Gately v The Queen

[2007] HCATrans 106

[2007] HCATrans 106

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B35 of 2006

B e t w e e n -

GRAHAME JAMES GATELY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 2 MARCH 2007, AT 12.52 PM

Copyright in the High Court of Australia

MR P.E. SMITH:   May it please your Honours, I appear for the applicant.  (instructed by Fisher Dore)

MR R.G. MARTIN, SC:   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

KIRBY J:   Yes, Mr Smith.

MR SMITH:   Thank you, your Honours.  The applicant seeks to raise three issues in this application.  Firstly, whether the prosecution in Queensland is permitted to lead a full evidence‑in‑chief from a child complainant and then tender a previous consistent statement of that witness.  Secondly, whether a jury is permitted to have unrestricted access to the video pre‑recorded evidence of the child and, if so, whether a trial judge ought give warnings about the dangers of that and, thirdly, whether the Court of Appeal in this instance was entitled to rely on legislation amended after the trial to, as it were, get around the fact that the previous consistent statement at the time of trial was not admissible.

If I could go to my first point, your Honours.  From 5 January 2004 “affected child” witnesses, which is defined in our Evidence Act, must give their evidence by a pre‑recorded fashion.  That is called a pre‑recording of evidence in Queensland.  “Evidence” is defined in section 21AK(9) as meaning:

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

In this matter, on 7 October 2004 the complainant child gave her evidence – a full evidence‑in‑chief and a cross‑examination before a judge on a pre‑recording.  However, the trial commenced before a different judge with a different prosecutor on 9 November 2004 and the prosecutor prior to trial told the defence counsel he was going to tender the statement the complainant had given to the police.  Under section 93A of our Evidence Act a child’s statement could be admitted if the child was under 16 when that statement was given.  Defence counsel objected to that tender on the basis there was a full evidence‑in‑chief at the pre‑recording but, despite objection, the trial judge ruled that the statement should go in. 

The applicant’s submission, your Honours, is that the Evidence Act does not provide any statutory authority for the prosecution to be entitled to two bites at the cherry.  There is a real risk in a case involving sexual allegations made by a child that a jury might be overwhelmed by two lots of evidence‑in‑chief and give undue weight to the complainant child.  They are difficult trials to start with.  This renders it even more difficult, in the applicant’s submission. 

The statement became important here because the jury actually requested to get the statement into the jury room.  That was not permitted but the full statement was read to the jury not long before verdicts of guilty were returned on all counts, apart from one, in respect of which a no case submission was successful.  That is really the point I wanted to raise about point 1, your Honours. 

If I could move to the second point, which is access after the complainant child’s video, at application book 115, point 35 - and I am referring to Mr Gately’s so-called affidavit, but I have checked the transcript and what he sets out there accurately reflects what is in the court‑reported transcript.  The jury requested to see, inter alia, the complainant’s statements.  At 116, point 42 defence counsel objected to the pre‑recorded evidence going into the jury room on the basis the jury would “pay undue heed to them”.

KIRBY J:   Where is that on that page?

MR SMITH:   116, point 42, your Honour, Mr Mumford at about line 42.  His Honour, in reply to the objection, said:

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.

His Honour gave defence counsel time to think about whether the court should be reconvened for that purpose.  The prosecutor at 117, line 1 said:

I don’t see that there’s any need for it to be reconvened if they’re in here watching the video with the Bailiff . . . 

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

HIS HONOUR:   Yes.

Now, against my proposition, of course, as defence counsel did accede to this proposition there was nothing further, even though he had objected earlier on the basis of undue weight.  Then the “SPEAKER” at page 117, line 42, indicated there were the two videos of the complainant.  At page 118, line 5 his Honour told the jury they could have access to the two videos if you needed to by simply asking the bailiff.  They could listen to the videos again.  They would not go with into the jury room, they would have to come into the courtroom.  Ultimately, at page 120, line 15 his Honour told the jury that they could watch the tapes at their leisure.

KIRBY J:   In your argument before this Court you say it was played and replayed.  Where is the evidence of that?

MR SMITH:   I do say that in my outline.  I cannot point to any evidence on that, I am sorry, your Honour.  All I can say is that ‑ ‑ ‑

KIRBY J:   In the old days a Justice of the High Court would have asked you, “Why did you say it?”

