Galvin v The Queen

[2006] NSWCCA 66

Reported Decision: 161 A Crim R 449

New South Wales

Court of Criminal Appeal

CITATION:	Galvin v Regina [2006] NSWCCA 66 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27/01/2006
JUDGMENT DATE:	20 March 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Howie J at 4; Latham J at 66
DECISION:	The appeal is allowed, the convictions and sentences are quashed and a new trial is ordered.
CATCHWORDS:	Criminal Law - Trial of child sexual offences - video-recorded evidence of deceased child witness admitted - whether admissible as "context" evidence - whether the evidence should have been rejected under s 137 - whether direction as to use to be made of the evidence appropriate - failure to give warnings re video-taped evidence.
LEGISLATION CITED:	Crimes Act 1900 - ss 61O(1), 66C(2), Evidence Act 1995 - ss 65(1)(c), 101, 135, 137, 165(1)(a), (c), (d) Evidence (Children) Act 1977 - ss 7, 9(1)(a), 14, 18, 25
CASES CITED:	Gipp v The Queen (1998) 194 CLR 106 R v AH (1997) 42 NSWLR 702 R v Fraser (NSWCCA, unreported, 10 August 1998) R v Suteski (2002) 56 NSWLR 82 R v NZ [2005] NSWCCA 278
PARTIES:	Craig Henry Galvin v Regina
FILE NUMBER(S):	CCA 2005/1713
COUNSEL:	P. Ingram - Crown P. Boulten - Applicant
SOLICITORS:	S. Kavanagh - Crown M. Voncina - Applicant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0029
LOWER COURT JUDICIAL OFFICER:	Shadbolt DCJ

2005/1713

McCLELLAN CJ AT CL
HOWIE J
LATHAM J

MONDAY 20 MARCH 2006

Craig Henry GALVIN v REGINA

Judgment

1 McCLELLAN CJ AT CL: I have had the privilege of reading the reasons for judgment of Howie J in draft. But for my comments below I agree with his Honour’s reasons.

2 Howie J expresses the view that the principles relevant to the admission and use which can be made of context and tendency evidence are uncontroversial. Having regard to the discussion between the members of the High Court in Gipp v The Queen (1998) 194 CLR 106, which were identified but properly put aside by this Court in R v Fraser (NSWCCA, unreported, 10 August 1998), I respectfully doubt whether this area of the law can be so described. Furthermore, the problems experienced by trial judges in correctly identifying whether evidence is context evidence or evidence of a tendency in the accused and giving the appropriate directions, which are apparent from matters argued in this Court, suggests there may be difficulties in both understanding and applying the presently accepted principles. As Howie J points out these difficulties can be compounded if care is not taken to adequately assess whether the evidence should be admitted having regard to s 135 and s 137 of the Evidence Act.

3 I agree with the orders proposed by Howie J.

4 HOWIE J: The appellant appeared in the District Court on 23 August 2004 to stand trial on an indictment containing 15 counts of child sexual assault offences. Ten of those counts related to AM, a 13 year old female, and five related to MW, a 14 year old male. The Crown sought to run a joint trial of all the counts in the indictment notwithstanding that, shortly after making his complaints to police by way of a video-recorded interview, MW committed suicide.

5 The trial judge, Shadbolt DCJ (“the Judge”), granted an application for separate trials in relation to the allegations relating to AM. His Honour held that it would be unfairly prejudicial for the evidence of sexual assaults allegedly committed by the appellant upon MW to be placed before the jury especially in light of the inability of the defence to cross-examine him. An indictment was then presented containing the ten counts relating to AM. The Crown indicated it intended to play portions of MW’s video-recorded interview on the trial of the charges relating to AM. There was an objection taken by counsel appearing for the appellant but the Judge stated that he had already ruled in favour of the Crown tendering the evidence during the course of determining the separate trial application and confirmed that he would allow the evidence.

6 An edited copy of the video-recorded interview given by MW was played to the jury. It contained allegations made by MW of sexual acts committed by the appellant against AM which were not the subject of the charges on the indictment, complaint by AM to MW about the appellant’s sexual activity with her and an admission allegedly made to MW by the appellant of a sexual act committed by him against AM.

