Movel (a pseudonym) v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0058

ROBERT MOVEL (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, NIALL and ORR JJA
WHEER HELD:	Melbourne
DATE OF HEARING:	23 July 2024
DATE OF JUDGMENT:	26 August 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 183
JUDGMENT APPEALED FROM:	DPP v Movel (a pseudonym) (County Court of Victoria, 23 November 2023, Judge Smallwood) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Sexual assault of a child under 16 – Whether substantial miscarriage of justice arising from judge’s comments when directing jury on evidence of child witnesses – Judge’s comments resulted in miscarriage of justice – Leave to appeal granted – Appeal allowed – New trial ordered.

CRIMINAL LAW – Appeal – Conviction – Sexual assault of a child under 16 – Whether verdicts of guilt unreasonable or cannot be supported having regard to evidence – Verdicts open to the jury.

CRIMINAL LAW – Appeal – Conviction – Sexual assault of a child under 16 – Whether judge erred in failing to direct jury as to potential unreliability of complainant’s evidence – Error not established.

CRIMINAL LAW – Appeal – Conviction – Sexual assault of a child under 16 – Whether judge erred in allowing jury access to recordings of VARE and special hearing – No irregularity in provision of recordings to jury.

CRIMINAL LAW – Appeal – Conviction – Sexual assault of a child under 16 – Whether judge misdirected the jury on factual matter – Error not established.

CRIMINAL LAW – Appeal – Conviction – Sexual assault of a child under 16 – Whether judge’s charge unbalanced – Error not established.

Criminal Procedure Act 2009, s 223; Jury Directions Act 2015, ss 32, 44N.

Bromley v The Queen (1986) 161 CLR 315; Butera v Director of Public Prosecutions (1987) 164 CLR 180; Carson (a pseudonym) v The Queen [2019] VSCA 317; Danny v The Queen [2020] VSCA 8; De Silva v The Queen (2019) 268 CLR 57; Flynn (a pseudonym) v The Queen [2020] VSCA 173; Gardner (a pseudonym) v The King [2024] VSCA 83; Gately v The Queen (2007) 232 CLR 208; McKell v The Queen (2019) 264 CLR 307; Pell v The Queen (2020) 268 CLR 123; R v NZ (2005) 63 NSWLR 628, considered.

R vBAH (2002) 5 VR 517; R v H [1999] 2 Qd R 283; R v Lewis (2002) 137 A Crim R 85, distinguished.

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Counsel
Applicant:		Ms CA Boston SC with Mr P Coleridge
Respondent:		Mr J O’Connor
Solicitors
Applicant:	Dribbin & Brown Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

On 29 November 2023, a jury empanelled in the County Court to try him, found the applicant guilty of eight charges of sexual assault of ‘SR’, a child under the age of 16 years.[2] Subsequently on 28 February 2024, the trial judge sentenced the applicant to a total effective sentence of nine months’ imprisonment.[3]
[2]Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 49D(1). The maximum sentence is 10 years’ imprisonment.
[3]See DPP v Movel (a pseudonym) [2024] VCC 193. The individual sentences were: charge 1, two months’ imprisonment; charge 2, four months’ imprisonment; charge 3, seven days’ imprisonment (concurrent); charge 4, seven days’ imprisonment (concurrent); charge 5, four months’ imprisonment; charge 6, two months’ imprisonment; charge 7, seven days’ imprisonment (concurrent); and charge 8, four months’ imprisonment. One month of the sentences on charges 1, 2 and 6, and two months of the sentence on charge 5, were ordered to be served cumulatively on each other and the sentence on charge 8.
Initially, the applicant sought leave to appeal against his conviction on the following grounds:
1    The convictions are unreasonable or cannot be supported having regard to the evidence.
2    The learned trial judge erred in failing to direct the jury as to the potential unreliability of the complainant’s evidence.
3    The learned trial judge erred in admitting evidence that the complainant’s mother waited one month to take her to the police because she wanted to make sure it was something the complainant wanted to do.
4    The learned trial judge erred in allowing the jury to access the recordings of the VARE and the special hearing in the jury room.

5 The learned trial judge erred in:
a.making comments when directing the jury about child witnesses pursuant to s 44N of the Jury Directions Act 2015, contrary to the High Court’s decision in McKel1 v The Queen (2019) 264 CLR 307; and/or
b.failing to give an intermediary direction; and/or
c.failing to inform the jury of the prosecutor’s right to object and the judge’s duty to intervene to prevent unfair questioning.

6    The learned trial judge erred in directing the jury that the complainant had given evidence of feeling vaginal tingling.
7    There was an imbalance in the judge’s charge to the jury such that a substantial miscarriage of justice has resulted.
8    A combination or aggregation of defects occasioned a substantial miscarriage of justice.

During oral argument in this Court, counsel for the applicant ‘abandoned’ ground 3 as a stand-alone ground, and argued it as a ‘particular’ of ground 7. Counsel then led with ground 1, before turning to the other grounds.
Notwithstanding the order in which counsel dealt with them, however, I consider it to be more convenient to deal with the grounds in the following order: ground 4; ground 2; ground 5; ground 7; ground 6; ground 1; and, finally, ground 8.
In my opinion, grounds 1, 2, 4, 5 and 8 should be upheld, but the other grounds should not. For the reasons that follow, I would grant leave to appeal; allow the appeal; set aside the convictions; and enter a judgment of acquittal on each charge.

The evidence at trial

The applicant commenced a de facto relationship with ‘SK’ in 2007.
SR was SK’s granddaughter (and called SK ‘Nan’). She lived with her mother, ‘TG’, and father, ‘ER’, in a Wimmera town. She called the applicant ‘Poppy’, and treated him as her grandfather.
On occasion, SR and her brother, ‘HR’, four years her junior, would stay with the applicant and SK at their home in a city in central Victoria. SR would sleep in the ‘toy room’; HR would sleep in the ‘green room’; ‘MB’, SK’s adult daughter, would sleep in a bedroom directly next to the toy room; and the applicant and SK would sleep in the main bedroom.
SR’s evidence was put before the jury at the applicant’s trial in the form of a VARE, and by way of an audiovisual recording of her evidence given at a ‘special hearing’, both of which owed their admissibility to the provisions of div 5 and div 6 of pt 8.2 of the Criminal Procedure Act 2009 (‘CPA’).
I pause to note that div 5 of pt 8.2 (ss 366 to 368A) applies to a criminal proceeding (other than a committal proceeding) that relates wholly or partly to a charge for a sexual offence.[4] Section 367 permits a witness[5] to give evidence-in-chief wholly or partly in the form of an audio or audiovisual recording of the witness answering questions put to him or her by a person prescribed by the regulations for the purposes of the section.[6] An audiovisual recording made for the purposes of s 367 is known colloquially as a ‘VARE’.[7]
[4]Section 4(1) defines sexual offence. The sexual assault of a child under the age of 16 years is a sexual offence.
[5]By s 366(2), a witness (among others) is ‘a person under the age of 18 years’.
[6]Regulation 6 of the Criminal Procedure Regulations 2020 prescribes the relevant persons for the purposes of s 367. It includes persons who have successfully completed a training course conducted by Victoria Police on the procedures for making a recording and examining a witness for the purposes of div 5 of pt 8.2 of the CPA.
[7]Video and Audio Recorded Evidence.
Section 370(1), in div 6 of pt 8.2, provides that, subject to subsection (2),[8] the whole of the evidence of a complainant (including cross-examination and re-examination) must be given at a ‘special hearing’ and recorded as an audiovisual recording. In the case of a special hearing conducted before the trial, the complainant’s evidence must be presented to the court in the form of that recording.
[8]Subsection (2) provides:
(2) On the application of the prosecution, the court may direct that subsection (1) is not to apply and that the complainant is to give direct testimony in the proceeding if the court is satisfied that the complainant—
(a) is aware of the right of the complainant to have his or her evidence taken at a special hearing under this Division and audiovisually recorded; and
(b) is able and wishes to give direct testimony in the proceeding.
In her VARE (conducted with her by police on 27 November 2020), and in evidence given at a special hearing, SR alleged that the applicant had sexually assaulted her every time she slept over at the applicant’s home from the age of about seven years, being approximately five occasions in total. It is convenient to provide a summary of the alleged offending on the five occasions, drawing on those two sources.

The first occasion (Charges 1 to 5)

Around 2018, when she was aged about seven years, SR was reading a book in bed at about 7.00 am. The applicant entered the room and said it was ‘time to do our secret thing’. Although SR said ‘no’, the applicant touched her breasts (charge 1), vagina (charge 2) and bottom (charge 3) underneath her pyjamas. The applicant subsequently placed her hand on his nipples (charge 4) and penis (charge 5), before once more touching SR on her chest, bottom and vaginal area. In her evidence at the special hearing, SR said that she knew the alleged touching was wrong from the very first time, whereas in the VARE, she said that it was not right by the third time.

The second occasion (uncharged)

In her VARE, SR said that, later in 2018 or 2019, the applicant came into the room and said, ‘Let’s do our special thing’ (or ‘Let’s do our fun thing’). SR said ‘no’, but the applicant did the ‘exact same thing’ he had done on the first occasion.

The third occasion (Charges 6 to 8)

When she was aged nine years, in January or February 2020, the applicant entered the toy room and touched SR on her chest (charge 6), bottom (charge 7) and vaginal (charge 8) areas. As the following passage from her VARE illustrates, however, SR’s account of what occurred was, however, somewhat equivocal:[9]
[9]Emphasis added.
Q186So he’d make you stand there, then he’d reach you and touch you.
AYes, but when it was the third time, he moved the couch on the doggy mat, because he didn’t want [HR] to see, ‘cause he – I didn’t want [HR] to see, so I said, ‘Let’s do it over there’. But then when he did that, I didn’t want him to, so I just said, ‘I’m going to the bathroom’, again. ‘Cause that was basically my excuse, ‘cause he knew I needed to go to the bathroom every morning.
Q187O.K., all right. So what you’ve told me is – so he made you stand up here and that’s where he – on the edge of the bed, and that’s where he would reach out and touch you. And then you said on the third time, though, he moved the couch to the doggy mat.
AYeah.
Q188And you said that you didn’t want [HR] to see, so you wanted to do it over there.
AYeah, but before he could even do it, I said, ‘I’m going to the toilet’.
Q189O.K., all right. So did he do it, that time?
AHe did it the – just the once.
Q190Mm’hm.
ALike, just the one spot, because he didn’t have enough time to do it the second one, ‘cause he could hear footsteps too.
Q191O.K., all right. So that was the second time?
AThird time.

The fourth occasion (uncharged)

On an occasion that SR stayed over without HR the applicant only ‘did it once’, because she told him she had to go and wash ‘texta’ off from the night before.

The fifth occasion (uncharged)

SR also said that the applicant would make her stand next to the bed so that he could touch her and then ‘hang out’ his penis. He would also make her touch his nipples.

