The High Court has overturned an ACT Court of Appeal decision that set aside a father's conviction for an indecent act involving his five-year-old daughter because of the way her unsworn evidence was dealt with.
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The man, who cannot be identified, was convicted by a jury in 2014 of committing an indecent act in the presence of his daughter two years earlier.
But he appealed to the ACT Court of Appeal, successfully having his conviction overturned and a retrial ordered.
His argument at appeal attacked the way the evidence of his daughter was dealt with and presented to the jury.
The credibility of the daughter's evidence played a pivotal role in the case.
The child gave evidence before her father's trial, and it was recorded to be later played to the jury.
But the judge found that she was not able to give sworn evidence on oath, because she didn't have the capacity to understand that she was under an obligation to be truthful.
That meant her evidence had to be taken in an unsworn form, or without the child swearing an oath or affirmation.
The man's defence team did not oppose that occurring.
But when it came to his ACT Supreme Court trial, they asked the judge tell the jury that the child's evidence was unsworn because it had been found that she did not comprehend the obligation to tell the truth.
The judge declined to do so.
Instead, the judge explained to the jury at the conclusion of the child's evidence that the court was "not satisfied that [the victim] has the capacity" to give sworn evidence.
The father appealed, arguing the judge's handling of the issue had failed to comply with evidence law.
The ACT Court of Appeal agreed and set aside the conviction and ordered a new trial take place.
The appeal court also found the judge should have explained to the jury the difference between sworn and unsworn evidence, and how to take those differences into account.
But the Director of Public Prosecutions, Jon White, fought against that decision in the High Court of Australia.
The High Court delivered its judgment last week, finding in the DPP's favour, and overturning the ACT Court of Appeal's decision.
The case will now go back to the Court of Appeal for orders in respect to sentencing.
The father was sentenced in 2014 to three months of weekend detention, but that sentence was stayed pending the outcome of the appeal.
