Supreme Court New South Wales Medium Neutral Citation: R v AKB (No. 3) [2018] NSWSC 1076 Hearing dates: 10 July 2018 Date of orders: 10 July 2018 Decision date: 10 July 2018 Jurisdiction: Common Law Before: Davies J Decision: WB is competent to give evidence within the meaning of s 13 (3) Evidence Act 1995 Catchwords: EVIDENCE – competence to give evidence – s 13 Evidence Act 1995 (NSW) - young child – aged 11 at the time of trial and nine when his recorded interviews made – enquiries made of trial to assess competence Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: R v RAG [2006] NSWCCA 343 Texts Cited: Nil Category: Principal judgment Parties: Crown [AKB] (Accused) Representation: Counsel: C Maxwell QC & R Kotsis (Crown) C Davenport SC (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Oxford Lawyers (Accused) File Number(s): 2016/311049 JUDGMENT 1. One of the witnesses in the case, WB, is aged 11 years and was aged nine years when his recorded interviews were undertaken. It is necessary, therefore, for me to consider his competence to give evidence within the meaning of s 13 of the Evidence Act 1995 (NSW). 2. Section 13 relevantly provides: 13 Competence: lack of capacity (1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): (a) the person does not have the capacity to understand a question about the fact, or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome. (2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact. (5) 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. … (8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience. 1. Neither counsel challenged WB's competence but it is necessary for me to be satisfied of that matter. 2. I had regard to what was said in R v RAG [2006] NSWCCA 343 especially at [26]-[27] and the practical guidance set out in the Equality Before the Law Bench Book. 3. To inform myself I read the transcripts of WB's interviews. I was satisfied from his answers to various introductory questions asked of him that he understood the difference between truth and a lie, and that he had to give truthful answers to the questions there asked of him. I also asked him questions myself. At the time of the trial he was aged 11 years. Although he said that he did not understand the word "obligation" he said that he understood that having to go to school from Monday to Friday was the same as being "obliged" to go to school. I was also satisfied from his other answers that he understood the difference between truth and a lie. 4. In all of those circumstances, I was satisfied in terms of s 13(3) that WB was competent to give evidence because he understood that he was under an obligation to give truthful evidence. ********** Amendments 26 July 2018 - Publication restriction removed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2018