7 Following the opening addresses, the Judge allowed the Crown to amend the indictment to include an additional count that was numbered as “6” and replaced the original count with that number on the indictment upon which the appellant had been arraigned at the outset of the trial. However, the count that had been originally numbered “6” remained on the indictment but was unnumbered and was expressed to be in the alternative to the new 6th count. The appellant was then re-arraigned on the amended indictment. Seven of the counts on that indictment were in respect of offences of aggravated sexual intercourse contrary to s 66C(2) of the Crimes Act, three were in respect of offences of aggravated acts of indecency contrary to s 61O(1) of that Act and one was in respect of an offence of aggravated indecent assault contrary to s 61O(1) of that Act. Each count referred to the complainant as being between the ages of 10 years and 16 years. The individual counts related to various time frames, however in their entirety they related to the period 1 February 2002 to 9 August 2002.

8 The jury convicted the appellant of each of the numbered counts on the indictment and no verdict was taken in respect of the alternative unnumbered count.

9 The appellant initially appealed against conviction upon four grounds, but abandoned ground 4 at the commencement of the hearing. However the appellant sought leave at the hearing to add two further grounds of appeal. There was no opposition from the Crown and leave was granted. The new grounds became grounds 5 and 6. These two grounds were not argued orally but the Court received written submissions relating to those grounds after it had reserved its decision on the other grounds of appeal.

10 The grounds of appeal ultimately relied upon by the appellant are as follows:

1. His Honour erred by admitting into evidence the video taped interview between MW and Senior Constable Alison Forbes dated 9 September 2002.

2. His Honour erred by admitting into evidence the portions of the video taped interview between AM and Senior Constable Alison Forbes dated 4 September 2002 wherein AM suggested that the accused had engaged in improper acts with MW and Kristen Andrews;

3. His Honour erred by failing to direct the jury that MW’s evidence relating to uncharged sexual acts was to be used as evidence of the relationship that existed between the appellant and the complainant and could not be used for any other purposes;

4. (abandoned);

5. The trial miscarried because of the failure to deal properly with the complainant’s evidence. Particulars:

(i) The video recordings were admitted into evidence as exhibits.
(ii) The videotapes were sent to the jury room.
(iii) The transcripts of the tapes were not withdrawn from the jury after first being played.
(iv) The jury were not given a warning pursuant to section 14 of the Evidence (Children) Act 1987 that they should not draw any inference adverse to the appellant or give the evidence any greater or lesser weight because of the evidence being given by video recording.
(v) The jury were not warned that, if they played the tapes in the jury room they should do so with caution because they would be seeing and hearing evidence of a witness for a second time well after all the evidence and that they should guard against giving it disproportionate weight and they should bear well in mind the other evidence in the case.
(vi) The jury were not given a warning pursuant to section 25 of the Evidence (Children) Act 1987 that it is standard procedure for children’s evidence to be given by means of closed circuit television; that they should not draw any inference adverse to the appellant because of the use of this technology and that they should not give the evidence any greater or lesser weight because it was given by this means.

6. His Honour erred by failing to warn the jury in relation to MW’s evidence:

(i) that they should not draw any inference adverse to the appellant or give the evidence any greater weight because the evidence was given in video form; and
(ii) that, if they played the tape in the jury room they should do so with caution because they would be seeing and hearing evidence of a witness for a second time and well after all the evidence and they should guard against giving it disproportionate weight and should bear well in mind the other evidence in the case.

11 It is unnecessary to set out the Crown case in any great detail because of the nature of the grounds of appeal relied upon. What follows is a brief summary to place the grounds of appeal in context. The appellant was the owner and director of a theatrical business that operated in Mr Druitt called Starburst Entertainment (“Starburst”). The appellant offered lessons to children in drama, singing and dancing and also staged theatrical productions in which children were involved. The appellant resided in the premises from which Starburst operated in a self-contained flat below the performance hall. The allegations that gave rise to the charges were that the appellant had, on occasions when the complainant attended the premises for lessons or rehearsals or productions, sexually assaulted her in his flat.

12 MW was a male friend of the complainant and slightly older than she. The complainant was born on 27 April 1988 and MW on 18 July 1988. He also participated in productions put on by Starburst. He told police that AM was his “best friend” and that he, AM and the appellant were “really good mates”. The complainant told police that she, MW and the appellant had been “close friends”.

13 It was the Crown case that the sexual relationship between the appellant and the complainant commenced with an act of indecency sometime between February and April 2002 that involved the appellant kissing both AM and MW simultaneously. The incident can be referred to as “the three way kiss” and gave rise to the first count on the indictment. The Crown alleged that the sexual relationship between AM and the appellant progressed through digital penetration of the complainant, cunnilingus, fellatio, and ultimately penile penetration of the complainant’s vagina. Evidence was given by a former teacher at Starburst, Ms Andrews, that on 1 September 2002 the complainant told her that the appellant “had sex and he’s taken me all the way”. Ms Andrews urges the complainant to tell her parents and she did later that day.

