Brown (a pseudonym) v The King

[2025] SASCA 40

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

BROWN (A PSEUDONYM) v THE KING

[2025] SASCA 40

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)

10 April 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL ALLOWED

Following a jury trial, the appellant was convicted of one count of maintaining an unlawful sexual relationship with a child (as that offence was then known), contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA).

The principal evidence in the case was given by the complainant, the appellant’s stepdaughter. The prosecution had available to it statements given by the complainant before the trial in the course of three prescribed interviews, conducted pursuant to s 74EB of the Summary Offences Act 1953 (SA), and in the course of a pre-trial special hearing, conducted pursuant to s 12AB of the Evidence Act 1929 (SA). The audio-visual recordings of these statements and evidence were played for the jury at the trial.

During the pre-trial special hearing the complainant was cross-examined about what she had said in an initial interview with police, which was captured in a video recording.  In that interview the complainant initially said that the appellant had put his penis in her bottom on at least 10 occasions and that was the extent of the appellant’s wrongdoing.  The complainant was cross-examined to the effect that those statements were inconsistent with the statements made in the prescribed interviews, which described different offending.  The complainant agreed but in re-examination appeared to provide a different explanation for the prior statements.  The prosecution case did not rely on any allegation of anal intercourse.

At the trial, the appellant applied to play the video of the initial interview to the jury.  This was opposed by the prosecution.  The trial judge admitted the initial interview video into evidence at the trial and it was played for the jury.  On the defence case, this initial interview with police was relevant for the purposes of establishing important inconsistencies in the complainant’s account.

Those inconsistencies and the adequacy of the directions given about them are the subject of appeal ground 1. 

The appellant’s case at trial was that the complainant’s account was a fabrication.  The appellant did not give or call any evidence.  The directions given to the jury about the way they should approach the determination of the honesty and reliability of the complainant’s evidence are the subject of appeal ground 2.  During the course of her final address, the prosecutor submitted that if a proposition was not put to a witness, it meant that the jury could generally accept that what the witness was saying was uncontested.  That is, that what the witness was saying was, in fact, true.  This submission is the subject of appeal ground 3. 

Each of the videos relied on by the prosecution was admitted as an exhibit and supported by a transcript of what was said in them.  As is usual, these transcripts or aides-memoire were not admitted into evidence but instead marked for identification.  Whilst the jury had these available to them during the course of the trial, they were removed just before the jury went into the jury room for their deliberations.  The jury had the prosecution video exhibits and the equipment with which to replay them in the jury room.  No directions were given about these video exhibits.  That the jury did not have the aides-memoire with them in the jury room is the subject of appeal ground 4. 

HELD (the Court) allowing the appeal (on appeal ground 1), setting aside the conviction and ordering a retrial:

1.The failure to give directions to the jury on the proper use of what were said to be prior inconsistent statements meant there was a risk that they were treated as part of the complainant’s evidence.  This resulted in a miscarriage of justice. [184]-[188], [225]-[227]

2.The directions given to the jury about the way they should approach the determination of the honesty and reliability of the complainant’s evidence did not result in a miscarriage of justice.  Appeal ground 2 should be dismissed.  [193]-[194], [228]

3.The submissions made by the prosecutor in her final address about Browne v Dunn should not have been made but did not result in a miscarriage of justice.  Appeal ground 3 should be dismissed.  [212]-[213], [228]

4.The removal of the aides-memoire before the jury went into the jury room did not result in a miscarriage of justice.  Appeal ground 4 should be dismissed.  [222]-[223], [229]

5.Observations made about the proof and use of prior inconsistent statements [147]-[180], and about the approach taken to using audio-visual evidence and transcripts or aides-memoire at trial [207]-[220].

Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Procedure Act 1921 (SA) ss 157, 158; Evidence Act 1929 (SA) ss 9, 12AB, 13BA, 28, 29; Evidence Act 1977 (Qld) s 21AM; Joint Criminal Rules 2022 (SA) r 203.2; Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA); Summary Offences Act 1953 (SA) ss 74EA, 74EB, 74 EC, referred to.

Browne v Dunn (1897) 6 R 67; Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; Gately v The Queen (2007) 232 CLR 208; Lee v The Queen (1998) 195 CLR 594; R v Cronin [2018] SASCFC 61; R v K, MC [2018] SASCFC 133; R v P, G [2019] SASCFC 7; R v Sparks [2017] SASCFC 171; Stanton v The Queen (2003) 77 ALJR 1151, discussed.

Athans v The Queen (No 2) 2022) 300 A Crim R 389; Bale v Mills (2011) 81 NSWLR 498; Bromley v The Queen (1986) 161 CLR 315; Burnell v British Transport Commission [1956] 1 QB 187; CB v Western Australia (2006) 175 A Crim R 304; Central Adelaide Local Health Network Inc v Whitehouse [2024] SASCA 22; Conwell v Tapfield [1981] 1 NSWLR 595; De Jesus v The Queen (1986) 61 ALJR 1; De Silva v The Queen (2019) 268 CLR 57; Dhanhoa v The Queen (2003) 217 CLR 1; Driscoll v The Queen (1977) 137 CLR 517; Hofer v The Queen (2021) 274 CLR 351; King v ZT [2025] HCA 9; Kirkland v The Queen [2021] SASCA 14; Klein v The Queen (2007) 172 A Crim R 290; Libke v The Queen (2007) 230 CLR 559; Longman v The Queen (1989) 168 CLR 79; Milosevic v The Queen (2022) 140 SASR 376; Movel v The King (2024) 75 VR 62; M v The Queen (1994) 181 CLR 487; Murphy v The King [2023] SASCA 107; Nicholls v The Queen (2005) 219 CLR 196; North Australian Territory Co v Goldsborough Mort and Co [1893] 2 Ch 381; Oks v Western Australia (2029) 265 CLR 268; O’Meara v Western Australia (2013) 235 A Crim R 209; Orreal v The Queen (2021) 274 CLR 630; Palmer v The Queen (1998) 193 CLR 1; Pell v The Queen (2020) 268 CLR 123; Perara-Cathcart v The Queen (2017) 260 CLR 595; Price v Bevan (1974) 8 SASR 81; Ratten v The Queen (1974) 131 CLR 510; Reid v Kerr (1974) 9 SASR 367; Robinson v The Queen (1999) 197 CLR 162; RPS v The Queen (2000) 199 CLR 620; R v BAH (2002) 5 VR 517; R v BEC (2023) 16 QR 1; R v Bradshaw (1978) 18 SASR 83; R v Costi (1987) 48 SASR 269; R v Curzon (2000) 1 VR 416; R v Davies (2005) 153 A Crim R 217; R v Evans [1998] SASC 6798; R v Geoffrey (a pseudonym) [2024] SASCA 40; R v H [1999] 2 Qd R 283; R v Houston (1982) 8 A Crim R 392; R v J, JA (2009) 105 SASR 563; R v KAH [2012] QCA 154; R v K, GA (2019] SASCFC 2; R v Manunta (1989) 54 SASR 17; R v Musolino (2003) 86 SASR 37; R v NZ (2005) 63 NSWLR 628; R v O’Loughlin [2018] SADC 73; R v O’Neill [2001] VSCA 227; R v Stephenson (1978) 18 SASR 381; R v Trabolsi (2018) 131 SASR 297; R v Van Wyk (2018) 132 SASR 46; R v VM [2022] QCA 88; R v Wildy (2011) 111 SASR 189; SKA v The Queen (2011) 243 CLR 400; Stateliner Pty Ltd v Legal & General Assurance Society Ltd (1981) 29 SASR 16; Stevenson v R (2022) 299 A Crim R 457; The Queen’s Case (1820) 2 Broderip and Bingham 284; The Queen v Soma (2003) 212 CLR 299; TKWJ v The Queen (2002) 212 CLR 124; YBG v Western Australia [2019] WASCA 126; Zoneff v Queen (2000) 200 CLR 234, considered.

BROWN (A PSEUDONYM) v THE KING
[2025] SASCA 40

Court of Appeal – Criminal – Livesey P, S Doyle & Bleby JJA

LIVESEY P:

Introduction

1. Following a trial between 26 and 29 February 2024 before a jury, the appellant was convicted of one count of maintaining an unlawful sexual relationship with a child (as that offence was then known), contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).

2. By an amended Notice of Appeal dated 30 July 2024, the appellant raised five grounds of appeal against conviction pursuant to s 157(1)(a) of the Criminal Procedure Act 1921 (SA). At the hearing of the appeal, the appellant abandoned appeal ground 5 which was that the verdict of the jury was unreasonable or could not be supported having regard to the evidence.[1]  That was fortunate because the appellant had failed to comply with r 203.2(4) of the Joint Criminal Rules 2022 (SA).  By that rule, an appellant is obliged to file and serve a written summary of the relevant evidence and a chronology (which include references to transcript pages and exhibits) at the same time as filing written submissions. 

   [1]     Criminal Procedure Act 1921, s 158(1)(a).

3. Whilst the failure to comply with the rules of court does not relieve this Court of the obligation to consider the whole of the record in determining whether it was open to the jury to be satisfied beyond reasonable doubt about the accused’s guilt,[2] the Court of Appeal is necessarily hampered in its appreciation of an appellant’s case if the appellant fails to assist by providing a summary and chronology which highlight the appellant’s approach to the prosecution case and the evidence led in support of it.[3]  Indeed, and as may have occurred in this case, a proper understanding of the trial record and the approach taken by the parties at the trial will often assist in determining whether the jury must, as opposed to might, have entertained doubt about an appellant’s guilt.[4]

   [2]     M v The Queen (1994) 181 CLR 487, 492-493 (Mason CJ, Deane, Dawson and Toohey JJ); SKA v The Queen (2011) 243 CLR 400, 406 [14] (French CJ, Gummow and Kiefel JJ); Pell v The Queen (2020) 268 CLR 123, 145 [38]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

   [3]     King v ZT [2025] HCA 9, [12] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ), “it is for the parties to identify and address the aspects of the evidence adduced at the trial that warrant the conclusion that the verdict was either unreasonable or not”, [86] (Gordon, Edelman and Steward JJ), “there will be cases where it might be necessary for a judge on an appellate court to view a video recording or listen to an audio recording … where, on appeal, one or both of the parties rely upon some aspect of the video or audio recording that cannot be discerned from the transcript”.

   [4]     Libke v The Queen (2007) 230 CLR 559, 596-597 [113] (Heydon J).

4. For the reasons that follow, appeal ground 1 should be upheld, the conviction set aside and a new trial ordered.  The remaining grounds of appeal should be dismissed.  These reasons are set out as follows:

   Overview of the prosecution case and the appeal

   Appeal ground 1: Prior inconsistent statements

   The initial interview with police

   The special hearing under s 12AB of the Evidence Act

   The course of evidence and addresses at the trial

   The final addresses to the jury

   The summing up by the trial judge

   The determination of appeal ground 1

   The statutory aids to proof of the complainant’s evidence

   The status of the initial interview with police

   The rules concerning prior inconsistent statements

   The status of a prior inconsistent statement

   The directions to be given regarding prior inconsistent statements

   Appeal ground 2: Assessing reliability and credibility

   Appeal ground 3: The “rule” in Browne v Dunn

   Appeal ground 4: Removing the aides-memoire

   Conclusion

   Overview of the prosecution case and the appeal

5. The complainant was born in 2008, and the complainant’s mother and the appellant commenced a relationship when she was around nine months. The appellant’s opportunity for offending was framed by a period when he was living in his home unit and not away from home.  That was, roughly, between September 2020 and October 2021.  The complainant was, accordingly, aged between 12 and 13 years at the time of the alleged offending.

6. The relationship between the complainant’s mother and the appellant continued, with breaks, until around the end of the period of the charged offending.  The appellant is the father of the complainant’s younger brother.  The complainant referred to the appellant as “Dad”. 

7. The complainant lived with her mother and younger brother. The appellant lived separately in his own home unit.  Most of the abuse was alleged to have occurred at the appellant’s home unit. There was, however, other alleged offending in the appellant’s car. 

8. By an Information dated 22 March 2023, it was alleged that the appellant maintained an unlawful sexual relationship with the complainant by engaging in two or more of the following sexual acts:

   a)Performing an act of cunnilingus upon her;

   b)Causing her to perform an act of fellatio upon him on more than one occasion;

   c)Touching her genital area on more than one occasion;

   d)Touching her breasts on more than one occasion;

   e)Rubbing his penis on her body on more than one occasion;

   f)Rubbing her bottom on more than one occasion;

   g)Causing her to watch pornographic material;

   h)Causing her to touch his penis;

   i)Inserting his finger between her labia majora; and

   j)Touching her thigh.

