ACT appeal on child sex charge allowed

A man convicted of committing an indecent act in the presence of his five-year-old daughter is heading back to jail.

High Court judges unanimously allowed an appeal by the ACT Director of Public Prosecutions, ruling that his case should go back to the Court of Appeal for re-imposition of the original two-year sentence, mostly suspended except for three months of periodic detention.

The unnamed man had appealed his conviction, arguing that the trial judge had misdirected the jury on the competence of his daughter to give sworn evidence in court.

The offences were alleged to have occurred in 2012, with the man facing trial in 2014.

Before the trial, the judge examined the young girl, concluding she was competent to give evidence but wasn't satisfied she understood she must give truthful evidence.

At trial, the judge declined a defence request to warn the jury that the girl did not comprehend the obligation to tell the truth.

The High Court judges ruled that ACT legislation was neutral in weight that can be given to sworn and unsworn evidence.

They said ability to give an intelligible account of an event would often precede the capacity to understand what it means to give evidence and the obligation to give truthful evidence.

"Nor is it to overlook that in the prosecution of a sexual offence alleged to have been committed against a child, often the child will be the key witness in the prosecution case," they said.