SH v Regina [2012] NSWCCA 79

SH v Regina [2012] NSWCCA 79

The trial judge did not give the complainant the full direction required by Evidence Act 1995 (NSW), s 13(5)(c), because he omitted the requirement that she should feel no pressure to agree with statements she believed were untrue. Although the prosecutor had earlier asked questions touching on pressure, compliance with s 13(5) required the court to give the statutory directions in full. Because the complainant had not been found competent to give sworn evidence and was not given the required directions, she was not competent to give unsworn evidence. The trial was therefore not conducted according to law and the conviction had to be set aside.

Jurisdiction
Australia
Judgment Date
03 May 2012
Procedural Posture
Criminal Appeal Against Conviction / Appeal to the Court of Criminal Appeal
Outcome
Appeal allowed; conviction set aside.
Legal Topics
['conviction Appeal' 'competence of Witnesses' 'unsworn Evidence' 'child Complainant' 'evidence Act 1995 (nsw), S 13' 'miscarriage of Justice']
['criminal Law' 'evidence'] ['conviction Appeal' 'competence of Witnesses' 'unsworn Evidence' 'child Complainant' 'evidence Act 1995 (nsw), S 13' 'miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Appeal to the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the trial judge complied with Evidence Act 1995 (NSW), s 13(5) before allowing the child complainant to give unsworn evidence.' 'Whether the omission of the instruction that the complainant should feel no pressure to agree with statements she believed were untrue meant that the complainant was not competent to give unsworn evidence.' 'Whether non-compliance with s 13(5) required the conviction to be set aside despite no objection being taken at trial and despite the possibility that there was no substantial miscarriage of justice.']

Ratio Decidendi

The trial judge did not give the complainant the full direction required by Evidence Act 1995 (NSW), s 13(5)(c), because he omitted the requirement that she should feel no pressure to agree with statements she believed were untrue. Although the prosecutor had earlier asked questions touching on pressure, compliance with s 13(5) required the court to give the statutory directions in full. Because the complainant had not been found competent to give sworn evidence and was not given the required directions, she was not competent to give unsworn evidence. The trial was therefore not conducted according to law and the conviction had to be set aside.

Court Disposition

Appeal allowed; conviction set aside.

Orders

  • ['Appeal allowed.' 'Conviction set aside.']