Other evidence

SK gave evidence that ‘the doors within the house were left open’ because her cats ‘liked to have the run of the house’. In cross-examination SR said that she always closed the door to the toy room, except for ‘in the mornings when [the applicant] came in’. SR gave evidence that MB was ‘usually’ there when she slept over.
Although MB and HR were not called to give evidence at trial, evidence was adduced from SK and ER that neither MB nor HR had ever said anything to suggest that anything inappropriate was occurring involving the applicant and SR. SK and ER also said that they had no concerns about the applicant’s behaviour around SR. Indeed, ER gave evidence that he was ‘particularly alert to the fact that childhood sexual abuse can happen in families’ — his father had sexually abused his stepbrother — but he had ‘no concerns’ about the applicant’s behaviour towards SR. Evidence was also adduced from the informant that, when police spoke to MB, she told them that she had never witnessed the applicant ‘doing or saying anything towards anyone in a sexual or offensive way’.
TG’s evidence was that she did not like grown men — including her own father and brother — being in her daughter’s bedroom or having her on their laps. Her evidence was that the applicant had SR sit on his lap, hugging her legs; and that at a birthday party at her home he went with SR into her bedroom. As a result, TG told her daughter not to hug the applicant or sit in his lap; told ER to be outside if the applicant was playing with her daughter; and she ceased sleepovers. ER’s evidence was that ‘to the extent that [TG] had issues with [the applicant], [he] thought she was seeing things that weren’t there’.

The ‘lizard talk’

On 28 October 2020, TG and SR had what was referred to at trial as the ‘lizard talk’. TG gave evidence that she woke SR up and asked her to help with the lizards in her brother’s room. The evidence was to the effect that TG then asked her daughter, ‘Did Poppy ever touch your private parts?’. SR said that she did not know, and shrugged her shoulders. She said that the applicant had told her not to say anything, and she had said ‘yes’ or nodded when TG asked whether the applicant had touched her private parts. On the special hearing, SR agreed that when she nodded her head she felt that TG had wanted her to say ‘yes’ when TG asked her if the applicant had touched her.
SR said that she told her mother that it only happened once. ER, who had heard a snippet of the conversation, gave evidence that SR told him that same night that she had told TG that it only happened once, because she had not wanted to upset TG. SR told ER that it had in fact happened more than once. By contrast, the complainant gave evidence that she told her Mum it only happened once because she didn’t want to get into trouble. ER reported the matter to police later that night.

Subsequent events

After the lizard talk, SR had nightmares. She also had a number of conversations with TG in the following weeks which helped her to remember what had happened. Between the lizard conversation and the VARE, she also spoke to ER about what had happened.
On 10 November 2020, Child Protection workers visited the complainant’s home and had her mark ‘unsafe’ body parts on a diagram — at the special hearing, SR had no recollection of this visit at all — and, according to TG, she subsequently had multiple conversations with her mother about the allegations.
SR spoke to police for the first time on 27 November 2020 — a month after the lizard talk — and took part in a VARE interview. In the VARE, she referred to having undertaken body safe training at school (although at the special hearing she could not say when this had occurred).
Police interviewed the applicant, who had no prior convictions, on 22 December 2020. He denied sexually offending against SR.

Ground 4: Allowing the jury access to the recordings of the VARE and the special hearing in the jury room

The issue

In circumstances I will later discuss, the trial judge — over the objection of defence counsel — permitted the jury to have SR’s VARE, and the audiovisual recording of her evidence at the special hearing, in the jury room during deliberations. By reference to longstanding authority — in particular, BAH[10] and Lyne[11] — counsel for the applicant in this Court submitted under cover of ground 4 that such a course was forbidden. Counsel for the respondent, however, relying principally on s 223(1) of the CPA and Flynn,[12] submitted that the course adopted by the trial judge was permissible.
[10]R v BAH (2002) 5 VR 517 (‘BAH’).
[11]R v Lyne (2003) 140 A Crim R 522 (‘Lyne’).
[12]Flynn (a pseudonym) v The Queen [2020] VSCA 173 (‘Flynn’).

Relevant legislative provisions

I note that, immediately before its repeal by the CPA (with effect from 1 January 2010), s 19 of the Crimes (Criminal Trials) Act 1999 (‘the repealed Act’) relevantly provided:[13]
[13]Emphasis added to this and following provision.
19 Jury documents
(1) For the purpose of helping the jury to understand the issues, the trial judge may order on the application of a party or of his or her own motion that copies of any of the following shall be given to the jury in any form that the trial judge considers appropriate—
…
(i) transcripts of evidence;
(j) transcripts of any audio or audio visual recordings;
…
(l) any other document that the trial judge thinks fit.
(2) The trial judge may specify in an order under subsection (1) when any material is to be given to the jury.
I also pause to note that, at the time of the applicant’s trial, ss 223(1) and (2) of the CPA relevantly provided:
223 Jury documents relating to trial issues and evidence
(1) For the purpose of helping the jury to understand the issues or the evidence, the trial judge may order, at any time during the trial, that copies of any of the following are to be given to the jury in any form that the trial judge considers appropriate—
(a) the indictment;
…
(ha) the transcript of the evidence in the trial;
(i) transcripts of evidence or audio or audiovisual recordings of evidence;
(j) transcripts of any audio or audiovisual recordings;
…
(l) any other document that the trial judge considers appropriate.
…
(2) The trial judge may specify in an order under subsection (1) when any material is to be given to the jury.
I pause further to note the similarities (and dissimilarities) between s 19 of the repealed Act, and s 223 of the CPA:
· First, both sections import a discretion. Hence the judge ‘may order’ that copies of any items in the ‘material’ enumerated ‘shall’ (s 19(1)) or ‘are to’ (s 223(1)) ‘be given to the jury in any form that the trial judge considers appropriate’.
· Secondly, s 19(1) permitted the enumerated material to be given to the jury ‘[f]or the purpose of helping the jury to understand the issues’, whereas s 223(1) permits the material to be given to the jury ‘[f]or the purpose of helping the jury to understand the issues or the evidence’.
· Thirdly, s 19(1) specifically provided that the trial judge might make the order that the material be provided to the jury ‘on the application of a party or of his or her own motion’, whereas s 223(1) simply provides that the material may be provided ‘at any time during the trial’, without providing that the relevant order be made on the application of a party or on the judge’s own motion.
· Fourthly, s 19(1) included in the material that ‘shall be given to the jury in any form that the trial judge considers appropriate’, ‘(i) transcripts of evidence;’ and ‘(j) transcripts of any audio or audio visual recordings’; whereas s 223(1) includes among the items that ‘are to be given to the jury in any form that the trial judge considers appropriate’, ‘(ha) the transcript of the evidence in the trial’, ‘(i) transcripts of evidence or audio or audiovisual recordings of evidence’; and ‘(j) transcripts of any audio or audiovisual recordings’.
· Fifthly, both s 19(2) provided, and s 223(2) provides: ‘The trial judge may specify in an order under subsection (1) when any material is to be given to the jury’.

The course of the trial

As I have indicated, the complainant’s VARE was recorded on 27 November 2020. More than two years later, on 3 February 2023, she gave evidence at a special hearing before a judge of the County Court (being a judge other than the judge who ultimately conducted the applicant’s trial). On 22 November 2023, the applicant was arraigned, and a jury empanelled. The following day, 23 November 2023, the prosecution opened, and the defence responded. Later that day, the complainant’s VARE, and an audiovisual recording of her evidence given at the special hearing, were played to the jury. When they were played, the jury were not provided with a transcript of the VARE or special hearing (the trial judge expressing the view that it was ‘fairer’ to the applicant for the jury to be watching the witness when the recordings were ‘actually being played’). The VARE and the recording of the special hearing together became an exhibit marked for identification (‘Exhibit MFI A’).
Early in the trial, after the VARE had been played to the jury — but prior to the recording of the special hearing being played — the judge indicated that he would permit the jury to have access to the VARE during deliberations. Senior counsel for the applicant objected to that course, in effect expressing the tentative view that such a course had previously been the subject of disapproval (a view that the judge did not share). The discussion was as follows:[14]
[14]Emphasis added.
[DEENCE COUNSEL]: ... My junior thought you might have said that the video of the VARE and the special hearing would be going into the jury room. I would certainly be saying that that shouldn’t happen, if that is what you said.
HIS HONOUR: No, they’re getting the transcript.
[PROSECUTOR]: Yes.
[DEFENCE COUNSEL]: Right, thank you Your Honour.
HIS HONOUR: They don’t get the actual things until they - - -
[DEFENCE COUNSEL]: I didn’t hear that, but I was just - - -
HIS HONOUR: No, it’s just the transcript that goes in, yes.
[PROSECUTOR]: I still think they should have an ear to the - - -
HIS HONOUR: No, I said they have the document.
[PROSECUTOR]: Yes.
HIS HONOUR: But I go through the evidence as the VARE, not the – yes, deal with that later on.
[PROSECUTOR]: Yes, but at the end of the trial if they want access to the VARE, it’s usually permitted.
HIS HONOUR: Well, always. I've never known it not to be.
[PROSECUTOR]: Yes.
HIS HONOUR: But I wouldn’t ever give them one, they’ve got to get both.
[PROSECUTOR]: Oh, yes of course. Yes.
HIS HONOUR: But normally what I do is I just give an order to the tipstaff to tell them that if they want anything then there’s no need to reconvene, he just takes a record of what he asks for and what he’s given them. Nine times out of 10 they ask for the lot anyway, don’t they.
[PROSECUTOR]: Yes, no difficulty with that Your Honour.
HIS HONOUR: I don’t force it on them because it makes it seem like they have to watch it again, which they don’t, so I just say that if they want it, it’s there they just need to ask the tipstaff, rather than having to come back.
[PROSECUTOR]: Thank you Your Honour.
HIS HONOUR: But they get the transcript no matter what, I’ll give them that no matter what.
[DEFENCE COUNSEL]: In the back of my mind, there was a case where – but I’ll have a look at that Your Honour.
HIS HONOUR: No, the case prohibits a VARE and no cross-examination, is what’s prohibited. Because it becomes unbalanced, that’s what used to happen. That happened a few times with the old ones – whatever they were called. So there’s no problem with that, I would never allow one and not the other.
[DEFENCE COUNSEL]: Yes.
At that stage, the judge did not identify the basis upon which he would give the jury the VARE — other than he had never known it not to happen — and defence counsel provided no authority for why he should not do so. Counsel at either end of the Bar table did not return to the subject until after the judge’s charge had commenced.
Thus, soon after he commenced his charge, the judge told the jury that he would be sending them out with the VARE, recording of the special hearing and transcripts of both. He said:
Now, what we will be sending you out with are the – whether you watch it is a matter for you. It is important that you understand you get the VARE transcripts and tape and you get the special hearing transcript and tape. Remember they are both part of her evidence, all right? Each one is of equally importance [scil, equal importance?] in that sense. It is a matter of [sic] you what you do. You do not have to watch the tapes. You do not have to read them, I am not telling you what to do. That is just what is made available to you.
During a break in the course of the charge, senior counsel for the defence objected to the jury having the VARE and recording of the special hearing in the jury room during deliberations. She submitted that although the jury could have the transcripts, if there was part of the recorded evidence the jury wanted to watch again, the appropriate course was for the court to reconvene and for the jury to watch it in the courtroom. There was the following exchange, in which the judge expressed his disagreement with counsel’s submissions:
[COUNSEL]: I had expected to raise this before – I didn’t realised [scil, realise] Your Honour was going to say to the jury about the tapes going into the room. I would object to the tapes of the complainant’s evidence going into the room, both the VARE and the special hearing. It’s not an exhibit in the case and it shouldn’t go into the jury room. If there’s a part they want – they can have the transcript and if there’s a part that they want to watch again, the appropriate course is for us all to reconvene and to watch it in the courtroom, Your Honour.
HIS HONOUR: I haven’t done that for 20 years and I’m not going to start now. The problem with again it is; if they want to watch the tape, they’re entitled to watch it and discuss it, right? They’re given both. They’re entitled to watch it and discuss it. In here, they can’t even talk about it with each other. I have not done that for 20 years, I don’t propose to start now.
Allowing for the possibility that the judge’s comment that he had not ‘done that for 20 years’ was spur of the moment hyperbole, if his remarks are taken literally, the judge in essence was asserting that he had been providing recordings to the jury in the jury room during deliberations from a time prior to the promulgation of s 223(1) of the CPA, at a time when the repealed Act was in operation (and in a period after BAH — in which this Court disapproved of juries being given unrestricted access to VATE recordings in the jury room — had been decided).[15] And, probably owing to the brevity with which counsel’s submissions were dispatched, the judge neither illuminated the foundation of his practice of 20 years, nor provided distinct reasons for rejecting counsel’s submissions (other than to invoke his apparently inveterate practice). Thus, on the assumption that he was exercising a discretion given to him by statute, he did not articulate any reasons for exercising the discretion in the manner that he did (other than to say that he had not changed the way he did things for 20 years, and did not ‘propose to start now’ doing things differently). It certainly does not appear that he adverted distinctly to the criteria in s 223(1) governing the exercise of the discretion to give ‘audio or audiovisual recordings of evidence’ to the jury, since he did not say why the VARE and special hearing recording had to be provided to the jury for ‘the purpose of helping the jury to understand the issues or the evidence’.
[15]Judgment in BAH was delivered on 18 October 2002.
In any event, counsel for the applicant in this Court submitted that the trial judge’s ‘practice’ of 20 years’ standing is contrary to authority; in particular, BAH and Lyne. Counsel submitted that the recordings of the VARE and special hearing were not exhibits, but were simply the mechanism by which the complainant gave evidence. There was no basis for the recordings to be accessible in the jury room. Permitting such a course, counsel submitted, gave rise to a real risk that the jury would give the evidence undue weight.
As I have mentioned, in this Court counsel for the respondent submitted that the course adopted by the trial judge was permissible in light of s 223(1) of the CPA and Flynn. Given the trial judge’s direction that the VARE and the special hearing were equally important because they both contained SR’s evidence, and given this Court’s approach to a similar ground of appeal in Flynn, counsel submitted, ground 4 cannot succeed.

