SUPREME COURT OF QUEENSLAND

CITATION:	R v WAU [2013] QCA 265	
PARTIES:	R
v
WAU
(appellant/applicant)	
FILE NO/S:	CA No 331 of 2012
DC No 607 of 2012	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction & Sentence	
ORIGINATING COURT:	District Court at Brisbane	
DELIVERED ON:	Orders delivered ex tempore 10 July 2013
Reasons delivered 20 September 2013	
DELIVERED AT:	Brisbane	
HEARING DATE:	10 July 2013	
JUDGES:	Holmes and Gotterson JJA and Douglas J
Judgment of the Court	
ORDERS:	Delivered ex tempore on 10 July 2013:
1.	The appeal is allowed.
2.	The convictions are set aside.
3.	A re-trial is ordered on all counts.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of four counts of rape – where the complainant gave unsworn evidence – where the appellant contended that the trial judge failed to comply with the requirements of s 9B of the Evidence Act 1977 – where the appellant argued that the trial judge failed to properly assess the complainant’s competence to give evidence in the proceeding on oath – whether the trial judge should have made inquiry as to the complainant’s understanding that the giving of evidence is a serious matter – whether the trial judge should have made inquiry as to the complainant’s understanding that in giving evidence she has an obligation to tell the truth over and above the ordinary duty to tell the truth – whether a miscarriage of justice resulted from the failure to ascertain whether the complainant was competent to give evidence under oath and if so have the witness sworn or affirmed – whether the proviso could be applied
EVIDENCE – WITNESSES – SWEARING AND OATHS – CAPACITY IN GENERAL – YOUNG CHILDREN – where the complainant was a nine year old child – where the complainant gave pre-recorded evidence by a closed-circuit television – where the examination-in-chief, cross-examination and re-examination occurred without the complainant having been first sworn or affirmed – whether the complainant was permitted to give evidence without having been sworn or affirmed in circumstances where the court had not reached the required opinion with respect to her competency to give evidence on oath – whether there has been a miscarriage of justice
Criminal Code 1899 (Qld), s 349, s 668E
Evidence Act 1977 (Qld), s 9, s 9B
R v BBR [2010] 1 Qd R 546; [2009] QCA 178, cited
R v Brown [1977] Qd R 220, distinguished
R v MBT [2012] QCA 343, cited	
COUNSEL:	K Prskalo for the appellant/applicant
M R Byrne QC for the respondent	
SOLICITORS:	Legal Aid Queensland for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	THE COURT:  After a trial over six days in the District Court at Brisbane, the appellant, WAU, was found guilty on 12 November 2012 on four counts of rape (counts 1, 5, 8 and 10) and seven counts of indecent treatment of a child in circumstances where the child was under 12 years of age and under his care (counts 2, 3, 6, 7, 9, 11 and 12).  One of the latter convictions was upon an alternative to an additional rape count (count 4) of which the appellant was found not guilty.  The rape counts alleged crimes against s 349 of the Criminal Code (Qld) and the indecent treatment counts offences against ss 210(1)(a), (3) and (4) thereof.
[2]	All offences were alleged to have been committed by the appellant between 1 January 2008 and 17 June 2009 against the one complainant who was his partner’s niece.  She was aged between five and a half years and seven years of age at the time of the alleged offending.  The appellant was sentenced to eight years imprisonment on count 1 and concurrent sentences of six years imprisonment for the other rape convictions, five years imprisonment for the alternative indecent treatment conviction and four years imprisonment for each of the other indecent treatment convictions.
[3]	On 7 December 2012 the appellant filed a notice of appeal against the convictions and an application for leave to appeal against sentence.  Both the appeal and the application were heard together on 10 July 2013.  At the conclusion of argument, the court adjourned briefly then reconvened and made orders allowing the appeal, setting aside all convictions and ordering a retrial on all counts (other than count 4) with reasons to be provided later.  In those circumstances, it was unnecessary for the court to determine the application for leave to appeal against sentence.