MR SMITH:   Yes.  Perhaps it was an inference I drew which leaped a little, but in any event we do not know what they did with it, which probably leads us to the same conclusion, so I am sorry if I led you up that path, your Honour.  But in any event, after 4.14 pm the jury was left to its own devices and then there was a reconvening ‑ ‑ ‑

KIRBY J:   I suppose you can say that in default of some monitoring or special report, once it is available to the bailiff in the court and the jury can ask it, it is susceptible to being played and replayed.  There is nothing to stop it, given the waiver by your client’s then counsel of any objection to the course that was being adopted and indeed his embrace of it as a sensible and practical approach.

MR SMITH:   That is true, your Honour.

KIRBY J:   Now, again, in the old days that waiver would have been fatal to your client but I suppose the court has in more recent times said that that does not necessarily stand in the path of success if it is a waiver that should not have been made in the interests of justice.

MR SMITH:   I suppose the waiver was made in the context that the objection had been taken by defence counsel.  He was told it is the practice and, in effect, told the objection was not sustainable, so it must be seen in that light.

KIRBY J:   Anyway, press on.  You have a few things to argue.

MR SMITH:   Yes, thank you, your Honour.  Anyhow, it is difficult to see how if the jury could come back into the courtroom without legal practitioners present how that was any different to taking the video into the jury room.  It was just a different room.  No warnings were given about undue weight.

KIRBY J:   You had some argument at an early stage that the bailiff had in some way acted improperly but that is not before us.  We are not concerned with that.

MR SMITH:   I am not suggesting that, your Honour.  I think there was some issue joined by Mr Martin concerning whether there was evidence the bailiff was present.  Justice Atkinson in the Court of Appeal said there was no evidence the bailiff was present.  I think in my reply I submit that there was no change in plan but it probably matters not much whether the bailiff was present or not during the process.

KIRBY J:   I imagine you used this to show that there is a certain looseness of practice in relation to the availability and the amount of replaying of the video film unless there is a tightening up of this practice.

MR SMITH:   True, your Honour.  So if I could just briefly turn to the authorities which the applicant relies upon, Justice Atkinson at paragraph 34 of the judgment, which appears at pages 97 to 99 of the application book, examined this issue about directions about weight and ultimately ‑ ‑ ‑

KIRBY J:   Are not all the authorities collected in the decision of the New South Wales Court of Criminal Appeal in R v NZ?

MR SMITH:   They are, your Honour.  There does seem to be some divergence in view between the Victorian position – I mean BAH, Lewis and Lyne as compared to Justices Howie and Johnson’s judgments in NZ, in the sense that in Victoria it is a fundamental defect in the trial if this sort of thing happens, whereas in New South Wales perhaps, the proviso is looked at, but some rules are ‑ ‑ ‑

KIRBY J:   Chief Justice Spigelman, I think, was more in favour of the Victorian approach.  Is that a fair assessment?

MR SMITH:   He was but he did not ‑ ‑ ‑

KIRBY J:   Is there any basis – I have not studied the legislation.  I have not had the time, but is there any basis for saying that in the respective different States the legislation explains the difference of the approach that had been taken by the appellate court?

MR SMITH:   No, your Honour, not that I have been able to find.  In fact, section 99 of our Evidence Act does permit a trial judge a discretion to withhold statements from a jury room.  So I am submitting at the least, your Honour, that if one applies the Victorian line, a fundamental irregularity has occurred concerning the use of the video and the failure to

give the warnings about the video.  That is my second point.  The third point is the change in the law point.  One matter ‑ ‑ ‑

KIRBY J:   This is a pretty weak point, is it not, given ‑ ‑ ‑

MR SMITH:   It is weak, I would concede.  Section ‑ ‑ ‑

KIRBY J:   Usually great discernment is taken in special leave applications to cut away the dross in order that the gold will gleam.

MR SMITH:   That is true.  Having looked at – my learned friend raised section 14 ‑ ‑ ‑

KIRBY J:   I think the Court of Appeal was pretty convincing on the clarity of the retrospective legislation and its purpose and there is lurking there a question as to whether the interpretation that was adopted of the Queensland legislation was correct and required the legislation anyway, but that would not, it would seem to me, attract special leave.  Do you want to say anything more about that third point?