14 Police video-recorded an interview with the complainant on 4 September 2002 and again on 6 September 2002. MW was interviewed twice on 9 September 2002. He committed suicide on 13 October 2002.

15 The Crown case was that the complainant’s evidence was supported by the fact that a large number of text messages and telephone calls had been sent from the appellant’s mobile phone and home landline phone to the complainant. Records revealed that for the periods 1 March to 31 May 2002 and 1 August to 30 September 2002 there were 279 text messages or calls from the appellant to AM. Some of these calls were placed in the late evening or early morning hours. A text message received by the complainant from the appellant on 2 September 2002 at 2.20am stated, “Hey, if I can’t hug and kiss you for real then I’ll do it here, kiss, hug, kiss, hug”.

16 The appellant gave evidence and denied a sexual relationship with the complainant. He stated that he was “gay” and had never had any sexual contact with a female. This assertion resulted in the Crown leading evidence in reply from Ms Andrews that the appellant had said to her in early 1999, “I love to have sex with girls …..but I also like to have sex with boys”. In 2002 he told Ms Andrews that he had sex with a female cast member.

Ground 1 Admissibility of the police interviews with MW

17 As has already been noted, edited copies of the two videoed interviews which MW had with police on 9 September 2002 were admitted as evidence in the Crown case on the trial of allegations of sexual assault offences committed by the appellant upon AM. The interview did not contain any explicit reference to assaults allegedly committed upon MW by the appellant except that there was an account of an incident that could have been taken to be that giving rise to the first count in the indictment: the allegation of the three way kiss. There was some dispute before this Court as to the details of the matters contained in MW’s interviews, such as whether there was a reference to the incident giving rise to the first count or not. Because I have come to the view that there must be a new trial for other reasons, it is unnecessary for this Court to review the Judge’s exercise of discretion in any great detail. If the Crown presses the tender of MW’s interview at a re-trial, it will be for that trial judge to determine whether to admit the evidence or some part of it.

18 The appeal was conducted on the basis that the edited contents of MW’s interview were admissible because they were relevant and fell within the exception to the hearsay rule found in s 65(1)(c) of the Evidence Act, or that at least it was open to the Judge to find that it was so admissible. The argument before this Court centred on the Judge’s decision to admit the evidence notwithstanding his acknowledgment of its highly prejudicial nature. It was submitted that errors of principle occurred such that the decision to admit the evidence notwithstanding s 137 of the Evidence Act miscarried. It was submitted that the Judge misconceived the proper way in which the jury could use the evidence and that his reasons for admitting the evidence disclosed an inconsistency that went to the very heart of his decision.

19 MW’s interview contained evidence of uncharged sexual activity between the complainant and the appellant. There were allegations that had not been supported by the evidence of the complainant herself. However, they were relatively minor having regard to the complainant’s allegations. Whether such evidence should be admitted will depend upon the purpose for which it is being admitted and the probative value of the evidence to achieve that purpose. If the evidence is being admitted as context evidence, then its probative value will depend upon the need for the complainant’s specific allegations giving rise to the charges in the indictment to be put into context so the jury can understand the full nature of the allegations made by the complainant. If the evidence is being used to prove a tendency of the accused to indulge in sexual activity with the complainant, it has to pass through the test for admissibility under s 97 and s 101 of the Evidence Act. If it does so, it can be used by the jury as evidence of the commission of the offences charged.

20 Both context evidence and tendency evidence impact upon the credibility of the complainant but in different ways. By providing context to the specific allegations in the charges, the evidence makes the complainant’s account more intelligible and might explain aspects of her conduct, such as the absence of complaint. By proving a tendency of the accused, the evidence makes it more probable that the complainant is telling the truth in respect of the particular allegations because the accused is likely to have acted in the way that the complainant said he did. The principles set out in this and the previous paragraph seem to me to be uncontroversial and were decided some years ago in R v AH (1997) 42 NSWLR 702 and confirmed in R v Fraser (NSWCCA, unreported, 10 August 1998).