[4]	The following are the court’s reasons for allowing the appeal.
Grounds of appeal against conviction
[5]	At the hearing of the appeal, the appellant was granted leave to amend the grounds of appeal with the consequence that the only grounds pursued are the following ones:
(a)	The learned trial judge erred in permitting the complainant to give unsworn evidence without first ascertaining whether she should be sworn pursuant to s 9B(2) of the Evidence Act 1977 (Qld) (“Evidence Act”).
(b)	The learned trial judge erred in failing to explain to the complainant the duty of speaking the truth pursuant to s 9B(3) of the Evidence Act.
[6]	The two statutory provisions to which these grounds are referenced are within Division 1A of Part 2 of the Evidence Act (ss 9-9D).  This division is headed “Competency of witnesses and capacity to be sworn”.  It contains the following provisions relevant to these grounds of appeal:
“9	Presumption as to competency
(1)	Every person, including a child, is presumed to be—
(a)	competent to give evidence in a proceeding; and
(b)	competent to give evidence in a proceeding on oath.
(2)	Subsection (1) is subject to this division.
…
9B	Competency to give sworn evidence
(1)	This section applies if, in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness in the proceeding to give evidence on oath.
(2)	The person is competent to give evidence in the proceeding on oath if, in the court’s opinion, the person understands that—
(a)	the giving of evidence is a serious matter; and
(b)	in giving evidence, he or she has an obligation to tell the truth that is over and above the ordinary duty to tell the truth.
(3)	If the person is competent to give evidence in the proceeding but is not competent to give the evidence on oath, the court must explain to the person the duty of speaking the truth.
Note—
The Oaths Act 1867, section 17, makes provision for a person called as a witness to make his or her solemn affirmation instead of being sworn.”
[7]	In summary, s 9 creates a statutory presumption that every person, including a child, is competent both to give evidence in a proceeding and to give it on oath.  The presumption is subject to the provisions in Division 1A which follow s 9.  Section 9A applies when in a particular case, an issue is raised about the competency of a person called as a witness to give evidence.  That did not occur in this case.  Section 9B, however, applies where an issue is raised by a party to the proceeding or the court, about the competency of a person called as a witness to give evidence on oath.  As is explained later in these reasons, there is an issue whether or not this provision was engaged with respect to evidence given by the complainant.
Circumstances in which the complainant’s evidence was given
[8]	The complainant gave pre-recorded evidence at a hearing on 18 April 2012.  At that point she was nine years and ten months old.  Her evidence was given by a closed-circuit television.  After explaining to her the procedure by which she would be examined by the Crown prosecutor and defence counsel, the learned judge mentioned the arrangements for rest breaks.  The transcript records that the following exchanges then occurred:
“[HIS HONOUR]: All right. Well the first person you’ll hear from now is the bailiff. I should ask you this, do you know what it means to swear an oath on the bible?-- No not really.
Ever - never heard of that before?-- No.
Okay. Do you know the difference between telling the truth and telling lies?-- Yes.
And do you know that it's important to tell the truth particularly in a Courtroom?-- Yep.
Do you understand all that?-- Yes.
And it's equally important not to tell lies in a Courtroom, you understand that?-- Yes.
Okay. Well, gentlemen, I don't know that there’s any purpose in having the witness sworn.
DEFENCE COUNSEL: Very well, your Honour, it’s – I’ll leave it to your Honour.
HIS HONOUR: All right. No submissions to the contrary?
CROWN PROSECUTOR: No, your Honour.
HIS HONOUR: All right. All right, [complainant], well you’ll hear from [the Crown Prosecutor] now. Okay?-- Yep.”
[9]	The examination-in-chief, cross-examination and re-examination of the complainant then ensued over about two hours without the complainant having first been sworn or affirmed.  The recording of the complainant’s evidence was played to the jury on the second day of the trial.  The prosecution also tendered DVD recordings of two interviews of the complainant by police officers made pursuant to s 93A of the Evidence Act on 31 March and 1 April 2010 respectively.  These recordings were played to the jury on the first day of the trial.
