Gately v The Queen

[2007] HCATrans 315

[2007] HCATrans 315

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B15 of 2007

B e t w e e n -

GRAHAME JAMES GATELY

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 18 JUNE 2007, AT 2.19 PM

Copyright in the High Court of Australia

MR P.E. SMITH:   May it please the Court, I appear for the appellant in this matter.  (instructed by Fisher Dore)

MR B.G. CAMPBELL:   May it please the Court, I appear with my learned friend, MR P.J. ALSBURY, for the respondent.  (instructed by Director of Public Prosecutions (Qld))

GLEESON CJ:   Yes, Mr Smith.

MR SMITH:   Your Honours, the appellant seeks to raise three issues on this appeal.  Firstly, whether the jury in this particular case could have unrestricted access to the pre‑recorded evidence; secondly, if such access was given, whether the trial judge should have given any directions about that evidence; and finally, whether the prosecutor in this case could lead a full evidence‑in‑chief and then tender a police statement earlier made by that witness. 

If I could turn to the first point which is the unrestricted access point, on 5 January 2004 the Evidence Act 1977 (Qld) was amended, your Honours, and the relevant amendments are in reprint 7E which is in the appellant’s schedule of legislation filed on 5 June. Your Honours may see that section 21AK provides that:

an affected child’s evidence must be taken and video‑taped at . . . (a preliminary hearing) presided over by a judicial officer.

Relevantly in this case the complainant was an affected child witness because section 21AC defines that term, which means:

a child who is a witness in a relevant proceeding and who is not a defendant in the proceeding -

and a “relevant proceeding” is defined at page 28 as:

a criminal proceeding for a relevant offence -

and “a relevant offence” means “an offence of a sexual nature”.  So there is no dispute here that there was an affected child witness.

In Queensland we call that a pre-recording of evidence and “evidence” under that section is defined under subsection (9) as including – this is page 36:

evidence‑in‑chief or evidence given in cross‑examination or re‑examination.

In the instant case the complainant’s evidence was given by a pre‑recording conducted on 7 October 2004.  At appeal book page 11, your Honours, is where that commenced.  Your Honours may see that continued over a number of pages, in particular page 16.  That was the evidence‑in‑chief and one can see the complainant gave a detailed account of the allegations against the appellant.  Then that pre‑recorded evidence was played to the jury on the first day the jury commenced to hear evidence at page 130. 

Importantly, at page 162 of the appeal book at line 10 there was discussion about what sort of directions the trial judge would give and the defence counsel at about line 15 made the observation that:

not only the written statements, but the pre-recorded evidence of the complainant and the preliminary complaint not be taken into the jury room.

MR RICHARDS:   I support that.

Defence counsel quoted section 99 of the State Evidence Act and further said there was a risk that they may attach undue weight to that.  So there was agreement at least at that stage that the jury ought not have the tape in the jury room.  The next day, 11 November 2004 ‑ ‑ ‑

HAYNE J: Sorry, just interrupting you there, the reference to attaching undue weight seems to be picking up language out of section 99, is that right?

MR SMITH:   That is true, your Honour.

HAYNE J: Is section 99 engaged in respect of the pre-recording as well as ordinary form written statement?

MR SMITH: Arguably not because section 99 is in a part of the Evidence Act, Part 6, which deals with admissibility of statements and representations, which covers, for example, section 92 statements in civil proceedings, for example, the maker of the statement is dead and cannot turn up to court and give evidence, obviously enough, section 93, which is the criminal equivalent, and 93A, which is the police statement challenged in this case.  So arguably, your Honours, I would concede ‑ ‑ ‑

HAYNE J:   Is “document” a term that is defined in the State interpretation legislation?

MR SMITH:   It is specifically defined in the Evidence Act, your Honour.  I think it may be in the dictionary.  I will just find that.  Yes, Schedule 3 of the Evidence Act defines “document”.

HAYNE J:   Subparagraph (e) would capture a pre-recording, would it not?

MR SMITH:   Yes.  Arguably the only matter that I would raise in answer to your Honour’s question was that the pre-recording provisions are on a different part to that part of the Evidence Act, but certainly a pre‑recording would fall within the definition of “document”.  What happened the next day was on 11 November 2004 – and I am referring to page 171 of the appeal book and in particular line 30 – the jury by note asked his Honour:

we appreciate the following are not evidence, but our deliberations would be assisted by having copies of [the complainant’s] two statements, [T’s] statement and [MG’s] statement.”

Defence counsel at page 172, point 30 objected to this and he said:

Only as it relates to the pre-recorded evidence of both [the complainant] and [T].  In my submission those documents ought not to go into the jury because of the risk that they will pay undue heed to them.

HIS HONOUR:   That is a practice, but of course they are entitled to have resort to them by coming into this room and having those passages played.

Counsel agreed with that and his Honour said that counsel should:

give some thought to . . . whether the Court should be reconvened for that or not.

MR RICHARDS:   I don’t see that there’s any need for it . . . if they’re in here watching the video with the Bailiff.

HIS HONOUR:   Yes.

MR RICHARDS:   It will let them facilitate their deliberations more openly if legal counsel and other people aren’t present.

HIS HONOUR:   Yes.

MR MUMFORD:   Yes, that seems a sensible and practical approach.  If they want to play it they can play it while here in the presence of the Bailiff and not in the presence of other members of the Court.

KIRBY J:   Is that a problem for your side?

MR SMITH:   It is not helpful, your Honour, except to say that defence counsel did object ‑ ‑ ‑

KIRBY J: It looks like a bit of a problem to me. He had the opportunity to object and that would have enlivened the judge’s consideration of the matter because section 99, I think, that you took us to rather implies that the Act and Parliament contemplate that a document might be withheld because it is given undue weight.

MR SMITH:   Yes.  It certainly does not ‑ ‑ ‑

KIRBY J:   If people do not object at trials, why should it come up here in the third level and we deal with it?

MR SMITH:   He did object to start with, your Honour.  His Honour made his observation that the practice is these things can be played.  The best I can say in response to that really is that it must have been in light of his Honour’s intimation that defence counsel thought it was a sensible course, but he did not really abandon, in my submission, the earlier objection that he had made about the jury having the tapes because of the undue weight point.  Certainly I would have preferred to my case that that not be there but it is there but, as I have said, there was an objection to start with.  After the jury returned, the speaker at page 175, point 1, firstly wanted the transcript – sorry, there were the two videos ‑ ‑ ‑

KIRBY J:   Can I just understand what happened at 173.  Was it being suggested by the judge that the fact that it did not go into the jury room but was available in the courtroom adjacent was in some way alleviating the problem which the provision of the document to the jury creates?

MR SMITH:   I am not so sure, your Honour, whether that was the intention.  It may have been more of a practicality rather than alleviating a risk.  It was easier, it seems, a sensible and practical course is expressed by counsel for the court not to have to be reconvened, although it would seem, in my submission, that there is little difference between something going to a jury room and something going into a courtroom where no other member of the court is present apart from the bailiff.  That could be classed as a jury room, in those circumstances.

KIRBY J:   Now, who are the three?  [K] is the complainant?

MR SMITH:   The complainant, your Honour.

KIRBY J:   [T] was her friend?

MR SMITH:   She was the preliminary complaint witness.

KIRBY J:   And who is [M]?

MR SMITH:   [MG] was the grandmother of the complainant.

KIRBY J:   I think we should not be using the name, the surname.  I am trying to avoid the use on the Internet which goes the whole world round of the name of the complainant.

MR SMITH:   Yes.  [M] was the grandmother of the complainant, your Honour.  She had gone with the complainant to this house at Moranbah where the appellant was residing and remained there during that two‑week period whilst they were at Moranbah, but also in answer to your Honour’s query about the defence position, of course, as I mentioned earlier, both counsel had agreed that these documents – I mean, the tapes not go into the jury room, as I have mentioned earlier – the jury then request them, there is objection, the judge says they can see them in court, and then it moved to the point where the court is not to be reassembled and they can just come into the court and watch them.

GLEESON CJ:   Is part of the reason for the toing‑and‑froing that went on on pages 172 and 173, the use in section 99 of the words “with them during their deliberations”?

MR SMITH:   Yes, because his Honour refers to that at page 172 point 8 where he does use that term that they can have that played themselves during the course of their deliberations.