BAH, Lewis, Lyne, MAG and Gately

In my opinion, consistently with settled authority, the judge should not have permitted the jury to have unrestricted access to the VARE and recording of the special hearing in the jury room during deliberations. I consider that if, during deliberations, the jury wished to view one or the other or both, either wholly or in part, the proper course was for the court to reconvene and the jury view them in the courtroom.
When BAH was decided by this Court, s 37B of the Evidence Act 1958[16] — the terms of which did not, in my view, differ materially from those of s 367 of the CPA, which succeeded it — permitted the evidence-in-chief of a complainant under the age of 18 years in a proceeding for a sexual offence (other than a committal proceeding) to be ‘given (wholly or partly) in the form of an audio or video recording of the witness answering questions put to him or her by a person prescribed for the purposes of [the] section’. Colloquially, such a recording was referred to as a ‘VATE’.[17] Winneke P observed[18] that
the procedure provided by s 37B represents a signiﬁcant departure from criminal procedure as recognised by the common law, in the sense that the critical evidence led by the prosecution, and which stands as the evidence in chief of the complainant, is pre-recorded by police officers and committed indelibly to video/audiotape.
[16]Since renamed the Evidence (Miscellaneous Provisions) Act 1958.
[17]Video and Audio Taping of Evidence.
[18]BAH, 519 [3].
BAH concerned convictions for incest and committing an indecent act with a child under the age of 16. The complainant, ‘R’, was the applicant’s daughter. At trial, the evidence-in-chief of the complainant was given by way of a VATE tape. The prosecution case depended upon the complainant’s evidence which was not corroborated by other evidence. During the course of deliberations, the jury asked to view the VATE tape in the jury room. No objection was taken by the prosecutor or defence counsel, and the judge acceded to the request. The trial judge gave no further direction to the jury about the use they could make of the VATE, nor were the jury reminded of the cross-examination or re-examination of the complainant, or the evidence of the applicant. The jury were in possession of the VATE tape for over two hours.
In the course of a review of authority— including Rawlings,[19] Welstead,[20] O[21] and H[22] — Winneke P cited[23] the following passage from the judgment of McMurdo P in H:[24]
… the principles discussed in the authorities I have reviewed suggest that as a general rule, at least in the absence of consent of both Crown and defence, videotaped evidence tendered under s 93A of the [Evidence Act 1977 (Qld)] will not be permitted to go into the jury room during deliberations … If the judge decides to allow the jury to view the videotape, this should generally be done after discussing the proposed procedure with counsel in open court. The judge should also warn the jury 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. It is not in our view necessary in every case after replaying the videotape to remind the jury of the cross-examination and re-examination of the complainant from the judge’s notes or transcript, where this is not requested by the jury. In many cases this may be wise, but every case will depend on its own facts. The overriding consideration for the trial judge must be fairness and balance, something which can be difficult to achieve in emotive sexual cases which are particularly likely to arouse feelings of prejudice in the jury.
[19]R v Rawlings; R v Broadbent [1995] 1 WLR 178 (‘Rawlings’).
[20]R v Welstead [1996] 1 Cr App R 59 (‘Welstead’).
[21]R v O [1996] 3 NZLR 295 (‘O’).
[22]R v H [1999] 2 Qd R 283 (‘H’).
[23]BAH, 522 [10].
[24]H, 291. (Footnotes omitted.)
Winneke P continued:[25]
The playing back to the jury, at their request, of a video recording which forms the evidence in chief of a complainant is a matter under the discretionary control of the trial judge. It is part and parcel of the practice and procedure which the trial judge is bound to administer, as he or she does whenever the jury asks to be reminded of the evidence.[26] Nevertheless, for the reasons adverted to in the authorities to which I have referred, caution should be exercised by judges in this State when faced with requests by juries to replay the videotaped evidence in chief of child complainants admitted pursuant to the provisions of s 37B of the Evidence Act. Generally speaking, in my view, the procedure outlined by the President of the Court of Appeal of Queensland in R v H, to which I have referred in the preceding paragraph of this judgment, should be followed in this State. That procedure was re-affirmed by the Queensland Court of Appeal in R v C.[27] 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. If, after discussing the jury’s request with counsel in open court and being careful, if directing any questions to the jury about their request, not to intrude on the conﬁdentiality of their deliberations, the judge decides to allow the jury to view the videotape, it should be done in open court in the presence of the accused and counsel, and should be attended, at least, by a general warning of the type to which McMurdo P referred in R v H, above. Whether fairness also requires the judge to remind the jury of the cross-examination and re-examination of the complainant will be a matter for the trial judge who is in the best position to determine whether that is necessary.[28]
[25]BAH, 522–3 [11]. (Emphasis added to this and following passages; footnotes as in original.)
[26]Compare Bulejcik v R (1996) 185 CLR 375 at 386 per Brennan CJ (who dissented as to the outcome).
[27][2000] 2 Qd R 54 at 56.
[28]Compare R v Saunders [1995] 2 Cr App R 313 at 317–18.
Turning to the trial judge’s purported exercise of discretion to provide the VATE tape to the jury, Winneke P observed:[29]
In this case the judge considered that the provisions of s 19(1) of the Crimes (Criminal Trials) Act 1999 conferred upon him a discretion to allow the jury to take with them into their room the videotape. For this purpose he made arrangements for the provision of facilities to play the tape. It should not be thought that I am critical in any way of the judge for doing what he did. It is tolerably clear from the transcript that no-one considered the propriety of the procedure. The judge was not referred to the considerable body of authority to which I have hitherto referred. It is not necessary to determine whether s 19 of the Act gave to the judge the discretion which he thought he had, although — as at present advised — I do not think that it did. If his Honour did have such a discretion, it was erroneously exercised because, by allowing the jury to have unrestricted access to the videotape, the fairness of the trial was prejudiced. The jury had the videotape with them for at least two hours. No-one knows what use they made of it, although it is clear that they could have played it — or portions of it — several times. When it was taken back into the court’s custody, no warnings or cautions were given to the jury.
[29]BAH, 523 [12].
Finally, in holding that there had been a substantial miscarriage of justice, Winneke P said:[30]
This was a case of ‘word against word’. The provision to the jury of the complainant’s evidence in chief was calculated to give undue prominence to a portion of the evidence adverse to the applicant. No direction was given to the jury to counter-balance the unfairness which had arisen in the trial. I am quite unable to conclude that the jury, who deliberated for a substantial time, would have inevitably convicted the applicant if they had not been allowed access to the videotape. The convictions must be quashed and a new trial had.
[30]Ibid 523–4 [13].
In his reasons for judgment in BAH, O’Bryan AJA said it was perfectly clear that s 37B of the Evidence Act1958 did not expressly empower a trial judge to provide a VATE interview to the jury.[31] Turning then to s 19 of the (since) repealed Act, O’Bryan AJA said that although it did not contain a definition of ‘document’, s 38 of the Interpretation of Legislation Act 1984 did so (including, in para (e), ‘any ﬁlm (including microﬁlm), negative tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom …’). He continued:[32]
The deﬁnition of ‘document’ in para (e) could apply to the VATE interview and, thus, an extended meaning given to ‘document’ in s 19(l). There are difficulties, however, in the circumstances of the present case in the judge providing the VATE interview to the jury pursuant to s 19(l). The foreman of the jury did not inform the court why the jury wanted to view the tape and subs (1) of s 19 provides as a pre-condition for giving to the jury any of the prescribed documents: for the purpose of helping the jury to understand the issues. It is impossible to know the purpose of the jury when it requested to view again the VATE interview. The fundamental issues in the trial were whether the evidence of R was more credible than the evidence of the applicant and satisﬁed the jury beyond reasonable doubt of the elements of each charge. The evidence of R included, of course, not only her evidence in chief, but also her cross-examination. It was potentially unfair to have the one without the other for the cross-examination contained material inconsistencies. At the same time the whole of the evidence of the applicant was also important for it contradicted R’s evidence in critical respects and answered her allegations. If the jury was having difficulty in determining the fundamental issues in the jury room, the judge should have inquired of the jury judiciously the nature of their difficulty and the purpose of the request and dealt with the matter accordingly. Another matter of less importance is that the jury was provided the original VATE interview and not a copy, as speciﬁed in subs (1).
I entertain considerable doubt whether any paragraph in s 19 empowered the judge to provide the jury with the VATE interview in the circumstances I have described. At common law the judge should have refused the request and advised the jury that the VATE interview had to be seen in open court in the presence of counsel, the accused and the public, as had been done earlier in the trial. Further, as I shall indicate soon, a further viewing of the VATE interview in court should have been accompanied by an appropriate judicial direction and reminder about the cross-examination of R and the evidence of the applicant. The failure to do so gave undue weight and prominence to the evidence in chief of the principal prosecution witness to the detriment of the inconsistencies brought out during the cross-examination of R and the defence case founded on the applicant’s sworn evidence.
[31]Ibid 527 [33].
[32]Ibid 528–9 [37]–[38].

