The Queen v GW [2016] HCA 6

The Queen v GW [2016] HCA 6

The Evidence Act 2011 (ACT) does not require a trial judge to direct the jury that evidence is unsworn or instruct the jury to take that into account when assessing reliability; nor does the common law require such a direction solely because the evidence is unsworn. There was no legal error in not giving such a direction. The Court of Appeal erred in holding otherwise and in setting aside the conviction.

Parties
Appellant: The Queen; Respondent: GW
Jurisdiction
Australia
Judgment Date
02 March 2016
Procedural Posture
Criminal Appeal / High Court Appeal From Court of Appeal of the Supreme Court of the Australian Capital Territory
Outcome
Appeal allowed
Legal Topics
Evidence of Children, Unsworn Evidence, Jury Directions, Competence of Witnesses, Miscarriage of Justice
Criminal Law Evidence Law Evidence of Children Unsworn Evidence Jury Directions Competence of Witnesses Miscarriage of Justice

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Parties

The Queen

Appellant

GW

Respondent

Procedural Posture

Criminal Appeal / High Court Appeal From Court of Appeal of the Supreme Court of the Australian Capital Territory

Legal Issues

  1. 1 Whether the pre-trial judge failed to apply s 13 of the Evidence Act 2011 (ACT) in permitting a child witness to give unsworn evidence
  2. 2 Whether it was open to the pre-trial judge to be satisfied the s 13(3) test was met
  3. 3 Whether the child's unsworn evidence was wrongly admitted

Ratio Decidendi

The Evidence Act 2011 (ACT) does not require a trial judge to direct the jury that evidence is unsworn or instruct the jury to take that into account when assessing reliability; nor does the common law require such a direction solely because the evidence is unsworn. There was no legal error in not giving such a direction. The Court of Appeal erred in holding otherwise and in setting aside the conviction.

Court Disposition

Appeal allowed

Orders

  • Appeal allowed.
  • Set aside orders 1 to 3 of the Court of Appeal of the Supreme Court of the Australian Capital Territory made on 24 April 2015.