9. The evidence from the complainant was obtained during three “prescribed interviews” conducted by police on 23 June 2022 (Ex P1 and P3), and on 16 October 2022 (Ex P4) and 21 October 2022 (Ex P6). These were conducted pursuant to s 74EB of the Summary Offences Act 1953 (SA) (the Summary Offences Act). 

10. Later, evidence was taken before the trial at a “special hearing” on 11 August 2023 (Ex P10), conducted pursuant to s 12AB of the Evidence Act 1929 (SA) (the Evidence Act). 

11. Video recordings of this evidence were played to the jury at the trial.

12. It is not necessary to address all of the allegations made by the complainant, nor the order in which they were made.  As is seen from time to time, the evidence was not given by the complainant in a strictly sequential manner and, at times, the order of events was difficult to understand.  What is clear in what follows, however, is that it formed no part of the prosecution case that the appellant had engaged in penile/anal intercourse with the complainant at any stage.

13. Broadly, the complainant described the appellant initially starting to touch her inappropriately at his home unit during the latter part of 2020, after he had acquired a spa.  The complainant had used the spa and the appellant told her that there was something chemically wrong with it and he needed to do things to her.  The complainant described the appellant placing what she thought may have been baby oil on her thigh and then rubbing his penis down her thighs and bum.  This happened on a number of occasions.  The complainant described this happening more than 10 times in the appellant’s bedroom.

14. When asked about the first time it happened, the complainant described an occasion in the appellant’s bedroom in his home unit when she had a really bad hair cut and he rubbed her vagina in a circle.  The appellant told the complainant that if she told her mum they would both be kicked out.  This was apparently on Christmas. 

15. The complainant also described being touched and being told to put the appellant’s penis in her mouth.  He apparently kept telling her to do it every time.  The complainant described the times being “kind of all the same” except there was one occasion when the appellant licked her vagina. 

16. The complainant was asked about the last time, and she said that the appellant always said that this was the last time, “I promise”, but he would do it again.  The complainant described an occasion when the appellant took her to McDonald’s and referred to her needing liquid in her system.  When they returned to the appellant’s home unit, the appellant forced her to put his penis in her mouth. 

17. The complainant also described an occasion when she was laying on the lounge and the appellant told her to sit on his lap.  The complainant said that the appellant rubbed his finger underneath her underwear and down her vagina and kept rubbing.  The complainant said her mother and brother were upstairs at the time. 

18. The complainant described an occasion when, whilst she was asleep, the appellant came in and touched her boobs and her bum.

19. The complainant also described a time when the appellant took her to McDonald’s and then to the car wash and then to an aquatic centre.  The complainant said that the appellant told her to touch his private part and told her to suck on it like an icy pole and she did so.  She said that some weird stuff that was white and gooey came out of the appellant’s private part.  The complainant said that the appellant grabbed his t-shirt and wiped it.

20. The complainant also described being shown pornography on the appellant’s Xbox.  The appellant told the complainant to drink from a frozen Coke, spit on his penis and put his penis in her mouth.  He then had the complainant masturbate him.  She said that the appellant ejaculated on her (though she did not use that word in her evidence).  The complainant said that the appellant bribed her with gifts such as an iPhone, headphones, tablets, a laptop and anything she liked.  She said that she felt kind of like a prostitute. 

21. The complainant gave evidence that she told her mother that the appellant had been touching her inappropriately after they got out of a taxi at Arndale in the latter part of 2021.  She said that she did not then see the appellant for a month.  He did not touch her inappropriately again. 

22. This appears to have been at around the time the complainant discovered that the appellant had been cheating on her mother.  She had hacked into the appellant’s mobile phone and Facebook account and saw messages with another woman and then, it seems, a second woman.

23. In June 2022, the complainant used a school computer and conducted a search about depression.  This prompted contact from a school counsellor which led to an initial interview with police which was recorded by police using a body worn camera.  This interview was before the first of three prescribed interviews. 

24. This was at around the time that the complainant told her mother again about the appellant’s infidelity.

25. On the application of the appellant, the initial interview conducted by Police Officer Gray on 23 June 2022 was admitted into evidence at the trial as part of the prosecution case.  On the defence case, this initial interview with police was relevant for the purposes of establishing important inconsistencies in the complainant’s account, undermining her credibility.  Those inconsistencies and the adequacy of the directions given about the complainant’s prior statements are the subject of appeal ground 1. 

26. The appellant’s case at trial was that the complainant’s account was a fabrication.  The appellant did not give or call any evidence.  The directions given to the jury about the way they should approach the determination of the honesty and reliability of the complainant’s evidence are the subject of appeal ground 2. 

1. During the course of her final address, the prosecutor submitted that if a proposition was not put to a witness, it meant that the jury could generally accept that what the witness was saying was uncontested.  That is, that what the witness was saying was, in fact, true.[5]  This submission is the subject of appeal ground 3. 

   [5]     Trial transcript, 116.34-116.37. 

2. Each of the videos relied on by the prosecution was supported by a transcript of what was said in them.  As is usual, these transcripts were not admitted into evidence but instead marked for identification.  Whilst the jury had these available to them during the course of the trial, they were removed just before the jury went into the jury room for their deliberations.  That the jury did not have these aides‑memoire with them in the jury room is the subject of appeal ground 4.

   Appeal ground 1: Prior inconsistent statements

3. Appeal ground 1 is in the following terms:

   The learned trial Judge erred in failing to clearly direct the jury, that whether the body worn video material P13 contained previous inconsistent statements by the complainant, and the impact any such statements had on its assessment of the witness, were matters it needed to carefully consider; the absence of the direction being such as to deprive the appellant of a fair trial.

4. It is necessary to commence with the circumstances surrounding the initial interview, and its content, before addressing the cross-examination of the complainant about it at the special hearing conducted under s 12AB of the Evidence Act.

   The initial interview with police

5. After the complainant had spoken to her mother, there was apparently some contact with a counsellor but no report to police was made.  The view of the complainant’s mother at the time was that the complainant had lied about everything.[6] 

   [6]     Trial transcript, 73.34-73.35. 

6. It was only after the complainant made a computer search at school that police were contacted.  The complainant typed into a school computer “I’m feeling depressed” which led to contact with a school counsellor as a result of the school “SWIFT system” and then, within an hour of that, the complainant had her initial conversation with police on 23 June 2022.[7] 

   [7]     There was a dispute at the trial as to whether the complainant knew about this system.

7. On that first occasion when the complainant spoke to police officers, including Officer Gray.  A school counsellor was also present.  The video of that initial interview is Ex P13. 

8. Relevantly, the complainant was asked to tell police when the inappropriate touching by the appellant commenced.  She said that it started in 2020 after the appellant bought a new spa.  After she used the spa, the appellant said there were chemical problems and in order to get rid of them the best solution was for the appellant to “like get it out of you and I think that’s what happened”. 

9. The complainant explained to police that this happened at the appellant’s home unit and that, after a while, she “kind of knew what was happening” and she “decided to tell mum but then he said that mum would kick me out of the house, so I was a bit scared to tell her”. 

10. Police then asked the complainant to tell them what had happened, and the complainant said, “He put his private part … in like my bum”.  She was asked to clarify what she meant by “private part”, and she agreed that she meant penis.  She told police that the appellant put his penis in her bottom. 

11. The complainant was asked whether he put that anywhere else, or whether anything else happened, and the complainant said, “No”.  The complainant was then asked how many times she thought this happened and she said, “More than 10 times”. 

12. The complainant was then asked whether she had ever had injuries like bleeding or anything like that, and she said that she had not.  She was asked whether she wanted to see a doctor to make sure that she was okay, and she said that she did.[8] 

    [8] Whilst these parts of the initial interview video have been watched, it was not suggested by either party that it was not sufficient for this Court to rely on the transcript of the cross-examination during the s 12AB special hearing, especially where the unreasonable and unsupported appeal ground had been abandoned, cf King v ZT [2025] HCA 9, [12] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ).

13. Apparently, a medical examination was later declined. 

14. During the balance of the interview, the complainant gave an account of inappropriate touching by the appellant which was closer in form to the accounts later recorded as part of the prescribed interviews.

    The special hearing under s 12AB of the Evidence Act

15. It is clear from a reading of the prescribed interview transcripts, and the transcript of the special hearing conducted pursuant to s 12AB of the Evidence Act, that the complainant did not repeat the allegation that the appellant had had anal sex with her on more than 10 occasions.

16. This formed an important part of the cross-examination of the complainant undertaken on behalf of the appellant at the hearing on 11 August 2023, pursuant to s 12AB of the Evidence Act.  During the course of that cross‑examination the complainant agreed that she told police that the appellant had put his penis in her bum on more than 10 occasions, and that she understood that the police officer was talking about the appellant putting his penis in her bum.[9]

    [9]     Transcript, 11 August 2023, 23.31-23.38.

17. The appellant also agreed that in her later interview she made no mention of the appellant putting his penis in her bum.[10]  The complainant agreed that she had understood the police officer was asking her, at the time of the initial interview, whether the appellant had put his penis in her bum more than 10 times.

    [10]   Transcript, 11 August 2023, 24.1-24.3.

18. The cross-examination then moved to later parts of the interview, including an occasion when the complainant said the appellant asked her to get into the shower and baby oil was used. 

19. During the same part of the cross-examination, the complainant said that she did not know what “ejaculated” meant and, at the time of the cross‑examination, she still did not know what that meant.  It had not been explained to her.  She had not heard any schoolyard talk about it, and she had seen nothing about it on the internet.  The complainant agreed that she had been asked whether anything came out of the appellant, and she had said, “No”.  She agreed under cross-examination that she was now saying that something did come out, being white stuff onto her stomach.[11]

    [11]   Transcript, 11 August 2023, 26.10-26.11.

20. The cross-examiner put to the complainant that she was making stuff up as she went along.  The complainant disagreed with the cross‑examiner’s particular propositions, each to the effect that none of the inappropriate touching and sexual activity had ever occurred.[12]

    [12]   Transcript, 11 August 2023, 27.32-28.

21. The complainant agreed that she had “hacked” the appellant’s mobile telephone on more than one occasion, after having worked out his passcode.  She said that she only looked at his Facebook account.  The complainant agreed that she “dobbed him in” to her mother when she realised that he was having at least one affair.  When asked whether the complainant told her mum about the affair before she told her about the allegations of sexual abuse, the complainant said that she could not remember.[13]  When asked whether there was “in fact nothing … to stop you from telling your mum about what [the appellant] had been up to”, the complainant said that she could not remember.[14] 

    [13]   Transcript, 11 August 2023, 28.30-28.32.

    [14]   Transcript, 11 August 2023, 28.33-28.35.

22. Eventually, the cross-examiner took the step of asking the complainant whether the appellant had actually put his penis in her bum 10 times, to which the complainant said that she could not remember.  Perhaps surprisingly, the cross-examiner continued.  The cross-examiner asked the complainant what she could remember, to which she said she remembered it happening “a couple of times”. 

23. When the complainant was asked to indicate when it was that she told police about those two occasions, the complainant’s answer was interrupted by an objection from counsel for the prosecution.[15]

    [15]   Transcript, 11 August 2023, 30.22-30.35.

24. The objection, made in the absence of the complainant, concerned a point that the prosecutor said that she was going to deal with in re-examination.  The effect of the point was that it was “not clear at all” from the interview that the complainant had said that the appellant put his penis in her bum on 10 occasions.  The prosecutor submitted that it was unfair and unclear whether the complainant meant penetration.  During the course of these submissions, the prosecutor relied upon what the complainant had said in the first of the prescribed interviews.  Ultimately, it was determined that this was a matter for the prosecutor to address in re-examination. 

25. Later, in the course of re-examination, the complainant was asked by the prosecutor what she meant by “in my bum” and her answer was “like around my bum area”.[16]  The complainant was then asked about a statement she had made later in the interview that the appellant’s penis touched her bum.  The prosecutor asked the complainant, “which part of your bottom”, to which the complainant answered her “lower bum”.[17] 

    [16]   Transcript, 11 August 2023, 34.28-34.29.

    [17]   Transcript, 11 August 2023, 35.5-35.7.

26. The prosecutor then re-examined on the topic of ejaculation.  During a series of leading questions to which no objection was taken, the complainant was asked questions about whether, when she described the appellant’s “white stuff going onto your belly” she was describing what had occurred on only one occasion.