Having carried out a survey of relevant authority, O’Bryan AJA said:[33]
I am of the opinion that a serious procedural irregularity occurred when the judge provided the VATE interview to the jury. I have no doubt that the jury was entitled to be reminded of the evidence in chief of R, but replaying the VATE interview should have been done in court. Before acceding to the jury’s request, I consider the judge ﬁrst should have enquired of the jury in open court by appropriate means why the jury wished to have the VATE interview replayed. Upon being satisﬁed that the jury needed to be reminded of the evidence in chief, the judge should have warned the jury in appropriate terms of the imbalance which may follow replaying the video and offered to remind the jury of the cross-examination and re-examination of R’s evidence and the evidence of the accused. This would have achieved a fair balance in the evidence.
[33]Ibid 536 [65].
Callaway JA agreed with Winneke P and O’Bryan AJA that the convictions had to be quashed, and said (among other things):[34]
Even if s 19(1) of the Crimes (Criminal Trials) Act 1999 gave the judge a discretion to allow the jury to play the tape in the jury room (which need not be decided), it would be a rare case where that was a proper exercise of the discretion and an even rarer case where it would be appropriate to do so without any safeguards.[35]
[34]Ibid 524 [16].
[35]Section 19(1) is concerned with the provision of copies but the word ‘copies’ is ambiguous. It does not always mean a reproduction: a person may say, for example, that he or she owns ‘two copies of a particular textbook’. The discretion to provide copies of transcripts of evidence (para (i)) makes me hesitate to say that s 19(1) is incapable of applying to a VATE tape, but in practice the question will not arise. It will almost always be preferable to play the tape in open court accompanied by appropriate directions. [Emphasis added.]
I consider that BAH establishes the following:
·    first, the use of VATE tapes represents a signiﬁcant departure from criminal procedure as recognised by the common law, in the sense that the critical evidence led by the prosecution, and which stands as the evidence-in-chief of the complainant, is pre-recorded by police officers and committed indelibly to audio/videotape;
·    secondly, as a general rule, videotaped evidence of the evidence-in-chief of a complainant should not be permitted to go into the jury room during deliberations (at least in the absence of consent of both prosecution and defence);
·    thirdly, although the jury is entitled to be reminded of a complainant’s evidence, the playing back to the jury, at the jury’s request, of a video recording which forms the evidence-in-chief of a complainant is a matter under the discretionary control of the trial judge;
·    fourthly, if the jury requests to be reminded of the complainant’s evidence, or to review the videotape, the judge should discuss the request with counsel;
·    fifthly, if, after discussing the jury’s request with counsel in open court — and being careful, if directing any questions to the jury about their request, not to intrude on the conﬁdentiality of their deliberations — the judge decides to allow the jury to view the videotape, it should be done in open court in the presence of the accused and counsel, and should be attended, at least, by a general warning;
· sixthly, s 19(1) of the Crimes (Criminal Trials) Act 1999 provided as a pre-condition for giving to the jury any of the prescribed documents: ‘for the purpose of helping the jury to understand the issues’ (but in that case it was impossible to know the purpose of the jury when it requested to view again the VATE interview);
·    seventhly, if the jury were having difficulty in determining the fundamental issues in the jury room, the judge should have inquired of the jury judiciously the nature of their difficulty and the purpose of the request and dealt with the matter accordingly;
·    eighthly, at common law the judge should have refused the request and advised the jury that the VATE interview had to be seen in open court in the presence of counsel, the accused and the public (as had been done earlier in the trial);
· ninthly, if s 19(1) of the Crimes (Criminal Trials) Act 1999 gave the trial judge a discretion to allow the jury to take with them into their room the videotape (which was doubtful), the discretion was erroneously exercised because, by allowing the jury to have unrestricted access to the videotape, the fairness of the trial was prejudiced, in circumstances where no-one knows what use the jury made of it, and no warnings or cautions were given to the jury; and
·    tenthly, the provision to the jury of the complainant’s evidence-in-chief in that case was calculated to give undue prominence to a portion of the evidence adverse to the applicant, and no direction was given to the jury to counter-balance the unfairness which had arisen in the trial.
In a subsequent case, Lewis,[36] the applicant was convicted of committing indecent acts with two female children. Their accounts of the alleged offending were recorded in VATE tapes, which became their evidence-in-chief at trial. The trial judge marked the VATE tapes as exhibits, and the jury was permitted to have unrestricted access to them during deliberations. Counsel for the applicant at trial had agreed that the tapes go to the jury. On appeal to this Court, counsel for the applicant contended that it was a fundamental irregularity (which produced unfairness at the trial) for the judge to permit the VATE tapes to go into evidence, and thus permit the jury to have unrestricted access to those tapes during the course of their deliberations. The Court agreed, Winneke P (with whom Callaway and Batt JJA concurred) observing:[37]
As this Court pointed out in R v BAH,[38] the procedure contemplated by s 37B of the Evidence Act represents a significant departure from criminal procedure as recognised by the common law. There is no doubt that the statutory procedure was introduced to mitigate the potential for emotional trauma which commonly afflicts child complainants when they are asked to recount — perhaps years later — events which are extremely personal and embarrassing to them. However, it should not be forgotten that what is visually and audio recorded is but part of the evidence in the trial; and — in the majority of cases — will be but part of the complainant’s evidence in the trial. To permit the jury to have unrestricted access to this portion of the evidence, after the close of evidence, addresses and charge, is calculated to create an imbalance of fairness adverse to the interests of the accused because it courts the danger that the jury will afford disproportionate weight to this portion of the evidence taken out of its context. Of course the jury is entitled to be reminded of that portion of a child witness’s evidence recorded on a VATE tape; as it is entitled to be reminded of any other evidence in the trial. But if it does wish to be so reminded, then it should be done in open court and accompanied by the ‘balancing warnings to which this Court referred in R v BAH.[39] To permit the jury to have unrestricted access to a VATE tape during the course of their deliberations will, in all but exceptional circumstances, constitute a fundamental irregularity in the trial which will not readily be saved by the proviso to s 568(1) of the Crimes Act. As the reasons for decision in BAH disclose, this view appears to be in line with the views accepted in other common law jurisdictions in which the ‘VATE tape procedure’ is permitted by statute. It is my opinion that, in this State, a VATE tape should not be admitted as an exhibit in the trial; rather it should be marked ‘for identification’. In my view s 37B of the Evidence Act permits this pre-recorded form of evidence to stand as ‘the evidence in chief of a [child] witness for the prosecution’ (subs (2)) and the recording is admissible in the proceedings ‘as if its contents were the direct testimony of the witness’ (subs (3)). The purpose of these provisions is, as I have said, to alleviate potential distress of child witnesses in giving evidence in the types of proceedings to which the provisions apply. Otherwise, the use of the technology — which s 37B contemplates — is not intended to distort the balance of fairness in the trial which the common law procedure in criminal trials is designed to preserve.
[36]R v Lewis (2002) 137 A Crim R 85 (‘Lewis’).
[37]Ibid 89–90 [11]. (Footnotes as in original.)
[38]R v BAH (2002) 5 VR 517 at [3]; 135 A Crim R 150 at [3] per Winneke P; and (at [24]) per O’Bryan AJA.
[39]R v BAH (2002) 5 VR 517 at [11]; 135 A Crim R 150 at [11] per Winneke P; and (at [17]) per Callaway JA.
The following propositions may be drawn from Lewis (echoing much of what was said in BAH):
·    first, the VATE procedure represents a significant departure from criminal procedure as recognised by the common law;
·    secondly, the VATE tape, containing the complainant’s evidence-in-chief, is but part of the evidence in the trial;
·    thirdly, to permit the jury to have unrestricted access to this portion of the evidence, after the close of evidence, addresses and charge, is calculated to create an imbalance of fairness adverse to the interests of the accused because it courts the danger that the jury will afford disproportionate weight to this portion of the evidence taken out of its context;
·    fourthly, the jury is entitled to be reminded of that portion of a complainant’s evidence recorded on a VATE tape (as they are entitled to be reminded of any other evidence in the trial); but if the jury does wish to be so reminded, then it should be done in open court and accompanied by the ‘balancing warnings’ referred to in BAH;
·    fifthly, in all but exceptional circumstances, to permit the jury to have unrestricted access to a VATE tape during the course of their deliberations will constitute a fundamental irregularity in the trial;
·    sixthly, a VATE tape should not be admitted as an exhibit in the trial; rather it should be marked ‘for identification’; and
·    seventhly, the use of the VATE procedure was not intended to distort the balance of fairness in the trial which the common law procedure in criminal trials is designed to preserve.
Lyne also involved a VATE tape. The applicant was convicted of sexual offences allegedly committed against a female child, ‘S’, on occasions the child was aged between eight and ten years. S’s evidence-in-chief consisted of a VATE tape pre-recorded by police. At trial, S gave further evidence-in-chief from a remote witness facility and was cross-examined. Although other witnesses were called in support of the prosecution case, the incriminating evidence against the applicant was in effect all given by S. The defence did not call any witnesses, but the applicant had taken part in a record of interview with police during which he denied the allegations made against him. The VATE tape was made an exhibit during S’s evidence-in-chief, after she had veriﬁed its contents.
When the jury retired to commence deliberations, defence counsel noticed that the tipstaff was moving to take the VATE tape to the jury room, and objected to his doing so. Counsel accepted that the tape had been made an exhibit, but submitted that it was simply the evidence of the complainant and that it should not go into the jury room, arguing that, if the jury wanted to hear S’s evidence, then 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, for the time being, he would not send the VATE tape into the jury room. 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. He told the jury, however, that they should understand that the tape constituted substantially the evidence-in-chief that had been given by S, and did not include the cross-examination. In the course of deliberations, the jury asked to see the cross-examination. Due to some error, however it had not been recorded, so the trial judge read the whole of the complainant’s cross-examination to the jury.
Charles JA — after referring to various authorities, including BAH, Lewis and Knigge[40] — dealt with a prosecution submission advanced on appeal, that s 19 of the (since) repealed Act permitted the jury to have access to the VATE during deliberations, as follows:[41]
Section 19(1) of the Crimes (Criminal Trials) Act is, in my view, of no assistance to the Crown. The section was relied on by the prosecution in BAH. Winneke P and O’Bryan AJA both doubted whether s 19 empowered the judge to provide the jury with the VATE interview. Callaway JA thought that even if the section gave the judge a discretion to allow the jury to play the tape in the jury room, ‘it would be a rare case where that was a proper exercise of the discretion’. I share the doubts expressed in BAH as to whether s 19 gives a trial judge a discretion to allow the jury to take a VATE tape into the jury room. But even if any such power is given by the legislation, that power must be exercised in such a way as to ensure that the trial of the accused is fair. Here, as 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.
[40]R v Knigge (2003) 6 VR 181.
[41]Lyne, 528–9 [21]. (Footnotes omitted.)
Chernov JA said:[42]
I consider that, for the reasons given by Charles JA, the application for leave to appeal should be granted and the matter disposed of as is proposed by his Honour. 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.
The overriding consideration is, as was made plain by McMurdo P, in R v H and by Winneke P in R v BAH, fairness and balance, and that may be difficult to achieve where the jury has an 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. The impact of this on the jury’s mind is unlikely to be balanced by the transcript (or even a video recording) of her cross-examination that they may have available to them in the jury room and by any (appropriate) warning that may have been given to them by the judge. It seems to me that in all but the exceptional case, fairness and balance (to the accused and the Crown) can only be achieved if the VATE tape is replayed in open court so that the judge, the accused’s counsel and the prosecutor have the opportunity of putting the matter in proper context.
[42]Ibid 529–30 [26]. (Footnotes omitted.)
Eames JA observed that it was clear that only in exceptional circumstances would ‘unrestrained access’ by a jury to a VATE tape during deliberations ‘not constitute a fundamental irregularity in a trial’.[43] Referring to BAH, Eames JA said that the ‘overriding consideration … is the maintenance of balance and fairness in the trial process’.[44] And he observed that ‘[t]he particular threat to a balanced and fair trial which access to a VATE tape poses is that its use may give disproportionate weight to the evidence of the complainant contained on the tape’.[45] But in a statement that appears to be contrary to the preponderance of previous authority on the issue — which insisted that any playback of the VATE tape occur in open court — Eames JA considered it to be arguable that there might not have been a pronounced risk that the jury would have given disproportionate weight to the complainant’s evidence had the jury, upon requesting the VATE tape, received not only that tape but also a tape of the cross-examination of the complainant, that material being accompanied by appropriate warnings, including a reminder as to where the onus of proof rested.[46]
[43]Ibid 530 [27].
[44]Ibid 530 [28].
[45]Ibid.
[46]Ibid 530–1 [30].
In my view, the reasons of Charles JA and Chernov JA in Lyne support the following propositions:
·    first, it is a fundamental procedural irregularity to permit the jury to have unrestrained access to the VATE tape during deliberations;
· secondly, if s 19 of the Crimes (Criminal Trials) Act 1999 empowers a judge to provide the jury with the VATE tape in the jury room, the power must be exercised in such a way as to ensure that the trial of the accused is fair;
·    thirdly, it would be a rare case where it was a proper exercise of discretion to permit the jury to have unrestrained access to the VATE tape;
·    fourthly, permitting a jury to have an unrestricted opportunity to play the VATE tape produces the risk that the jury might give the complainant’s evidence disproportionate weight simply because of the visual form of the evidence which is effectively repeated to them, and which is unlikely to be balanced by the transcript or video recording of the complainant’s cross-examination that they may have available to them in the jury room (or by any warning that may have been given to them by the judge); and
·    fifthly, in all but the exceptional case, fairness and balance can only be achieved if the VATE tape is replayed in open court so that the judge, the accused’s counsel and the prosecutor have the opportunity of putting the matter in proper context.
MAG[47] was another case involving VATE tapes. It involved alleged sexual offending by the applicant against his step-daughters. One complainant, ‘S’, gave her evidence-in-chief by means of a pre-recorded VATE tape. The jury was not given unrestricted access to the VATE tape when they retired to consider their verdict. After deliberating for some hours, the jury asked to view the VATE tape again. It was then re-played in open court, but the judge did not remind the jury of S’s cross-examination. Finding that there had been a miscarriage of justice, Winneke P (with whom Chernov JA and Cummins AJA agreed) expressed the view — after having cited a passage from BAH[48] — that the trial judge ‘should, at the very least, have warned the jury that, because they were hearing the evidence-in-chief of S for the 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’.[49]
[47]R v MAG [2005] VSCA 47 (‘MAG’).
[48]BAH, 522 [11].
[49]Ibid [23].
Gately[50] was concerned with Queensland statutory provisions which permitted the pre-recorded evidence of a child in a case of alleged sexual offending to be presented in evidence at trial. Among other things, the High Court’s decision in Gately establishes that the video recording of the child’s evidence should not be treated as an exhibit, and should simply be marked ‘for identification’. More importantly, the Court held that, if the jury wishes to view again the pre-recorded evidence of the complainant, that should be done by replaying the recording of the evidence in open court, before the judge, jury and counsel.
[50]Gately v The Queen (2007) 232 CLR 208 (‘Gately’).