21 The interview of MW contained four discrete types of evidence relevant to the trial of allegations made by the complainant: direct evidence of one of the counts in the indictment; direct evidence of uncharged allegations of sexual assaults by the appellant upon the complainant; evidence of complaint by the complainant to MW about sexual acts committed by the appellant; and an alleged confession by the appellant to MW of sexual activity with the complainant. Clearly different considerations apply in determining whether to admit these different types of evidence regardless of the issue arising from the fact that MW was deceased and had never been subject to cross-examination. At the trial no attention, or insufficient attention, seems to have been given to the distinction between the different types of evidence and how the jury might use each of them.

22 For example, although there might be some argument as to whether the incident described by MW of the appellant kissing both him and the complainant was that to which the first count on the indictment related, the probative value of the evidence would clearly transcend its prejudicial value. The jury had evidence of such an event from the complainant. If MW was describing that event, as I believe he was, then it was direct evidence with no prejudicial effect other than to prove the allegation. If there were the possibility that MW was referring to some other occasion, then, unless the Crown intended to lead it as coincidence evidence, it had little probative value even though its prejudicial value might not have been great. It added little to what the complainant had said about the relationship between her and the appellant.

23 Similarly there were accounts in the interview of an alleged admission made by the accused to MW of sexual activity with the complainant of a nature similar to that contained in count 4 on the indictment. Clearly that admission might not have been able to be linked to that specific charge but that would not have meant that it was inadmissible. If the admission could be linked to count 4, it was direct evidence of the commission of that offence. If it could not be so linked, it was evidence to prove the sexual relationship between the appellant and the complainant. The evidence would, to my mind, have had little probative value to prove the context in which the complainant made her allegations, and if that was the purpose for which it was led, it seems to me that it should have been rejected because of its highly prejudicial nature in light of the fact that MW could not be cross-examined. It could also have been relied upon as evidence of the sexual interest of the appellant in the complainant. If this was to have been its use, the Crown ought to have issued a tendency notice in respect of that evidence.

24 The uncertainty as to whether the admission might have been linked to a particular charge and whether the account of the three way kiss related to the first count arose because MW’s interview raised particular allegations of other sexual acts between the complainant and the appellant about which the complainant did not give evidence. It was not clear whether the specific acts that were the basis of the charges were the only sexual acts that had been allegedly committed by the appellant against the complainant. The complainant was not asked about the other acts mentioned in MW’s interview during cross-examination. However, the failure of the complainant to mention them did not render the evidence of MW inadmissible. It was evidence of the relationship that existed between the complainant and the appellant other than as teacher and student, or budding actress and producer. It may have been admitted as evidence giving context to the complainant’s allegations or it might have been evidence of the appellant’s sexual interest in the complainant. If it were used as the latter, it was tendency evidence.

25 The material contained in MW’s interview and played to the jury was referred to generally in the trial and in the written submissions of the Crown before this Court as “context evidence”. The trial judge told the jury before the tape of MW’s interview was played as to the use that they could make of it. During these directions he said:

It is corroborative evidence of part of [the complainant’s] testimony and supports her allegations of a growing relationship between her and the accused. As such, it supports that evidence in [the complainant’s] account of events, which says there was a growing sexual relationship, and the allegations she makes did not just spring, as it were, from nowhere. They were in context. It is admitted and placed before you on that basis.

26 In determining to admit the evidence of MW’s interview, the only prejudicial aspect of MW’s evidence considered by the Judge, other than the inability of the defence to cross-examine him, was “a strong emotional demand not to disbelieve the dead”. No apparent regard was given to the prejudicial nature of the evidence, for example, flowing from the fact that the interview contained accounts of uncharged sexual activity to which no reference was made by the complainant. In other words no consideration was given to the fact that the jury might use the evidence or some part of it as tendency evidence if not warned against that approach.

27 Because no attention was given to the different types of evidence contained in the interview of MW when its admissibility was being considered, it was dealt with in a general way by the judge when deciding whether he should exclude it under s 137. Although the judge ultimately approached the question as to whether it should be rejected on the basis of weighing the probative value against its prejudicial effect, I do not believe, with respect, that the Judge paid sufficient regard to the nature of the evidence, the purpose for which it could be used by the jury, and its potential for unfair prejudice having regard to that purpose. If that had been done, I am by no means satisfied that all of the edited interview would have been admitted. For example, as I have already indicated, in my opinion the evidence of the alleged admission had so little weight as context evidence it should have been rejected under s 137.

