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

1. 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.

2. 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.

3. The applicant seeks leave to appeal under s 6(1) of the Criminal Appeal Act 1912 (NSW) on the following grounds:

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

2. 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”.

4. For the reasons given below, I have concluded that the applicant should be granted leave to appeal but his appeal should be dismissed.

THE PROCEEDINGS AT TRIAL

The complainant’s evidence (given by way of the DVD recording)

5. In 2006 the applicant was about 43 years of age. The complainant was born in January 1993.

6. The complainant gave evidence that in 2006, when she was aged 13, the applicant came into her bedroom at night, told her that he loved her and had penile/vaginal intercourse with her against her will (Count 1).

7. She also gave evidence that between 1 January and 11 May 2007, the applicant exposed his penis to her and masturbated in front of her (Count 2). She said that she told her mother that the applicant had done “sexual things” to her. This resulted in a verbal altercation between her mother and the applicant a few days later during which the applicant said “if I ever did anything to her [referring to the complainant] I thought it was you”. This was relied upon by the Crown as a general admission of the conduct charged in Counts 1 and 2.

8. The complainant gave further evidence that between 11 May and 16 September 2007 the applicant again exposed his penis to her and masturbated in front of her (Count 3). She said that on the following day she complained to a friend, JM, that the applicant had “sexually harassed” her. Thereafter she complained in general terms to her school counsellor, school principal and the police about the applicant’s conduct. Sometime later she complained to her sister, KE, and, in 2011, to a person, KL, who contacted the complainant through Facebook.

9. The complainant was cross-examined but not re-examined.

The other evidence

10. First, KE gave evidence that the complainant told her that the applicant had raped her some years earlier.

11. Secondly, JM gave evidence that the complainant told him that the applicant had made “sexual comments” towards her, that she was crying when she informed him and that the complainant told him that she was scared of what the applicant might do to her.

12. Thirdly, the complainant’s older half-sister, EG, gave evidence that the complainant said that she was scared and that she “couldn’t be around [the applicant] anymore.”

13. Fourthly, the complainant’s mother, LJ, gave evidence that the complainant told her that the applicant had said “sexual things” to her and that as a result, LJ took herself and her children away from the house for a period. LJ also said that the applicant had said to her on one occasion, “[i]f I did anything [to the complainant], I thought it was you”.

14. Fifthly, the officer-in-charge of the investigation, Detective Senior Constable Dack, gave evidence of printing out Facebook messages between the complainant and KL and of the police record of the complainant’s complaint to the police dated 24 August 2007.

15. Sixthly, the exhibits included the disc containing the recording of the complainant’s evidence at the first trial and a print out of the Facebook messages between the complainant and KL.

16. The applicant did not give evidence and there was no electronically recorded interview (“ERISP”) conducted with him.

The DVD recording of the complainant’s evidence

17. The DVD containing the complainant’s recorded evidence was tendered by the Crown at the outset of the Crown case and marked as exhibit A. At that time, the trial judge gave the jury a warning in accordance with s 306X of the Criminal Procedure Act:

“You should not give the evidence any greater or lesser weight simply because it is given in this way. You should assess the evidence in the same way as you assess the evidence of any other witness and you must not draw any adverse inference against the accused because the evidence is give in this way. As I say, it is standard procedure.”

18. The DVD was partly played but, after problems with its sound quality, the trial was adjourned early for the day so that copies of the transcript of the recorded evidence could be provided to the jury as an aide-mémoire. On the next day the transcript was retrieved from the jury after the DVD was played in full.

19. During her summing-up, the trial judge gave the jury another s 306X warning.

20. After the jury was sent home for the day, and before it commenced its deliberations on the following day, the applicant’s counsel submitted that the trial judge should exercise her discretion to withhold exhibit A from the jury because of a risk that, if the jury had it, undue emphasis would be given to the complainant’s evidence. He referred to the decision of this Court in R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 but the trial judge said that that decision was distinguishable because the recording in question there was only of the complainant’s evidence-in-chief and not of her cross-examination.

21. At the commencement of proceedings on the following day, the trial judge indicated that a note had been received from the jury asking whether it could watch the DVD of the complainant’s evidence again (as well as receive the transcripts of the other witnesses’ evidence). Her Honour commented:

“Since [the jury members] will have the entirety of the evidence [of the complainant], which allows total balance and consideration of the truthfulness of [the complainant’s] evidence, I’m of the view that they can be given unrestricted access to the disc and they can get all the trial [transcript].”