The appellant in Gately had been tried in the District Court of Queensland on an indictment alleging 12 counts of sexual offences against the 14-year-old complainant. Division 4A of Pt 2 of the Evidence Act 1977 (Qld) (ss 21AA–21AX ) made provision for the evidence of an ‘affected child’. Section 21AK provided that the affected child’s evidence must be taken and video-taped at a hearing under the section, and the video-taped recording — including the evidence-in-chief, cross-examination and re-examination of the child — must be presented to the court at the trial. On the trial, the prosecutor did not tender the tape of the complainant’s evidence, recorded pursuant to s 21AK, as an exhibit; but the trial judge, of his own motion, marked it as an exhibit. After a question from the jury, the judge told them that they could have access to the recordings by simply asking the bailiff, and they would be played to them in the courtroom (the tapes not being permitted to go into the jury room). In the course of debate between the trial judge and counsel about what material the jury should have available during their deliberations, trial counsel for the appellant agreed that it ‘seem[ed] a sensible and practical approach’ for the jury, when considering their verdict, to be able to play the recording in the courtroom ‘in the presence of the bailiff and not in the presence of other members of the Court’. On appeal, the case proceeded on the footing that, during their deliberations, the jury were able to and did play the recorded evidence of the complainant otherwise than in the presence of the trial judge and counsel for the parties.
Gleeson CJ agreed with Hayne J that ‘technically, the video recording should have been marked for identification rather than treated as an exhibit and, more significantly, that, when the trial judge decided (as he was entitled to do) to comply with the jury’s request to hear again the pre-recorded evidence of the complainant, that should have been done by replaying the recording of the evidence in open court, before the judge, the jury and counsel’,[51] but concluded that there had been no miscarriage of justice.
[51]Ibid 211 [3].
In construing the relevant provisions of the Evidence Act 1977, Hayne J — with whom Heydon J[52] and Crennan J[53] also agreed — said that ‘it becomes evident that seldom, if ever, will it be appropriate to admit the record of [the affected child’s] evidence as an exhibit’.[54] Any request by a jury for access to the pre-recorded evidence should ordinarily be dealt with in the same way as any request by a jury to be reminded of evidence that has been led at the trial. Because of the ‘need to preserve fairness and balance in the conduct of the trial’, seldom would it be appropriate to meet such a request ‘by giving the jury unrestrained access to the recording to play and replay’.[55] There was, however, no miscarriage of justice, in circumstances where ‘great weight’ had to be attached to trial counsel for the appellant’s consent to the jury having the access they did to the pre-recorded evidence of the complainant.[56]
[52]See ibid 240 [108], 241 [110]–[111].
[53]See ibid 244 [126].
[54]Ibid 237 [93].
[55]Ibid 237 [94]. See also 238 [96].
[56]Ibid 232–3 [77].
And although Kirby J dissented on the issue whether there had been a miscarriage of justice, he said[57]
[57]Ibid 219–20 [28] (footnotes as in original).
I agree in substance with the conclusions of Hayne J concerning the proper approach to be taken in trials such as that the subject of this appeal:
1. Under the Evidence Act, a recording (whether electronic or printed) is not admissible as ‘evidence’ as such. It is simply a record of the oral testimony it contains. It is not real evidence (as a gun or other weapon or like item might be), available, as such, to the jury;[58]
[58]Reasons of Hayne J at [86]–[93]. See also reasons of Gleeson CJ at [3].
2. A request by a jury for access to pre-recorded testimony is ordinarily to be dealt with in the same way as a request to be reminded of other testamentary evidence. It will seldom, if ever, be appropriate to give the jury unsupervised access to the recording so that they may play and replay the recording as they decide;[59]
3. A request by a jury to be reminded of evidence should rarely be denied by a trial judge. However, if the request is made, the judge, after affording the parties the opportunity to make submissions on the matter, should consider whether the request can be fulfilled either by:
(a) Reading the transcript of the evidence requested (and any related evidence) to the jury in open court in the normal and traditional way; or
(b) If it is considered appropriate to accede to a specific request to view pre-recorded testimony again, permitting this to be done in open court.[60] When this course is taken, the attention of the jury should ordinarily be drawn to the need to take account of any cross-examination or contrary evidence that may exist[61] and the need to guard against selective reinforcement of particular oral evidence received for a second time and out of context; and
4. Because the repetition of pre-recorded oral evidence creates dangers of distortion, loss of balance and unfairness, the judge should consider whether there is a need, in the circumstances, to warn or direct the jury:
(a) To avoid giving undue weight to evidence that is recorded and thus available for repetition as against the rest of the evidence that is not;[62] and
(b) To consider the recorded evidence in the context of other, countervailing evidence, whether recorded or not, and of any arguments of the accused relevant to that evidence.
[59]Reasons of Hayne J at [94]–[96].
[60]See reasons of Gleeson CJ at [3].
[61]Reasons of Hayne J at [96].
[62]cf reasons of Hayne J at [95].