28 In my opinion the significance of the fact that MW could not be cross-examined differed depending upon what part of his evidence was being considered and the purpose for which it was to be admitted. For example, it seems to me that there was little significance in the fact that MW could not be cross-examined in relation to his evidence of complaint by AM. That evidence was relevant, not because of context, but because it was evidence relevant to the consistency in the conduct of the complainant. The Judge told the jury that they could not use it as evidence of the truth of what the complainant said, so that it had limited probative value. There was other evidence of complaint in any event. However, it seems to me to be a very different matter when regard is had to the allegation that the appellant admitted having committed a sexual act upon the complainant. As I have already indicated, that had limited value as context evidence but was highly prejudicial. I do not see how it was open to a judge to admit the evidence in the absence of an opportunity to cross-examine the witness.

29 The Judge determined that there would be no danger of unfair prejudice inherent in the evidence outweighing its probative value for two reasons. The first was that the jury would be able to see the demeanour of MW in the video-recorded interview. The second reason was that the jury would be directed to take a two-step approach when dealing with the evidence in the Crown case. Firstly, the jury was to consider the evidence led by the Crown disregarding what was contained in MW’s interview. It was then to form an assessment, on the basis of that evidence, of whether they were “comfortably sure that the complainant was telling the truth, and telling it accurately”. If the jury reached that degree of satisfaction they could then have regard to the interview of MW to see whether it raised that belief to belief beyond reasonable doubt. This was how the Judge directed the jury they were to approach MW’s interview, both before the interview was played to them and during the summing up.

30 I understand the genesis of this approach was based upon the fact that the Judge saw MW’s evidence as purely corroborative and corroboration could not support evidence that was inherently unreliable. Therefore, the reasoning proceeds, before the jury could consider the interview of MW, they had to find the complainant reliable. But I believe there are a number of difficulties with this approach. Firstly, as I have already indicated, it blurs the different types of evidence contained in MW’s interview and offers the jury no assistance at all as to how to use the contents of the interview in determining whether it raised a belief in the complainant’s truth and reliability from comfortable satisfaction to belief beyond reasonable doubt.

31 Secondly, it does not recognise that some of the evidence once admitted was not simply corroboration of the complainant but was direct evidence of the commission of the offences charged in the indictment. Nor does this manner of dealing with the evidence take sufficiently into account, in my opinion, the difference in the prejudicial effect arising from various parts of the interview.

32 Thirdly, this type of evidence has not been considered to be corroboration, certainly since the inception of the Evidence Act, and to simply refer to it as corroboration deflects attention from the basis of its admission under the rules of evidence contained in the Act. For example, the use of the term “corroboration” or a reference to the evidence being “corroborative” masks the fact that some of the evidence may have been regarded by the jury as tendency evidence and, therefore, insufficient regard was had to its prejudicial effect as such or to what directions to give about it to the jury. This is a matter raised by the third ground of appeal.

33 Fourthly, although the Judge determined at the outset of his reasons that the evidence had high probative value despite its highly prejudicial effect, he appears to have reduced its probative value by the two-step approach without necessarily reducing its prejudicial effect.

34 Fifthly, notwithstanding that the courts consider the effectiveness of directions given to a jury on the basis that the jury will obey them, I believe that it is highly artificial in a case such as this to tell the jury to disregard a significant and prejudicial part of the Crown case while trying to determine whether they are comfortably satisfied with the complainant’s evidence. I also have difficulty in appreciating how evidence that is admitted only to give context to the complainant’s account can elevate her reliability from comfortable satisfaction to proof beyond reasonable doubt.

35 Although under this ground of appeal complaint was made that the judge did not take into account the possibility that the jury might conclude that MW committed suicide, I do not believe that it would have done so. The jury knew that MW had died, but they did not know when that death occurred. It could have been any time between the taking of the interview and the trial: a period of about 2 years. They were told not to speculate about the cause of his death and, even if they did do so contrary to that direction, I do not believe they would have concluded that he had committed suicide.

36 It was submitted that, when the Judge was considering whether to exclude the evidence under s 137 of the Act, he took into account that the evidence would be subject of warnings under s 165 of the Act but he did not give those warnings in the summing up. Therefore, it was argued, the trial judge’s discretion miscarried. The Judge at the end of his judgment added, perhaps by way of afterthought, that the evidence would be accompanied by warnings under s 165(1)(a), (c) and (d). These are warnings that the evidence might be unreliable because it was evidence of hearsay or an admission (a), because it might have been affected by the witness’s age (c), and because the witness might reasonably be supposed to have been criminally concerned in the events (d). The only warning the Judge gave the jury was that in respect of it being hearsay evidence, untested by cross-examination. Defence counsel sought no other warning.