22. The applicant’s counsel relied upon the objection that he had taken the previous day and requested in the alternative that the trial judge impose a limit on the time that the jury could have the DVD. Her Honour declined to do this.

23. The jury was provided with the items requested and retired at 10.10am to consider its verdicts. It returned at 2.47pm with verdicts of guilty on each count.

GROUND 1: THAT THE TRIAL JUDGE ERRED IN ALLOWING THE JURY UNSUPERVISED AND UNRESTRICTED ACCESS TO THE RECORDING DURING ITS DELIBERATIONS

Case authority

24. To address this ground of appeal it is necessary to refer to the following case authorities relied upon by counsel for the parties.

25. NZ concerned a trial of the appellant on charges of aggravated sexual assault under s 61J and sexual assault under s 66C of the Crimes Act. The evidence-in-chief of the complainant and that of four other Crown witnesses was given substantially by way of the playing of video tapes of interviews between each witness and a police officer. The witnesses were further examined and cross-examined by way of a video link between the courtroom and a remote location at which the witnesses were present (see [71]). The videotapes of the evidence-in-chief were tendered as exhibits and made available with the remainder of the exhibits to the jury when it retired. Transcripts of them and the complainant’s video link evidence were made available to the jury. Subject to one presently immaterial qualification, there was no objection to these steps being taken.

26. The trial judge warned the jury not to draw any inference adverse to the appellant or give the evidence any greater or lesser weight because of the recorded form in which it was given (see now s 306X of the Criminal Procedure Act). No further direction or warning was requested. After retiring to consider its verdict, the jury requested and received copies of the transcript of the complainant’s evidence-in-chief, cross-examination and re-examination.

27. Howie and Johnson JJ (with whom Wood CJ at CL and Hunt AJA agreed) held that “[t]he videotape evidence of a Crown witness should not become an exhibit and, therefore, should not be sent with the exhibits to the jury on retirement” but the court retained a discretion to direct otherwise (at [196], [199], [201] and [210]). Their Honours continued (at [210]):

“If the tape is to be replayed or the transcript of the tape provided to the jury, the judge should caution the jury about their approach to that evidence when the tape is being replayed to them or the transcript of the tape returned to them in terms to the effect that ‘because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case’”.

28. There was a departure from these principles as the videotape was provided to the jury without any apparent good reason, and the warning referred to in the previous paragraph above was not given.

29. Although r 4 of the Criminal Appeal Rules applied because of the absence of objection, their Honours dealt with the appeal on the basis that the conviction should be set aside unless they were persuaded that no miscarriage of justice had occurred. They concluded that it had not, stating at [221]:

“It is impossible in our opinion to conclude that the trial was unbalanced by the presence of [the videotape] in the jury room when the jury themselves corrected whatever imbalance there might have been by asking for, and being supplied with, the transcript of the cross-examination of the complainant. As there was no defence case, there could be no imbalance in favour of the Crown case.”

30. In Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, the evidence consisted principally of a written statement that the complainant made to the police and the playing of videotapes to constitute the complainant’s evidence-in-chief and cross-examination. After the jury requested access to the videotapes and the statement, the trial judge ruled that the videotapes should be replayed to the jury by the bailiff in the courtroom in the absence of counsel and the judge, and that the written statement should be re-read in the reconvened court, but that the statement and transcript of the recordings were not to be taken into the jury room. No warning was given to the jury against giving undue weight to the evidence it heard repeated.

31. The applicant’s counsel consented to these steps being taken.

32. Hayne J (with whom Gleeson CJ, Heydon J and Crennan J agreed) opined at [86] that a videotape of recorded evidence should not be admitted as an exhibit because it “is no more a piece of real evidence receivable at trial than is the written or electronic record of oral evidence given at the trial in the ordinary way”. His Honour also said that “[w]hile a jury’s request to be reminded of evidence that has been given in the trial should very seldom be refused … that request should ordinarily be met by replaying the evidence in court in the presence of the trial judge, counsel, and the accused” and that “[s]eldom, if ever, will it be appropriate to allow the jury unsupervised access to the record of that evidence” (at [96]). His Honour added that where evidence is replayed to a jury “[i]t may be desirable, in some cases necessary, to repeat” the warning for which s 306X of the Criminal Procedure Act provides in New South Wales (ibid).