Flynn and Carson

Gately was not mentioned at all in Flynn — which was heavily relied upon by the respondent in this Court — although it received a passing mention in Carson,[63] a case which was not referred to in the parties’ written cases of lists of authorities, and was raised for the first time in oral argument as part of the respondent’s case.
[63]Carson (a pseudonym) v The Queen [2019] VSCA 317 at [100], [105] (fn 52), [111] (fn 56) (T Forrest JA) (‘Carson’).
In Flynn, a jury had convicted the applicant of raping his estranged wife. The prosecution relied on evidence — in the form of VARE tapes — from two of their children, ‘Alex’ and ‘Jack’, who had observed various events surrounding the alleged offending (Jack having directly observed some of the offending). Over the objection of defence counsel, the trial judge permitted the VARE tapes to be tendered as exhibits, rather than simply being played to the jury. As a result, the tapes were available to the jury to view, as often as they wished, during the course of their deliberations. Trial counsel relied on BAH, Lewis and MAG, which had all held that the forerunners of VARE tapes, and any transcripts of those recordings, ordinarily should not be received as exhibits; nor should the jury be given unrestricted access to material of that kind during the course of their deliberations. The trial judge ruled, however, that as a result of legislation, the position had altered since these cases had been decided. In that regard, the judge referred to s 29(4) of the Evidence Act 2008, and s 66 of the Jury Directions Act 2015. On that basis, the judge permitted the VARE tapes to be tendered as exhibits and thereby allowed the jury to have unrestricted access to them during deliberations.
Seeking leave to appeal against conviction, by ground 4, the applicant in Flynn contended that a substantial miscarriage of justice resulted from the judge allowing the jury to have unrestricted access to the VARE tapes in the jury room. In its reasons refusing leave, the Court summarised the respondent’s submissions as follows:[64]
[44]The respondent observed that s 223(1) of the Criminal Procedure Act 2009 specifically empowers a trial judge to provide documents to a jury in any form considered appropriate. Section 223(1)(i) makes it clear that the term ‘documents’ in that sub-section includes audio-visual recordings of evidence.
[45]The respondent further noted that the judge had specifically permitted the jury to have with them during their deliberations, not merely the VARE tapes, but also the recordings of all the evidence given in the trial. That, of course, included the evidence given by the applicant.
[46]The respondent submitted that, in these circumstances, the concerns raised in some of the earlier authorities, dealing with the risk that VARE tapes might be given undue weight, had no application.
[64]Flynn, [44]–[46] (Niall, T Forrest and Weinberg JJA).
The Court’s reasons for rejecting ground 4 were crisp, the Court simply observing[65] that
ground 4, concerning the tender of the VARE tapes, is without substance. For the reasons put forward on behalf of the respondent, and set out above at [44]–[46], this ground is plainly untenable.
[65]Ibid [73].
From these brief reasons, it appears that the Court concluded that the applicant’s ground concerning the VARE tapes was ‘plainly untenable’ for the reasons that had been advanced by the respondent. Those reasons were, first, s 223(1) of the CPA specifically empowers a trial judge to provide ‘documents’ — which includes audio-visual recordings of evidence — to a jury in any form considered appropriate; and, secondly, the concerns raised in the earlier authorities, dealing with the risk that VARE (or VATE) tapes might be given undue weight, had no application in circumstances where the judge specifically permitted the jury to have with them during deliberations, not only the VARE tapes, but also the recordings of all of the evidence given in the trial (including the evidence given by the applicant).
Why the Court in Flynn considered that the reasons advanced by the respondents in that case made the relevant ground plainly untenable is not clear to me.
First of all, s 223(1) of the CPA empowers a judge to order that copies of enumerated material — including ‘transcripts of evidence or audio or audiovisual recordings of evidence’ — ‘are to be given to the jury in any form that the trial judge considers appropriate’. Clearly, given the terms of the section — ‘the trial judge may order’ —the exercise of that power is discretionary.[66] Furthermore, s 223(1) prescribes a pre-condition for the exercise of that discretionary power: the judge may order that copies of the specified material be given to the jury ‘[f]or the purpose of helping the jury to understand the issues or the evidence’.[67] Thus, although it was correct superficially for the respondent in Flynn to say — and for the Court to accept — that s 223(1) ‘specifically empowers a trial judge to provide documents to a jury in any form considered appropriate’, it does not appear to have been submitted by the respondent — or recognised by the Court — that the discretionary power thereby imported must be exercised according to the statutory pre-condition found in the section.
[66]Interpretation of Legislation Act 1984, s 45(1).
[67]See the passage from BAH extracted at [46] above.
It is not apparent from the reasons in Flynn that the trial judge had turned his mind to the question whether the VARE tapes should be provided to the jury for the purposes of helping them understand the issues or the evidence. Rather, it would seem that the trial judge provided the tapes to the jury without alluding to the statutory pre-condition for the exercise of the discretionary power to do so contained in s 223(1). Certainly it does not appear that, at the time when they were given the tapes, the jury had indicated that they were having difficulty understanding the issues or the evidence in the jury room (or, indeed, had requested that they be provided with the tapes for any purpose), let alone that the judge had made any enquiries of the jury as to whether they were having any difficulties.[68]
[68]See the passage from BAH extracted at [46] above.
Moreover, although the respondent in Flynn submitted — and the Court apparently accepted — that BAH (and similar cases) dealing with the risk that VARE tapes might be given undue weight had no application because the judge had specifically permitted the jury to have not only the VARE tapes, but also the recordings of all the evidence given in the trial, I consider that a number of propositions from the earlier cases have been left undisturbed by the promulgation of s 223 of the CPA.
It will be remembered in that regard that Gately was concerned with the videotaped evidence of a child, no different to an audiovisual recording of a special hearing recorded pursuant to s 370 of the CPA. To risk repetition, the complainant’s evidence — evidence-in-chief and cross-examination (there being no re-examination) — was taken and videotaped; and, a little over a month later, it was played to the jury as part of the prosecution case in the appellant’s trial. Although the prosecutor did not tender the tape as an exhibit, the trial judge, of his own motion, marked it as such. On appeal, the members of the High Court made it clear that the pre-recorded evidence of a child witness generally should not become an exhibit; and that any request by a jury for access to evidence pre-recorded in accordance with the relevant statutory provisions should ordinarily be dealt with in the same way as any request by a jury to be reminded of evidence that has been led at the trial. As to that, seldom would it be appropriate to meet a request of that kind by giving the jury unrestrained access to the recording to play and replay.[69]
[69]See Gately, 211 [3] (Gleeson CJ), 237–8 [94]–[96] (Hayne J), 241 [111] (Heydon J).
The final case I should mention is Carson, an appeal against conviction for ‘historical’ sexual and other offences against two complainants. Although the appeal was allowed on other grounds, leave to appeal was refused on a ground that contended that a substantial miscarriage of justice resulted from the judge ‘allowing the jury unsupervised and unrestricted access to the complainants’ recorded evidence during its deliberations’. During deliberations, the jury asked to watch the complainants’ ‘video testimony’ of ‘the actual events relating to the charges and the cross-examination’. Initially, the judge told the jury that he was considering playing the evidence in open court, or alternatively, he may allow the jury to have the DVD of the complainants’ evidence, so they could ‘watch whatever [they] like from those DVDs’. Counsel for the prosecution contended that the judge ought comply with the jury’s request and that it was more practical for the jury to take the discs containing the complainants’ evidence into the jury room. Defence counsel, however, relying on Gately, AB[70] and SCG,[71] submitted that the judge ought refuse access to the complainants’ recorded evidence, since there was a risk that jurors may attach undue weight to the portions of recorded evidence they had viewed, at the expense of the other evidence in the case. Ultimately, the judge concluded that it was more practical to supply the jury with the relevant discs and to direct the jury that whilst they were at liberty to view whichever parts of the discs they wished, they must determine the case on all the evidence. That is what occurred.
[70]AB (a pseudonym) v The Queen [2019] NSWCCA 82 (‘AB’).
[71]R v SCG (2014) 241 A Crim R 508 (‘SCG’).
T Forrest JA (with whom Niall and Ashley JJA agreed) distilled three principles from Gately, AB and SG,[72] and then distinguished the decisions in those cases on the basis that the relevant trials were not ‘conducted’ under s 223(1) of the CPA[73] (which, he recognised, creates a discretion that ‘must always be subject to the overarching responsibility to protect an accused’s right to a fair trial’).[74] He said:[75]
For my part, I consider that the applicant has failed to establish this ground. His Honour was statutorily empowered to provide the discs to the jury upon their request. The jury had already been provided, without objection, with a full transcript of the evidence in the case. The provision of AVRs of what the jury already had in transcript form, can only have been to enable the jury to better recall or understand the evidence in the case, which is the purpose contemplated by s 223(1) of the CPA. Given the extent of the overall evidence requested and the danger of the jury disclosing either some of its deliberations or hinting at voting patterns by playing requested portions in open court, I consider that there was practical merit in allowing the jury to have the discs in their jury room, to play at their convenience, provided they were supplied with a strong warning about the dangers of overvaluing the weight of the impugned evidence.
[72]Carson, [105].
[73]Ibid [106].
[74]Ibid [107].
[75]Ibid [108].
I cannot discern from the reasons in Carson, however, that the Court’s attention was drawn to BAH, Lewis or Lyne, which I consider establish (among other things) that: first, it would be a rare case in which a jury was giving unrestricted access to the recording of a complainant’s evidence in the jury room; secondly, if the jury requests to be reminded of the complainant’s evidence, or to review the recording, the judge should discuss the request with counsel; thirdly, a pre-condition to the exercise of a discretion akin to that contained in s 223(1), is that specified material is provided for the purpose of helping the jury to understand the issues (or the evidence); fourthly, if the jury were to be having difficulty in determining the fundamental issues in the jury room, the judge should have inquired of the jury judiciously the nature of their difficulty and the purpose of the request and dealt with the matter accordingly; and, finally, if, after discussion with counsel, the judge decides to permit the jury to view the recording, the play-back of the recording should be in open court, in the presence of the accused and counsel (and should be attended by a warning). The conclusion in Carson must be viewed in this light.

Conclusions on ground 4

Notwithstanding that it has now been common for some years, the use of pre-recorded evidence of child witnesses — both VARE tapes and recordings of special hearings — represents a significant departure from common law criminal procedure. Nothing in s 223(1) or pt 8.2 of the CPA authorises the tender of a VARE or special hearing recording as an exhibit. Once played, they should be marked for identification. But they should not as a matter of course go into the jury room, since I consider that, even if the jury were to be given audiovisual recordings of all of the evidence in the trial for their unrestricted use in the jury room during deliberations, there remains a risk that the jury will afford disproportionate weight to the complainant’s evidence, without timely and appropriate directions from the judge. In my view, in all but exceptional circumstances, to permit the jury to have unrestricted access to the pre-recorded evidence of a complainant (or other material witness) during the course of their deliberations will constitute a fundamental irregularity in the trial. If the jury wish to be reminded of the pre-recorded evidence, then that should be done in open court.
As I have observed, s 223(1) of the CPA does not authorise the tender of either a VARE, or the recording of a special hearing, as an exhibit. Instead, s 223(1) gives the trial judge a discretion — one that must be exercised judicially — to order ‘at any time during the trial’ that copies of various enumerated things be given to the jury ‘in any form that the trial judge considers appropriate’. Included in the list of things that the judge may order be given to the jury are ‘transcripts of evidence or audio or audio-visual recordings of evidence’. A pre-condition to the exercise of the discretion is that the specified material is to be given to the jury only for the purpose of helping them to understand the issues or the evidence. Unless the jury indicates to the trial judge that they wish to have access to the pre-recorded evidence to help them understand the issues or the evidence, there would be no occasion for the trial judge to consider the exercise of the power reserved to the judge under s 223(1).