37 For my part I do not understand why the witness’s age of 14 meant that his evidence might be unreliable. Nor do I understand how the Judge might have warned the jury of the unreliability of his evidence because MW was complicit in the offences committed by the appellant. The Judge had already determined that the statements made by MW were not against interest because MW might not have seen his acts as more than “a breach of proper conduct originated and perpetrated by the accused”. This was hardly a case where the jury had to be warned that MW might have a reason for lying because he wanted to diminish his own criminality by making false allegations against the appellant. There was no error in the Judge not giving these warnings. But in any event, it is clear that the Judge had decided to admit the evidence before he considered that he was going to give warnings to the jury about its potential unreliability.

38 In my opinion the Judge erred in the manner in which he determined and dealt with the issue of whether he should reject the interview of MW under s 137. In my opinion there was a miscarriage of justice by the admission of the evidence and the way that the jury were invited to consider it. True it is that to some degree the Judge reduced the probative force of the evidence by the two-step approach, but the alleged admission made by the appellant to MW was highly prejudicial evidence that in my opinion should not have been admitted and certainly not as context evidence. The ground having been made out, the appeal must be allowed, the verdicts quashed and a new trial ordered.

39 In my opinion, it would be open for a judge on the retrial to admit some parts of the edited interview after a careful analysis of the contents of that interview and a proper assessment made of the probative value of its various parts as against their prejudicial effect.

40 The fact that the defence could not cross-examine MW was an important consideration but not necessarily a decisive one. However, as was pointed out in R v Suteski (2002) 56 NSWLR 82 at [127], each case has to be determined on its own particular facts depending upon the probative value of the evidence and its prejudicial effect. Suteski was a very different case to the present. In the present case the fact that the defence could not cross-examine MW might have had more significance when considering some part of his evidence than it would when considering some other part of it. For example, it might be considered that it had more prejudicial impact in regards to the alleged admission rather than it did to the evidence of complaint.

41 Before leaving this ground of appeal, I should mention one matter that was not the subject of any argument but it may be a matter that should be considered if the Crown makes application to adduce the evidence at a retrial. The videotaped evidence of MW was made in accordance with s 7 of the Evidence (Children) Act 1977. The section in effect requires a police officer questioning a child under the age of 16 years to ensure that any representation made by the child during the questioning is recorded. The recording can be played as evidence in chief of the child under s 9. However s 11(2) requires that the child who gives evidence by that procedure be available for cross-examination and re-examination in the courtroom or by alternative arrangements such as video link. I understand that the evidence of MW’s interview was not played under these provisions, but it may be a relevant factor to be considered under s 137 of the Evidence Act that the legislature has mandated that in the normal case the child be available for cross-examination at the trial where a tape, made in accordance with s 7, is played to the jury.

42 It is very unsatisfactory that the appeal should be allowed because of the Crown’s desire to have MW’s interview admitted notwithstanding that he could not be cross-examined. In my opinion the Crown case against the appellant was a strong one even without that material having regard to the evidence supporting the complainant’s account.

Ground 2 Admissibility of particular parts of AM’s interview

43 There were objections taken at the trial to particular questions and answers in AM’s interviews on the basis that they raised allegations of improper conduct by the appellant against Ms Andrews and MW.

44 The complainant gave evidence as to the circumstances in which she came to complain to Ms Andrews as follows:

So she [Ms Andrews] drove over from Narellan and she got there and then she told me everything that he had done to her, and then I said to her, “We’ve had sex and he’s taken me all the way” and I told her about [MW]”.

Later she said:

[Ms Andrews] said we can’t wait because if he does it to someone else he’s going to think he can get away with it and he’s going to think he’s had the better of that and we can’t let that happen.

45 It was submitted that these two portions of the interview were irrelevant but raised a suggestion that the appellant had been acting in a similar way with Ms Andrews. In fact Ms Andrews had alleged that the appellant had physically assaulted her, there had been a trial of that allegation and the appellant had been acquitted. Ms Andrews gave evidence at the trial and the jury were informed that she made “allegations of assault” against the appellant “but those allegations of assault were not of a sexual nature”. The Judge did not believe that it was appropriate for the jury to be told that the appellant had been acquitted of those allegations.