GLEESON CJ:   Yes, that is the language of the statute?

MR SMITH:   Yes.  So, your Honours, at page 175 point 18, his Honour told the jury after the speaker had mentioned at the top of the page they were interested in the two videos of the complainant, and then just wanting the transcript, his Honour told them that they could simply ask the bailiff during the course of deliberations they could listen to those videotapes again, but they will not go into the jury room.  “You will have to come into this courtroom and listen to them”, and he reminded them they could have resort to the complainant’s statement taken by the police officer, and if it was a case to have that they would reconvene the court and the statement would be read.

Your Honours, that is the debate before the summing‑up about access to the tapes.  The summing‑up commenced at 11.48 am that day – page 208 of the appeal book ‑ ‑ ‑

KIRBY J:   Are you going now to the second point?

MR SMITH:   No, your Honour, I am coming back to the tape point as to when the jury – what further they were told about the tapes.

KIRBY J:   What do you say should have happened at that point?

MR SMITH:   Your Honour, my submission is that his Honour ought to have determined one, whether the jury should have had any access to the tape.  That was the first step.  Secondly, after determining that, if he thought the jury should have access to the tape, he should have determined whether to read the transcript of the evidence to the jury, as distinct from playing the tape, but if he thought the tape should be played then he ought to have done that on a reassembled court because the problem we have here, in my submission, is that because no direction ultimately was given as to weight of the tape, we do not know exactly what the jury did with it because, for example, they may not have watched the cross‑examination.  They may have watched the evidence‑in‑chief a number of times.  The learned trial judge did not tell them, “Look, you have to watch all of the tape including the cross‑examination”.

So, in other words, defence counsel’s fears about undue weight were not alleviated because of what happened.  That is really the appellant’s submission, and the reason I say all of those things should have happened is because in other jurisdictions that seems to be the approach taken by the courts in England, Victoria and New South Wales.  That is really the nub of my submission here.

KIRBY J:   Yes, but you have to have pity for the judge here.  He gets the note, the parties agree they should not have the tape in the jury room, he gets a note from the jury asking for access to these to help them in their deliberations, he then says, “Well, what do you say?” and they say, no, and then he said, “We can bring them up and they can read it over and they can see it in court”, then your side caves in and says “All right, we do not want to have that trouble.  It is a nuisance to have to come back here.  Therefore, we will allow free open slather”, and now you are here saying it should not have been done.

MR SMITH:   Certainly, and as I considered earlier, your Honour ‑ ‑ ‑

KIRBY J:   As the Chief Justice pointed out, 99 does seem to make geography important in their deliberations which would normally take place only in the jury room.  It has made a specific point of statutory reference, hence the practice to bring them back into court and to give it to them again.

MR SMITH:   Yes, your Honour, although the proposition which ultimately was arrived at was that they would deliberate more openly watching the video in the courtroom for some reason, I do not know, but that was the suggestion which was adopted ultimately.

KIRBY J:   You have to say the judge is always the guardian of the fair trial and whatever counsel say about it, it is the judge’s duty to act in accordance with law and fairness and that having open slather in the room next to the jury room or nearby is effectively allowing it to take part in their deliberations.

MR SMITH:   Yes, I must say that really and even as I have acknowledged counsel made that concession about the method of playing the tape that was in the context that there had been an agreement between counsel which was apparently adopted earlier on.  Objection intimations were given, “Well, they can watch it”, and then it was the method of watching where the concession was made.

So, your Honours, I have mentioned what his Honour told them before the summing‑up.  The summing‑up went from 11.48 am until 3.07 pm, appeal book page 263, and within the hour, page 265, a note came from the jury requesting to see the video evidence and the court transcript of [M’s] evidence again, and at 267, line 45, his Honour told them that they would make arrangements for them to come into the courtroom at their leisure to see the evidence alone, and he would not take a verdict before 9.30 the next day.  That pretty much covers the relevant references in the appeal book to ‑ ‑ ‑

HAYNE J:   You have not mentioned pages 218 to 219, have you?

MR SMITH:   I am sorry, your Honour.

HAYNE J:   The last line of 218 over to 219.

MR SMITH:   Yes, your Honour.  His Honour gave a direction concerning – firstly, at the second paragraph - actually, perhaps, I will go back to 217, your Honour.  You will see that at line 20 his Honour gave some general directions about the 93A statement and the pre‑recorded evidence.  Then there was a direction given about that evidence in the third‑last paragraph and also the last paragraph heading over to paragraph 1 on 218.  That direction it would seem, your Honours, comes from section 21AW of the Evidence Act which is a required direction to be given when one is concerned with pre‑recorded evidence.

In particular I am referring to subsection (2) of that section.  His Honour also gave a similar direction concerning the police statement in the second paragraph on 218.  Then, finally, they were told of the importance of the tapes as compared to the transcripts, giving a Butera‑type direction, and then finally told they would not have the tapes of the transcript in the jury room but they could ask to have resort to the tapes and the statements could be read back if they wished.  I hope that covers that aspect, your Honour.

HAYNE J:   Then, on the questions that his Honour Justice Kirby was asking you about the course taken at trial, is it not necessary to take account of page 270 from about line 5 through to line 28?

MR SMITH:   Yes, your Honour, I would agree with that.  Your Honours, really the complaint by my client in summary in terms of the warnings is that ultimately, as it develops, no warnings were given by his Honour of the dangers of placing undue weight on the evidence.  There was no warning that they should not only watch the evidence‑in‑chief but have regard to the cross‑examination and the other evidence in the case and I have listed some favourable defence matters in paragraph 1 of my reply, and there was no warning the jury should not replay the evidence‑in‑chief a number of times at the expense of the cross‑examination.  I was going to turn, now, your Honours to the authorities on these questions because other common law jurisdictions do take the approach, in my submission, that a court needs to be very careful about access and warnings given concerning such tapes.

The first decision was R v Rawlings [1995] 1 All ER 580 which is case No 1 in the respondent’s list of authorities, your Honours. In that case the English Court of Appeal was concerned with the taped evidence‑in‑chief of the complainant, which does distinguish this case from that, but in my submission the general principles are applicable, in particular at page 582 between g and h where the Chief Justice stated:

In any criminal trial, once the jury have retired to consider their verdicts, it is of course well established that no further evidence can be provided to them.  If they wish to see an exhibit in the case, they are usually allowed to do so . . . 

When a jury wishes to be reminded of a witness’s oral evidence, the conventional practice has been for the judge to read out to them the relevant part of his note of the witness’s testimony, sometimes even the whole of it.

Then further at 583 between a and b:

But even it if has, for example, by a daily transcript or if a witness adopts a written statement as part of his or her evidence, it has been thought undesirable to give the jury in permanent form one part of the total evidence lest they give it disproportionate weight or attention.  So juries have had to make do with such help as is afforded by the judge’s note . . . 

For the appellants, it was argued that to replay the video after conclusion of evidence, speeches and summing up, would give undue prominence to the complainant’s evidence‑in‑chief.  There would be no video of cross‑examination to redress the balance.  The reason for refusing to let a jury have transcripts of a witness’s testimony has been and still is that one part of the total corpus of evidence should not be given disproportionate weight and importance.

CRENNAN J:   Is there a particular practice in Queensland in relation to the provision of transcript to the jury?

MR SMITH:   Your Honour, transcripts are not ordinarily provided to juries.  I cannot answer your Honour’s question about a practice concerning the replaying of pre‑recordings, but certainly it is common practice for a transcript to be given during the playing of the tape during the trial but normally it is taken back from the jury before they go to the jury room to consider matters.  Then, finally, at page 585c:

In our judgment ‑ ‑ ‑

KIRBY J:   Are we not just in danger here of becoming a little bit out of touch with modern technology.  I mean, when the typewriter came along there was probably all sorts of concerns about getting the transcript and then the transcript is provided and now we have more modern means of capturing the evidence so long as there are – maybe perhaps so long as there are warnings and so long as there is equality.  Now, in this case your client did not give evidence, but there are cases where the accused gives evidence and if the jury is in such a case given only the evidence of the complainant and they do not sit there and re‑watch the evidence of the accused there is a problem of disproportion, which the judges are talking about in Rawlings.