MR SMITH:   No thank you, your Honour.  They are my submissions. 

KIRBY J:   Very well.  Now, Mr Martin, what do you have to say?

MR MARTIN:   On the issue with respect to the point my friend made second, if I might say that, there is a distinction in the law between Victoria and New South Wales vis-à-vis Queensland in that, as I apprehend the law as it set out in NZ’s Case, Queensland, by contrast, allows a taping of the whole of the evidence, including the cross‑examination.  The point raised by H, developed through Victoria and New South Wales up to NZ, deals with those cases where the only videotape is, effectively, of the evidence‑in‑chief, in other words, one part of the evidence.  In Queensland what the jury had in this particular case was the whole of the girl’s evidence on videotape ‑ ‑ ‑

KIRBY J:   That might be a point of distinction, but there is a diversity in the approaches that have been adopted in the intermediate courts.  Chief Justice Spigelman took a view which is closer to the Victorian position on this.  Would it not be appropriate for this Court to look at this question given that there is an increasing use, indeed compulsory use, in Queensland of video evidence?  There is just a question as to whether if it is repeated and if there is no warning, that the ordinary juror might give it undue weight, given that jurors live in the world of cyberspace and spend an awful lot of their time watching television or the Internet and they sometimes need to be brought back to the realities of the criminal trial.

MR MARTIN:   To answer that point directly, your Honour, it may be the reverse is so in that the jury being more familiar with television is less likely to attribute excessive weight to it.  But can I say this.  Dealing with the point as to whether this is an appropriate vehicle, in response to that, could I take your Honours to page 14 of the application book where the statutory - this is the first of some directions given by his Honour on the use of this evidence.  At line 30 there appears a paragraph where he deals with the fact that there are two separate bodies of evidence from the complainant girl and he indicates that they should not give any greater weight to the evidence.  If your Honour will excuse me for a moment, I will pick up the passage where he gives the formal direction which are required by statute. 

KIRBY J:   That passage you just referred us to is addressed to the first point that was argued.  It does not touch the second point.

MR MARTIN:   I am really trying to pick up all the relevant passages which might touch upon the point.  There is – I am sorry, I have lost the page. 

HAYNE J:   There are some apparently boilerplate‑type directions about 93A evidence on the top of page 15.  Really they spill over from the foot of 14 over into 15.

MR MARTIN:    Yes.  My friend points to that.  They are the standard directions which are required by the legislation that there be:

The probative value of the evidence is not increased or decreased by virtue of that measure, the recording of the evidence –

and so forth.  With respect, that provision, being born of statute, addresses, in my respectful submission, the point as to what the jury ought to be told.

KIRBY J:   What do you say about the dangers of giving open‑ended access to the jury to the videotape?  Those warnings I think are in the summing up, whereas the complaint that is made is that the jury had access in the courtroom in the presence of the bailiff to the full recording to play and replay it as it wished, and that that could lead to a reinforcement of the testimony in a way that is unfair and requires judicial warning or corrections or perhaps even control of the playing and replaying.

MR MARTIN:   My first submission is that one of the great strengths of the videotape is that it is indeed capable of being replayed to pick up subtleties of expression, pauses, eye contact, all of those sorts of issues, and if a jury ‑ ‑ ‑

KIRBY J:   That is true but if the accused gives evidence, he does not get his tape sent in to be played and replayed.

MR MARTIN:   My second point in response to that is that there really was nothing in this case of that sort.  The accused did not give evidence.  There was not an interview with the accused which gave a competing account or anything of that sort.  In this case the sole testimony about the relevant events was that on the videotape and the section 93A statement which was read back to them.

KIRBY J:   I take that point that in a case where the accused had given evidence would present the problem in an acute form, but the problem is still presented that the prosecution gets a double, triple, quadruple bite of the cherry, as it has been put by Mr Smith in his somewhat inelegant opening.

