Tikomaimaleya v R [2017] NSWCCA 214

Tikomaimaleya v R [2017] NSWCCA 214

The trial judge identified the correct question under s 13(3), questioned the complainant, and was entitled to conclude that she had capacity to understand the obligation to give truthful evidence; no error in that reasoning was shown. Sections 59 and 61 of the Evidence Act 1995 (NSW) did not govern admission of the recorded interview because it was admitted under s 306V(1) of the Criminal Procedure Act 1986 (NSW), and no issue about the complainant's competence at the time of interview had been raised at trial. After an independent assessment of the evidence, including the complainant's accounts, the complaint evidence, timing issues, childcare evidence and good character evidence, it...

Jurisdiction
Australia
Judgment Date
01 September 2017
Procedural Posture
Criminal Appeal Against Conviction / Appeal in the Court of Criminal Appeal From a District Court Conviction; Leave Sought to Rely on Ground 3
Outcome
Leave granted to rely on Ground 3 of the Notice of Appeal; appeal against conviction dismissed.
Legal Topics
['child Sexual Offence' 'competence of Child Witness' 'sworn and Unsworn Evidence' 'pre Recorded Interview of Vulnerable Witness' 'hearsay Rule' 'unreasonable Verdict']
['criminal Law' 'evidence' 'criminal Procedure'] ['child Sexual Offence' 'competence of Child Witness' 'sworn and Unsworn Evidence' 'pre Recorded Interview of Vulnerable Witness' 'hearsay Rule' 'unreasonable Verdict']

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Procedural Posture

Criminal Appeal Against Conviction / Appeal in the Court of Criminal Appeal From a District Court Conviction; Leave Sought to Rely on Ground 3

Legal Issues

  1. 1 ['Whether the trial judge erred in holding that the complainant was competent to give sworn evidence under s 13 of the Evidence Act 1995 (NSW).' "Whether admission of the complainant's pre-recorded interview resulted in a failure of procedure or miscarriage of justice, including whether ss 59 and 61 of the Evidence Act 1995 (NSW) applied." 'Whether the verdict of guilty of sexual intercourse with a child under the age of 10 years was unreasonable or unsupported by the evidence.']

Ratio Decidendi

The trial judge identified the correct question under s 13(3), questioned the complainant, and was entitled to conclude that she had capacity to understand the obligation to give truthful evidence; no error in that reasoning was shown. Sections 59 and 61 of the Evidence Act 1995 (NSW) did not govern admission of the recorded interview because it was admitted under s 306V(1) of the Criminal Procedure Act 1986 (NSW), and no issue about the complainant's competence at the time of interview had been raised at trial. After an independent assessment of the evidence, including the complainant's accounts, the complaint evidence, timing issues, childcare evidence and good character evidence, it...

Court Disposition

Leave granted to rely on Ground 3 of the Notice of Appeal; appeal against conviction dismissed.

Orders

  • ['Leave granted to rely on Ground 3 of the Notice of Appeal.' 'Appeal against conviction dismissed.']