33. His Honour concluded at [80] that there had been no miscarriage of justice because:

“[I]n the end, both the prosecution’s case, and the appellant’s answer that the prosecution had not proved its case beyond reasonable doubt, depended entirely upon what the jury made of the complainant’s evidence. Competing arguments were put to the jury by the parties, but the evidence that the complainant had given was not controverted otherwise than by the appellant’s cross-examination [of the complainant]. To allow only the complainant’s evidence to be re-examined by the jury presented no risk of an unbalanced consideration of competing accounts about what was alleged to have happened”.

34. In Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140, the jury in a sexual assault trial requested and was granted access in the jury room to a video, the playing of which constituted the complainant’s evidence-in-chief. The transcript of her oral evidence was also provided. Both the applicant and his wife gave evidence and the applicant called a number of witnesses as to his good character. It is not clear whether transcripts of their evidence were provided to the jury.

35. The applicant in Jarrett initially contended that the “balance of evidence” was disturbed by the jury being given access to the video in the jury room, and that such irregularity was compounded by the failure of the trial judge to give the jury a warning pursuant to s 306X of the Criminal Procedure Act at the time that access was provided. The applicant did not press the former submission and his second submission was rejected because the jury was provided with the transcript of the whole of the complainant’s evidence, as well as that of a police officer whose evidence formed the principal basis of the challenge to the complainant’s evidence in cross-examination (at [75] per Basten JA, R A Hulme and Campbell JJ agreeing). Campbell J added in respect of the first, withdrawn, submission that “[t]he approach adopted by the High Court in [Gately] is, in my judgment, somewhat more prescriptive than the approach adopted by this Court in NZ” (at [93]) where the Court of Criminal Appeal said that it “should not lay down any rule of practice or procedure” (NZ at [210]). Campbell J opined that the irregularity identified in the first submission did not result in a miscarriage of justice (at [95]).

36. In CF v R [2017] NSWCCA 318, decided after the trial of the present applicant in June 2017, the jury was given access in the jury room to the complainant’s recorded evidence which comprised, first, a recording of her interview with police and, secondly, her evidence-in-chief and cross-examination in a previous trial of the applicant. The applicant’s counsel did not object to this step being taken.

37. Having reviewed relevant authorities, Gleeson JA (with whom Rothman and Hamill JJ agreed) concluded that, whilst Gately suggested “a more proscriptive approach than NZ to allowing the jury access to a complainant’s recorded evidence”, it did not impose “a complete proscription on that occurring” (at [83]). Rather, Gately read with NZ should be understood “as emphasising the general undesirability of allowing the jury unsupervised access to the complainant’s recorded evidence” (ibid).

38. His Honour concluded that there had been no miscarriage of justice, for the following reasons:

“In my view, in circumstances where all of the exhibits and transcripts had been provided to the jury, the issue of balance was expressly addressed by providing the jury with the whole of the complainant’s recorded evidence, including cross-examination at the first trial, the applicant’s recorded evidence in his ERISP and the warning given to the jury not to give disproportionate weight to the complainant’s recorded evidence.

In the circumstances, where the procedure had been accepted by trial counsel for the defence and no redirection had been sought, I do not consider that the irregularity which occurred occasioned a miscarriage of justice” (at [92]-[93]).

39. His Honour’s reference to a warning having been given to the jury was to the warning for which s 306X provides, not the warning referred to in NZ not to give undue weight to evidence that had been repeated (see [27] above).

Consideration

40. At the outset, I note that the giving of evidence by way of playing a DVD or sound recording does not constitute the DVD or sound recording itself as evidence in the proceedings (NZ at [194]; Gately at [86]). That position under the general law is not affected by s 306B(1) of the Criminal Procedure Act which is in the following terms:

306B Admission of evidence of complainant or special witness in new trial proceedings

(1)   If a person is convicted of a prescribed sexual offence and, on an appeal against the conviction, a new trial is ordered, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant or a special witness.

41. As decided in CF, after the present trial (at [65]):

“The context in which the words ‘tender as evidence’ are used in s 306I(1), like s 306B(1), is the ‘admission’ or receipt of such evidence in a subsequent trial or a retrial (as the case may be), not to prescribe the course to be adopted upon admission of such evidence.”

42. As a result, the DVD should not, in this case, have been marked as an exhibit. The ordinary rule that exhibits are made available to the jury in the jury room during its deliberations, subject to the exercise of the court’s discretion to direct otherwise (see NZ at [183]-[192]), did not apply. Instead, it was for one or other of the parties to persuade the trial judge that there was a good reason why the DVD should be made available to the jury.