27. The prosecutor then proceeded to ask a further series of leading questions about what the complainant had said concerning the appellant’s inappropriate touching and other sexual activity.  This was interrupted by the presiding judge, who questioned whether the prosecutor was undertaking proper re-examination.  The prosecutor responded, accusing the appellant’s counsel of having made “an improper suggestion”:[18]

    [Counsel for the appellant] put that the 10 occasions were all described as penis and bottom, so that’s an improper suggestion about what was disclosed and what was discussed on this first occasion.  All I’m establishing is that the complainant described these other incidents …

    [18]   Transcript, 11 August 2023, 36.7-36.11.

28. The prosecutor explained that these other incidents were described later during the course of the initial interview, and that interview was not in evidence.

    The course of evidence and addresses at the trial

29. It is necessary to address the course of the evidence at the trial, as well as the final addresses and the summing up, in order to put into context how certain of the statements made by the complainant during the initial interview were deployed before the jury. 

30. As will be seen, neither counsel at the trial assisted the trial judge to address the relevance and significance of the evidence concerning what were said to be prior inconsistent statements made by the complainant.

31. The trial commenced in the ordinary way on Monday, 26 February 2024 with preliminary directions from the trial judge and an opening from the prosecutor. The video evidence of the three prescribed interviews and the s 12AB special hearing was then played for the benefit of the jury during the first and second days of trial.

32. Each video was marked as an exhibit and transcripts of what was said in each video were marked for identification and provided to the jury as aides-memoire. 

33. Soon after lunch on the second day, before the prosecution called its first witness, the appellant’s counsel made an application that the jury see the video of the initial interview with police taken with the benefit of a body worn camera. This video contained the statements which had been the subject of cross‑examination of the complainant during the special hearing conducted pursuant to s 12AB of the Evidence Act.  After the application was announced, the prosecutor submitted that this was “completely improper and not relevant”:[19]

    In my submission it’s completely improper and not relevant to the matter before your Honour and before this jury. 

    If there was a specific aspect of a prior inconsistent statement, that was put to the complainant during the course of cross-examination and, in my submission, any submissions in relation to that prior inconsistent statement then can be made [in] closing addresses.  But to just play a further interview of the complainant’s evidence and –

    HER HONOUR:  If there’s an inconsistency, couldn’t it be the subject of an agreed fact?

    [Counsel for the appellant]:  Well, it appears not.  Part of the problem and my friend’s used again the term ‘improper’ and she used that term in the midst of re-examination.  She said something to the extent of there being an improper presentation of what she had said.  Now, I do not accept that at all…The problem is this: that only by seeing it can the jury assess the question of whether there has been an inconsistency and the extent of it.  And, in particular, this opening disclosure, if I can put it that way, of the penis being put in her bum and that occurring 10 times.

    [19]   Transcript, 27 February 2024, 46.29-47.15.

34. In the course of her submissions, the prosecutor described the s 12AB “process” as “essentially to mimic the process that would occur in court” and she complained that if there was an inconsistency in a statement or interview then that should have been shown to the witness and then explored with the witness.[20]

    [20]   Transcript, 27 February 2024, 48.28-48.37.

35. Counsel for the appellant did not refer to ss 28 or 29 of the Evidence Act but submitted that the defence was ordinarily permitted to prove an inconsistency if there was not an unambiguous acceptance of a previous inconsistent statement.[21]  This was not done by reference to the words of the Evidence Act provisions and the trial judge was not taken to them.  Indeed, neither counsel addressed these provisions with any precision.

    [21]   Transcript, 27 February 2024, 50.1-50.6.

36. During the course of the debate the trial judge again asked whether the issue could not be made the subject of agreed facts, which was answered by counsel for the appellant by pointing out that, even if something was agreed, the prosecution already had on video what had been put by way of challenge during the s 12AB special hearing.[22]

    [22]   Transcript, 27 February 2024, 50.32-51.1.

37. The debate then turned to how the video evidence might be led, including whether it might be led through the investigating officer, whether in‑chief by the prosecution or in cross‑examination by the appellant. During the course of this part of the debate the prosecutor suggested that the complainant had accepted what was put to her. The prosecutor went on to complain again that this issue should have been addressed during the s 12AB special hearing. It is a little difficult to understand exactly what the prosecutor had in mind, and though she referred to giving the complainant the opportunity to “confirm, clarify or the like”, this submission was not grounded in the terms of the Evidence Act.[23]

    [23]   Transcript, 27 February 2024, 52.13-52.18.

38. The trial judge deferred her ruling until the following day.  Before that occurred, there was further debate about the topic later that afternoon.  During the course of that second debate the prosecutor submitted:[24]

    A witness is entitled to have a prior inconsistent statement put to them and their comment in relation to that.  Now, in order for it to be placed before the jury as a prior inconsistent statement and, in my submission, in summing up…it needs to be put to the witness.

    [24]   Transcript, 27 February 2024, 82.25-82.31.

39. It will be necessary to return to this submission because it did not accurately reflect what had happened in the s 12AB special hearing, nor what the terms of ss 28 and 29 of the Evidence Act required.

40. The trial judge recognised that the inconsistencies relied on by the appellant were matters that needed to be taken into account by the jury when assessing the complaint’s credibility and reliability.[25]

    [25]   Transcript, 27 February 2024, 83.16-83.20.

41. On day three of the hearing, counsel for the appellant finally referred to the words of s 28 of the Evidence Act and submitted that, on the evidence as a whole, it could not be said that the inconsistency had been “distinctly admitted”.[26]  Counsel submitted that he was entitled to adduce the evidence of the statement contained in the initial interview to prove the inconsistency.[27] The discussion between counsel for the appellant and the trial judge included the observation that the prosecutor’s assertion during the s 12AB special hearing that counsel for the appellant had made “an improper suggestion” was concerning.

    [26]   Transcript, 27 February 2024, 86.8-86.16.

    [27]   Transcript, 27 February 2024, 86.8-86.16.

42. That, however, was not counsel’s only concern because, as he submitted to the trial judge, the prosecutor had provided a summary of her own view of the evidence and presented that to the witness and obtained the witness’s assent to it in re-examination.  The effect, it was submitted, was that the complainant had retracted her admission that she had made a prior inconsistent statement.[28]

    [28]   Transcript, 27 February 2024, 86.37-87.1.

43. Counsel for the appellant submitted that the jury had to make a decision as to which counsel was “right … being deprived of the best evidence”.[29] There was then a debate as to whether the video of the initial interview should have been tendered during the s 12AB special hearing or during the trial.

    [29]   Transcript, 27 February 2024, 87.4-87.6.

44. In response, the prosecutor submitted that s 28 of the Evidence Act did not apply because the complainant admitted what were said to be the prior inconsistent statements.  The prosecutor submitted that the re‑examination simply clarified what the complainant had actually meant when she made those admissions.

45. Counsel for the prosecution conceded that her use of the word “improper” when referring to the submissions of counsel for the appellant during the s 12AB hearing was “incorrect” and itself “improper”,[30] but maintained that if the video of the initial interview was to be tendered, that should have been done during the s 12AB hearing.

    [30]   Transcript, 27 February 2024, 90.25-90.36.

46. The trial judge gave no reasons for her ruling, but allowed the application of the appellant, having earlier suggested that it was a “fairness issue” which was not restricted by the parameters of s 28 of the Evidence Act.[31]  Later, the trial judge said that she was concerned that the prosecutor’s use of the word “improper” was already before the jury and she thought “they need to see what this is really all about”.[32]

    [31]   Transcript, 27 February 2024, 92.25-92.27.

    [32]   Transcript, 27 February 2024, 94.36-95.3.

47. Following the ruling, the prosecutor expressed concern about whether the prosecution might be prejudiced because it may appear “the prosecution … have hidden it”, meaning the video of the initial interview, notwithstanding that the prosecution had played more than five hours of video evidence for the jury.  It was determined that the prosecution would lead the video of the initial interview through the evidence-in-chief of the investigating officer, telling the jury that it was “just to understand the evidence”.[33] 

    [33]   Transcript, 27 February 2024, 94.24-94.30.

48. Detective Odell was then called and, during the course of her examination, the video of the initial interview, lasting around 20 minutes, was played for the jury.[34]  After the cross‑examination of Detective Odell, some facts were agreed and the prosecution closed its case.  The defence called no evidence and closed its case.[35]

    [34]   Transcript, 27 February 2024, 107.28-107.36.

    [35]   Transcript, 27 February 2024, 112.26-112.27.

    The final addresses to the jury

1. On the afternoon of the third day of trial, the prosecutor commenced her address to the jury. 

2. During the course of her address to the jury the prosecutor approached the initial interview with police, in part, by suggesting that the incidents in the shower involving baby oil and the appellant rubbing his penis on the complainant’s bottom was “something that had happened 10 times”.[36] 

   [36]   Transcript, 27 February 2024, 121.33-122.2.

3. The prosecutor then addressed the prescribed interviews and suggested to the jury that the complainant had described the repeated nature of the sexual abuse and how most of the incidents were the same and “just happened over and over”, which demonstrated the complainant’s consistency.[37]  The prosecutor asked rhetorically, what had the complainant made up or invented along the way?[38]  She submitted that there was nothing unremarkable about the fact that further details had arisen during the subsequent prescribed interviews.[39]  The prosecutor submitted to the jury that the complainant was not untruthful simply because she was unable to give her evidence about the offending “in perfect order”.[40]

   [37]   Transcript, 27 February 2024, 123.20-123.26.

   [38]   Transcript, 27 February 2024, 123.13-123.14.

   [39]   Transcript, 27 February 2024, 124.2-124.7.

   [40]   Transcript, 27 February 2024, 124.28-124.36.

4. On the question whether the complainant told police that the appellant “put it in her bum”, the prosecutor relied on the answer given by the complainant in re‑examination, “I meant like around my bum area”.[41]  The prosecutor submitted that the complainant was a 13-year-old girl who was having difficulty describing what she had experienced.  The prosecutor submitted that Officer Gray had given “an incorrect characterisation” when suggesting during the initial interview that there were 10 occasions of penis and anal sex.[42]

   [41]   Transcript, 27 February 2024, 126.16-126.28.

   [42]   Transcript, 27 February 2024, 126.29-126.33.

5. The prosecutor relied upon the complainant’s evidence that she did not know what “ejaculation” was to argue that this helped to explain some of the inconsistencies in her evidence, such as whether anything had or had not come out of the appellant, and whether there were errors in matters of detail.[43]  The prosecutor then submitted that the purpose of the initial interview was to get basic information in order to determine whether to investigate, “it wasn’t about the details”.[44]

   [43]   Transcript, 27 February 2024, 127-128.

   [44]   Transcript, 27 February 2024, 128.7-128.11.

6. On the topic of the messages found by the complainant in the appellant’s Facebook account, the prosecutor submitted to the jury that they might have thought the complainant was giggling when she was asked about this, but the prosecutor questioned whether the complainant really did “seem like a malicious and vindictive girl”.[45]  The prosecutor ridiculed the idea that there was “some terrible vendetta” to “get back” at the appellant, and she reminded the jury about the gifts the appellant gave to the complainant.[46]

   [45]   Transcript, 27 February 2024, 132.26-132.30.

   [46]   Transcript, 27 February 2024, 132.31-133.22.

7. The prosecutor concluded her address with a lengthy submission about the compelling way in which the complainant presented during the prescribed interviews and how she became less emotional and better able to talk about the details.

8. That afternoon, counsel for the appellant commenced his final address to the jury.  Counsel spoke about the prospect that a girl of the complainant’s age may be able to construct a “horrible fabrication” engaging in a “dramatic exercise of power” by a child.[47]  In the course of addressing various points, counsel for the appellant drew a distinction between the use of the word “ejaculation” and knowing the concept, acknowledging that the complainant had not been pressed on that.  In addition, it was submitted that there were some things about which the complainant could not be challenged, such as the complaint evidence, because that happened in the absence of the appellant.  The appellant could not know whether it took place at all.[48] 

   [47]   Transcript, 27 February 2024, 139.27-140.3.

   [48]   Transcript, 27 February 2024, 141.23-141.30.

9. On other matters, counsel for the appellant criticised the complainant’s account as being inconsistent, particularly with what was said during the initial interview.  It was suggested to the jury that it was implausible and there was no reasonable explanation for how the complainant could fail to remember anything coming out of the appellant during the initial interview, only later to describe in some detail that it occurred in the appellant’s car.[49] The appellant’s counsel submitted to the jury that the defence did not accept that the complainant gave a naive, innocent assessment of anything she actually saw or experienced.[50]

   [49]   Transcript, 27 February 2024, 142.33-143.10.