MR SMITH:   Certainly, your Honour.  There is a case referred to in the respondent’s outline, I think, of Tichowitsch – it is a 2006 Queensland Criminal Appeal decision and Justice Keane examined the authorities on whether a transcript of the entire trial could be given to a jury.  His Honour examined some New Zealand authorities on the point and came to the conclusion it was within the discretion of a trial judge to give the transcript of a trial to a jury to read and in that case the appeal was dismissed because all the transcript – that is all of the evidence – favourable and unfavourable to the Crown was given to the jury.

KIRBY J:   Once we make that leap of faith into going beyond the impressionistic impact of the witness at the trial and then say you can supplement it by the transcript, it seems a little artificial not to allow it to be supplemented with the videotapes that are available that were part of evidence in the trial.

MR SMITH:   That would be right, your Honour, except one would have to be terribly careful to ensure that warnings were given if only a selected part of the evidence was given to the jury, which is really the appellant’s complaint here.  Perhaps on the obverse side of the coin, people in the modern times are used to reading and seeing things electronically, perhaps, believing them, particularly because they are in electronic form, because they are used to it perhaps even more so warnings should be given in such circumstances.

I suppose it was traditional not to give transcripts to the jury because 100 years ago or so some jurists could not read.  Perhaps that was the reason for it.  Most people can now, but ‑ ‑ ‑

GLEESON CJ:   It also the reason for the rule that the meaning of a written document is a question of law for the judge.  Often you could assume the judge could read, but you could not make the same assumption about all the jurors.

MR SMITH:   Yes, hence, in this case, for example, presumably exhibit 1 – there was some objection by counsel for the defence to the police statement going to the jury room, but exhibit 1 was read to the jury a couple of times during the trial.  But in any event the point I was making about rulings is that the Chief Justice was careful in deciding that a trial judge – if I could refer your Honours to page 585c to f where the Chief Justice noted:

In our judgment it is a matter for the judge’s discretion as to whether the jury’s request for the video to be replayed should be granted or refused.  He must have in mind the need to guard against unfairness deriving from the replay of only the evidence-in-chief of the complainant.  Usually, if the jury simply wish to be reminded of what the witness said, it would be sufficient and most expeditious to remind them from his own note.  If, however, the circumstances suggest or the jury indicate that how the words were spoken is of importance to them, the judge may in his discretion allow the video or the relevant part of it to be replayed.  It would be prudent where the reason for the request is not stated or obvious for the judge to ask whether the jury wish to be reminded of something said which he may be able to give them from his note or whether they wish to be reminded of how the words were said.

So that seems to be the initial approach the Chief Justice suggests a trial judge should take and if he does exercise his discretion to allow the replay then the Chief Justice poses this:

If the judge does allow the video to be replayed, he should comply with the following three requirements.  (a) The replay should be in court with judge, counsel and defendant present.  (b) The judge should warn the jury that because they are hearing the evidence‑in‑chief of the complainant repeated a second time well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case.  (c)  To assist in maintaining a fair balance, he should, after the replay of the video, remind the jury of the cross-examination and re-examination of the complainant from his notes, whether the jury asked him to do so or not.

In the instant case, of course, there was the cross-examination on the video, so unlike this case where it was only in evidence-in-chief, the jury did have the cross-examination, but the appellant’s complaint is that because the court was not reassembled during the playing, we just simply do not know if the cross‑examination was given regard to by the jury. 

GLEESON CJ:   Were directions along these lines requested at the trial?

MR SMITH:   No, your Honour.  The only statement made by defence counsel was an objection to the jury seeing this because of the undue weight point.  That is the one I referred to earlier.

GLEESON CJ:   Which was then qualified shortly afterwards.

MR SMITH:   That is right.

GLEESON CJ:   So when you are talking about your client’s complaint you mean your client’s complaint on appeal.

MR SMITH:   On appeal.

KIRBY J:   As usual.

MR SMITH:   Yes.

KIRBY J:   I suppose it is of the nature of things that we do not see things when they are properly reserved and fixed up at trial.  We only see it when, as so often is the case, points are seen later, after the conviction, and not taken at the trial.  However, there is a lot of background law in this, so that we are not swimming in an empty ocean.

MR SMITH:   Certainly, if counsel does not take objection to a point at trial, that makes the road for an appellant a hard road and so it should, but there is still the question of miscarriage to be considered, of course.  It is an unusual case because whilst those directions were not specifically sought, there was that objection and agreement earlier so, in my submission, it does put this case in a different category to those where simply no objection was taken, like NZ to which I was going to turn shortly. 

KIRBY J:   I am trying to get into my mind what is the essential vice that you are complaining of and I have made three notes:  (1) that taking a bit of the evidence and, even at the request of the jury, reading it out of context has the risk of disproportion because, though it is of interest to the jury and though they perhaps asked for it, it is dissociating it from all that went around it and including any cross‑examination on it.  I understand you embrace that point.

MR SMITH:   Yes, your Honour.

KIRBY J:   The second point is that in the nature of evidence of which juries may request to hear it is normally going to be the evidence of the complainant. 

MR SMITH:   That is true.

KIRBY J:   It is rarely, if ever, going to be the evidence of the accused and that, therefore, means that the complainant gets a second opportunity to have his or her complaint put before the jury again when the accused does not usually get that second opportunity.  Do you embrace that?

MR SMITH:   I do, although I would concede the difficulty I have with that is that my client did not give evidence in this case, but certainly I would adopt, with respect, that rationale.

KIRBY J:   The third that I have is that the nature of jury trial is not supposed to be analytical, but impressionistic, and that the problem with the jury taking on a role of analysis as a judge would do, by reference to transcript and video and so on, is for the jury to assume a new and different role where there are dangers of which a judge, in the professional reasoning process, will normally be aware but a jury may not and that that emphasises the need to alert the jury and warn the jury or caution them about the risks of analysis that is not, as it were, taking everything on board.

Now, is that how we have looked on jury trial?  There was a time, and some courts even now, judges would not give juries pen and paper to take notes.  We assumed the jury’s role was to sit back, listen to it all and give a verdict but we now supply pen and paper, some judges now supply computers.  How far does this challenge the basic notion of what a jury is there for?

MR SMITH:   The difficulty with a sexual case is that they do tend to an implied prejudice, the mere fact of the allegations at the start of a trial hearing an indictment of 12 counts read out to a jury can create prejudice.  The particular difficulty with these pre-recorded evidence trials is you actually capture the complainant giving her account in detail of these allegations and there is a particular difficulty for an accused person, bearing in mind the onus and standard of proof in defence, where a jury can see the witness actually giving evidence on more than one occasion.  So, whilst I would embrace, as it were, an argument - the advances in terms of computers being provided, pens and paper and so on, one has to be cautious in sexual trials really is my submission, your Honour and, in particular, with pre-recorded videotaped evidence. 

Your Honours, there seems to be, in Australia at least, a divergence of views between Victoria and New South Wales.

HAYNE J:   Just before you come to develop these points, were the recordings made of the evidence given on video marked as exhibits?

MR SMITH:   Yes, they were, your Honour.

HAYNE J:   By what right?

MR SMITH:   I will just double check that.  I am fairly confident they were, your Honour.  Page 129 at line 10, the prosecutor indicated he proposed to play the evidence from the pre-recording in October and had a transcript and – that is wrong, sorry.  The learned trial judge thought that he should make the tape an exhibit and it became exhibit 4.

HAYNE J:   I understand that.  My question then becomes, by what right?  Why was the tape a real exhibit?  Why was not the evidence at the trial the oral and visual presentation which occurred upon claim?

MR SMITH:   Can I just check section 21AK, your Honour, to see if there is anything provided for in that?

HAYNE J:   I would have thought it was 21AM, which is the hinge about which it turns.  Perhaps that is not right.

MR SMITH:   Yes, it renders – this is 21AM(1) – as admissible the tape recording as if the evidence were given orally and admissible on any retrial, other proceeding and so on.

HAYNE J:   What I have in mind is ultimately encapsulated in Bulejcik 185 CLR 375, which is an important element in the discussion in the case of NZ in the Court of Criminal Appeal of New South Wales to which, no doubt, you are coming presently.  Whether you deal with it now or at some later point, Mr Smith, it seems to me that we may need to understand better than certainly I do at the moment – it seems a rather metaphysical question – what exactly is the evidence in this case.  At first blush it would seem to me at a trial it is the oral and visual presentation that occurs upon claim.  It is not the real evidence constituted by the electronic record.

