Pease v R [2009] NSWCCA 136

Pease v R [2009] NSWCCA 136

The trial judge had material from the police audio interview, his own questioning of the complainant, and his observation of her demeanour on which to assess her capacity under s 13. The judge did not presume incapacity merely from age, and the statutory distinction between understanding truth and lies and understanding the obligation to give truthful evidence was applied. The procedure adopted was compatible with authority and the applicant did not show any miscarriage of the judge's discretionary judgment.

Jurisdiction
Australia
Judgment Date
01 May 2009
Procedural Posture
Criminal Appeal Against Conviction / Appeal Against Conviction in the New South Wales Court of Criminal Appeal Following Jury Trial in the District Court
Outcome
Appeal against conviction dismissed.
Legal Topics
['sexual Offence Against a Child Under Ten' 'competence of Child Witness' 'sworn and Unsworn Evidence' "admissibility of Complainant's Oral Testimony" 'evidence Act 1995 S 13']
['criminal Law and Procedure' 'evidence'] ['sexual Offence Against a Child Under Ten' 'competence of Child Witness' 'sworn and Unsworn Evidence' "admissibility of Complainant's Oral Testimony" 'evidence Act 1995 S 13']

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Procedural Posture

Criminal Appeal Against Conviction / Appeal Against Conviction in the New South Wales Court of Criminal Appeal Following Jury Trial in the District Court

Legal Issues

  1. 1 ["Whether the trial judge erred in allowing the complainant's oral testimony to go before the jury." 'Whether there was material on which the trial judge could find that the complainant was incapable of understanding the obligation to give truthful evidence under s 13(1) of the Evidence Act 1995.' "Whether the trial judge wrongly presumed incapacity from the complainant's age."]

Ratio Decidendi

The trial judge had material from the police audio interview, his own questioning of the complainant, and his observation of her demeanour on which to assess her capacity under s 13. The judge did not presume incapacity merely from age, and the statutory distinction between understanding truth and lies and understanding the obligation to give truthful evidence was applied. The procedure adopted was compatible with authority and the applicant did not show any miscarriage of the judge's discretionary judgment.

Court Disposition

Appeal against conviction dismissed.

Orders

  • ['Appeal against conviction dismissed.']