Gately v The Queen [2007] HCA 55 6 December 2007 B15/2007
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Queensland
Representation
P E Smith for the appellant (instructed by Fisher Dore Lawyers)
B G Campbell with P J Alsbury for the respondent (instructed by Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Gately v The Queen
Criminal law – Evidence – Video evidence of the complainant – Appellant charged with sexual offences against a child – Jury shown a videotape of the complainant's evidence in chief and cross-examination given at a preliminary hearing – Whether the videotape itself was admissible into evidence as an exhibit – Whether permitting the jury to replay the complainant's pre-recorded video evidence during its deliberations and in the absence of judge and counsel constituted a miscarriage of justice.
Criminal law – Evidence – Admissibility of prior consistent statements – Whether the complainant's written statement to police was admissible despite the tender of the pre‑recorded video evidence.
Criminal law – Jury trials – Directions – Whether a direction that the jury not give undue weight to the complainant's pre-recorded video evidence or written statement to police was required.
Criminal law – Appeals against conviction – Application of "proviso" – Nature of inquiry – Order of consideration of statutory criteria.
Criminal Code (Q), s 668E. Evidence Act1977 (Q), Div 4A of Pt 2, ss 93A, 98, 99.
GLEESON CJ. The facts of the case are set out in the reasons of Hayne J. The grounds of appeal are as follows:
"That a miscarriage of justice has occurred in this case:
…
(a)The Trial Judge erred in allowing the jury during its deliberations to play a pre-recorded video statement taken under s 21A[M] of the Evidence Act (Qld) 1977;
(b)That the Trial Judge erred in failing to direct the jury when the complainant's statement was re-read to them that they should not give undue weight to the evidence;
(c)The Trial Judge erred in permitting the prosecutor to tender written statements (in particular the statement of the complainant) taken pursuant to section 93A of the Evidence Act 1977 (Qld) in circumstances where the complainant and the preliminary complaint witness had already given full pre-recorded evidence."
Paragraph (a) refers to the oral evidence of the complainant, which was recorded before the empanelling of the jury. The video recording was then played to the jury at the trial. A transcript of the complainant's evidence consists of five pages of evidence in chief and 22 pages of cross-examination. Paragraph (c) refers to "police statements" (that is, statements made to the police at the investigation stage) which were tendered at the trial as exhibits. The only other evidence at the trial was some formal evidence from a police officer, and…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Gately v The Queen [2007] HCA 55
Case
[2007] HCA 55
Decision Date
CaseChat Overview and Summary
This case concerned an appeal against conviction for sexual offences against a child. The central dispute revolved around the admissibility and use of video evidence of the complainant, which had been recorded during a preliminary hearing. The appellant argued that the jury's unsupervised access to this pre-recorded evidence during deliberations, and the absence of specific judicial warnings about its weight, constituted a miscarriage of justice. The High Court of Australia was required to determine whether the trial judge erred in allowing the jury unrestricted access to the video recording and in failing to provide directions regarding its use and the potential for affording it undue weight.
The High Court considered whether the jury's unsupervised replay of the complainant's pre-recorded evidence during deliberations amounted to a miscarriage of justice. It also examined whether the trial judge was obliged to direct the jury not to give undue weight to this video evidence or the complainant's written statement to the police, particularly in light of the jury's repeated requests to review these materials. The Court had to assess the impact of trial counsel's consent to the jury's access to the recording, and whether this consent precluded a finding of miscarriage of justice, despite the trial judge's initial objection from counsel.
A majority of the High Court, in separate judgments, dismissed the appeal. The majority found that while there were issues with the procedure, a miscarriage of justice had not been established. This conclusion was based, in part, on the fact that the appellant's trial counsel had ultimately consented to the jury having access to the pre-recorded evidence, and that the case largely turned on the jury's assessment of the complainant's evidence. The majority also held that, in the absence of a specific request from trial counsel, a warning about undue weight was not necessarily required. Kirby J dissented, finding that a miscarriage of justice had indeed occurred due to the unsupervised access to the video evidence and the lack of appropriate directions.