MR SMITH:   Yes, well, your Honour ‑ ‑ ‑

HAYNE J:   Maybe this is off stage right ‑ ‑ ‑

MR SMITH:   It is a little and I would ask your Honours to allow me to consider that.  I am not sure how long argument today will go for.  If we do get to the end of the day, if I could consider that issue overnight if we get that far.  Thank you, your Honour. 

So I was turning to the issue about the Victorian approach and the New South Wales approach and if I could make the submission that the Victorian approach does seem to be a strict approach in comparison to the majority decision given in NZ.  If I could take your Honours to the relevant authorities on the point, firstly, BAH which is in the respondent’s list of authorities, case No 3, that was the headnote as to the facts, accurately summarises what happened.

Your Honours will see that the jury asked to see this VATE tape.  There was an accession to that request, no objection taken.  No further direction was given to the jury about the use of it, nor was there a reminding of the cross‑examination, re-examination or evidence of the accused.  They had the tape for about two hours and your Honours may see that at page 519, point 7, counsel for the applicant, shortly before the jury was sent home, became concerned they could be continuously playing the tape and giving it substantially greater importance ‑ ‑ ‑

KIRBY J:   I see in the headnote that the Court of Appeal of Victoria said it must be “done in open court” in the presence of the accused and counsel.What is the principle behind that?  Is it an open trial, public trial principle that – is that what is behind the Court of Appeal view that ‑ ‑ ‑

MR SMITH:   It seems, your Honour, that the principle was not so much the principle of open – well, perhaps that was an extension of what ought to have happened, but the principle was one of fairness and balance.

HAYNE J:   But there are some root questions engaged, are there not, Mr Smith?  The trial in our procedure is accusatorial, but it is also an oral trial.  It is not a trial on what the witnesses may have said out of court except tangentially and subject to the myriad exceptions.  It is what the witness stands in the box and swears to.

MR SMITH:   Yes.

HAYNE J:   Now, in this case, for evident reason, particular witnesses are dealt with separately and thanks to modern technology that can be done.  But at an oral trial, the evidence of that witness is what is said by playing the recording.

MR SMITH:   Yes.

HAYNE J:   It is exceptional for the evidence to be constituted otherwise than by the witness’ sworn or affirmed assertion in open court.  You then come back, as in Bulejcik, to questions of the Crown reopening its case when at the end of a trial it produces real evidence after the accused has given evidence.  Not this case, I understand, but we are at bedrock principle here, are we not?

MR SMITH:   Yes.  Perhaps I had not gone back in my submissions as far as that.  I had concentrated on the directions aspect and so on, but I can see the force of such an argument if one was to pose that.  In fact, if one looks at the three Victorian authorities of BAH, Lewis and Lyne, each of them ultimately is authority for the proposition that it is only in exceptional circumstances that a jury should have unrestricted access to such a tape. 

GLEESON CJ:   Is there a practice in Queensland of marking documents for identification as distinct from ‑ ‑ ‑

MR SMITH:   There is, your Honour.  For example, the written transcript is often marked for identification only for appeal purposes.  But certainly, as happened in this case, it seems the tape recording became real evidence in this case, whether that was a correct approach is not the issue that I need to consider, but that is what happened here.

KIRBY J:   Did the Victorian courts refer to what Justice Hayne has called the metaphysical question which, I suppose, was lying behind my concern about the role of the jury, that its role is to hear it once and not to be hearing it over and over again.  At least that has been what has happened for 800 years, really, that that is how the jury got the evidence.  They heard it in open court, oral testimony.  Now, did any of the courts in England or this country refer to this issue?

MR SMITH:   Your Honour, I cannot pick up anything immediately ‑ ‑ ‑

KIRBY J:   It is really going back to basics.

MR SMITH:   It is.  For example, President Winneke in BAH in his decision at page 522 made reference to R v H which is the 1999 Queensland Court of Appeal decision and quoted from President McMurdo there at 7 and in particular what her Honour said about the warnings by the trial judge about halfway down that quotation and then at paragraph 11, the President in the last sentence and over the page, page 523, adopted, or at least stated what happened in R v H should be followed in Victoria.  His Honour said:

Compliance with the procedure means that, in the event that the jury requests to be reminded of the complainant’s evidence, or to review the videotape, the judge should deal with the situation on the facts as they arise, bearing in mind that the maintenance of balance and fairness in the trial is the overriding consideration.

So his Honour, I do not think, did go back to this basic principle about open justice and the importance of the course of the trial being done in open.  He really concentrated upon the balance and fairness issues, which I have concentrated upon really, I think, in my written submissions.  Justice of Appeal Callaway, page 524, paragraph 15, thought this was a clear case:

the jury were allowed unrestricted and unsupervised access to the VATE tape in the jury room for approximately two hours and the learned judge did not give them any directions or warning about the need to remember the cross‑examination or the danger of the tape’s assuming undue prominence and this was a case where the evidence that stood to be eclipsed by the jury’s concentration on the tape included not only the cross‑examination but the applicant’s own evidence.

GLEESON CJ:   In the present case, insofar as you have a complaint about undue prominence, undue prominence as compared to what?

MR SMITH:   There are two answers to that, your Honour.  Firstly, the appellant’s complaint is that because there were no directions given about the importance of regarding the cross‑examination on the tape and that they should be cautious not to apply the evidence‑in‑chief, for example, a number of times, there were dangers there which were not averted.  Secondly, there was other evidence in the trial which I have tried to summarise in paragraph 1 of my reply, to which no specific reference was made, although I do know M’s evidence was reread at one point, but that was just after the summing‑up.  They are really my two complaints, your Honour.

I should say that Justice of Appeal Charles at page 536 in his conclusions at 65 considered there was a serious procedural irregularity when the judge provided the VATE interview to the jury.

GLEESON CJ:   Was there legislation in Victoria corresponding to section 99 of the Evidence Act (Qld)?

MR SMITH:   I will just check that your Honour.  The various State legislation is summarised in NZ, and I will just see what is said about that.  Page 656 of NZ, paragraph 128, sets forth section 37B of the relevant Act. 

GLEESON CJ:   And it says “the recording is admissible in evidence”.

MR SMITH:   Yes, it does, although, your Honour, as I understand the position, these VATE tapes are fairly much in the same position as the 93A interviews as distinct from pre-recordings.  In other words, this is the version given by the complainant at the earliest reasonable opportunity out of court, which is then tendered through the complainant’s evidence.  Section 37B(4) has a general discretion for the court to rule “inadmissible the whole or any” parts of the recording:

Section 19 of the Crimes (Criminal Trials) Act 1999 (Vic) makes provision for the supply to the jury of copies of various documents set out in the section for the stated purpose of “helping the jury to understand the issues”.

So there is nothing in its terms exactly the same, your Honour, as – I should say, in BAH itself, page 528, section 19 of the Crimes (Criminal Trials) Act is set out in full.  Subsection (2) says:

The trial judge may specify in an order under sub‑section (1) when any material is to be given to the jury.

So there is that general discretion.

HAYNE J:   It may be that different considerations are engaged when the tapes with which you are concerned are surveillance tapes or other material of out‑of‑court assertions admitted as an exception to the hearsay rule because they are evidence of admissions.  So tape‑recorded interviews with accused persons or suspected persons, surveillance tapes and the like, get before a jury commonly as exceptions to the hearsay rule.  Here you have the evidence getting to the jury.  I think that there may have to be some care exercised in this case in understanding 21AM of the Queensland Act when it speaks of a videotaped recording being “as admissible as if the evidence were given orally”, when one reads on and understands “admissibility” in perhaps an unusual sense as is revealed in subparagraph (b):

(b)      is, unless the relevant court otherwise orders, admissible in ‑

amongst other things, an appeal, so an unusual understanding, I would have thought, of “admissibility”.

MR SMITH:   Yes, your Honour.  Your Honours, I wanted to refer the Court to Lyne’s Case (2003) 140 A Crim R 522, which is case No 10 in the respondent’s list of authorities. In that case, page 523, line 8, “S” had given her evidence by way of one of these VATE tapes. At paragraph 9, page 524:

When the jury retired to commence their deliberations . . . defence counsel noticed that the tipstaff was moving to take the VATE tape to the jury room –

and defence counsel said that it should not go into the room and it 

should be played in open court.  He submitted that it would be unfair for the VATE tape to go to the jury and that it would provide an unbalanced view of her evidence if one did not provide a transcript of the cross‑examination to go with it.  The judge decided that he would not send the VATE tape into the jury room for the time being.