In case we are wrong in that conclusion and what the judge did was irregular, we turn to consider whether giving the recordings to the jury amounted to a fundamental irregularity in the trial or otherwise resulted in a substantial miscarriage of justice.
A fundamental irregularity?
The High Court has recognised that there are some irregularities, sometimes described as going to the root of the trial, which vitiate a conviction regardless of the strength of the prosecution case.[184] To put it another way, an applicant who demonstrates that there has been a fundamental irregularity in the trial is entitled to an order quashing the conviction even if it were otherwise thought that the conviction was inevitable on the evidence. The concept of a fundamental irregularity in the trial has often been employed as a means of explaining why a conviction cannot be saved by reason of the proviso in the common form criminal appeal legislation.
[184]Quartermaine v The Queen (1980) 143 CLR 595, 600–1 (Gibbs J, Stephen J agreeing at 602, Murphy J agreeing at 613); [1980] HCA 29; Wilde v The Queen (1988) 164 CLR 365, 373 (Brennan, Dawson and Toohey JJ); [1988] HCA 6. See also Baini v The Queen (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ), 493 [65], 494 [69] (Gageler J); 2012 HCA 59.
It may be accepted that there have been decisions in this Court, made prior to the introduction of s 223 of the CPA, which have treated the provision to the jury of unsupervised access to a recording of part of the evidence, such as a VARE, as a fundamental irregularity in the trial. In our opinion, those cases do not govern the present situation.
First, the hurdle that must be satisfied before a judge allows one or more of the adumbrated items in s 223(1) of the CPA to be given to the jury is a relatively low one. Any such item must be given for the purpose of helping the jury to understand the issues or the evidence. It is difficult to conclude that, given that hurdle, Parliament would have considered the provision to the jury of any of the items identified in s 223(1), including an audiovisual recording of evidence, to be inherently dangerous or potentially inimical to the trial process. Equally, the absence of any constraints in s 223 on where and when the jury can have recourse to that material undercuts the contention that to allow unsupervised access to a recording of evidence would in itself be a fundamental irregularity.
Second, it is not possible to reconcile the outcome in Gately with a conclusion that giving the jury unsupervised access to a recording of evidence necessarily amounts to a fundamental miscarriage of justice. It will be recalled in that case that allowing the jury to have unsupervised access to the recording of the complainant’s evidence, in circumstances where the relevant statutory provision did not authorise that course, was held to be an irregularity. A majority of the High Court nevertheless held that it did not amount to a miscarriage of justice.
Relatedly, in R v NZ, a majority of the Court of Criminal Appeal of New South Wales noted the variety of situations in which recordings of evidence might be placed before a jury and concluded that, because the significance of that evidence will vary dramatically from case to case, the provision of such material to the jury ought not be regarded as an irregularity inevitably going to the root of the trial.[185] Their Honours instead favoured ‘a more flexible approach’ involving the consideration of the significance of the evidence provided to the jury in the circumstances of the trial as a whole.[186] The Court of Criminal Appeal of New South Wales has, in our view correctly, not treated Gately as imposing a ‘complete proscription’ on the provision of a recording of evidence to the jury,[187] and has in a number of cases found the provision of recorded evidence to the jury not to result in a miscarriage of justice in the circumstances of the case.[188]
A miscarriage of justice?
[185](2005) 63 NSWLR 628, 670 [175] (Howie and Johnson JJ, Wood CJ at CL agreeing at 633 [21], Hunt AJA agreeing at 634 [22]); [2005] NSWCCA 278.
[186]Ibid 678 [212].
[187]CF v The Queen [2017] NSWCCA 318, [83] (Gleeson JA, Rothman J agreeing at [110], Hamill J agreeing at [111]).
[188]See, eg, Jarrett v The Queen (2014) 86 NSWLR 623, 639–40 [74]–[76] (Basten JA, RA Hulme J agreeing at 643 [91], Campbell J agreeing at 644 [95]); [2014] NSWCCA 140; CF v The Queen [2017] NSWCCA 318, [92]–[93] (Gleeson JA, Rothman J agreeing at [110], Hamill J agreeing at [111]); Stevenson (a pseudonym) v The Queen (2022) 299 A Crim R 457, 471–2 [68]–[76] (Johnson J, Davies J agreeing at 482 [137], Bellew J agreeing at 482 [138]); [2022] NSWCCA 133.
We are also of the view that, if the provision of the recordings to the jury was an irregularity, it did not result in a substantial miscarriage of justice.
There was no risk of an unbalanced consideration by the jury.
As we have said, in Gately, the High Court held that allowing the jury to have unsupervised access to the recording of the evidence of the complainant did not amount to a miscarriage of justice. In part, that was because the appellant’s counsel had consented to that course.[189] But that was not the only reason. Justice Hayne observed that the evidence of the complainant was the critical evidence to be considered by the jury. Although the veracity of that evidence had to be assessed in the light of all the evidence, whether the prosecution had proved its case beyond reasonable doubt ultimately depended entirely on what the jury made of the complainant’s evidence. The parties put competing arguments to the jury, but the evidence that the complainant had given was not rebutted other than by the appellant’s cross-examination. In those circumstances, allowing only the complainant’s evidence to be re-examined by the jury ‘presented no risk of an unbalanced consideration of competing accounts’ of the alleged events.[190]
[189]Gately (2007) 232 CLR 208, 232–3 [77] (Hayne J); [2007] HCA 55.
[190]Ibid 233 [80] (Hayne J).
The same holds true in this case.
We were not asked to view either the VARE or the special hearing recordings and it was not submitted that they would have evoked any particular emotional or visceral response over and above that generally felt given the subject matter.
In addition to the VARE and the special hearing, the jury were given the recording of the applicant’s interview by police, in which he denied all allegations.
It is true that the jury were not given the recording of the evidence of the complainant’s mother, which was given on a voir dire. However, they were given the transcript of all the evidence. And although there were some challenges to the evidence of the complainant’s mother in cross-examination, ultimately her evidence was not particularly contentious.
Further, many of the defence’s central arguments were essentially directed to the quality of the complainant’s evidence, including arguments about its internal inconsistency, its inconsistency with the evidence of other people, the circumstances in which the complainant came to give her account, and the vagueness, implausibility and uncertainty of the complainant’s account. A focus by the jury on the complainant’s evidence would not have distracted them from giving proper consideration to those matters. Indeed, the complainant’s evidence was an important part of the defence’s case.[191]
[191]See Stevenson (a pseudonym) v The Queen (2022) 299 A Crim R 457, 471 [73] (Johnson J, Davies J agreeing at 482 [137], Bellew J agreeing at 482 [138]); [2022] NSWCCA 133.
Assuming that the jury watched the recorded evidence of the complainant, in the light of the centrality of the complainant’s evidence to both the prosecution and defence cases, the relatively short duration of the trial, the fact that the jury were also provided with the recording of the applicant’s interview and the transcript of all the evidence, the fact that a number of witnesses had their evidence pre-recorded so that the complainant’s recording would not have stood out as special or different because it was recorded, and the fact that the judge told the jury on more than one occasion that the jury should have regard to all of the evidence, any risk that the jury gave the recorded evidence disproportionate weight because it was replayed or played last was negligible and did not occasion a miscarriage of justice.
We reject ground 4.
Ground 1
The principles that this Court must apply in considering a ground that contends that the verdict is unreasonable or cannot be supported having regard to the evidence[192] are well understood.[193] This Court must consider all of the evidence and ask itself whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused.
[192]CPA, s 276(1)(a).
[193]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35; Pell v The Queen (2020) 268 CLR 123, 145 [38]–[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
In Pell v The Queen, the High Court said that the analysis to be undertaken by this Court must proceed on ‘the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable’.[194] The Court ‘examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt’.[195]
[194](2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
[195]Ibid.
Recently, in Gardner (a pseudonym) v The King, this Court considered the application of that assumption in the context of a complainant who suffered from a mental condition that affected her recall of events and who was the subject of an unreliable evidence direction under s 32(1) of the JDA.[196] This Court said:
[196][2024] VSCA 83.
The High Court in Pell v The Queen stated that this Court, ‘in a case such as’ Pell, must proceed on the assumption that the jury assessed the complainant’s evidence as credible and reliable. That is not just because the jury could not have convicted otherwise. It is because the assessment of credibility (at least) of a witness by the jury proceeds on the basis of what the jury has seen and heard in a trial, which is not to be duplicated by the appellate court. …
For the latter reason, nothing is to be gained in such a case by the appellate court viewing a recording of that evidence in order to form its own view as to that matter. If the jury’s verdict is to be displaced, it must be by reference to something other than ‘the evaluation of the witnesses in the witness-box’. In that way only, the appellate court may ultimately not accept the truth of the complainant’s evidence. That is the fundamental issue in an appeal on the ground that a verdict dependent on acceptance of a complainant’s evidence was ‘unreasonable or cannot be supported having regard to the evidence’.
In Pell, that issue turned on whether other evidence before the jury about the alleged events meant that, despite finding the complainant’s evidence to be credible and reliable, the jury ought to have had a reasonable doubt about the guilt of the accused.
Here the position is different, because the principal issue is whether features of the complainant’s own evidence, together with other evidence about the complainant’s state of mind, ought to have led the jury to that result.
It seems that it is still necessary, in this context, to apply the injunction in Pell to proceed on the assumption that the jury found the complainant’s evidence credible and reliable (as it obviously did). The question is still whether the jury ought to have had a doubt about the applicant’s guilt, that is, whether the jury ought to have doubted the account given by the complainant. Again, the appellate court’s answer to that question must depend on something other than the evaluation of witnesses in the witness-box.
As articulated in Pell, the question is whether upon an examination of the record, the jury ought, acting rationally, to have entertained a reasonable doubt as to proof of the applicant’s guilt, whether by reason of inconsistencies, discrepancies or other inadequacy in the complainant’s evidence, or in light of other evidence. Put differently, the question is whether, having regard to those matters, the jury must (rather than might) have entertained a doubt as to the applicant’s guilt.
The need to focus on inconsistencies, discrepancies or other inadequacy in the complainant’s evidence, or on other evidence, again reflects the fact that the appellate court is not simply giving effect to its own view in place of that of the jury, so as to substitute trial by a court of appeal for trial by jury. It also means that full allowance is given to the advantages enjoyed by the jury in having seen and heard the witnesses give evidence in the unfolding criminal trial.
Applying that focus, if the appellate court considers that it was not open to the jury to be satisfied of the case against the accused beyond reasonable doubt, it must set aside the verdict given by the jury based on that evidence. In that sense, the court’s doubt will, in effect, be a doubt which a reasonable jury ought to have had.
That is not to say, however, that the appellate court approaches the issue by first asking whether it has a doubt about the conviction and then considering whether the conviction is explicable, despite that doubt, by the advantages enjoyed by the jury. That would invert the process by conducting, in effect, a trial ‘on the papers’, and would blur the functional or ‘constitutional’ demarcation between the province of the jury and the province of the appellate court.[197]
[197]Ibid [80]–[88] (Emerton P, McLeish and Macaulay JJA) (citations omitted).
We respectfully agree with that approach and intend to apply it to the facts of this case.
This Court has to have regard to all of the evidence. In doing so, it is also necessary to have regard to the matters advanced by the applicant which, he contends, support his ground of appeal. The applicant identified a number of matters which are set out in the reasons of Priest JA at paragraph 139 above.
A critical area of attack was on how the complainant’s version of the offending was obtained. The applicant submits that the complainant knew that touching of the kind here was wrong at the time but she made no complaint. Her mother, who was already highly suspicious of the applicant, woke her and through a series of leading questions prompted the complainant to agree that the applicant had touched her ‘private parts’ on one occasion. Following this initial conversation (referred to at trial as ‘the lizard talk’), the complainant suffered from nightmares. There was then a series of conversations between the complainant and her mother about the applicant’s conduct. The complainant agreed in cross-examination that this helped her ‘work out’ what had occurred.
The respondent accepts that, in the course of her cross-examination, the complainant gave answers that were, on their face, ‘problematic’ for the prosecution case. For example, the transcript of the special hearing records the following exchanges:
[The complainant’s mother] says that when she asked you, ‘Has Poppy touched your private parts?’ You said, ‘I don’t know.’ Is that what happened? That she asked you that and you said, ‘I don’t know’?---I can’t remember.
But all right. So when you say you can’t remember, you might have said, ‘I don’t know,’ but you just can’t remember either way?---I can’t remember what question she asked me.
Okay. Did she seem upset when she asked you whether Poppy had touched your private parts? Whatever the exact question was. Did she seem upset?---Yes.
So she seemed upset before you’d even told her that, what had happened?---Yes.
And in that talk, did Mum keep asking you if [the applicant] had touched your private parts?---Yes.
And did you keep on shrugging your shoulders when she asked you that question?---Yes.
Now, was Mum still upset when this was happening?---Yes.
And did you feel that she wanted you to say ‘yes’, that [the applicant] had touched your private parts?---Yes.
…
The question I just asked you, before the break, was did you feel – when your mum was upset, and you were shrugging … your shoulders – that she wanted you to say ‘yes’, when she asked you if [the applicant] had touched your private parts?---Yes.
And did you nod your head?---Yes.
And that was because you felt your mum wanted you to say ‘yes’?---Yes.
…
Mum’s also told child protection people about nightmares that you were having after the pet lizard talk? Did you have nightmares after the pet lizard talk?---Yes.
And with those nightmares did you start – when those nightmares were happening did you start to talk to mum a bit more about the Court process?---Yes.
And about what [the applicant] had done?---Yes.
And through those talks did you and mum work out that there had been five incidents or five times?---Yes.
And did you talk about those five times with mum?---Yes.
And did you [sic] mum call it the first time, the second time, the third time, the fourth time and the fifth time?---Yes.
And in those same conversations between the pet lizard talk and you speaking to police yourself did you decide that you would go through with making a statement to police? ---Yes.
…
And you had said that you –– your mum –– you and Mum worked out that those five times – I just want to ask you a few more questions about how you and Mum worked out the five times that you’ve mentioned in your VARE. Did Mum help you by asking you questions like, ‘Was there ever a time where Poppy touched your vagina’?---Yes.
And did she ask you questions like, ‘Was there ever a time where Poppy touched your boobs’?---Yes.
And did she ask you questions like, ‘Was there ever a time where Poppy touched your bum’?---Yes.
And did she ask you questions like, ‘Was there ever a time where Poppy made you touch his doodle’?---Yes.
And did she help you work it out by asking you questions like, ‘Was there ever a time where Poppy made you touch his nipples’?---Yes.
And did she help you work it out by asking you questions like, ‘Did Poppy tell you to keep it a secret’?---Yes.
Now, around this time, you were also having nightmares? Is that right?---Yes.
And did those nightmares also help you work out those five times?---Yes.
Based on these exchanges, the applicant submits that, when the complainant eventually agreed that she had been sexually touched by the applicant, she did so in response to leading questions by her mother, in circumstances where she believed her mother wanted her to say ‘yes’. The applicant emphasises that, after the initial disclosure, there was evidence that the nightmares and further conversations helped the applicant remember what had occurred.
In addition to the risk that the complainant was influenced by and endeavouring to appease her mother, the applicant says that the complainant accepted that she found it hard to keep the times of the alleged incidents clear and admitted that she got confused between different alleged incidents. The applicant says the allegations are vague, with little detail about the manner in which the touching was said to have occurred and, particularly in relation to the third incident, contain significant inconsistencies.
The third incident gave rise to charges 6, 7 and 8. The applicant submits that the complainant gave ‘dramatically different accounts’ as to what occurred on this occasion. In the VARE, she initially said that the applicant was ‘halfway through doing it’ when the complainant told him to stop because she could hear footsteps, following which her brother walked into the room. Later in the VARE, she said that the incident came to an end because ‘before he could even do it, [she] said “I’m going to the toilet”’. In the VARE, the complainant also said that the applicant touched her on ‘just the one spot’. In the special hearing, she agreed that when she said ‘just the one spot’ in her VARE, she meant that the applicant only touched one part of her body. In neither the VARE nor the special hearing did she identify which ‘one’ part of her body she was referring to.

