RJ v R [2010] NSWCCA 263

RJ v R [2010] NSWCCA 263

The appeal was allowed because the trial judge permitted the child complainant to give unsworn evidence without first deciding that the statutory presumption of competence to give sworn evidence had been displaced under Evidence Act 1995 s 13(3). The complainant's unsworn evidence therefore contravened s 21 and was not legitimately before the jury. That was a fundamental irregularity going to the root of the trial, so the convictions could not stand. The complaints about the prosecutor's address and the judge's direction concerning good character did not establish a miscarriage of justice and leave under Rule 4 was not granted for those grounds.

Jurisdiction
Australia
Judgment Date
15 November 2010
Procedural Posture
Criminal Appeal / Appeal Against Convictions in the District Court for Four Child Sexual Assault Offences
Outcome
Appeal allowed; convictions set aside; matter remitted for a new trial.
Legal Topics
['sexual Assault' 'competence of Witness to Take Oath' 'unsworn Evidence by Child' 'admissibility of Evidence' 'good Character Evidence' 'criminal Appeal' 'rule 4 Leave' 'miscarriage of Justice']
['criminal Law' 'evidence' 'criminal Procedure'] ['sexual Assault' 'competence of Witness to Take Oath' 'unsworn Evidence by Child' 'admissibility of Evidence' 'good Character Evidence' 'criminal Appeal' 'rule 4 Leave' 'miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Convictions in the District Court for Four Child Sexual Assault Offences

Legal Issues

  1. 1 ['Whether the trial miscarried because the complainant gave unsworn evidence without the procedures required by the Evidence Act 1995 first being followed.' "Whether leave under Rule 4 of the Criminal Appeal Rules was required or should be granted where no objection was taken at trial to receiving the complainant's unsworn evidence." "Whether the Crown prosecutor's closing address concerning good character evidence was prejudicial to the appellant." "Whether the trial judge's directions to the jury concerning the appellant's good character evidence were inadequate or prejudicial."]

Ratio Decidendi

The appeal was allowed because the trial judge permitted the child complainant to give unsworn evidence without first deciding that the statutory presumption of competence to give sworn evidence had been displaced under Evidence Act 1995 s 13(3). The complainant's unsworn evidence therefore contravened s 21 and was not legitimately before the jury. That was a fundamental irregularity going to the root of the trial, so the convictions could not stand. The complaints about the prosecutor's address and the judge's direction concerning good character did not establish a miscarriage of justice and leave under Rule 4 was not granted for those grounds.

Court Disposition

Appeal allowed; convictions set aside; matter remitted for a new trial.

Orders

  • ['Appeal allowed.' 'Set aside the conviction in the court below.' 'Remit the matter to the District Court for a new trial.']