Some two hours later the jury returned to court and asked for the VATE tape to be provided.  The judge agreed that the jury should have the tape, but said that they should understand that the tape constituted substantially the evidence‑in‑chief that had been given by S.  His Honour continued:

It does not include, of course, the cross‑examination of her which occurred here.  Now, it is a matter for you.

So he did talk about the cross‑examination.  At page 525, 11, the jury, at 12.13 pm on the Thursday:

asked to see the cross‑examination.  Due to some error the cross‑examination had not been recorded, and the trial judge instead read the whole of the transcript of the cross‑examination –

The jury retired again.  Verdicts of guilty were returned.  At paragraph 12, the argument, about halfway down that paragraph:

It was submitted that a miscarriage of justice had occurred as the jury had been given unrestricted access to the VATE tape albeit with some warnings and notwithstanding that the transcript of the cross‑examination had been read by the trial judge.

KIRBY J:   What is the meaning of that word, “unrestricted?”  What is the complaint about, this “unrestricted” as distinct from “restricted?”

MR SMITH:   I assume, your Honour, that means that they were just given the tape to take into the jury room as distinct from coming into a reassembled court with the tape being played in the reassembled court.

GLEESON CJ:   Mr Smith, can I just ask you a question about the practice in Queensland?

MR SMITH:   Yes, your Honour.

GLEESON CJ:   Is it the practice in Queensland that a child complainant in a sexual case gives evidence‑in‑chief and is cross‑examined before the jury is empanelled?

MR SMITH:   Yes.

GLEESON CJ:   Is the accused present while that is going on?

MR SMITH:   He should be.  In fact, I think the Act requires him to be present, your Honour.

GLEESON CJ:   Then, after the jury is empanelled, the complainant does not give evidence in front of the jury, save in the exceptional circumstance where there is some evidence in reply?

MR SMITH:   Or, as what happened in this case, the trial judge gave leave for a further pre‑recording because once that police statement went in, which added in those additional allegations, then leave was given to conduct another pre‑recording.

GLEESON CJ:   But what the child complainant is being, as it were, protected from by this procedure is not a confrontation with the accused or the accused’s counsel, it is a confrontation with the jury.  Is that right?

MR SMITH:   I think it is a number of things, your Honour.  The purpose of the legislation was to lessen the impact or the trauma of a child giving evidence in a courtroom because prior to 5 January 2004 in Queensland, often children would come into the witness box.  There might be a screen in front of the dock behind which the accused would sit.  The judge would give some directions about not drawing adverse inference about that, and the child witness would give evidence in front of 12 individuals, counsel and the judge.

So there were some circumstances where someone could be declared a special witness and they could give evidence from a remote video link.  For example, I can recall cross‑examining a five‑year old at police headquarters prior to the amendments to lessen the impact of giving the evidence.  So I would agree, your Honour, that the purpose of the legislation really was to lessen the trauma of a young person giving the evidence in front of strangers.

GLEESON CJ:   You mean it is less traumatic if you are giving evidence in circumstances where the only other people in the room are the accused and the accused’s counsel?

MR SMITH:   No, but they are in a separate room.  The witness will be in a separate room.  There is a video link between that room and the courtroom, much like a video link on special leave applications.  The same procedure is adopted.

GLEESON CJ:   So the evidence is not given in the presence of the accused?

MR SMITH:   Not in the same room, but he must be in the courtroom listening to the evidence which comes over the video.

GLEESON CJ:   That would raise some interesting questions in the United States.

KIRBY J:   It does raise some questions under the International Human Rights law about the right of the accused to confront the accuser, but it is provided for in Australian and other legislation.

MR SMITH:   It is, yes, and the Act permits it in Queensland.

GLEESON CJ:   But there seem to be some differences in detail of the legislative schemes around Australia.

MR SMITH:   It seems so, your Honour.

GLEESON CJ:   But the Queensland scheme is ordinarily at least no cross‑examination in front of the jury?

MR SMITH:   No, the tape is tendered or like in this case, as an exhibit, it seems.

GLEESON CJ:   I understand that the position is different in Victoria.  You take the evidence‑in‑chief in this way and you then cross‑examine in front of the jury?

MR SMITH:   That is how it seems, your Honour, reading these cases.

GLEESON CJ:   What about New South Wales?

MR SMITH:   The New South Wales legislation and NZ as well.  I will just turn that up, your Honour, page 652 at paragraph – that is New Zealand, sorry.  Pages 644 to 645 summarises the Evidence Act provisions in New South Wales, in particular section 11 which is referred to at 645.

GLEESON CJ:   Perhaps you can come back to that.

MR SMITH:   Yes.

GLEESON CJ:   A concern about disproportion seems to take on a slightly different practical aspect where, by hypothesis, all that will be on the tape is the evidence‑in‑chief.

MR SMITH:   Yes, that is true, but in Lyne’s Case I was really making the point that in fact the jury was reminded of the cross‑examination of the complainant and warning of sorts was given by his Honour, and at page 527 at [16] Crown counsel had submitted that the circumstances of the trial, the applicant differed substantially from that in the other authorities for those reasons, but their Honours at page 528, paragraph 20, noted that:

Unfortunately the trial judge’s attention was not –

referred to the relevant authorities:

Consequently, the jury were permitted to have unsupervised access to the VATE tape for in excess of nine hours.  It is, of course, impossible to say how the tape was used by the jury or how often it was played –

which is my client’s complaint in this case –

The warning framed by McMurdo P in R v H contemplates that, when a jury is permitted to view a video‑tape in open court, the jury should then be told that because they are hearing the evidence‑in‑chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case.

At page 529, the end of paragraph 21:

I have said, the jury had unsupervised access to the tape for some nine hours, without an adequate warning and for four hours before the cross‑examination was read to them.  That is sufficient, in my view, to establish that a fundamental procedural irregularity took place in the conduct of the trial.

Chernov, Justice of Appeal, paragraph 25 noted:

In light of the authorities to which Charles JA referred in his judgment, it will only be the very exceptional case where it will be appropriate for the VATE tape to be given to the jury during the course of their deliberations, irrespective of the judicial warning that may accompany it.

Importantly, his Honour noted at 26 the concern of the jury having the:

unrestricted opportunity to replay the VATE tape on as many occasions as they wish.  Such a situation clearly produces the risk that the jury might give the complainant’s evidence disproportionate weight simply because of the visual form of her evidence which is effectively repeated to them.

GLEESON CJ:   When did section 99 come into the Evidence Act?

MR SMITH:   I am sorry, your Honour, I will just check that for one moment.  It seems that it has always been there, your Honour.

GLEESON CJ:   Thank you.

HAYNE J:   Just while you are at Lyne, I notice that Mr Justice Eames at paragraph 34 at page 531 expressly reserved the question of whether the VATE tape could be tendered in evidence.

MR SMITH:   Yes, your Honour.

HEYDON J:   Mr Smith, can I just correct one thing you said about R v NZ.  That Act is not the Evidence Act 1995. It is the Evidence (Children) Act 1997.

MR SMITH:   Thank you, your Honour.  They were the Victorian cases to which I wished to make reference and then I come to NZ’s Case because it would seem that the majority, at least, adopted a relatively different approach to Victoria.  In NZ there had been no – I am referring to paragraph 216 of the decision – apparently defence counsel had not objected to the tape going into the jury room and it seems that it was retained by them during deliberations by consent.  All of the videotapes had been made available to the jury after retirement, that is paragraph 75, and importantly, unlike the instant case, at 219, and this seemed to be crucial to Justice Howie and Justice Johnson’s reasoning:

the jury themselves requested they be provided with a transcript of the cross‑examination of the complainant –

so there was no room really to consider the jury had not considered all of the evidence there.  The Chief Justice dissented as to the result.  His Honour, at paragraph 9, determined that:

It is, however, noticeable that a central theme emerges from the judgments as to the significant possibility of the jury decision‑making process being distorted by the jury being able to replay as often as it wishes only part of the evidence in the trial.

