disposition

Application declined

Orders

  • ['The application for a direction under s 165A(2) of the Evidence Act was declined.']