46 In my opinion it was open to the Judge to allow this evidence. As his Honour recognized, the evidence was significant because it was part of the circumstances in which the complaint to Ms Andrews arose. It helps explain why the complainant made her complaint to the other woman. Although it was prejudicial to the applicant, that prejudice was not great in the circumstances of this particular case. It was open to his Honour to come to the view that it should not be rejected under s 137. I do not have the same misgivings as his Honour did of the jury being informed that a jury had acquitted the appellant of any charge based upon those allegations. But even without that knowledge, I do not believe that the jury would have used that evidence to the prejudice of the accused such as to bring about a miscarriage of justice. Evidence was led that the appellant had no convictions and was a person of good character. Appropriate directions were given as to the use the jury was to make of that evidence.

47 The second passage quoted above does not in my view raise by itself or with the other passage a suggestion that the appellant had been misconducting himself with anybody but the complainant and perhaps Ms Andrews. Again it was open to his Honour to admit the evidence as part of the circumstances leading up to the complaint to AM’s parents.

48 The criticism in respect of the evidence relating to MW is the reference to him in the first passage quoted above. It was submitted that this was a reference to an earlier question and answer, excised from the interview placed before the jury, where the complainant had made a reference to the appellant sexually assaulting MW. Of course the jury were not aware of any of the allegations made by either AM or MW of sexual assaults against MW and one should have cared about reading too much into what was put before the jury with knowledge that the jury did not have. Again I do not believe that the Judge was required to reject that part of the conversation under s 137 on the basis that the jury might conclude that the complainant had told Ms Andrews about sexual assaults against MW. The jury did know of two incidents that did involve MW in allegations of sexual assaults upon the complainant from that portion of his interview placed before them. The jury could easily have concluded that this was what the complainant was referring to.

49 This ground fails.

Ground 3 Directions concerning the interview of MW

50 It is unnecessary to determine this ground of appeal. It will be a matter for the trial judge to formulate what warning and directions to give to the jury if any part of the edited version of MW’s interview is admitted into evidence.

51 The chief criticism made of the present summing up was that the trial judge did not repeat to the jury the basis upon which they were to use the evidence of MW as context evidence and did not warn the jury against using it as a basis for propensity reasoning. No such direction was sought. It might be thought inadvisable in some cases to introduce the notion of tendency or propensity reasoning to the jury simply to warn them against such reasoning. However, it seems to me that the evidence of other sexual acts is so prejudicial when it comes from someone other than the complainant that such a warning should always be given because there is a very significant risk that the jury might use it in that way without understanding that they were prohibited from doing so.

52 During the summing up the Judge repeated to the jury the two-step approach they were to undertake with regard to MW’s evidence without indicating again the purpose for which that evidence was before them and at least warning the jury that it could not be used for any other purpose. In my opinion what the Judge said during the summing up or when the evidence was first introduced to the jury was insufficient to warn the jury against using the evidence in some other way. There was a real risk in this case that the jury might use the evidence or part of it by way of tendency reasoning and the jury should have been warned against such an approach. There was no need for the Judge to direct the jury against using any of the allegations of other sexual acts made by MW to replace any of the counts on the indictment because there was no real risk that they would do so.

53 It is unnecessary to consider any other challenge made to the directions given to the jury.

Grounds 5 and 6
Failure to give warning and directions with respect to the form of the evidence of the complainant and MW

54 It seems to me to be convenient to deal with these grounds together because the arguments in respect of them are largely identical.

55 The complainant gave evidence in chief substantially by the playing of her video-recorded interview with the police. She then gave further evidence by way of closed circuit television (CCTV). These procedures could be adopted by reason of the provisions of the Evidence (Children) Act 1977. This was because the complainant was under the age of 16 years at the time of the trial; see s 6. The recording of the complainant’s interview was admissible as evidence in chief under s 9(1)(a). She was entitled to give evidence by CCTV under s 18 of that Act.

56 In relation to the evidence given by playing the videotaped interview s 14 of that Act applied. That section states:

14 Warning to jury
If a child gives evidence of a previous representation wholly or partly in the form or a recording made by an investigating official in accordance with this Part in any proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way.

It should be noted that the section is in mandatory terms.

57 No such warning was given at any time during the trial in respect of the playing of the complainant’s videotaped interview.