And at page 632, paragraph 10, his Honour referred to the relevant authorities to which I had made reference.  There were two other additional Victorian decisions of MAG and Davies and at paragraph 11, his Honour said:

The principle of a fair trial requires the court to adapt its procedures and/or to give directions to the jury wherever the circumstances of a particular trial give rise to a material risk that the jury may give disproportionate weight to particular evidence.  This is a principle of general application of which the use of videotaped evidence under special statutory provisions for the giving of such evidence is one set of circumstances in which the issue has arisen.

I do not detect any difference in the reasoning in the authorities from England, New Zealand and Australia with respect to a fundamental proposition that, as a general rule, videotape evidence of this character should not go into the jury room where there can be no effective supervision of its use and, accordingly, any replay should occur in open court.

Then finally, at paragraph 14, when his Honour came to conclude where he differed from Justices Howie and Johnson, he noted:

In their judgment Howie J and Johnson J give particular weight to two factors which lead their Honours to conclude that no miscarriage of justice occurred in the present case.  First, the jury requested and had available to it the transcript of cross‑examination.  Secondly, on viewing the videotape, their Honours conclude that the mode of delivery of the evidence by the complainant was not such as to have an impact upon the jury’s deliberations, even if replayed more than once . . . 

I have come to a different view in this regard . . . 

Contrary to the view reached by their Honours, in my opinion, evidence given in this manner is capable of being highly persuasive.  Any such effect would be reinforced by repetition.  In order for videotape evidence to have disproportionate effect through repetition it is not necessary for the evidence to appeal to the emotions of the viewer.  The overall impression of the complainant’s evidence upon me was that it was highly persuasive and that that effect would be accentuated by repetition. 

His Honour, obviously by reason of his reasons, did not apply the proviso which was applicable in that case.

CRENNAN J:   His general statement of principle, I think, is in the last sentence of paragraph 13 and I assume that you were contending for the same general principle.

MR SMITH:   Yes, your Honour.  I had overlooked that in my quotations but I would certainly, with respect, adopt what his Honour said there. 

GLEESON CJ:   How does that general rule relate to section 99 of your legislation?

MR SMITH:   I would submit to your Honour that 99 and the general rule would sit comfortably together because 99 specifically refers to “undue weight” so there is a comity between the general law and section 99.

HEYDON J:   I think there is a problem. Section 99 says:

Where . . . a statement in a document is admitted in evidence under this part –

This part is Part 6. Part 6 is a provision designed to create business records type exceptions to the hearsay rule and it begins with section 92. A lot of these provisions around section 99, I think first entered the law as part of the Evidence Act (NSW), Part 2B I think it was or maybe 2C, which were all drafted by the barrister who became Mr Justice Waddell. It must be a serious question whether section 99 applies at all to the present problem.

MR SMITH:   It was something that was raised earlier, your Honour.

HEYDON J:   I appreciate that 93A is in Part 6, but section 21AK and AM are not. That may help you because section 99 is open. It does not have the extreme bias in a beneficial sense that you find in Chief Justice Spigelman’s statements of principle.

MR SMITH:   I think earlier when Justice Hayne asked me a question about the applicability of section 99 I had jumped on board, as it were, with the proposition that might apply to the section 21AK tape, but I may have been a little too ready to do that. I do not think there is any other general provision in the Evidence Act like 99 which applies to 21AK, but I will check that as well.

Your Honours, turning to the majority judgment, with whom the Chief Justice and Acting Justice Hunt agreed, from 106 and onwards their Honours examined the approaches in the various jurisdictions and in paragraph 152 summarised how they saw the authorities lying on the point, noting:

1.A trial judge has a discretion to allow videotapes used as evidence in chief of a child complainant to be replayed to the jury during their deliberations –

referring to some authorities -

2.In exercising that discretion the trial judge must first enquire of the jury their reason for wanting to review the videotape, and be satisfied that it is for the purposes of reminding themselves of the evidence in chief of the complainant . . . but concern has been expressed that such a step may intrude into the confidentiality of jury deliberations . . . 

3.Where a jury requests that a videotape be replayed during their deliberations, the primary consideration must be fairness, and it is highly desirable that counsel be consulted as to how best to meet the jury’s request . . . 

4.If the trial judge exercises the discretion in favour of allowing the jury to replay the tape, then:

(a)in general, the replay must take place in court with the judge, counsel and accused present . . . 

(b)however, the tapes may be sent into the jury room during deliberations, in exceptional circumstances . . . 

(c)in Queensland, the tapes may be sent to the jury room during deliberations, if both the Crown and defence consent and the trial judge chooses not to exercise the discretion to withhold the tapes from the jury room . . . 

5.The judge must warn the jury that, because they are hearing the complainant’s evidence in chief repeated well after all the other evidence, they should guard against the risk of giving disproportionate weight to it and be mindful of all of the other evidence . . . 

6.After the replay of the tape the trial judge should remind the jury of the cross‑examination and re-examination of the complainant . . . This is mandatory:  R v Rawlings; this is not mandatory:  CR v C, per McMurdo P; R v BAH.

7.The jury should not generally be permitted to retain the videotape or the transcript of the tape after they have retired -

Then their Honours after an examination of the summary examined in particular the statements made in Victoria, and at paragraph 175 said:

For reasons we shall give later, we do not believe that this Court should follow the statements of some members of the Court of Appeal in Victoria to the effect that a breach of any rule of practice or procedure in relation to the use of videotape evidence should inevitably be viewed as an irregularity going to the root of the trial and thereby resulting in a miscarriage of justice.  Because we envisage a variety of situations in which such evidence would be placed before a jury and because the significance of that evidence will vary dramatically from case to case, we do not believe that any hard and fast rule should be developed about the result of a breach of the preferred or appropriate procedure with regard to such evidence.

There was then reference to Justice Eames’ observation about the matter in Lyne’s Case.

GLEESON CJ:   Accepting your case at the highest, and that is that there is a hard and almost fast rule that the videotape should not go into the jury room, it should be replayed in open court, that just brings us back to pages 172 and 173, does it not, of the appeal book? 

MR SMITH:   Yes.

GLEESON CJ:   That is what the trial judge, in effect, offered, is it not?  He, in effect, said to counsel for your client, “You really want us to come back and play this in open court”.

MR SMITH:   He did, I would agree with that.  After the objection was intimated against, his Honour then raised the issue about ‑ ‑ ‑

GLEESON CJ:   He said at line 45 on page 172, “You give some thought to the question whether you really want me to reconvene the court to hear this tape played”.

MR SMITH:   Yes.

KIRBY J:   You have to say that your predecessor in title made a mistake.  He should have objected.  He did not, but that did not relieve the trial judge of the obligation to give effect to the principles of fairness that have been laid down in other courts in this country.

MR SMITH:   Yes, your Honour.

GLEESON CJ:   He did not just not object; he actually said that it seemed “a sensible and practical approach” to do what was done.

MR SMITH:   He did concede that, your Honour.  It was certainly practicable.  It means that counsel ‑ ‑ ‑

GLEESON CJ:   One of the things they were worried about evidently was that the jury would be inhibited in discussing among themselves their impressions of the evidence if they were sitting there with the judge and the barristers.

KIRBY J:   Maybe that is the very point of requiring their deliberations be in their room and that they should see the evidence separately, as has heretofore been the case in a courtroom.

MR SMITH:   Yes, your Honour.

GLEESON CJ:   That may be the point of it.  Then the question is:  what is the consequence of counsel for the accused saying that what is proposed seems “sensible and practical”?

MR SMITH:   It certainly was a practical course.  It would be a pain really to have to come back and listen to the evidence again, but that is no answer to the proposition.  However, I would be repeating myself by making the submission that there was an initial objection about it.  It was the form by which they were to watch the evidence again with which there was agreement.  Even if, for example, by some means there was, as it were, a waiver of my client’s point by the agreement with the sensible and practical course, there is still the issue about what directions should be given about it all.

GLEESON CJ:   If there is a retrial and it is like this, Mr Smith, does the complainant have to give evidence again or do they use, as it were – they keep the tape and play it at a second trial?

MR SMITH:   Yes, that is right, subject to any application for further cross‑examination, but in this case that would be unlikely, I would think, because there have been two pre-records in this case.  Anyway, the point, your Honours, really is that from the appellant’s point of view it does not matter much which approach is adopted here, whether it be the stricter approach by the majority of judges in Victoria or the approach by the majority in NZ.  My submission is that unrestricted access to the tape without warnings and over the initial objection was an error in this case.