   [50]   Transcript, 27 February 2024, 150.24-150.26.

10. Counsel for the appellant made a number of submissions endeavouring to demonstrate why the complainant was both lacking in credibility and unreliable.  These included that she could not have forgotten about an incident of being ejaculated upon and then wiped off in the car, and he referred to the jury having “heard this mass, this rolling mass of material … this potpourri of shifting tales” none of which was “capable of being substantiated from any other source”.[51]

    [51]   Transcript, 27 February 2024, 151.34-151.38.

11. Counsel referred to the evidence of the complainant’s mother which suggested there were only two or three occasions when the appellant was alone overnight with the complainant in his home unit overnight,[52] and that there was no sign of the complainant being upset when she returned from the appellant’s home unit as late as September 2021.[53]

    [52]   Transcript, 27 February 2024, 152.8-152.20.

    [53]   Transcript, 27 February 2024, 153.22-153.26.

12. As for the complaint evidence, the complainant’s mother did not take her to hospital or for a medical examination which would have occurred if there had been anal penetration.[54]

    [54]   Transcript, 27 February 2024, 153.27-154.2.

13. Later, counsel for the appellant spoke about the initial interview suggesting that the complainant had “gone in there armed with one of the more distressing allegations that could be levelled at a stepfather [by] a stepdaughter”.[55] Counsel suggested that the allegation of anal penetration involved “militarising that little snippet against” the appellant,[56] and that she had made a false account but then realised that police could probably prove that she had not been anally raped.[57]  Counsel for the appellant suggested that the complainant was resourceful, creative, intelligent and articulate.  Counsel suggested that the complainant went to a “softer option” rather than maintain her first allegation.[58] 

    [55]   Transcript, 27 February 2024, 154.3-154.14.

    [56]   Transcript, 27 February 2024, 154.15-154.18.

    [57]   Transcript, 27 February 2024, 154.23-154.31.

    [58]   Transcript, 27 February 2024, 155.5-155.9.

14. Counsel then emphasised that the complainant’s mother had rung a counsellor after the complaint evidence and told her that the complainant was lying about everything.[59] 

    [59]   Transcript, 27 February 2024, 155.10-155.14.

15. Counsel for the appellant submitted to the jury that the complainant knew about the scheme by which words placed into a school computer would generate a report to a counsellor,[60] and that she was concerned for her mother after she had hacked into the appellant’s phone and found posts which proved that he had been having an affair.[61] The submission to the jury was that the complainant addressed the question of the affair before making any allegation of sexual abuse. That was because “mum doesn’t get the message”,[62] and the next year at the end of June 2022 the complainant again told her mother about the appellant “playing around”.[63]

    [60]   Transcript, 27 February 2024, 156.32-156.33, being the SWIFT scheme.

    [61]   Transcript, 27 February 2024, 157.5-157.31.

    [62]   Transcript, 27 February 2024, 157.28.

    [63]   Transcript, 27 February 2024, 157.32-157.36.

16. Late on the third day, the prosecutor suggested to the trial judge that her Honour should introduce the video of the initial interview to the jury as something “to provide you with context” concerning the prescribed interviews.[64]  Counsel for the appellant made no objection to that course.  On the topic of prior inconsistent statements, counsel for the appellant responded to a question from the trial judge by submitting that he was going to address those in the balance of his speech to the jury.[65]

    [64]   Transcript, 27 February 2024, 160.7-160.14.

    [65]   Transcript, 27 February 2024, 161.6-161.8.

17. There was then a submission by the prosecutor that the inconsistencies in the complainant’s evidence could “come within the prior inconsistent statement direction”, being the generic direction, with which the trial judge agreed.[66]  Nothing was said about that topic by counsel for the appellant.

    [66]   Transcript, 27 February 2024, 161.11-161.16.

18. Counsel for the appellant resumed his final address on the morning of the fourth day of trial. 

19. Counsel addressed in detail what had been said by the complainant during the initial interview.[67]  Counsel reiterated the submission that the later allegations, after the allegation concerning anal sex, were allegations which could not be disproved by medical examination.[68]  Counsel then moved to the prescribed interviews and pointed out that police had been attempting to set up a timeline but that this was difficult.[69] 

    [67]   Transcript, 27 February 2024, 164-166.

    [68]   Transcript, 27 February 2024, 165.30-165.32.

    [69]   Transcript, 27 February 2024, 147.29-148.1, 166.24-166.28.

20. After addressing various features of the allegations made during the prescribed interviews, including the issue surrounding whether the appellant had ejaculated on one or more occasions, it was submitted to the jury that the complainant was confabulating and had forgotten the lines of her story.[70] 

    [70]   Transcript, 27 February 2024, 173.27-173.30.

21. Counsel for the appellant then urged the jury to have regard to the burden of proof and entertain doubt about the appellant’s guilt.[71] 

    [71]   Transcript, 27 February 2024, 177.19-177.37.

22. Counsel for the appellant addressed the jury on whether there was “some kind of two-stage process” whereby the jury was required to determine whether someone was telling the truth and then decide whether that person was reliable.  It was submitted that the jury was welcome to take the court’s guidance but “ultimately how you assess evidence and how you assess witnesses is entirely a matter for you”.[72]

    [72]   Transcript, 27 February 2024, 178.4-178.9.

23. During the course of a discussion with counsel following their addresses there was a discussion about how the judge might approach the question of anal penetration in her summing up.  In the course of that discussion, the trial judge said that it was a matter for the jury “what they make of [the complainant’s] answers that she gave to police and the submissions that counsel had made on the topic”.[73]  The trial judge foreshadowed that she would tell the jury to return the transcripts of the videos to the Sheriff’s officer.[74]  No objection to that course was made.

    [73]   Transcript, 27 February 2024, 182.32-183.35.

    [74]   Transcript, 27 February 2024, 183.4-183.5.

    The summing up by the trial judge

24. Later that morning on the fourth day of the trial judge gave her summing up to the jury. 

25. Apart from general directions about the different roles of the judge and the jury,[75] the trial judge gave brief instructions about the assessment of witnesses.[76]  The trial judge commenced with the proposition that the complainant was the most important witness for the prosecution and that the prosecution case rested on the jury’s assessment of her evidence, which must be scrutinised with care.[77] 

    [75]   Appeal book, 51.

    [76]   Appeal book, 52-53.

    [77]   Appeal book, 52.

26. The trial judge then referred to the assessment of a witness’s evidence involving the two steps referred to by counsel for the appellant in his address:[78]

    First, you must decide whether the witness is honest, that is whether he or she was honestly attempting to tell you the truth. If you decide you have an honest witness, the next step is to decide whether the evidence given by that witness is reliable and accurate because, of course, a person may be honest and honestly believe that he or she is telling the truth, but in fact be wrong.

    [78]   Appeal book, 52.

27. The trial judge reminded the jury that they did not have to accept or reject everything said by a witness without qualification and that questions put by counsel were not of themselves evidence.  It was what the witness said in response to those questions that constituted the evidence.[79]  The trial judge emphasised that what she had mentioned were “only guides for your assistance”, and that it was a matter for the jury to decide “how far each of the witnesses [was] truthful and reliable”.[80]

    [79]   Appeal book, 53.

    [80]   Appeal book, 53.

28. The trial judge then gave a standard direction to the effect that just because evidence was given by video did not mean that it was to be treated in any way different from the evidence given by other witnesses and “it says nothing about the accused”.[81]  As for the video of the initial interview, the trial judge said that it was before the jury to “provide you with the context of … disclosure to police”:[82]

    Members of the jury, you will recall the video of the first time police spoke with [the complainant] at the school, and that was played to you yesterday. You will have no doubt noticed that it did not follow the same format as the other three police interviews, which are called prescribed interviews. You will remember Sergeant Odell’s evidence that this was taken when police first arrived at the school to determine whether there was anything for police to investigate.

    Ladies and gentlemen, the law provides certain rules as to how prescribed interviews must be conducted and the prosecution can only rely on prescribed interviews to be led that comply with those rules. The very first interview with [the complainant] does not qualify as a prescribed interview, but it is before you to provide you with the context of [the complainant’s] disclosure to police, what she said and what questions were first asked of her.

    [81]   Appeal book, 53.

    [82]   Appeal book, 53.

29. Nothing was said about the permissible use of the prior statement, nor the potential effect of the prior statement on the complainant’s evidence.[83]  Why the initial interview provided “context” of the disclosure to police was not explained.

    [83]   Driscoll v The Queen (1977) 137 CLR 517, 536 (Gibbs J), addressed later in these reasons.

30. The trial judge addressed the appellant’s right to silence and the need for proof beyond reasonable doubt before addressing the complaint evidence.[84]  The trial judge reiterated the submission by counsel for the appellant that the complainant had a motive to make false allegations against the appellant following her discovery of the Facebook messages revealing infidelity.[85]  The trial judge explained to the jury that the complainant’s mother had been told about evidence of the affair before she was told about the abuse and that the complainant was very angry with the appellant.  The trial judge told the jury that the complainant provided further screenshots to her mother in June 2022.[86]

    [84]   Appeal book, 54.

    [85]   Appeal book, 55.

    [86]   Appeal book, 55.

31. The trial judge then addressed the arguments of counsel on the topic of whether the complainant had engaged in a well-thought-out, manipulative story.[87]  The trial judge directed the jury that a motive to lie was relevant to an assessment of the complainant’s credibility and that, even if the jury rejected the alleged motive, that did not mean that the complainant was truthful.[88]

    [87]   Appeal book, 56.

    [88]   Appeal book, 57.

32. After addressing the elements of the charged offence, the trial judge addressed the complainant’s allegations about each of the sexual acts perpetrated by the appellant.  None of these involved anal intercourse.[89]

    [89]   Appeal book, 58.

33. The trial judge then reminded the jury of some aspects of the final addresses of each counsel.[90]

    [90]   Appeal book, 62ff.

34. The trial judge reminded the jury that the prosecutor had submitted to the jury that any suggestion that the complainant had told police that the appellant put his penis in her bum was clarified by re-examination in which she had actually meant “like around her bum area” and that what was being discussed by the complainant was the occasions when the accused rubbed his penis on her bum using baby oil in the shower.  Whether Officer Gray had incorrectly characterised what had been said to her was also addressed.[91]

    [91]   Appeal book, 63.

35. Similarly, the trial judge reminded the jury about the arguments by counsel for the appellant concerning the first interview, suggesting that the complainant had gone into that interview armed with one of the more distressing allegations that could be levelled, that of anal penetration, but that the complainant had had second thoughts.[92]

    [92]   Appeal book, 64.

36. The trial judge reminded the jury that the complainant had not given evidence about whether she knew that anal penetration may cause injury, or whether she knew about the SWIFT system operating at the school, and that they were not to speculate about these matters.[93]

    [93]   Appeal book, 65, being the system that triggered contact with a counsellor if certain words were typed into a school computer.

37. After giving standard directions on the approach the jury should take to proof of the allegations concerning offending under s 50 of the CLCA, the jury was asked to return the transcripts of the video evidence, being the aides-memoire which had been marked for identification.[94]

    [94]   Appeal book, 66.

38. The jury was then invited to retire to consider their verdict.[95]  No general direction was given about prior inconsistent statements.  Neither counsel asked for any further directions.[96] 

    [95]   Appeal book, 66-67.

    [96]   Appeal book, 67.

    The determination of appeal ground 1

39. At the hearing of the appeal neither counsel addressed the rules or authorities relating to the proof and use of prior inconsistent statements. 

40. Whilst counsel for the appellant contended that no directions had been given, counsel for the respondent countered that the trial judge’s summing up had to be tailored to the issues raised at the trial,[97] and that the absence of any application for a relevant direction by counsel for the appellant at the trial afforded a practical indication of the relevance of those matters, and assisted in determining whether there had been any risk of miscarriage of justice.[98] 

    [97]   Perara-Cathcart v The Queen (2017) 260 CLR 595, 619 [60] (Kiefel, Bell and Keane JJ); De Silva v The Queen (2019) 268 CLR 57, 70 [35] (Kiefel CJ, Bell, Gageler and Gordon JJ).

    [98]   Orreal v The Queen (2021) 274 CLR 630, 639 [16] (Kiefel CJ and Keane J); Milosevic v The Queen (2022) 140 SASR 376, 391-392 [80] (Lovell, Livesey and Bleby JJA).