43. The trial judge’s exercise of discretion to permit the jury to have access to the DVD in the jury room during its deliberations miscarried because her Honour, without the benefit of the subsequent decision in CF, admitted the DVD as an exhibit and therefore approached her decision upon the basis that, absent good reason to the contrary, the DVD should be provided to the jury along with the other exhibits. In fact, the DVD should not have been treated as an exhibit and her Honour should have approached the issue on the basis that it will “seldom, if ever”, be appropriate to allow a jury access to such a recording in the jury room (see [32] above). There was therefore an irregularity in the DVD being provided to the jury for playing in the jury room.

42. The applicant submitted that the irregularity was significant and that the “mischief” in what occurred was “the repetition of the evidence and its different form from the rest of the evidence in the trial”. This submission cannot however be accepted for the following reasons.

43. First, there was no risk of disproportionate weight being given to the evidence in the Crown case as against any evidence called by the applicant as no evidence was in fact called by him.

44. Secondly, there was no risk of disproportionate weight being given to the complainant’s evidence-in-chief as compared to her cross-examination on behalf of the applicant because both parts of her evidence were recorded on the DVD. That there was no such risk was not as clear in NZ, where the cross-examination was not recorded on the video and was available to be reviewed by the jury only in the form of transcript. Notwithstanding this, the court in NZ still found that no miscarriage of justice had occurred.

45. Thirdly, the prime, if not exclusive, focus of the trial was the credibility of the complainant. The applicant recognised this in his submissions to this Court where he described “the issue” at the trial as being the credibility of the complainant, which:

“particularly concentrated upon

a.    The implausibility of the conduct alleged given other people [were] asleep in the room

b.    The variations in complaint

c.    A motive to fabricate the allegation”.

48. Likewise, the Crown Prosecutor’s final address to the jury referred to a “key question” for the jury being what the complainant said in evidence and how she gave that evidence. In his final address, the applicant’s counsel referred a number of times to the need for the jury to be satisfied beyond reasonable doubt of the truthfulness of the complainant’s evidence. The trial judge spoke in similar terms in her summing-up.

49. The only other evidence of significance at the trial was evidence from other witnesses of the complainant’s complaints and other conduct (see [10] to [15] above). The jury had the transcript of this evidence to enable it to make comparisons to that of the complainant.

50. In these circumstances, I do not consider that the irregularity to which I have referred resulted in a miscarriage of justice. In particular there was no risk of any unbalanced consideration of evidence of the nature referred to in Gately (see [33] above).

51. I do not consider that the presence in this case, unlike in NZ, Gately, Jarrett and CF, of an objection to the provision to the jury of the article upon which the relevant evidence was recorded is of significance. In those cases, the absence of objection gave the court some comfort that no unfairness was perceived by trial counsel for the accused. The presence of some similar comfort in the present case is not however necessary as the absence of any prejudice to the applicant in the procedure adopted is clear.

GROUND 2: THAT THE TRIAL JUDGE ERRED IN FAILING TO WARN THE JURY AS TO THE USE THEY MIGHT MAKE OF THE RECORDING AND ANY CONSIDERATIONS THEY SHOULD TAKE INTO ACCOUNT IN ORDER TO AVOID AFFORDING IT “UNDUE WEIGHT”

52. In this Court, the applicant’s counsel did not press an initial submission that warnings of the type described in s 306X of the Criminal Procedure Act (see [17] above) were not given. This was understandable because warnings were in fact given when the DVD was tendered and in the summing-up. There was no need for a further warning to be given at the time the DVD was provided to the jury for use in its deliberations.

53. The applicant did submit however that at that time, the trial judge should have given a “repetition” warning of the type described in NZ (see [27] above). Such a warning was not however necessary as there was no significant risk that the jury would give the complainant’s recorded evidence disproportionate weight as compared to other evidence. I have indicated the reasons for this above: the whole of the complainant’s evidence, and not simply her evidence-in-chief, was recorded and the appellant did not give evidence or call evidence from any other witness. Bearing in mind the limited character of the other evidence in the Crown case, the jury was able to be sufficiently reminded of it by reference to the transcripts with which it was provided.

54. Whilst a “repetition” warning would not have been inappropriate, its absence did not result in a miscarriage of justice.

55. Ground of appeal 2 should therefore be rejected.

ORDERS

56. For the reasons I have given, I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

57. FULLERTON J: I agree with Macfarlan JA.

58. BELLEW J: I agree with Macfarlan JA.

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Decision last updated: 23 April 2019