HAYNE J:   Just before you depart from NZ, at page 664, paragraph 153 in the joint reasons of Justices Howie and Johnson, their Honours say that 93A:

provides that video recordings of child witnesses shall be admissible as evidence.

Is 93A engaged?

MR SMITH:   I will just check the legislation as it was at the time of the trial, your Honour.  It is Reprint 7F.

HAYNE J:   Or is it 21AM that is engaged?

MR SMITH:   It certainly was intended, your Honour, in this trial concerning the pre-recorded evidence that it was a 21AM matter.  It was never treated as having come under 93A.  I would not really like to embark on that argument in light of the way in which the matter was litigated below.  Sorry, your Honours, in NZ I should mention that their Honours at paragraph 210 ultimately set out what their Honours considered to be the preferred procedure with regard to such cases, noting:

(a)The videotape evidence of a Crown witness should not become an exhibit and, therefore, should not be sent with the exhibits to the jury on retirement;

(b)Any transcript given to the jury under s 15A should be recovered from the jury after evidence of the witness has been completed;

(c)It is for the discretion of the trial judge how a jury request to be reminded of the evidence in chief of the witness should be addressed;

(d)It would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed;

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

(f)The judge should consider whether the jury should be reminded of any other evidence, for example the cross‑examination of the witness at the time the tape is replayed or sent to the jury room, if that step is considered to be appropriate.

HAYNE J:   The footing upon which their Honours say that is that recorded at paragraph 194, page 674, which is the expressed view that:

We believe that there is no basis upon which the tape should become an exhibit –

under the relevant New South Wales legislation.

MR SMITH:   Yes, your Honour.  In summary on this first point which the appellant raises, if appropriate directions had been given by the trial judge in this instance, this Court might be well satisfied the jury watched the cross‑examination and did not at all repeat the evidence‑in‑chief replaying, but we just do not know that.  The problem was accentuated because the last thing the jury heard in this case was the previous consistent statement the witness had given to the police in June 2003, which leads me to the next point in the appeal, which is the evidence‑in‑chief point relating to this statement.

Your Honours, in this case, the complainant gave a statement to the police on 9 June 2003, which is at appeal book 197.  Your Honours will note that on 198 there is a passage of transcript which came into the appeal book by error.  That actually is repeated early on in the appeal book, so that can be ignored.  Your Honours will see 199 relates to page 3 of the statement and 200 relates to page 2.  So that should have just gone around the other way in the appeal book, but otherwise the statement is completely there in the appeal book.  Your Honours will see that the complainant was born on 26 March 1988, so was 15 when she gave this statement ‑ ‑ ‑

GLEESON CJ:   It probably does not matter, but I should mention that page 198 of the appeal book appears to be wrong.

MR SMITH:   It actually repeats page 152 of the appeal book.

GLEESON CJ:   Yes, but there is something – the second page of the statement is missing.  I am not suggesting it matters.  I just point that out to you.

MR SMITH:   No, it is there, your Honour.  If your Honour looks at page 200 at the bottom it is page 2.  It has just been flipped ‑ ‑ ‑

CRENNAN J:   It is out of order.

GLEESON CJ:   I see.

MR SMITH:   It has just been flipped around the other way.

GLEESON CJ:   It is out of order.  Thank you.

MR SMITH:   I think all of the statement is there.  Now, yes, at the time the statement was given, because section 93A has been amended three times since the initial statement was given, the pre-trial statement was admissible only if the complainant was 12 years or under and this is contained in Reprints 6H which is in the respondent’s legislation filed with the Court.  Your Honours will see that the section at that stage, subsection 1(a), required the maker to be a child under 12 or an intellectually impaired person inter alia, and the statement was made soon after the occurrence of the fact or was made to a person investigating the matter to which the proceeding relates and the child is available to give evidence in the proceeding. 

Now, on 5 January 2004 when those amendments which allow for the pre‑recordings came in, section 93A was amended to increase the age from 12 to 16.  Then on 7 October 2004, appeal book 11 to 16, your Honours might have observed earlier that the prosector gave a detailed account in-chief of the allegations against my client.  Interestingly, at one stage, the judge who dealt with the pre-recording at appeal book 13 at line 2, made this observation in answer to this question:

Did you tell the police about more than one incident with your Uncle Grahame-----

HIS HONOUR:        Is it appropriate to – is it appropriate to lead that type of question?  It’s more important what she can remember now than what she might have told the police.

MRS VELTHUIZEN:   Certainly, your Honour.

Then she went on in the evidence in-chief.  Now, the trial, which commenced on 9 November 2004 before a different judge, commenced with the defence objecting to the tender of the police statement.  If I could take your Honours to that objection that was raised on the record at page 63 of the appeal book just after the jury had gone out at the commencement of the trial, defence counsel at about point 5 said:

MR MUMFORD:     Your Honour, the learned Crown prosecutor tells me that as part of the evidence to be led by the Crown he intends tendering the statement of the complainant . . . When I say it’s a statement, it’s actually a witness statement taken by a police officer.

Then defence counsel gave a summary of the matters and at page 64, line 10, defence counsel made the point that the statement had not been tendered in evidence on 6 October and her evidence was taken in full.  Page 65, defence counsel again made the point that the statement was not tendered.  He made the point at line 30 that:

there are aspects of the written statement which she did not mention in evidence.  In particular, count 7.

Line 50.  There was a residual argument raised by defence counsel at page 69 where, at line 8, he said that:

it would be unfair to admit the statement into evidence because . . . the words in the statement aren’t necessarily hers –

in the sense that it was not a videotaped interview with the complainant as one often sees in these cases like a VATE tape in Victoria where one can see whether there is leading questions and the like asked of the complainant.  Defence counsel made that point at lines 20 to 31.  The prosecutor ‑ ‑ ‑

HEYDON J:   I must say it seems highly questionable whether it really is a section 93A statement:

In any proceeding where direct oral evidence of a fact would be admissible, any statement . . . contained in a document, shall, subject to this part, be admissible as evidence of that fact if-

(a)      the maker of the statement was a child -

There is a sort of double hearsay element.  The police officer is, in a sense, the maker of the statement.  It is he who composed the English prose that expresses it.

MR SMITH:   Yes, I had not thought of that, your Honour.  Can I just turn the section up?

GLEESON CJ:   Did the child sign the statement?

MR SMITH:   She did sign the statement, your Honour.  I think she would have signed all pages of it.

GLEESON CJ:   Some of the language of section 93A is similar to some of the language in statutory provisions relating to business records.

MR SMITH:   It is.

GLEESON CJ:   In the case of statutory provisions relating to business records and, in particular, provisions talking about where somebody is available to give evidence, is there any authority on the question whether the statutory provisions apply in the case of a statement of somebody who has already been called as a witness and cross-examined as a witness?

MR SMITH:   I am not aware of any, your Honour.  That is not to say there are not.  I know that my learned friend in his reply relies upon section 92 as supporting the contention that this section would permit an additional statement to be tendered.  There are some differences with that procedure, I mean in the sense that one can perfectly understand how under 92 in a civil case, for example, a statement could be tendered as oral evidence‑in‑chief.

GLEESON CJ:   I am not for a moment saying – I am not making any suggestion one way or the other – that this is the proper construction of section 93A, but a strictly literal approach to 93A might lead to a reading that the hypothesis is that the person has not yet been called to give evidence, where it talks about something being “admissible” if somebody is “available to give evidence”.

MR SMITH:   Yes.

GLEESON CJ:   As I say, I am not suggesting that is its true construction but a similar question would have arisen, would it not, many times in relation to business records because, at least it is my recollection that some of the legislation that applied to business records had that qualification in it about a person being available to give evidence.

MR SMITH:   Yes.  I cannot immediately answer your Honour’s question about that, but can undertake to do so.  The maker of the statement being a child, even though a police officer types the statement – I think there is evidence certainly at some stage of the trial in cross‑examination the witness read the statement before signing it and adopted it so it would be difficult to argue that she did not make it.  For example, the witness would not make the videotape, if there was a videotape of the interview, so I do not think I could press that point.