58 MW’s videotaped interview with police was also played to the jury. The question arises whether s 14 applies. The Crown submitted that it does not because the evidence was admitted under s 65 of the Evidence Act and not under the provisions of the Evidence (Children) Act. It is unnecessary for present purposes to determine whether the section does apply, but it would be a cautious approach to give such a warning whenever evidence is given in this form. In this particular case, the failure to give the warning, even if required under s 14 could not have led to a miscarriage of justice. As the jury knew that MW was dead, they could not have drawn any adverse inference about the use of that procedure against the appellant. The rest of the warning was concerned with the weight to be given to the evidence and the only prejudice to the appellant could be that the jury were not warned against giving greater weight to the evidence because it was in this form. In light of the directions given about the hearsay nature of the evidence and the fact that MW could not be cross-examined, no prejudice could have been suffered by the appellant by the failure to give this warning.

59 The written submissions received from both parties assume that the Judge failed to give the jury a warning in relation to the fact that the complainant gave evidence by way of CCTV. Section 25 of the Evidence (Children) Act is as follows:

25 Warning to the jury
(1) In any criminal proceeding in which the evidence of a child is given by means of closed-circuit television facilities or any other similar technology (by virtue of section 18), the judge must:
(a) inform the jury that it is standard procedure for children’s evidence in such cases to be given by those means, and
(b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those facilities or that technology.

60 During the course of his opening remarks to the jury the Judge told them, “some of this trial will be heard by way of CCTV”. He then went on to direct the jury as follows:

The complainant will be in another room, not very far from here because when exhibits are taken you can see the sheriff’s officer appearing on the screen. I would ask you not to draw any adverse inference against the accused because this device is being used, it’s a normal way these days in which evidence is taken in these cases – in this category of cases. Nor do I ask you to draw any inference adverse to the witness. I can assure you that these cameras are quite sensitive, they follow whoever is speaking, so if the barrister speaks at this end of the bar table the camera focuses on him and the young person in the room can see him. Or if the Crown speaks then it focuses on the Crown. And the barristers are very used to using this kind of technique these days and it’s really no inhibitor of cross-examination. And indeed I think that you probably get a better view of the witness using this technique than you do perhaps from the witness box. At least it does appear that it saves emotional upset in the sense of the young person having to give evidence before you twelve people sitting there and it is really devised for that purpose. I must say that we are having a let fewer breaks in the course of evidence because of this so I think perhaps it is an improvement on the older system. In all events I just ask you to regard it as a way in which it is done, no inference is to be drawn either way.

61 This direction only in part complied with s 25 as the Judge did not direct the jury that they were not to give more or less weight to the evidence because it was being given by this method. So far as the failure to comply with s 25 might have prejudiced the appellant, the only relevant omission was to tell the jury that they were not to give the evidence more weight because it was being taken by CCTV. In my view the risk of the jury giving that evidence more weight for that reason was so slight that the failure to give the part of the warning did not result in a miscarriage of justice.

62 Insofar as the judge failed to warn the jury as required by s 14 in respect of the playing of the video tape of the complainant’s interview with police is concerned, it does not appear to me that the failure could have resulted in any miscarriage of justice in light of the warning that the Judge gave to the jury in relation to the complainant’s evidence being given by way of CCTV. The jury had been warned not to use the fact that the complainant was giving evidence by CCTV as giving rise to any adverse inference to the appellant and it is inconceivable, in my view, that the jury would, notwithstanding that direction, have treated in some way the use of the videotape recording as adverse to the appellant.

63 I do not believe that taken by itself the failure of the Judge to warn the jury against placing too much weight on the evidence in the complainant’s videotaped interview would have given rise to a miscarriage of justice. But when the absence of that warning is seen in the context of the failure to comply with the preferred procedure in relation to the use of videotaped interviews set out in R v NZ [2005] NSWCCA 278 the absence becomes more problematic. The preferred procedure in NZ requires the judge to warn the jury against giving too much weight to the videotaped interview if they were to be given access to it during the course of their deliberations. That warning was not given and therefore the jury were never warned about giving too much weight to the videotaped evidence.

64 As in my view there must be a retrial, it is unnecessary for any further consideration to be given to these grounds of appeal. However, it should be noted that it is unsatisfactory, to say the least, that neither counsel ensured that the Judge complied with ss 14 and 25 of the Evidence (Children) Act. The principal responsibility to ensure that there is compliance with the law in this regard falls upon the Crown. The Crown was calling the complainant as a witness and the Crown was seeking to have the tape of MW’s interview played to the jury. It was the Crown’s responsibility to ensure that the procedure adopted accorded with the Act and, therefore, that mandatory warnings were given to the jury as was required by the Act.

65 I propose that the appeal be allowed, the convictions and sentences be quashed, and that there be a retrial.

66 LATHAM J: I agree with Howie J.

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