41. In these circumstances it is necessary to commence by addressing the evidence led at the trial, and the rules concerning prior inconsistent statements and their proper use.  The starting point is the evidence obtained before the trial, and the statutory aids to its admissibility at the trial.

    The statutory aids to proof of the complainant’s evidence

42. As is now commonplace, the complainant’s evidence was given by a combination of videos obtained before the trial commenced.  This audio-visual evidence was then led at the trial with the assistance of statutory aids and evaluated as if it were evidence given at the trial.

1. Obtaining evidence in the form of an audio-visual record before the trial has obvious advantages. Where it is obtained as part of a prescribed statement given to police, that may occur relatively soon after the offending alleged and at a time when the events may be clear in the complainant’s memory.  Whilst relating allegations of sexual offending is never likely to be free of difficulty, it may be somewhat easier when it is done in the course of a discussion with trained police and, if necessary with assistance, away from a courtroom. Even where the evidence is given in the course of a pre-trial special hearing, the complainant will likewise be giving evidence, again if necessary with assistance, away from a traditional courtroom.

2. Proceeding in this way ensures that there is a record of what was said, which can be used at any later trial or retrial without the need for the complainant to step into a courtroom and repeatedly relate the allegations.  For the defence, there is an opportunity to carefully consider the prescribed statements and evidence with the assistance of transcripts and determine whether there are relevant variations, inconsistencies or omissions in the account, especially over time.

3. That the complainant’s evidence was recorded on a number of occasions long before the trial started did not necessarily affect the way in which it needed to be addressed at the trial having regard to the applicable rules of evidence.

4. Nonetheless, this move away from a traditional trial at which all the evidence is given in the same room during the same hearing gives rise, at the least, to the potential for confusion regarding what is or is not properly before the jury, as well as its relevance, when all of the material is eventually put before the jury at the trial. For example, the prosecution case at trial comprised in this case the complainant’s evidence as recorded in the prescribed statements, together with the evidence taken pursuant to the special hearing conducted before the trial pursuant to s 12AB of the Evidence Act.  That evidence included the complainant being questioned about her answers given to police during an initial interview which was conducted just before the first of the prescribed interviews.  Those questions and answers were played to the jury along with the balance of the audio-visual record of the special hearing without anyone addressing whether this material was properly before the jury, or on what basis.

5. Section 13BA the Evidence Act was introduced from 1 July 2016 as part of a suite of provisions – which included pre-trial special hearings under s 12AB of the Evidence Act, and prescribed statements under Division 3 of Part 17 of the Summary Offences Act – concerning the admission in a criminal trial of evidence of “vulnerable witnesses” in the form of audio-visual recordings.[99]

   [99]   Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA).

6. During the second reading, the Attorney-General explained the purpose behind this suite of provisions:[100]

   This part of the Bill aims to improve the quality of the testimony of this class of witness by taking their evidence as near in time as possible to the laying of charges so as to assist memory and alleviate the painful reliving of experiences many months or even years after the event. The Bill anticipates the use of special arrangements for a witness during a pre‑trial special hearing and intends that the hearing will take place in informal surroundings that do not, as would a formal trial courtroom, stress or intimidate the vulnerable witness and inhibit communication.

   [100] 2^nd Reading Speech, Hansard, 6 May 2015, 1037.

7. Section 13BA was amended by the Evidence (Vulnerable Witnesses) Amendment Act 2020 (SA) to remedy “the difficulties relating to the interaction between sections 12AB and 13BA of the Evidence Act”.[101]  These were that an application regarding the admission of evidence could not be determined at the time of the pre-trial special hearing, with the risk that a vulnerable witness may be required to again give evidence at trial, defeating the “original aims”.[102]

   [101] 2^nd Reading Speech, Hansard, 23 September 2020, 2715.

   [102] 2^nd Reading Speech, Hansard, 23 September 2020, 2715.

8. The Attorney-General also explained that ss 12AB and 13BA were designed to facilitate “the taking of evidence of vulnerable witnesses as early as possible in a criminal process and to minimise the number of times they are required to give evidence”.[103] The purpose behind the amendment of s 13BA of the Evidence Act was explained in the following way:[104]

   This bill, which builds on previous legislative reforms, aims to reduce the trauma experienced by children, people with disabilities and other vulnerable witnesses when participating in the criminal justice system. That has to be a good thing.

   [103] 2^nd Reading Speech, Hansard, 23 September 2020, 2715.

   [104] 2^nd Reading Speech, Hansard, 23 September 2020, 2715.

9. Section 13BA of the Evidence Act is central to the admission of audio-visual evidence in criminal cases in South Australia.  It addresses the admission of the “evidence of a witness … in the form of an audio visual record” (s 13BA(1)), in the following terms:[105]

   [105] Evidence Act, s 13BA.

   13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings

   (1)Subject to this section, the court may, in the trial of a charge of an offence, or in a pre-trial special hearing conducted in accordance with section 12AB, order that the evidence of a witness be admitted in the form of an audio visual record.

   (2)Subject to subsection (2a), an application for an order under subsection (1) must—

   (a)     be made in writing by the party wishing to have the audio visual record of the evidence admitted under this section; and

   (b)     be filed in the court; and

   (c)     within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and

   (d)     otherwise be made in accordance with the rules of court.

   (2a)An application for an order to admit an audio visual record of the examination, cross‑examination or re-examination of a witness at a pre-trial special hearing may be made orally at the pre-trial special hearing or in accordance with any directions of the court.

   (3)An audio visual record of the evidence of a witness may be admitted under this section if the recording—

   (a) has been made in a pre-trial special hearing conducted in accordance with section 12AB; or

   (b) has been made pursuant to Part 17 Division 3 of the Summary Offences Act 1953 and—

   (i)the court is satisfied as to the witness’s capacity to give sworn or unsworn evidence at the time the recording was made; and

   (ii)the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and

   (iii)the witness is available, if required, for further examination, cross examination or re-examination during the course of the trial or, if the order for admission of the recording is being sought in a pre-trial special hearing under section 12AB, during the course of the pre-trial special hearing.

   (4)The court’s discretion to exclude evidence is not affected by subsection (3) and the court may—

   (a)     rule as inadmissible the whole or any part of the recording; or

   (b)     before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.

   (5)Despite subsection (3)(b)(iii), the witness cannot be further examined, cross examined or re-examined on the evidence admitted under this section without the permission of the court which may only be given, on application by a party to the proceedings—

   (a)     if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or

   (b) if the witness gives evidence in the trial or, if the order for admission of the recording is being sought in a pre-trial special hearing under section 12AB, during the course of the pre-trial special hearing, apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross examined or re-examined; or

   (c)     if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross examined or re-examined.

   (6)If a court admits evidence in the form of an audio visual record under this section, the judge must—

   (a)     explain to the jury that the law allows the court to admit evidence in this form; and

   (b)     warn the jury—

   (i)not to draw from the admission of evidence in that form any inference adverse to the defendant; and

   (ii)not to allow the admission of evidence in that form to influence the weight to be given to the evidence.

10. By s 13BA(3) an audio-visual record of the evidence of a witness may be admitted if the recording was made in a pre-trial special hearing conducted in accordance with s 12AB of the Evidence Act,[106] or where the recording was made pursuant to the prescribed statement provisions of the Summary Offences Act, and the court is satisfied as to various matters, including that the witness is available, if required, for further evidence during the trial or during a pre-trial special hearing under s 12AB.[107]

    [106] Evidence Act, s 13BA(3)(a).

    [107] Evidence Act, s 13BA(3)(b).

11. Whilst these provisions are designed to facilitate obtaining evidence from complainants or witnesses before a trial commences, and then admitting it at the trial, a trial judge is required to warn a jury at the trial that the court allows the admission of evidence in this form, and they are not to draw any inference adverse to the defendant, nor allow the admission of the evidence in that form to influence the weight they give to it.[108] 

    [108] Evidence Act, s 13BA(6).

12. In R v Sparks, the Court of Criminal Appeal determined whether the trial judge had erred in admitting an audio-visual record into evidence under s 13BA where there was no evidence concerning the child complainant’s capacity to give sworn or unsworn evidence at the time of the interview which it was said is addressed by s 9 of the Evidence Act.[109]  The Court dismissed the defendant’s appeal. After considering the statutory scheme,[110] the Court held that a prescribed statement is admitted as the evidence of the witness,[111] and though it is not testimonial evidence, it is equated to testimonial evidence.[112]

    [109] R v Sparks [2017] SASCFC 171, [4] (Blue J, with whom Kourakis CJ and Hinton J agreed).

    [110] R v Sparks [2017] SASCFC 171, [27]-[37] (Blue J, with whom Kourakis CJ and Hinton J agreed).

    [111] R v Sparks [2017] SASCFC 171, [38]-[39] (Blue J, with whom Kourakis CJ and Hinton J agreed).

    [112] R v Sparks [2017] SASCFC 171, [40] (Blue J, with whom Kourakis CJ and Hinton J agreed).

13. The Court held that s 9 of the Evidence Act did not apply at the time of the interview, but that the trial judge was required to be satisfied at the trial about the witness’s capacity to give sworn or unsworn evidence at the time the recording was made as s 13BA(3)(b)(1) required.[113] Two observations may be made about this ruling.  First, the assessment made by the trial judge at the trial will be informed by but not confined to what is apparent from the video.  Secondly, this case provides an example where the more specific provision (s 13BA(3)(b)(1)) prevailed over the general provision (s 9 of the Evidence Act).[114]

    [113] R v Sparks [2017] SASCFC 171, [41]-[48] (Blue J, with whom Kourakis CJ and Hinton J agreed).

    [114] Perpetual Executors and Trustees v Federal Commissioner of Taxation (1948) 77 CLR 1, 29 (Dixon J), “the principle expressed in the maxim generalia specialibus non derogant [things general do not derogate from things special] … has been used in relation to the abrogation by statute of a charter or custom and to the interpretation of a single statute containing a special and a general provision.”

14. Similarly, in R v P, G, the Court of Criminal Appeal held that s 9(4) of the Evidence Act did not apply to an audio-visual record of a statement made under Part 17 Division 3 of the Summary Offences Act 1953 (SA) and admitted under s 13BA.[115] The Court held that there was no basis to imply any obligation to give directions additional to those directions explicitly set out in s 13BA(6).[116] Where the trial judge gave the requisite warning required by s 13BA(6)(b) before the evidence was admitted it was, in the circumstances, not necessary to repeat the warning in the summing up.[117]

    [115] R v P, G [2019] SASCFC 7, [31] (Blue J, with whom Kelly and Lovell JJ agreed).

    [116] R v P, G [2019] SASCFC 7, [37] (Blue J, with whom Kelly and Lovell JJ agreed).

    [117] R v P, G [2019] SASCFC 7, [40]-[52] (Blue J, with whom Kelly and Lovell JJ agreed).

15. In Kirkland v The Queen, this Court held that the warning contained in s 13BA(6) did not need to be given in a trial by judge alone.[118]

    [118] In Kirkland v The Queen [2021] SASCA 14, [62]-[63] (Kelly P, with whom Lovell and Bleby JJA generally agreed).

16. In R v Cronin, the Court of Criminal Appeal held that a recorded interview in which only the top of the complainant’s head could be seen did not constitute an “audio visual record of the statement of a witness” under s 13BA(2) or an “audio visual record of the evidence of a witness” under s 13BA(3).[119] In consequence, the recorded interview was inadmissible because it did not include both the “audio” and the “video” record of the witness speaking,[120] and “[w]hat is heard must also be seen”.[121]

    [119] R v Cronin [2018] SASCFC 61, [20]-[21] (Vanstone J, with whom Nicholson J agreed). See, for example, R v O’Loughlin [2018] SADC 73 where a statement was excluded.

    [120] R v Cronin [2018] SASCFC 61, [3] (Kourakis CJ, with whom Nicholson J agreed).

    [121] R v Cronin [2018] SASCFC 61, [22]-[25] (Vanstone J, with whom Nicholson J agreed) “It is plainly envisaged that the recording will largely take the place of viva voce evidence by the witness”.

17. In R v K, MC, the Court of Criminal Appeal rejected a complaint about the absence of a direction concerning the use of unsworn evidence, as required under s 9 of the Evidence Act,[122] where no complaint was made to the trial judge.[123]  The Court held that the jury were directed appropriately regarding the unsworn evidence.[124]  In R v K, GA, the Court held that, in accordance with s 13BA(3)(b) of the Evidence Act, the trial judge was entitled to conclude on the facts of that case that the child complainant was capable of giving unsworn evidence at the time of the interview.[125]

    [122] R v K, MC [2018] SASCFC 133, [32] (Bampton J, with whom Kourakis CJ and Stanley J agreed).