Orders
Orders of the court
Appeal dismissed. (Majority, in separate judgments, Kirby J dissenting)
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Neither at trial nor on appeal did the appellant challenge the validity of the provisions of the Evidence Act as they operated in his case. Nor did he complain, as such, about the unfairness of their deployment. In particular, he did not contest the presentation of the complainant's evidence (and cross-examination) in the form of a video-recording, so far as it was viewed by the jury in his presence. Instead, the two respects in which, on this point, the appellant asserted that the verdicts of the jury should be set aside were:1.That the trial judge erred in allowing the jury unsupervised and unrestricted access to the recording during their deliberations; and2.That the trial judge erred in failing to warn the jury as to the use they might make of the recording and any considerations they should take into account in order to avoid affording it "undue weight".Authority on jury access to pre-recorded evidence In directing submissions to these matters, the appellant suggested that differences have emerged in the approaches being taken in intermediate courts in Australia, both as between jurisdictions[3] and within Queensland[4]. He also pointed to conflicting authorities on the application of the "proviso" as to the circumstances in which departure from proper procedures would occasion a fundamental miscarriage of justice such as to require an order for a retrial[5].[3]As between the Court of Appeal of Queensland in R v H [1999] 2 Qd R 283 and the Court of Appeal of Victoria in eg R v BAH (2002) 5 VR 517 on the one hand and the majority of the Court of Criminal Appeal of New South Wales in R v NZ (2005) 63 NSWLR 628 on the other.[4]As between the approach of the Court of Appeal of Queensland in R v H [1999] 2 Qd R 283 and R v C [2000] 2 Qd R 54 and in the present case.[5]cf R v NZ (2005) 63 NSWLR 628 at 632-633 [10]-[20] per Spigelman CJ and at 680 [223] per Howie and Johnson JJ (Wood CJ at CL and Hunt AJA agreeing). Similar questions have arisen for judicial decision in England[6], New Zealand[7] and Canada[8], countries that share the same conventions of jury trial for serious offences, the same fundamental requirement for fairness in the conduct of such trials[9], and like provisions for the pre-recording of the evidence of child complainants (including cross-examination) in relation to allegations of sexual offences.[6]R v Rawlings [1995] 1 WLR 178; [1995] 1 All ER 580 and Welstead [1996] 1 Cr App R 59.[7]R v O [1996] 3 NZLR 295.[8]R v F (CC) [1997] 3 SCR 1183.[9]See R v NZ (2005) 63 NSWLR 628 at 631 [4]. There is also a growing body of academic and law reform analysis as to both the practice of (and dangers involved in) interviewing children[10] and the rules that should be observed in jury trials so as to reduce potential unfairness to an accused that might arise from the very use of recording technology[11].[10]Wilson and Powell, A Guide to Interviewing Children, (2001).[11]Elliott, "Video Tape Evidence: The Risk of Over-Persuasion", (1998) Criminal Law Review 159; Corns, "Videotaped Evidence of Child Complainants in Criminal Proceedings: A Comparison of Alternative Models", (2001) 25 Criminal Law Journal 75; Corns, "Videotaped evidence in Victoria: some evidentiary issues and appellate court perspectives", (2004) 28 Criminal Law Journal 43; Victorian Law Reform Commission, Sexual Offences, Interim Report, (2003) at 255-264.
When, the following day, the jury also requested to see the complainant's written statement to the police, the entire statement was read to them in open court. Again, no direction or warning was given by the trial judge as to the weight to be accorded to the statement in light of its repetition. The jury requested that part of the statement be read yet a third time Once more, that request was complied with, but without any judicial warning or direction along the lines of the governing principles. Verdicts of guilty were subsequently returned by the jury, almost 24 hours after they had been charged to consider their verdicts. The conviction of the accused and his sentencing followed.Conclusion: a miscarriage of justice is established Absence of any miscarriage? In light of the principles that should have been observed and the actual course adopted in the trial, the appellant has demonstrated a miscarriage of justice. In his reasons, Hayne J concludes that there was no miscarriage because: 1.Trial counsel consented to the jury having access to the pre-recorded evidence[38]; 2. As a general rule a party is bound by decisions made at trial by his counsel, whose function it is to defend him from any miscarriage of justice[39];3. The appellant did not give evidence and thus there was no countervailing actual evidence of which the jury might otherwise have been warned[40]; and4. As presented, the case turned upon the jury's acceptance or rejection of the evidence of the complainant and was thus simple and straightforward enough that the course adopted did not occasion a miscarriage[41].For similar reasons, Hayne J holds that the trial judge was not obliged to provide a warning to the jury about the use they might make of the pre-recorded evidence, in particular because no warning of that kind was sought by the appellant's trial counsel[42]. I disagree with these conclusions.[38]Reasons of Hayne J at [77].[39]Reasons of Hayne J at [77].[40]Reasons of Hayne J at [78]-[79].[41]Reasons of Hayne J at [80].[42]Reasons of Hayne J at [82]. The consent of trial counsel: There are several reasons why the consent of trial counsel to the course adopted is not conclusive for the outcome of this appeal. First, it is the overriding duty of a trial judge to conduct a lawful and fair trial. That duty cannot be delegated to counsel on either side. In this case, trial counsel did initially object to the provision of the recording to the jury. That objection ought to have alerted the trial judge to the problem inherent in the course he was proposing. Secondly, it was the trial judge himself who first suggested the provision of the recording to the jury for unsupervised use during their deliberations. It was the prosecutor who proposed the expedient that avoided the proper course of providing supplementary access to the recording in open court in the presence of the appellant and both counsel, which might have enlivened consideration of the need for appropriate warnings or directions to the jury about the use they might make of the evidence. The consent of the appellant's trial counsel to that course was, as I have said, a mistake. But the fundamental error originated with the trial judge and the prosecutor, each of whom, under our system of criminal justice, had special responsibilities to ensure the fairness of the conduct of the trial.