Special Bulletin 27 — May 2012
SH v R [2012] NSWCCA 79
Competence — failure of court to comply with s 13(5) Evidence Act 1995
In SH v R, the trial court failed to comply with the competence provisions in the Evidence Act 1995. If a witness is not competent to give sworn evidence about a fact — because the person does not have the capacity to understand that he or she is under an obligation to give truthful evidence (s 13(3)) — he or she may, subject to s 13(5), be competent to give unsworn evidence: s 13(4).
Section 13(5) provides:
A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:
- (a)
that it is important to tell the truth, and
- (b)
that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and
- (c)
that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue. [Emphasis added.]
The court (Basten JA; Blanch and Hall JJ agreed) held that ss 13(4) and (5) Evidence Act (amended by the Evidence Amendment Act 2007) introduced “the idea of a condition of competence”: at [19]. Section 13(4) is subject to s 13(5). Although s 13(4) uses the term “may” there is no residual discretion to decline to allow unsworn evidence to be given once the terms of s 13(4) have been met: at [26]. Competence is said to arise in s 13(5) “if” the court has told the prospective witness the matters referred to in s 13(5)(a)–(c). Careful and strict compliance with these provisions is required.
Despite an attempt to do so (see [32]), the court failed to comply with the strict terms of s 13(5)(c) by omitting to tell the witness that she should feel no pressure to agree with statements that she believes are untrue: at [33]–[34]. The fact that the prosecutor had earlier questioned the witness to the effect that she “shouldn’t feel under any pressure” (see [28]) did not overcome the problem: at [35]. The instruction in s 13(5)(c) must be provided by the court and not the person likely to be doing the questioning: at [13]. Section 13(5)(c) does not require the instruction to the prospective witness to be given in a particular form but to a particular effect: at [22]. The effect of the omission was that the trial had not been conducted according to law and the conviction had to be set aside: at [35].
A reference to the case will be added to the discussion of competence in the Criminal Trial Courts Bench Book, Child Witness/Accused at [1-123].