The applicant also points to inconsistencies in the complainant’s account of the first incident. In the VARE, the complainant initially said that the applicant had entered the room and said ‘time to do our secret thing’. Later, she said that the applicant had said ‘let’s do something fun’ or ‘like, something special or fun … I’m not quite sure what one, though’. At the special hearing, the complainant said that the applicant had said ‘let’s do something fun, and it will be our special thing’. The applicant says this was ‘a clearly unsuccessful attempt’ by the complainant to reconcile the different accounts she had given in the VARE.
The applicant also notes there was no supporting evidence despite the applicant’s brother and two adults being in the house at the time of the alleged offending. Further, the applicant had no prior convictions and denied the alleged offending in a record of interview.
Taken collectively, the matters relied on by the applicant raised questions about the credibility and reliability of the complainant as a witness. Although we have formed the view that a direction under s 32(1) of the JDA was not required, these matters were something that the jury had to assess. They comprise inconsistencies and deficiencies in the evidence which this Court must weigh in its own independent assessment of the evidence.
Having done that, we are not persuaded that the credibility or reliability of the complainant was so shaken that it was not open to the jury to accept her account of the charged acts to the criminal standard. In taking into account the matters relied upon by the applicant, it is also necessary to acknowledge that the complainant was a young child and some care should be taken in assessing her answers in cross-examination to ensure that she was not merely giving affirmative answers to direct questions without a proper understanding of the question and its context. The risk of suggestibility or susceptibility to influence on which much of the applicant’s argument depends is also present in relation to her answers in cross-examination during the special hearing.
It is important that an acknowledgement that children may respond differently to questions, particularly in a formal context, than an adult and be more susceptible to influence does not lead to an overcompensation when considering the quality of the evidence. Bearing that matter in mind, we are not persuaded that the jury must have had a doubt in the light of the challenges to the complainant’s evidence.
The core allegations that founded the charged acts were explained by the complainant in sufficient detail and it was open to the jury to accept the truth of that account. In relation to the first incident, the complainant described in the VARE that the applicant came into her room and touched the complainant on her ‘private spots’. The complainant identified the places where she had been touched on a drawing of a body and gave clear evidence that she was touched around her vagina (which she described as the place she used to go to the toilet), her breasts and her bottom. The complainant also referred to the applicant requiring her to touch him on the nipples and his ‘doodle’.
In relation to the third occasion, the complainant said that the applicant had touched her on her ‘private spots’, which she later referred to as her ‘boobs’, ‘bum’ and ‘the other place’.
Having undertaken the assessment required, we are not persuaded that the jury must have had a doubt or that it was not open to the jury to convict on all of the charges. The jury had the real advantage of seeing and hearing the witnesses give their evidence and that vantage point cannot be replicated in this Court. In our view, on the ultimate question, taking proper account of any imperfections in the complainant’s evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the charged acts.[198]
[198]See Alec (a pseudonym) v The Queen [2023] VSCA 208, [89] (Priest, Walker and Taylor JJA).
Ground 5: Judge’s comment
As already foreshadowed, we agree with Priest JA that this ground should be upheld. We wish to add the following in relation to the first of the two impugned comments by the judge.
Although we have rejected ground 1, it is important to emphasise that the jury’s assessment of the complainant’s evidence was central to the outcome of the trial. There were a number of bare affirmative answers to questions put to the complainant in cross-examination that may have led to the conclusion that the complainant’s account was a product of both memory and suggestion. The prosecution did not re-examine on many of those questions, nor did it in its final address to the jury invite the jury to conclude that the complainant was overborne or giving affirmative but essentially unresponsive answers. Yet the judge’s comment suggested to the jury that this was an available pathway in their assessment of her evidence.
Although it was open to the jury to give such weight to the answers as they considered appropriate, and our view is that the answers did not stand in the way of accepting the complainant’s account of the charged acts, it was not appropriate for the judge to make a comment which may well have been taken as a criticism of the cross-examination and an affirmation of the complainant’s evidence. It may be accepted that the observation of the judge was prefaced by the disclaimer that it was a comment and, earlier in his charge, the judge told the jury that they were free to reject any comments that he might make, but taken as a whole it is not easy to separate comment from direction.
We reject the respondent’s submission that the context in which the comment was made would have led the jury to understand the judge’s reference to the ‘cross-examination’ in which ‘there seemed to be a lot of leading questions’ to relate not to defence counsel’s cross-examination of the complainant during the special hearing, but to defence counsel’s cross-examination of the complainant’s mother and the questioning of the complainant by her mother that led to the disclosure of the alleged offending. The respondent points to the judge’s reference after the comment to ‘bearing in mind what’s been said about the mother’ and to the fact that the s 44N direction was sought by the prosecutor.
In so far as the respondent contends that the judge was referring to defence counsel’s cross-examination of the complainant’s mother, there is no suggestion of any concern having been raised at trial about unfairness arising from leading questions in the course of her mother’s cross-examination. To the extent that the respondent argues that the judge was referring to the questioning of the complainant by her mother, the natural understanding of the term ‘cross-examination’ is questioning of a witness by a lawyer in a court setting. We are not persuaded that the jury would have given the term a different meaning.
In either case, the fact that it was the prosecutor who sought the s 44N direction was not known by the jury, and therefore could not have affected their understanding of what was being conveyed by the direction. And the judge’s reference to ‘what’s been said about the mother’, while somewhat oblique, did not necessitate the interpretation of ‘the cross-examination’ for which the respondent contends. We are reinforced in this view by the discussion in which defence counsel took exception to this part of the charge. That exception was taken on the basis that it was unfair for the judge to have suggested that there was ‘something inappropriate about the cross-examination’ in circumstances where an intermediary, prosecutor and judge were all present during the questioning.
In the circumstances, we are persuaded that this comment constituted an irregularity and, although we have rejected ground 1, a verdict of guilty was not inevitable and ground 5 should be upheld.
Conclusion
We joined in orders allowing this appeal solely on the basis of ground 5. In our opinion, this was not an appropriate case for the Court to order an acquittal. Whilst the sentence imposed had been substantially served, the question as to whether there should be a re-trial involves a number of considerations which are for the Director of Public Prosecutions to weigh. Much could be said for the view that a re-trial in these circumstances might not be justified, but ultimately that is a matter for the Director and not this Court. We ordered a re-trial.

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[2024] VSCA 183

26 August 2024