Regina v JTB [2003] NSWCCA 295

New South Wales Court of Criminal Appeal

CITATION : Regina v JTB [2003] NSWCCA 295 HEARING DATE(S) : Friday 3 October 2003 JUDGMENT DATE : 3 October 2003

JUDGMENT OF : Grove J at 1; Hulme J at 18; Greg James J at 24 DECISION : APPEAL ALLOWED; NEW TRIAL ORDERED

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - WITNESS AGED 8 - ASSUMPTION THAT SHE COULD GIVE "EVIDENCE" WITHOUT BEING SWORN - ABSENCE OF RELEVANT ENQUIRIES AS TO HER UNDERSTANDING - STATUTORY AND COMMON LAW REQUIREMENTS UNFULFILLED LEGISLATION CITED : Criminal Appeal Act Evidence Act R. v Brooks 1998 44 NSWLR 121 CASES CITED : Bulejcik v The Queen (1996) 185 CLR 375 Dhanhoa v The Queen [2003]HCA 40 PARTIES : Regina v JTB FILE NUMBER(S) : CCA 60234/03 COUNSEL : E. Wilkins (Crown) L. Flannery (Applicant) SOLICITORS : C.K. Smith (Crown) B. Duchen (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 01/51/0194 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60234/03

GROVE J HULME J GREG JAMES J

Friday 3 October 2003 REGINA v J.T.B. Judgment

1 GROVE J: This is an appeal against conviction upon two counts after a trial before Christie DCJ and a jury at the Coffs Harbour District Court. The offences charged involve sexual misconduct towards a young child who was in fact the granddaughter of the appellant. The convictions were followed by the imposition of terms of imprisonment. 2 A number of grounds of appeal have been lodged. None of those grounds would ordinarily result in an order of this Court other than including a new trial, should such a ground succeed. As, in my view, the fourth ground must be sustained, it is unnecessary to deal with the others. 3 The background can be briefly sketched. When the matter came to trial, arrangements had been made for the infant complainant to give evidence by videolink and the transcript shows that there was some attention given to putting her outside of the range of looking at her grandfather. It may be that the need to make these practical arrangements led to matters which I believe must have been overlooked. 4 The complainant at the time was aged eight years of age. The Crown Prosecutor mentioned to his Honour, "And I won't be asking that the complainant be sworn, your Honour, she's only eight". His Honour's response was to say, "Yes, I understand". 5 The child was then brought to what I might describe for convenience as the witness position and upon arrival his Honour inquired of her whether she could see and he then had this exchange with her: "Q. (E), there is a gentleman about to stand up who wants to ask you a number of questions. You understand that? A. Yes.