    [123] R v K, MC [2018] SASCFC 133, [68] (Bampton J, with whom Kourakis CJ and Stanley J agreed).

    [124] R v K, MC [2018] SASCFC 133, [76]-[79] (Bampton J, with whom Kourakis CJ and Stanley J agreed).

    [125] R v K, GA [2019] SASCFC 2, [53] (Kelly J, with whom Vanstone and Parker JJ agreed).

18. Section 12AB of the Evidence Act, referred to in s 13BA(1), operates differently to the procedure for obtaining prescribed statements under the Summary Offences Act, which is set out below. It does more than simply facilitate obtaining the evidence of complainants or witnesses before a trial commences. It envisages a formal “pre-trial special hearing” which is conducted in a manner similar to the way in which a trial may now be conducted. It comprises part of the trial before the trial has started. Section 12AB is in the following terms:

    12AB—Pre trial special hearings

    (1)     Subject to this section, if—

    (a)     the evidence of a witness to whom this section applies is necessary for the purposes of the trial of a charge of an offence to which this section applies; and

    (b)     the facilities necessary to take the evidence of the witness are readily available to the court and it is otherwise practicable to make arrangements for a special hearing to be convened as a proceeding preliminary to the trial (a pre-trial special hearing); and

    (c)     the arrangements can be made without prejudice to any party to the proceedings,

    the court should, on application under this section, order that arrangements be made relating to the giving of evidence by the witness at a pre-trial special hearing.

    (2)     An order for a pre-trial special hearing—

    (a)     must make provision for each of the following matters:

    (i)that a hearing be convened as a proceeding preliminary to the trial of the charge of the offence for the purpose of taking the evidence of the witness in any setting that the court thinks fit in the circumstances (including an informal setting);

    (ii)if the witness has a physical disability or cognitive impairment—that the evidence be taken in a particular way (to be specified by the court) that will, in the court’s opinion, facilitate the taking of evidence from the witness or minimise the witness’s embarrassment or distress (including, if the witness has complex communication needs, with such communication assistance as may be specified by the court);

    Note—

    Communication assistance for a witness may be provided, for example, by a communication partner or by using a device (such as a speak‑and‑spell communication device).

    (iii)    that an audio visual record of the evidence be made;

    (iv)that the taking of evidence at the hearing be transmitted to the defendant by means of closed circuit television;

    (v)if the defendant attends the hearing in person—that appropriate measures be taken to prevent the witness and the defendant from directly seeing or hearing each other before, during or after the hearing; and

    (b)     may make provision for the witness to be accompanied at the hearing by a relative, friend or other person, or by a canine court companion, for the purpose of providing emotional support; and

    (c)     may specify that the hearing is convened for any (or all) of the following purposes:

    (i)    examination of the witness;

    (ii)     cross-examination of the witness;

    (iii)    re-examination of the witness; and

    (ca)   may specify that the hearing include an initial hearing for the purpose of taking any evidence (if required), hearing submissions and making rulings as to the admissibility of any evidence and a subsequent hearing (or hearings) for the examination, cross-examination or re-examination of the witness to whom this section applies (if required) and any other matters; and

    (d)     may make provision for any other matter that the court thinks fit.

    (3)An order must not be made for, or in, a pre-trial special hearing if the effect of the order would be—

    (a)     to relieve a witness from the obligation to give sworn or unsworn evidence or to submit to cross examination (except where recorded evidence is admitted under section 13BA and permission of the court for further examination, cross examination or re-examination of the witness is not granted); or

    (c)     to prevent the judge or defendant from observing the witness’s demeanour in giving evidence (but the observation may be direct or by live transmission of the witness’s voice and image); or

    (d)     to prevent the defendant from instructing counsel while the witness is giving evidence.

    (4)If a witness to whom this section applies is accompanied by a person for the purpose of providing emotional support or communication assistance—

    (a)     the accompanying person must be visible to the judge while the witness is giving evidence; and

    (b)     if the defendant is prevented from seeing the accompanying person directly while the witness is giving evidence—the court must ensure that the defendant is able to observe that person by direct transmission of images of the witness together with that person while the witness is giving evidence; and

    (c)     the audio visual record of the evidence must show the accompanying person throughout the taking of the evidence.

    (5)     A person may only provide communication assistance—

    (a)     if the person—

    (i)is a communication partner or has been approved by the court to provide such assistance to the witness; and

    (ii)takes an oath or makes an affirmation that he or she will communicate accurately with both the witness and the court; and

    (b)     in a case where a party to the proceedings disputes the person’s ability or impartiality in providing communication assistance—if the judge is satisfied as to the person’s ability and impartiality.

    (6)The fact that a person has provided communication assistance to a witness in a pre‑trial special hearing under this section does not of itself prevent that person also from being called as a witness in the trial of the charge of the offence or in any other relevant proceedings.

    (6a)If a witness to whom this section applies is accompanied by a canine court companion for the purpose of providing emotional support—

    (a)     the witness may also be accompanied by a person who will act as a handler for the dog and subsection (4) applies to the handler as if they were an accompanying person providing emotional support to the witness; and

    (b)     if practicable, the dog should not be visible in the audio visual record of the evidence.

    (7)     An application for a pre-trial special hearing must—

    (a)     be made in writing by the party calling the witness to whom this section applies to give evidence; and

    (b)     be filed in the court as a proceeding preliminary to the commencement of the trial; and

    (c)     within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and

    (d)     specify why the witness is a witness to whom this section applies and the reasons why the special hearing is sought; and

    (e)     otherwise be made in accordance with the rules of court.

    (8)The respondent may, if of the opinion that the witness on whose behalf the application has been made is not in fact a witness to whom this section applies, within 14 days of being served with the application (the prescribed period), file an answering document in the court objecting to the application on that ground.

    (9)If an objection to the application is filed within the prescribed period, the court must determine the application before the commencement of the trial—

    (a)     in the absence of the applicant and respondent; or

    (b)     by conducting a hearing in a room closed to the public.

    (10)If no objection to the application is filed within the prescribed period, the court must, subject to subsection (1)(b) and (c), make an order for a pre-trial special hearing pursuant to this section.

    (11)An order for a pre-trial special hearing may be varied or revoked on the court’s own initiative, or on the application of a party to the proceedings.

    (11a)If an order has been made for a pre-trial special hearing in relation to a witness in a trial of a charge of a child sexual offence, the court may also (at the time of making that order, at the pre-trial special hearing or at any other time) give 1 or more of the following directions:

    (a)     a direction about the manner of questioning the witness;

    (b)     a direction about the duration of questioning the witness;

    (c)     a direction about the questions that may or may not be put to the witness;

    (d)     if there is more than 1 accused, a direction about the allocation among the accused of the topics about which the witness may be asked;

    (e)     a direction about the use of models, plans, body maps or similar aids to help communicate a question or an answer;

    (f)     a direction that if a party intends to lead evidence that contradicts or challenges the evidence of the witness or that otherwise discredits the witness, the party is not obliged to put that evidence in its entirety to the witness in cross‑examination;

    (g)     any other direction the court thinks necessary for the fair and efficient conduct of the proceeding.

    (12)Subject to this section, a pre-trial special hearing will be conducted as the court thinks fit.

    (13)   At a pre-trial special hearing the court may do any of the following:

    (a) make orders under section 13BA as to the admission of any recorded evidence of the witness made pursuant to Part 17 Division 3 of the Summary Offences Act 1953;

    (b)     if any such recorded evidence is to be admitted—hear and determine any application for further examination, cross-examination or re-examination of the witness made pursuant to section 13BA;

    (c)     if no such recorded evidence exists or is to be admitted or if an application referred to in paragraph (b) is granted—permit examination, cross‑examination or re-examination of the witness at the pre-trial special hearing;

    (d)     make orders under section 13BA as to the admission of the audio visual record of any examination, cross-examination or re-examination of the witness at the pre-trial special hearing;

    (e)     make orders (on the court’s own initiative, or on the application of a party to the proceedings) as to any other matter that the court thinks fit (including, without limitation, any orders of a kind referred to in section 13A(2)).

    (13a)The court may only permit examination, cross-examination or re-examination of the witness at the pre-trial special hearing if the court is satisfied as to the witness’s capacity to give sworn or unsworn evidence at the time of the pre-trial special hearing.

    (14)   In this section—

    trial of a charge of an offence to which this section applies means—

    (a)     the trial of a charge of a serious offence against the person; or

    (b)     the trial of a charge of an offence of contravening or failing to comply with an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; or

    (c)     the trial of a charge of an offence of contravening or failing to comply with a restraining order under the Summary Procedure Act 1921;

    witness to whom this section applies means—

    (a)     a young child; or

    (b)     a person with a disability that adversely affects the person’s capacity to give a coherent account of the person’s experiences or to respond rationally to questions; or

    (c)     in the case of a trial of a charge of a child sexual offence, any of the following witnesses:

    (i)an alleged victim of the offence (regardless of their age at the time of the trial);

    (ii)     a child;

    (iii)    a vulnerable witness;

    (iv)any other witness if the court is satisfied that they should be allowed to give evidence in a manner contemplated by this section; or

    (d)     in the case of a trial of an offence involving domestic abuse (within the meaning of the Intervention Orders (Prevention of Abuse) Act 2009)—an alleged victim of the domestic abuse.

1. In these circumstances, in a case such as this, it will usually be necessary to direct the jury that the prior statement was before them for a limited purpose, and it could only be used to assess the credibility of the complainant.  The jury should be warned that they cannot use what was said in the prior statement for any other purpose.  In particular, the jury cannot use the prior statement as evidence of what happened.  It is not the evidence of the complainant.

2. Whether the prior statement was actually inconsistent with the complainant’s statements in the prescribed interviews and her examination in the s 12AB special hearing, and whether that affected the credibility of the complainant, were matters for the jury to determine.[187]

   [187] Cf Oks v Western Australia (2029) 265 CLR 268, [17]-[19] where the judge’s direction intruded on the jury’s function when a direction in accord with Zoneff v Queen (2000) 200 CLR 234, 245 [24] was given concerning a complainant’s lies rather than the lies of an accused.

3. Though the prosecutor suggested that the appellant’s application under s 28 of the Evidence Act had to be made at the s 12AB special hearing, that was not correct. The application could have been made at that hearing or at the trial, when the evidence was being adduced before the jury. Of course, leaving the application to the trial might entail some risk, especially if the judges at the s 12AB special hearing and the trial have different views about whether the prior statements had been distinctly admitted and whether proof would be permitted under s 28 of the Evidence Act. 

4. The trial judge appears to have viewed the case as one where the complainant distinctly admitted the prior statements, with the result that there was no need nor occasion to prove the initial interview by playing the video. Rather, the trial judge took the view that the submissions made by the prosecutor which were critical of counsel for the appellant during the s 12AB special hearing made it appropriate as a matter of fairness for the jury to see that video.

5. That aspect of the case is not now in issue.[188]  It is not necessary to express any view about the submission that what the complainant said in re-examination undermined the effect of what she had appeared to admit concerning the statements made to police at the outset of the initial interview.  That may have supported a contention that, when viewed as a whole, the complainant had not distinctly admitted the prior statements.

   [188] Whether the complainant might have been cross-examined during the s 12AB special hearing by showing her the relevant portion of the video of the initial interview with police was not a matter addressed on this appeal.

6. Though the parties and the judge addressed the jury on the arguments concerning the existence of, and explanations for, apparent inconsistencies between certain of the statements made by the complainant in the initial interview, and the evidence given in the prescribed statements and the s 12BA special hearing, the jury were given no directions on the two questions earlier outlined, nor along the lines earlier set out.

7. Accordingly, the jury may have treated the statements made by the complainant in the initial interview – leaving aside the effect of any answers she gave under cross-examination about what may have actually happened – as evidence in the case.  They may not have confined their consideration of those prior statements to their assessment of the complainant’s credibility. 

8. The complainant’s initial interview included statements that were seriously prejudicial to the appellant.  That prejudice was not cured by the attention given to the charged wrongdoing during final addresses and the summing up. 

9. There is accordingly a significant possibility that the absence of any directions to the jury prejudiced the appellant and affected the outcome of the trial.[189]  Despite the failure to seek a re-direction, there has been a miscarriage of justice.[190]  It was not suggested that the proviso should be applied.