HAYNE J:   In understanding the operation of 93A is account to be taken also of 21AN, bearing in mind that at page 53 of the transcript the complainant was excused from further attendance as a witness at the conclusion of her pre‑record and 21AN, at least on a quick look, seems to limit the circumstances in which, and the manner by which, the child concerned may give further evidence which may then be thought to reflect on whether he is available to give evidence under 93A, is it, is satisfied, leave aside the further question whether 93A is engaged at all in the face of 21AN.

I do not profess to begin to understand this chain of legislation, Mr Smith, and at some point you are going to have to nail your colours to a particular mast or set of masts about the way in which they work.

MR SMITH:   I suspect that the problem we have about the legislation is 93A was first introduced in 1989 in the Criminal Law Amendment Act consequent upon the Sturgess reports to which I have made reference in the reply.  These pre‑recording provisions post‑dated the introduction of 93A and perhaps it is the situation where there is not complete harmony between 93A and these pre‑record provisions.  Perhaps the drafter did not clearly think out all the issues which have now arisen.

However, I suppose the appellant’s argument is that because these were all very important matters from an accused’s point of view on serious charges, there should be a strict interpretation given to these provisions which caught his favour or her favour, depending on the case, so that probably becomes the nub of my argument about whether this additional evidence‑in‑chief could be tendered.

I have not turned my mind, your Honour, to be frank about whether or not 21AN was engaged here, so that is really my response at this point to that, but it is clear that defence counsel did object to the statement’s tender on the basis of the full evidence‑in‑chief earlier conducted.  The trial judge’s ruling is on page 71, line 52.  His Honour took the view that the Crown Prosecutor was entitled to lead the evidence regardless of what happened earlier, the statement was admissible and the prosecution should be given the right to use the statement.

His Honour deferred the further argument about the terms of the statement to a later point but defence counsel later abandoned that objection but certainly had maintained the objection to the additional tender of the prior police statement.

GLEESON CJ:   This was the last thing that happened in the course of the prosecution case, was it not?

MR SMITH:   No, what had happened, your Honour, was that the jury was empanelled, accused arraigned ‑ ‑ ‑

GLEESON CJ:   Then there was a ruling on this.

MR SMITH:   Then a matter of law arose, the jury went out, defence counsel raised this objection to this statement going in.  His Honour then made that ruling to which I have referred, subject to further cross‑examination on a pre‑recording, so the complainant gave some more evidence on the pre‑recording which pretty much narrowed down to an examination about the uncharged acts which had not been led at the first pre‑recording and count 7, which had been omitted from the complainant’s evidence at the first hearing.  That was the scheme of things, that after the second pre‑recording the jury came back the next day on 10 November 2004 and the trial proceeded after that point in time and the jury heard evidence for the first time on that second day.

HEYDON J:   What does section 110A of the Justices Act 1886-1980 say? That is stamped on page 206.

MR SMITH: Section 110A is a provision that – I do not have it here, your Honour, but as I recall it, enables the prosecution at a committal hearing to tender the statement of a witness in lieu of oral evidence, provided the defence consents to that procedure. It is known as a full hand‑up committal in Queensland if statements are tendered, so I think that is what that relates.

HEYDON J:   So that happened on 13 February 2004 which was before the trial?

MR SMITH:   Yes.  One of the other changes to the law was that after 5 January 2004 complainants in these sorts of matters could not, except in exceptional circumstances, be cross‑examined at a committal hearing.  One needs leave.  That is in the part relating to pre‑recordings that earlier – so, what had happened was in fact everyone proceeded on an incorrect assumption at the trial because for other reasons because the witness was over 16 the statement was not admissible at time of trial.

There were two cases, GR and Lanagan in that regard, but what had happened, by the time the appeal decision was delivered the Act had been amended to get around those two decisions such that the statement was rendered admissible by the time of the appeal decision, but there is no issue here about that because special leave was sought on that issue of retrospectivity and not granted, so we are only concerned with this evidence‑in‑chief point.

The appellant’s submission is that section 93A does not expressly provide or necessarily imply that the statement can be tendered in addition to an oral evidence‑in‑chief.  In my reply I had made reference to the second reading speech which seems to rely on the Sturgess Report as the genesis for this change of legislation and Mr Sturgess, in his report – and I have included some relevant extracts in our material - I have not included the whole report, it is quite a lengthy document, not only covering changes in the law but other issues - in my submission made it clear that the original intention of such a section was for the young complainant child’s evidence‑in‑chief to be given on the video recording, so that would be the evidence‑in‑chief of the child, and then the child would be made available for cross‑examination, if requested by the defence.

That is where that availability provision comes in in section 93A.  In my submission, an interpretation of section 93A along those lines accords with common sense because, for the reasons I have set out in my submission, when one is concerned with sexual allegations there can be an overwhelming effect, if there are two lots of evidence‑in‑chief, one by a statement and then by a full evidence‑in‑chief.  I submit that the prosecutor did have a choice in this case as at 7 October 2004 about the method by which ‑ ‑ ‑

GLEESON CJ:   But is it your argument that what the legislature was getting at in section 93A, when it referred to “a statement tending to establish a fact”, was a statement contained in a video recording?

MR SMITH:   That was the original intention, but as it developed in terms of actually being legislated, it moved on from being a video recording to a statement.  I think “statement” is defined in the Act, too, your Honour, quite widely.  So there are trials in Queensland where a typed written police statement, such as the present, is tendered rather than a video recording interview.  That is not uncommon.

GLEESON CJ:   Yes, and the question then is whether you can have both.

MR SMITH:   That is the question.  My submission is that there is nothing expressly in the section or which necessarily implies the right to have both and it should be read down that one can have one or the other.  I mean, there might be cases where ‑ ‑ ‑

GLEESON CJ:   What is the textual basis for such a reading down?

MR SMITH:   Firstly would be access to the extrinsic material, which is the Sturgess Report, the original intention of the legislation.

GLEESON CJ:   No, but I think you said the legislation changed during its parliamentary history.

MR SMITH:   When it was first introduced, your Honour – and I am answering your Honour’s question – sorry, to go back one step, Mr Sturgess contemplated that the statement to be tendered would be a videotaped evidence‑in‑chief.  That was the contemplation.  But by the time it came into the Act in 1989, it was a statement.  It was not limited to a videotaped statement.

GLEESON CJ:   There would have been nobody who knew better than Mr Sturgess that almost invariably there would be a written statement to the police.

MR SMITH:   Possibly, your Honour.  I would concede, of course, that there may be occasions where it is necessary to have an additional evidence‑in‑chief to a statement.  For example, if a very young child describes that he or she was touched by somebody, but does not describe how the touching took place, counsel prosecuting the matter could seek leave of the trial judge to adduce additional evidence‑in‑chief to ask the witness how the touching took place, because otherwise it might be entirely equivocal.  But that was not the case here.  The case here was two full goes of evidence‑in‑chief.

HEYDON J:   Mr Smith, you say in your written submissions that there is a connection between 93A and Mr Sturgess’ observation that many children have limited recall, particularly when they are those of tender years.  That

was stated by the Minister in relation to a new criminal offence of maintaining a sexual relationship with a child under 16.  It did not seem to have anything whatever to do with section 93A ‑ ‑ ‑

MR SMITH:   Can I turn that up, your Honour?

HEYDON J:   That is page 3256 of Hansard.  I am reading from item 6 of the appellant’s authorities, about point 2 on the page:

it is proposed to leave the new offence of maintaining a sexual relationship with a child under 16 in the Bill for a number of reasons.

Some concern has been expressed as to the broadness of the provision . . . 

The provision has been specifically drafted in response to a general recommendation made by Mr. D.G. Sturgess, Q.C. in his report in recognition of the limited recall which many children . . . have in respect of specific details -

In other words, you do not charge a number of specific offences.

MR SMITH:   Yes.

HEYDON J:   You say because they cannot remember you just charge a sexual relationship over a time.  It does not seem to have anything to do with 93A.

MR SMITH:   No.  I would agree with that, your Honour.

GLEESON CJ:   Mr Smith, how long do you think you will require to complete your argument?  I am only asking this for the purpose of marking for the next case.

MR SMITH:   I see, your Honour.  I am close to finishing.

GLEESON CJ:   How long do you think you will be, Mr Campbell?

MR CAMPBELL:   Your Honour, I thought I would be about an hour.

GLEESON CJ:   All right.  We will adjourn until 10.15 am tomorrow and the next case will be not before 11 am.

AT 4.15 PM THE MATTER WAS ADJOURNED