Ground 1: s 9B(2) opinion
[10]	As developed in submissions, this ground of appeal contends that in the events which occurred, s 9B(2) required the learned judge to have formed an opinion as to whether or not the complainant understood the two matters set out in (a) and (b) thereof, and that he failed to form such an opinion.  The appellant argues that in so doing, his Honour failed to comply with a mandatory requirement for assessment of the complainant’s competency to give evidence on oath.  A consequence of this was that the complainant was permitted to give evidence without having been sworn or affirmed in circumstances where the court had not reached the required opinion with respect to her competency to give evidence on oath.
[11]	The appellant’s contention assumes that s 9B was engaged.  For that to have occurred, an issue needed to have been raised by a party or the court about the competency of the complainant to give evidence on oath.  The appellant submits that it was raised.
[12]	The respondent contends to the contrary, submitting that the provision had not been engaged because no such issue was raised.  As an alternative, the respondent contends that if the issue was raised, the opinion required by s 9B(2) was formed.
[13]	It ought be said at once that the respondent candidly conceded that if its contention were correct, then the presumption in s 9(1) would have operated with the consequence that the complainant would have been required to have been sworn or affirmed.  That that did not occur revealed a failure to comply with a requirement of an associated, but identifiably different kind, namely, that as a witness competent to give evidence on oath, the complainant ought to have been sworn or affirmed.
[14]	In written submissions, the appellant proposed that s 9B had been engaged because the complainant did not understand what it meant to swear an oath on the Bible.  That observation would seem to be flawed at two levels.  Firstly, that it is for the parties or the court to raise the issue of competency to give evidence on oath, not the witness.  Secondly, conformably with the matters for opinion set out in s 9B(2), an understanding of swearing an oath on the Bible is not a relevant test for determining competency to give evidence on oath.
[15]	However, as the cited passage from the transcript reveals, the learned judge did ask the complainant whether she knew that it was important to tell the truth particularly in a courtroom and whether she understood that it was equally important not to tell lies in a courtroom.  To both questions she answered in the affirmative.  Those questions concerned matters for opinion set out in s 9B(2).  They were asked by the presiding judge.  The appropriate conclusion to draw is that by asking them, the court itself raised an issue as to the competency of the complainant to give evidence on oath.  The additional reference in the questioning to swearing an oath on the Bible does not stand in the way of that conclusion.  Thus s 9B was engaged.
[16]	The respondent argues that the course of events, namely, the questioning, the opportunity to observe and assess the complainant as she answered and the willingness on the part of the defence counsel to leave matters to the judge, would ground an inference that the requisite opinion was formed.  There are several difficulties with that argument.  The answers that the complainant gave to the two relevant questions would arguably found a basis for an opinion that the complainant understood both matters set out in s 9B(2).  Notwithstanding, the complainant was neither sworn nor affirmed.  That she was not is apt to imply that any opinion that was formed was that she did not have the requisite understanding.  The uncertainty as to what the inferred opinion ought to be quite undermines the respondent’s argument in this respect.  Properly viewed, the record does not reveal that an opinion either way was formed as to the complainant’s understanding of either matter.
[17]	The appellant therefore is correct in contending that the learned judge failed to form an opinion with respect to the matters set out in s 9B(2) as he was required to do.  This case serves to illustrate the necessities that an opinion be formed when the subsection requires it to be formed and, no less importantly, that the opinion formed be stated and recorded.
[18]	Addressing this type of failure and the failure exposed by the concession to which reference has been made at paragraph [13] of these reasons, the respondent submitted that either failure would admit of the application of the proviso in s 668E(1) of the Criminal Code.  Absent the application of the proviso, that subsection would require that this appeal be allowed.
