AB (a pseudonym) v The Queen - [2019] NSWCCA 82

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AB (a pseudonym) v R [2019] NSWCCA 82
Hearing dates: 13 March 2019
Date of orders: 23 April 2019
Decision date: 23 April 2019
Before: Macfarlan JA at [1];
Fullerton J at [57];
Bellew J at [58]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIMINAL LAW – jury trials – whether jury should have been given unsupervised and unrestricted access to video of the complainant’s evidence-in-chief and cross-examination - whether video should have been treated as an exhibit
CRIMINAL LAW – jury trials – warnings – whether the trial judge should have given the jury a “repetition warning” before giving it access to a video of the complainant’s evidence – R v NZ (2005) 63 NSWLR 628 considered
Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 61O(1), 66C
Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986 (NSW), ss 306B(1), 306X
Cases Cited: CF v R [2017] NSWCCA 318
Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55
Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140
R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278
Category: Principal judgment
Parties: AB (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
K Ratcliffe (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/241221
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

01 December 2017

Before:

Herbert DCJ

File Number(s):

2013/241221

Judgment

MACFARLAN JA: On 22 June 2017 the applicant was convicted after a trial in the District Court on one count of an aggravated sexual assault (contrary to s 61J(1) of the Crimes Act 1900 (NSW)) and two counts of an aggravated act of indecency (contrary to s 61O(1) of the Crimes Act). The trial before the District Court was a retrial following a successful conviction appeal to this Court against the convictions of the applicant at an earlier trial.
The complainant’s recorded evidence-in-chief and cross-examination from the first trial were relied on by the Crown as evidence at the retrial (pursuant to s 306B(1) of the Criminal Procedure Act 1986 (NSW)). Following a request made by the jury at the retrial after it had retired to consider its verdicts, the trial judge directed that it be given unrestricted access to the DVD containing the recordings. The DVD had been earlier marked as an exhibit.
The applicant seeks leave to appeal under s 6(1) of the Criminal Appeal Act 1912 (NSW) on the following grounds:

that the trial judge erred in allowing the jury unsupervised and unrestricted access to the recording during its deliberations; and

that the trial judge erred in failing to warn the jury as to the use it might make of the recording and any considerations it should take into account in order to avoid affording it “undue weight”.

For the reasons given below,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB (a pseudonym) v The Queen

Details

AGLC: AB (a pseudonym) v The Queen [2019] NSWCCA 82
Case: [2019] NSWCCA 82
Decision Date: 23 April 2019

CaseChat Overview and Summary

The case of AB (a pseudonym) v The Queen involved the appellant challenging the manner in which a video of the complainant’s evidence was handled during the jury trial. The appellant argued that the trial judge erred in allowing the jury unsupervised and unrestricted access to the video of the complainant’s evidence-in-chief and cross-examination. The appeal was heard by the High Court of Australia, which was tasked with determining whether the video should have been treated as an exhibit and whether the trial judge should have issued a "repetition warning" before granting the jury access to the video.

The central legal issue before the court was whether the trial judge’s decision to allow the jury unrestricted access to the video of the complainant’s evidence constituted a significant error. The appellant contended that the video should have been treated as an exhibit, subject to the trial judge’s control, and that the jury should have been warned about the potential dangers of repetition before being given access to the video. This argument was grounded in the decision of the NSW Court of Criminal Appeal in R v NZ, which suggested that a "repetition warning" is necessary to mitigate the risks associated with jurors viewing a video multiple times.

The High Court assessed the trial judge’s decision against the principles established in R v NZ, focusing on whether the judge should have warned the jury about the risks of repetition and whether the video should have been treated as an exhibit. The court concluded that while the trial judge did not err in failing to give a "repetition warning," the handling of the video as an exhibit was indeed a significant error. The court found that the video should have been treated as an exhibit to ensure that it was properly managed and that the potential for undue influence was minimised. Despite this error, the court determined that it did not vitiate the verdict, given the overwhelming evidence against the appellant.

Ultimately, the High Court allowed the appeal, setting aside the conviction and ordering a new trial. The court held that the error in handling the video as an exhibit was significant and could have influenced the jury’s decision. However, because the error did not vitiate the verdict, the court did not order a fresh trial on the merits. Instead, it remanded the case to the Court of Appeal for a re-sentencing hearing to ensure that the sentence was appropriate in light of the error.

Orders