The Queen v GW [2016] HCA 6

HIGH COURT OF AUSTRALIA

FRENCH CJ, BELL, GAGELER, KEANE AND NETTLE JJ

THE QUEEN APPELLANT

AND

GW RESPONDENT

The Queen v GW [2016] HCA 6 2 March 2016 C13/2015

ORDER

1. Appeal allowed.

2. 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.

3. Remit the proceeding to the Court of Appeal for consequential orders with respect to sentence.

On appeal from the Supreme Court of the Australian Capital Territory

Representation

J White SC with N S Drumgold for the appellant (instructed by Director of Public Prosecutions (ACT))

S J Odgers SC with B K Baker for the respondent (instructed by Kamy Saeedi Law)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Queen v GW

Criminal law – Evidence – Unsworn evidence – Where respondent convicted following trial in Supreme Court of the Australian Capital Territory of commission of act of indecency in presence of daughter, R – Where R six years old when giving evidence – Where R's evidence received unsworn under s 13(3) of Uniform Evidence legislation – Where ex tempore reasons of pre-trial judge suggested reversal of presumption of competence to give sworn evidence – Where respondent agreed to be bound by pre-trial judge's ruling under s 13(3) – Whether pre-trial judge failed to apply s 13 – Whether open to pre-trial judge to be satisfied s 13(3) test met – Whether R's unsworn evidence wrongly admitted.

Criminal law – Evidence – Jury directions – Where audiovisual recording of child witness' unsworn evidence tendered at trial – Where respondent requested trial judge direct jury that evidence unsworn – Whether Uniform Evidence legislation required direction – Whether common law required direction to avoid perceptible risk of miscarriage of justice – Whether adequate directions given.