   [189] Hofer v The Queen (2021) (2021) 274 CLR 351, [115] (Gageler J).

   [190] Dhanhoa v The Queen (2003) 217 CLR 1, [38] (McHugh and Gummow JJ).

10. Accordingly, appeal ground 1 should be allowed.

    Appeal ground 2: Assessing reliability and credibility

11. Appeal ground 2 is in the following terms:

    The learned trial Judge erred in directing the jury that “first you must decide whether the witness is honest … the next step is to decide whether the evidence given by that witness is reliable and accurate”, when a proper scrutiny of the reliability of the complainant’s evidence may necessarily have preceded an assessment, if any, that she was honest, or conversely that she may have lied. The direction given tended to lead the jury into error, and to deprive the appellant of a fair trial.

12. The direction given by the trial judge in the course of her summing up has already been set out.  It is significant that this direction generally followed the submission made by counsel for the appellant.  There was no objection taken to this direction, nor any request for a redirection.  That tends to support the proposition that the way in which the trial judge directed the jury was not thought to be particularly relevant or significant, which in turn helps to determine whether there was a miscarriage of justice.[191] 

    [191] Perara-Cathcart v The Queen (2017) 260 CLR 595, [60] (Kiefel, Bell and Keane JJ); Orreal v The Queen (2021) 274 CLR 630, [16] (Kiefel CJ and Keane J); Milosevic v The Queen (2022) SASR 376, 391-392, [80] (Lovell, Livesey and Bleby JJA).

13. Whilst the appellant developed this submission by reference to a passage from the reasons of the majority in Stanton v The Queen,[192] that was concerned with how a jury should deliberate on manslaughter and murder.  The analogy was drawn with credibility and reliability. The appellant’s argument was that if a preliminary decision was made that a complainant was honest, that was then likely to relegate any appreciation of significant flaws in the evidence of the complainant when addressing reliability, because those flaws might be explained away and attributed to “honest” confusion or mistake. 

    [192] Stanton v The Queen (2003) 77 ALJR 1151, [34]-[35] (Gleeson CJ, McHugh and Hayne JJ).

14. As the High Court recognised in Stanton v The Queen,[193] a jury is free to organise processes of reasoning or discussions in whatever manner appears to be convenient to the jury.  It is not appropriate to constrain the deliberations of a jury.  Whilst the direction which was given tended to suggest that credibility should be determined before reliability, this was in a context where that was the approach suggested by counsel for the appellant in his address to the jury, and where the jury was also directed that fact-finding remained a matter entirely for the jury. 

    [193] Stanton v The Queen (2003) 77 ALJR 1151, [34]-[35] (Gleeson CJ, McHugh and Hayne JJ).

15. Whilst it may have been better if the direction had not been given in the form it was, there is no risk that the appellant was thereby deprived of a fair trial.  There was no miscarriage of justice.

16. Appeal ground 2 should be dismissed. 

    Appeal ground 3: The “rule” in Browne v Dunn

17. Appeal ground 3 is in the following terms:

    The learned trial Judge erred in failing to contradict or qualify the prosecution assertion during address

    “If a proposition isn’t put to a witness, it means generally that you can accept what they’re saying is uncontested. That what they’re saying is, in fact, true.” (trial transcript page 116 line 34);

    that formulation amounting to a significant misstatement of law and, if accepted by the jury, such as to lead the jury into error and to deprive the appellant of a fair trial.

18. Soon after the start of her address to the jury, the prosecutor made the following submissions:[194]

    While I’m on the topic of the law, I want to address the important consideration when it comes to evidence.

    When a witness gives evidence in court, whether recorded or in person, before you, it’s important that they have an opportunity to fairly respond to questions, suggestions or propositions.  If you want to suggest to a witness that they’re wrong about something, then out of fairness, you might think that that proposition should be put to that witness. 

    What that means, in my submission, is twofold.  If a proposition isn’t put to a witness, it means generally that you can accept what they’re saying is uncontested.  That what they said is, in fact, true.

    The second aspect is that if you want to suggest something to the contrary or that they’re wrong about something, that wasn’t put to them, that they didn’t have an opportunity to comment on, to explain, to clarify that, in my submission, holds minimal weight.  Because, out of fairness, that witness hadn’t had the opportunity to explain or to clarify. 

    [194] Transcript, 27 February 2024, 116.25.

19. The prosecutor went on to give the example of the initial complaint by the complainant to her mother which, she suggested, was uncontested.  The other example given of uncontested evidence was, the prosecutor submitted, the opportunity the appellant had to engage in offending during the ten occasions when she stayed alone at the appellant’s home unit.[195] 

    [195] Transcript, 27 February 2024, 117.

20. Though the appellant recognised that the examples given by the prosecutor concerned matters that were “more or less peripheral to the central issues”, it was contended that the statement may have been thought “generally applicable to the evidence as a whole”. 

21. It is regrettable that the submission was made in the form in which it was made by the prosecutor.  The approach required in a criminal trial is not as hard and fast as was suggested by the prosecutor in the course of her final address. 

22. The “rule” in Browne v Dunn has already been discussed.  The obvious risk associated with the prosecutor’s submission was that the jury might think that if counsel for the accused had not challenged something, then it had been proved or, worse, that the prosecution was thereby relieved of the burden of proving it.  The warning of King CJ in R v Costi was earlier set out.[196]  Regardless of the rule in Browne v Dunn, the prosecution was not relieved of the burden of proving each and every element of the offence.

    [196] R v Costi (1987) 48 SASR 269, 271 (King CJ).

23. In this case there were, in any event, explanations for the way in which the case had been conducted.  For example, in connection with the complaint evidence, the inability of the appellant to directly challenge the terms of an alleged conversation between the complainant and her mother because he was not present may help to explain why it was not made the subject of challenge.  More importantly, the fact of a complaint was not inconsistent with the appellant’s case concerning the complainant’s motive to lie.

24. The question of opportunity in this case was not really a matter coming under Browne v Dunn principles.  Whilst the question of opportunity was not a particularly significant issue, the cross-examination of the complainant’s mother had tended to minimise the number of opportunities described by the complainant. 

25. Though the submission made by the prosecutor should not have been made, it is properly viewed as confined to the questions of complaint and opportunity without distracting the jury from the real issues in the case.  Any risk that the jury may have used the Browne v Dunn submission as a substitute for proof beyond reasonable doubt was, in all of the circumstances, removed by the consistent and clear directions given by the trial judge about the burden and standard of proof.

26. Appeal ground 3 should be dismissed.

    Appeal ground 4: Removing the aides-memoire

27. Appeal ground 4 is in the following terms:

    The learned trial Judge erred in having removed from the jury the transcripts MFI P2, MFI P5 and MFI P9, and in directing it:

    “they should not form material that you have with you in the jury room”,

    when for some jurors at least, continued access to the transcripts may have been critical for the practical consideration or revision of the hours of video material comprising the primary exhibits. The inability of the jury to continue accessing aids available to it during the evidence itself, for the purpose of deliberations, was such as to deprive the appellant of a fair trial.

28. The appellant’s complaint was that the jury was given to understand that they could not ask to see the aides-memoire again, even if they wished to do so. 

29. This appeal ground is curious.  The curiosity arises in this way.  Ordinarily, where evidence is led by means of an audio or video recording, the evidence comprises what is produced by playing the audio or video in open court.  That represents the “best evidence” of what is “entrapped in the record”, not transcripts of what was heard by a witness and produced out of court.[197] 

    [197] Conwell v Tapfield [1981] 1 NSWLR 595, 598 (Street CJ); cited with approval in Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 (Butera), 185 (Mason CJ, Brennan and Deane JJ): “That view is clearly right, and its cogency is strengthened rather than weakened by the invocation of the traditional term “best evidence”.” The operation of the best evidence rule in connection with oral evidence about the Snapchat application was considered in Athans v The Queen (No 2) (2022) 300 A Crim R 389 (Kourakis CJ, Livesey P and Lovell JA).

30. As was explained in Butera v Director of Public Prosecutions (Vic), a case concerning the tape recording of a conversation in foreign languages concerning heroin importation, the evidence comprised what was produced by playing the tape in open court rather than any transcript:[198]

    The adducing of oral evidence from witnesses in criminal trials underlies the rules of procedure which the law ordains for their conduct.  A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form.  Oral evidence is public; written evidence may not be.  Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury’s estimate of the witnesses.  By generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jury’s discussion of the case in the jury room will be more open, the exchange of views among jurors will be easier, and the legitimate merging of opinions will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence.

    [198] Butera (1987) 164 CLR 180, 189 (Mason CJ, Brennan and Deane JJ).

31. Usually, the issue is not about the jury having access to written transcripts.  The issue is usually about whether the jury should be permitted to take video recordings into the jury room and play them as often as they wish.  There is also an issue about whether transcripts should go into the jury room.[199]

    [199] YBG v Western Australia [2019] WASCA 126.

32. In Gately v The Queen,[200] the High Court addressed the evidence of a child complainant contained in video recordings obtained before the trial under s 21AM of the Evidence Act 1977 (Qld), as well as a pre-trial written statement admitted under s 93A of that Act. The written statement was not permitted to go into the jury room. The jury was given unrestrained access to the video recordings with the consent of counsel, and while the High Court regarded that as an “irregularity”, by a majority, in the circumstances of that case, the Court held that it did not result in a miscarriage of justice.

    [200] Gately v The Queen (2007) 232 CLR 208.

33. The High Court held that the video recording of the evidence of a child complainant under s 21AM of the Evidence Act 1977 (Qld) was not the evidence, the evidence was the oral testimony it contained.[201]  Hayne J (with whom Gleeson CJ, Heydon and Crennan JJ agreed) emphasised that the admissible evidence comprised the oral testimony contained in the video recordings which should ordinarily be viewed by the jury in open court.[202] 

    [201] Gately v The Queen (2007) 232 CLR 208, 219-220, [28] (Kirby J), 235-237, [87]‑[91] (Hayne J, with whom Gleeson CJ [3] agreed).

    [202] Gately v The Queen (2007) 232 CLR 208, 237, [93]-[96] (Hayne J).

34. The High Court explained the well-recognised risk that if recordings are reviewed by the jury in the jury room during deliberations, possibly many times, they may be given disproportionate weight.[203]

    [203] Gately v The Queen (2007) 232 CLR 208, 237-238, [94]-[96] (Hayne J).

35. In connection with undertaking a close consideration of the terms of the relevant legislation, and despite aspects of the legislation suggesting that the recordings were themselves admissible, Hayne J rejected the proposition that the recordings were able to be tendered as if they comprised real evidence:[204]

    The unstated premise for the proposition that a jury may have unsupervised access to recordings of evidence made under subdiv 3 of Div 4A of the Evidence Act is that the record of that evidence is a piece of real evidence, properly received in evidence as an exhibit. That premise is not right. The record of evidence given under these provisions 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.

    It may be accepted that, divorced from its context, s 21AM of the Evidence Act might suggest that when the evidence of an affected child is pre-recorded, the record itself is admissible evidence. Section 21AM(1) says that a “video-taped recording of the affected child’s evidence … is as admissible as if the evidence were given orally in the proceeding” and that the recording is “admissible in … any rehearing or re-trial of … the proceeding”. When regard is had, however, to some fundamental considerations about the nature of the trial process, and to some particular textual indications found in the relevant division of the Evidence Act, it is evident that the record itself is not ordinarily admissible as a piece of real evidence.

    First, there are some fundamental characteristics of Australian trial processes, particularly at a criminal trial, that must be borne at the forefront of consideration. Subject to whatever statutory modifications may have been made to applicable rules of procedure, a criminal trial in Australia is an accusatorial and adversarial process.[205] It is essentially an oral process.[206] Subject to exceptions, the hearsay rule excludes evidence of out-of-court assertions when tendered as evidence of the truth of the assertions. As a result, the focus of the trial falls chiefly upon what is said in the evidence given in the courtroom. …

    (Original citations.)

    [204] Gately v The Queen (2007) 232 CLR 208, 237, [86]-[88] (Hayne J). Whilst there are clear similarities between the legislation considered in that case and the legislation in this case, the issue was not the subject of any submissions on this appeal. In R v NZ (2005) 63 NSWLR 628, [194] (Howie and Johnson JJ, with whom Wood CJ at CL [21] and Hunt AJA [22] agreed) it was said: “We believe that there is no basis upon which the tape should become an exhibit because once it is played to the jury as the evidence in chief of the witness it becomes part of the court record just as does a recording of the viva voce evidence of any other witness”. In R v J, JA (2009) 105 SASR 563, [27] (Duggan J, with whom Nyland J agreed) the video was marked as an exhibit but it was said that “whether the videotape is treated as an exhibit or marked for identification may not be a matter of much practical significance” in a case where the video was not permitted to go into the jury room.

