R v BAH

Case [2002] VSCA 164 18 October 2002

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 215 of 2001

THE QUEEN
	v.
B.A.H.

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JUDGES:	WINNEKE, P., CALLAWAY, J.A. and O’BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 October 2002
DATE OF JUDGMENT:	18 October 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 164

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CRIMINAL LAW – Conviction – Indecent act with a child under 16 and incest – VATE tape made pursuant to s.37B Evidence Act 1958 admitted in evidence – Fundamental procedural irregularity after jury retired by giving the jury the VATE tape for replaying in the jury room – Trial unfairness – Miscarriage of justice.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G.J. Thomas	Victoria Legal Aid

WINNEKE, P.:

In this matter, I gratefully adopt the summary of evidence set out in the judgment of O’Bryan, A.J.A. which I have had the advantage of reading in draft form. I agree with his Honour’s conclusion as to the appropriate outcome of this application; and, generally speaking, for the reasons which he gives. However, because of the impact which our decision will have upon the procedure to be followed in trials where evidence-in-chief is given pursuant to s.37B of the Evidence Act 1958, I desire to add some comments of my own.

This application (from a jury verdict convicting the applicant of one count of incest and one count of “indecent act”) raises a matter of procedural fairness in the conduct of trials in which a child complainant’s evidence-in-chief is given by way of “V.A.T.E.” tape pursuant to s.37B of the Evidence Act. Such material is pre-recorded (that is, prior to trial) during the course of an interview between the complainant and a police officer who has been “prescribed” for the purpose. The procedure was introduced into the legislation in this State by s.11 of the Crimes (Sexual Offences) Act 1991 (Act. No. 8 of 1991). There appears to be legislation of similar kind in Queensland (see s.93A Evidence Act 1977 (Qld.)); in New Zealand (see s.23D Evidence Act 1908) and in England (see Criminal Justice Act 1988, s.32A – introduced in 1991).

The procedure provided by s.37B represents a significant departure from criminal procedure as recognized 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/audio tape[1]. The section, therefore, has certain safeguards. It gives to the trial judge a discretion to rule the whole or any part of the tape as inadmissible (sub-s.(4)); and is admissible as if it were “the direct testimony of the witness” only if a copy of the transcript has been served on the defendant or his or her legal practitioner at least 14 days before the hearing (sub-s.(3)(a)); if the defendant and his or her legal practitioner were given a reasonable opportunity to listen to and/or view the recording (sub-s.(3)(b));…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v BAH

Details

AGLC: R v BAH [2002] VSCA 164
Case: [2002] VSCA 164
Decision Date: 18 October 2002

CaseChat Overview and Summary

In the matter of the Crown versus BAH, the defendant was convicted of indecent acts with a child under 16 years of age and incest. The matter was heard in the Supreme Court of Victoria. The crux of the case was the admission of a video-assisted transcription evidence (VATE) tape made pursuant to section 37B of the Evidence Act 1958. The defence objected to the use of the VATE tape, arguing it was unreliable and prejudicial. The court was required to determine whether the admission of the VATE tape constituted a fundamental procedural irregularity and whether the trial was rendered unfair or resulted in a miscarriage of justice.

The court examined the principles surrounding the admissibility of VATE tapes and the rights of the accused to a fair trial. It considered whether the procedure followed in the trial met the standards of fairness and justice required by the common law. The court found that the trial judge erred in giving the jury the VATE tape to replay in the jury room after they had retired to deliberate, which constituted a fundamental procedural irregularity. This irregularity led to a trial that was unfair and a miscarriage of justice, as the jury was exposed to the potential prejudicial effect of the VATE tape during their deliberations.

Given the findings of procedural irregularity and miscarriage of justice, the court quashed the conviction and ordered a retrial. The court emphasised the importance of procedural fairness in criminal trials and the need to protect the rights of the accused under the common law. The decision underscores the critical role of the trial judge in ensuring that the procedures followed in the trial are fair and just, and the severe consequences of any procedural missteps that may lead to a miscarriage of justice.

Orders