SH v Regina [2012] NSWCCA 79

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: SH v Regina [2012] NSWCCA 79 Hearing dates: 23 April 2012 Decision date: 03 May 2012 Before: Basten JA at 1; Blanch J at 36; Hall J at 37 Decision: (1) Appeal allowed. (2) Conviction set aside. Catchwords: CRIMINAL LAW - appeal - conviction - evidence - sexual intercourse with person aged under 10 years - complainant gave unsworn evidence - Court did not tell complainant that she should feel no pressure to agree with statements she believed were untrue - whether Evidence Act 1995 (NSW), s 13 complied with - whether non-compliance necessitates upholding appeal - whether miscarriage of justice

EVIDENCE - witnesses - competence - unsworn evidence - requirement that Court tell witness about to give unsworn evidence that he or she should feel no pressure to agree with statements that he or she believes are untrue - whether Evidence Act 1995 (NSW), s 13 complied with - whether witness competent to give unsworn evidence if not given required direction Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6 Criminal Appeal Rules, r 4 Evidence Act 1995 (NSW), ss 13, 21, 30, 31, 165, 165A Evidence Amendment Act 2007 (NSW) Evidence Act 1977 (Qld), ss 9, 9A, 9B Evidence Act 1929 (SA), s 9 Evidence Act 1958 (Vic), s 23 Uniform Evidence Act, s 13 Cases Cited: The Queen v WG [2010] VSCA 34 R v Anunga (1976) 11 ALR 412 R v BBR [2009] QCA 178; [2010] 1 Qd R 546 R v Brooks (1998) 44 NSWLR 121 R v Starrett [2002] SASC 175; 82 SASR 115 Texts Cited: Anderson, Williams and Clegg, The New Law of Evidence (2nd ed, LexisNexis, 2009) at [13.1], [13.9]