    [205] TKWJ (2002) 212 CLR 124, [106]; RPS v The Queen (2000) 199 CLR 620, [22]; Ratten v The Queen (1974) 131 CLR 510, 517.

    [206] Butera (1987) 164 CLR 180, 189-190.

1. Hayne J regarded it as inappropriate to tender the video recordings, though they could be marked for identification.[207]  On that basis, it was “seldom if ever, … appropriate to admit the record of that evidence as an exhibit”.[208]  The consequence was that video recordings ought not ordinarily go into the jury room.[209]

   [207] Gately v The Queen (2007) 232 CLR 208, 237, [88]-[92] (Hayne J).

   [208] Gately v The Queen (2007) 232 CLR 208, 237, [93] (Hayne J).

   [209] Gately v The Queen (2007) 232 CLR 208, 211, [3] (Gleeson CJ), 219-220, [28]-[29] (Kirby J) the marking of a video as an exhibit “constituted an error of law”, 237-238, [96] (Hayne J), 241, [111]‑[117] (Heydon J), 244, [126] (Crennan J). See also R v NZ (2005) 63 NSWLR 628, [9]-[15] (Spigelman CJ), [194]-[210] (Howie and Johnson JJ, with whom Wood CJ at CL [21] and Hunt AJA [22] agreed).

2. However, even if video recordings are received as exhibits, and though a jury is ordinarily entitled to have all of the exhibits in the jury room when deliberating,[210] that is subject to the exercise of discretion by the trial judge to exclude exhibits from the jury room if there is a risk that they may be given “disproportionate weight” in the course of deliberations.[211]

   [210] R v Bradshaw (1978) 18 SASR 83, 92-93 (Bray CJ), 97 (King J).

   [211] R v Stephenson (1978) 18 SASR 381, 387 (Bray CJ), 397 (King J); R v Evans [1998] SASC 6798, [59] (Perry J, with whom Millhouse and Nyland JJ agreed): R v J, JA (2009) 105 SASR 563, [29]-[30] (Duggan J, with whom Nyland J agreed) “The trial judge acted appropriately in directing that the jury would not be permitted to view the videotape in the jury room as and when they required. There is a danger in the jury giving the complainant’s version undue weight if there is no restriction on the playing of the tape”. Cf R v Stephenson (1978) 18 SASR 381, 397 (Walters J) where evidence, once tendered, must go to the jury but be subjected to “a careful direction” if there is reason to think that the exhibit may be misused or misinterpreted.

3. Accordingly, it has been recognised that video recordings of the statements of a child complainant will not usually be permitted to go into the jury room.[212]  The reasons associated with this approach include the danger that the complainant’s account may be given undue weight if it is reviewed many times without also considering any cross-examination of it and any other evidence led in the case.[213] 

   [212] R v H [1999] 2 Qd R 283, 291-292 (McMurdo P, with whom Jones J agreed), 295-296, [47]-[49] (Shepherdson J, with whom Jones J agreed).

   [213] R v H [1999] 2 Qd R 283, 290-291, [18] (McMurdo P, with whom Jones J agreed).

4. The overriding consideration of the trial judge must be fairness and balance, “something which can be difficult to achieve in emotive sexual cases” which were “likely to arouse feelings of prejudice in the jury”.[214]  In order to assist in maintaining a fair balance, any request by the jury to review the video should ordinarily be undertaken in open court and associated with clear directions prepared with the assistance of submissions from counsel.[215]

   [214] R v H [1999] 2 Qd R 283, 290-291, [18], citing De Jesus v The Queen (1986) 61 ALJR 1, 3 (Gibbs CJ) and Bulejcik v The Queen (1996) 185 CLR 375, 386 (Brennan CJ).

   [215] R v H [1999] 2 Qd R 283, 290-291, [18]-[19] (McMurdo P, with whom Jones J agreed).

5. This approach to the video recordings of the statements of a complainant has been recognised in Queensland,[216] New South Wales,[217] Victoria,[218] and Western Australia.[219]  It has also been recognised in South Australia, though not recently.[220] 

   [216] R v H [1999] 2 Qd R 283, 290-291, [18]-[19] (McMurdo P, with whom Jones J agreed), 295-296, [47]‑[49] (Shepherdson J, with whom Jones J agreed); R v KAH [2012] QCA 154, [4] (Holmes JA, with whom de Jersey CJ and Gotterson JA agreed); R v BEC (2023) 16 QR 1, [103] (Livesey AJA, with whom Callaghan J agreed).

   [217] R v NZ (2005) 63 NSWLR 628, [9]-[15] (Spigelman CJ), [194]-[210] (Howie and Johnson JJ, with whom Wood CJ at CL [21] and Hunt AJA [22] agreed); Stevenson v R (2022) 299 A Crim R 457, [55]‑[59] “the preferred procedure”, [62]-[67] (Johnson J, with whom Davies and Bellew JJ agreed).

   [218] R v BAH (2002) 5 VR 517, [13] (Winneke P), [15] (Callaway JA) and [65] (O’Bryan AJA); R v Davies (2005) 153 A Crim R 217, 224 [25]-[28]; Movel v The King (2024) 75 VR 62, [230]-[233] (Niall and Orr JJA).

   [219] YBG v Western Australia [2019] WASCA 126, [93]-[100] (Beech and Pritchard JJA, with whom Mazza JA agreed).

   [220] R v J, JA (2009) 105 SASR 563, [28]-[32] (Duggan J, with whom Nyland J agreed).

6. As for the transcripts of recordings, consistently with Butera, the cases have usually emphasised that they are not evidence, and they will not normally be permitted to go into the jury room.[221]  In addition, and as with video recordings, there is a recognised potential for unfairness if the transcripts of a complainant’s video evidence go into the jury room.[222]

   [221] R v O’Neill [2001] VSCA 227, [12]-[14] (Ormiston JA, with whom Buchanan JA agreed), [77]-[86] (O’Bryan AJA, with whom Buchanan JA agreed); R v NZ (2005) 63 NSWLR 628, [203]-[205] (Howie and Johnson JJ, with whom Wood CJ at CL [21] and Hunt AJA [22] agreed).

   [222] Particularly if it comprises the complainant’s account, R v J, JA (2009) 105 SASR 563, [28]-[31] (Duggan J, with whom Nyland J agreed) “If they retained the transcripts this would have given rise to the same concern which exists where the videotape is made available for playing in the jury room”. In R v BEC (2023) 16 QR 1, [103] (Livesey AJA, with whom Callaghan J agreed) the same approach was taken to a written statement as was taken to a video recording of a complainant’s evidence admitted under s 93A of the Evidence Act 1977 (Qld).

7. These approaches are, however, neither inflexible nor prescriptive, and any failure to adhere to them does not necessarily produce a miscarriage of justice.[223]

   [223] YBG v Western Australia [2019] WASCA 126, [100]-[105] (Beech and Pritchard JJA, with whom Mazza JA agreed); Stevenson v R (2022) 299 A Crim R 457, [57], [67] (Johnson J, with whom Davies and Bellew JJ agreed); Movel v The King (2024) 75 VR 62, [233] (Niall and Orr JJA).

8. Whether these approaches to video recordings and transcripts going into the jury room – especially in cases where all of the material evidence is on video – are consistently being followed, or should change, were not issues addressed on the hearing of this appeal.  In Victoria, for example, the Court of Appeal has recently suggested that the effect of legislation there is that it “supplements the dichotomy” of testimonial evidence and real evidence, with a third category of aids or assistance that may be given to the jury for their use.[224]

   [224] Movel v The King (2024) 75 VR 62, [213] (Niall and Orr JJA).

9. The report of the trial judge in this case discloses that the jury were given access to the videos and the equipment necessary to replay them.  Even if, consistently with Gately v The Queen, that course might be thought irregular, no objection to it was taken.[225]  No objection was taken to the removal of the aides‑memoire, either.

   [225] Gately v The Queen (2007) 232 CLR 208, 211, [3] (Gleeson CJ), 219-220, [28] (Kirby J), 241, [111]‑[117] (Heydon J), 244, [126] (Crennan J). Whether this results in a miscarriage which cannot be overcome by the proviso was discussed in R v BAH (2002) 5 VR 517, [13] (Winneke P), [15] (Callaway JA) and [65] (O’Bryan AJA); R v Davies (2005) 153 A Crim R 217, 224 [25]-[28] and R v NZ (2005) 63 NSWLR 628, [9]-[15] (Spigelman CJ), [194]-[210] (Howie and Johnson JJ, with whom Wood CJ at CL [21] and Hunt AJA [22] agreed); Movel v The King (2024) 75 VR 62, [233] (Niall and Orr JJA), where the more recent authority suggests that any failure to adhere to the usual approach does not necessarily amount to a miscarriage, nor a fundamental irregularity in the trial and the proviso may be considered.

10. The jury did not ask to see the transcripts, and they had access to all the videos.  They deliberated for less than 3 hours after a comparatively short trial.[226]  Having regard to the issues in dispute at the trial and the whole of the record, including the acquiescence of counsel in the course taken, it is difficult to see how the direction to retrieve the aides-memoire resulted in a miscarriage of justice.[227]  This appeal ground should be dismissed.

    [226] Appeal book, 67.

    [227] Cf R v Curzon (2000) 1 VR 416, [39] (Chernov JA).

    Conclusion

11. The appeal should be allowed, the conviction set aside, and the matter remitted for retrial in the District Court.

12. S DOYLE AND BLEBY JJA:  We gratefully adopt Livesey P’s description of the issues on appeal and the circumstances in which they fall to be decided.

13. Appeal ground 1 concerns the use of the complainant’s initial police interview. We agree generally with Livesey P’s reasons for allowing the appeal on that ground. Unlike the recordings of the complainant’s prescribed interviews and the special hearing conducted pursuant to s 12AB of the Evidence Act 1929 (SA), the recording of the initial interview was not received as evidence given by the complainant. It was admissible only for its use in assisting the jury to consider and assess the significance of what the defence contended was a prior inconsistent statement made during the course of the initial interview.

14. The trial judge adverted to the distinct nature of the initial interview in her summing up, instructing the jury that it was not a prescribed interview, but had been received in evidence ‘to provide you with the context of [the complainant’s] disclosure to police, what she said and what questions were first asked of her’.  However, we agree with Livesey P that this was not adequate to explain to the jury the use to be made, and not to be made, of this evidence.  The trial judge ought to have told the jury in direct and clear terms that the initial interview was not evidence of the complainant, and could not be used as evidence of the truth of what she said, or as evidence of what occurred.  Rather, the initial interview was before them only so as to assist them in assessing the complainant’s credibility, and in particular, to enable them to determine the existence and significance of the suggested inconsistency in the complainant’s description of the appellant’s conduct.

15. Whilst the focus of the parties’ submissions was appropriately upon this potential use of the initial interview, there was a significant risk of misuse of that evidence in the present case.  This was not a case where there was an obvious difference between a complainant’s in-court evidence and an earlier out-of-court statement.  In circumstances where the complainant’s evidence (that is, the prescribed interviews and the special hearing), like the initial interview, was in the form of recordings of the complainant made ahead of trial and not in front of the jury, there was a heightened risk that the jury may have failed to appreciate the distinct and limited use to be made of the initial interview.  And the initial interview, whilst providing a basis for the defence to challenge the complainant’s evidence, also contained some very damaging allegations against the appellant.  In the circumstances of the present case, the failure to give a direction along the lines we have indicated gave rise to a miscarriage of justice.

16. As to appeal grounds 2 (assessing reliability and credibility) and 3 (the rule in Browne v Dunn), we agree with Livesey P’s reasons for concluding that these grounds have not been made out.  No miscarriage has been established.

17. As to appeal ground 4 (removing the aides-memoire), we do not consider that a miscarriage of justice has been established.  Whilst the jury were told that the aides should not form part of the material accompanying them into the jury room, this was done without objection.  We do not accept that the jury would have felt unable to ask the judge for access to those aides had they needed assistance in considering the complainant’s evidence, or that their lack of access to those aides otherwise occasioned a miscarriage of justice.

18. For the reasons set out, the appeal should be allowed, the conviction set aside and the matter remitted for retrial.