[19]	This submission encounters substantial difficulty in that it confronts a line of authority in this court which stands firmly against it.  Reference need be made only to the following paragraphs in the judgment of Holmes JA in MBT for a summary of the authorities and an illustration of the application of what they propound:
“[41]	The ultimate view of this Court in BBR, as articulated in Chesterman JA’s judgment, was that s 9B(2) provided a test of competence to give sworn evidence. Although the sub-section did not expressly say so, it should be construed as permitting a witness to give unsworn testimony only where it was demonstrated that he or she did not have the understanding described in s 9B(2). The trial judge had not considered whether K was competent to give evidence by reference to that test; that is, whether she understood that giving evidence was serious and involved an obligation ‘over and above the ordinary duty to tell the truth’. Permitting her to give unsworn testimony without ascertaining whether she should be sworn was an error of law affecting the trial and its outcome. The failure to comply with s 9B had
‘deprived the appellant of a proper trial, that is one conducted according to law, with evidence tendered according to the law’s prescriptions.’
The errors were so fundamental that the proviso could have no application.
[42]	BBR was applied in a later decision of this court, R v Chalmers. In that case, the appellant succeeded in having his convictions quashed on the ground that the verdicts were unreasonable. The court also dealt with a second ground of appeal: that the trial judge had failed to comply with the requirements of s 9B of the Evidence Act. All members of the court agreed that the trial judge had failed to determine, as s 9B(2) required, whether the complainant (who, like A, was six years old) was competent to give evidence on oath. Chesterman JA described the child’s evidence as consequently ‘inadmissible’; McMurdo P, with whose analysis Cullinane J agreed, said that the failure to comply with s 9B(2) (and also s 9B(3) as to the explanation of the duty of speaking the truth) had resulted in a fundamental irregularity which would have required a retrial had the appeal not succeeded on the unreasonable verdict ground.
[43]	In the present case, the trial judge similarly did not make any investigation or determination of whether A understood the particular gravity of giving evidence in court and the special importance of giving truthful evidence. The respondent’s contention was that since the conditions in s 9B(2) had not been made out, it followed that A was not competent to give evidence on oath. But the starting point in s 9(1)(b) is presumed competence to give sworn evidence, including for a child, without consideration being given to the taking of unsworn testimony unless an issue is raised about competence. That approach is consistent with the common law principle that an accused person’s trial should be based on sworn evidence. The presumption of competence can be rebutted, but the rebuttal cannot occur simply through a failure to consider the matters in s 9B(2).”
[20]	This Court is not persuaded that any qualification upon, or departure from, that line of authority is warranted in this matter.  Specifically, the court rejects a submission made in oral argument that the requirement of s 9B(3) that the explanation about speaking the truth be given to a witness not competent to give evidence on oath displaces the essentiality to the fairness of a trial of swearing or affirming a witness who is competent to give evidence on oath.  That submission wholly fails to give due recognition to the solemnity of taking an oath and the impact that has, and is seen by others, including the accused to have, on the conscience of the witness who is to give evidence.
[21]	Reliance was also placed on the decision of the Full Court in R v Brown.  In that case, the majority applied the proviso where two children who were called to give identification evidence in a rape case were sworn notwithstanding that they were not questioned in conformity with the common law test as to competency to give evidence on oath.  The case can be distinguished in a number of respects such that its utility as an analogy here is marginal.  There, the witnesses were sworn; they did not give unsworn testimony.  There was a full confession by the accused.  Also there was compelling scientific evidence implicating the accused, unlike the present case where the complainant’s evidence is critical in implicating the appellant.
[22]	For these reasons, this ground of appeal must succeed and the appeal against all convictions be allowed.
Ground 2: s 9B(3) explanation
[23]	Since no opinion was formed by the learned judge that the complainant was not competent to give evidence on oath, the requirement that the explanation set out in s 9B(3) be given, was not triggered.  This ground of appeal is not made out.
Disposition
[24]	Given that the appeal has succeeded on Ground 1 only, it is appropriate that the appellant be retried on all counts on which he was convicted.