MR MARTIN:   If that point that your Honour raises is dealing with my friend’s first point, then courts do not seem to be particularly troubled by the jury hearing the same evidence from a variety of different sources.  For example, there was a second bite of the cherry, is the right expression.  Any time there is complaint evidence, then that is of the same ilk as the second bite of the cherry that my friend complains of here.  The prosecutor’s opening which explains the evidence is another bite of the cherry.  The summing up is a fourth.  The jury addresses are fifth and sixth.  The point that my friend makes ‑ ‑ ‑

KIRBY J:   The summing up occurs before the jury requests the access to the videotapes and secures that access and then without any warning or information or instruction from the judge as to how they should use it or not use it, it is just open slather after that and it can only help the prosecution, one would think.

MR MARTIN:   Not necessarily.  If the jury are picking up points that indicate that the witness is not telling the truth such as absence of eye contact, too long pauses and so forth, it can cut both ways.  There is no reason to assume that repeated viewings favour the prosecution.  I would respectfully submit that the judgment of the court in this case, which was to the effect that there is no rule saying that the jury cannot have the tape, is language that is carefully chosen because there may be circumstances where they ought not that did not arise here.  One of those circumstances where perhaps they ought not is where the accused person has given evidence or where there is an interview with him.  As another example of things that the jury regular get, the accused’s interview is frequently something that is taken into the jury room and the jury look at that and courts are untroubled by repeated viewings of those things.

So, in my respectful submission, given the strengths that are available in videorecordings and given that in the circumstances of this case there was no good reason to deprive the jury of those strengths, my submission is that this case does not really present any particular difficulties of the sort that my friend raises in the abstract with their…..In truth, this decision is correct.  While, in cases where only the evidence‑in‑chief, as it were, is in video, then those decisions which derive from H’s Case in Queensland and other cases elsewhere are perfectly sound.  Where the whole body of the evidence, the whole corpus of it, is on videotape, the reason behind those evaporates and the jury is then best placed to use the advantages of videotape without the interference or the presence of…..

KIRBY J:   Yes, is that all that you wish to say, Mr Martin?  We do not need to hear you on the retrospective legislation.

MR MARTIN:   No, I…..together, as it were, in the course of my submissions really the first and second points, but I hope your Honours understand that in addressing both, I am happy to respond on both.  Those are my submissions.

KIRBY J:   Yes, anything in reply, Mr Smith?

MR SMITH:   Only a brief matter, your Honours.  Where the sole evidence in a case like this of…..is from the complainant, in a strange way that heightens the need for caution bearing in mind the onus of proof and the standard of proof.  The directions given in a general way at pages 14 and 15 were early in the summing up.  There were no directions given at the relevant time when the jury after the summing up wanted to see those tapes.  So this is an appropriate vehicle to argue these relevant points, your Honours.  Thank you.

HAYNE J:   Can I take you to your draft notice of appeal at page 124.  Where in that do I find the first ground you opened, namely, the taking of a full evidence‑in‑chief in addition to the evidence under 93A?

MR SMITH:   It is not there, your Honour.  If your Honours were to give me leave on that I would need to amend with your Honours’ leave that notice of appeal.

KIRBY J:   Yes, very well.  Thank you, Mr Smith.

This application for special leave was made out of time. The applicant seeks leave to file the application and an order that the requirements of Rule 41.02 of the High Court Rules 2004 be dispensed with. No objection was raised to that course and the Court grants the leave as sought. Special leave is refused in respect of paragraph 2(c) of the draft notice of appeal on the basis that the Court sees no error in the approach adopted by the Court of Appeal of Queensland in that respect. However, special leave will be granted on paragraphs (a) and (b) of the draft notice of appeal and on an additional ground to be formulated and filed in the Court and served on the respondent within seven days, which raises the point of objection first raised by the applicant, namely, to the prosecutors being permitted by the trial judge to lead in full evidence‑in‑chief of a complainant in a case involving charges of a sexual nature where a prior consistent statement has been tendered in respect of the same matter.

Mr Smith, you will get your notice of appeal filed within seven days and put in proper form and you will have special leave on those three grounds, but not on the former ground (c).

MR SMITH:   May it please the Court.

KIRBY J:   The Court will now adjourn to be reconstituted for the following applications.

AT 1.18 PM THE MATTER WAS CONCLUDED