R v AKB (No. 3)

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).

Section 13 relevantly provides:

Neither counsel challenged WB’s competence but it is necessary for me to be satisfied of that matter.

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.

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.

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.