R v NZ

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v NZ [2005] NSWCCA 278

FILE NUMBER(S):
2005/814

HEARING DATE(S): 20/06/2005

JUDGMENT DATE: 17/08/2005

PARTIES:
Regina v NZ

JUDGMENT OF: Spigelman CJ Wood CJ at CL Hunt AJA Howie J Johnson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0450

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

COUNSEL:
D. Frearson SC with V. Lydiard - Crown
A. Haesler SC - Appellant

SOLICITORS:
S. Kavanagh - Crown
Nicola Velcic & Associates - Appellant

CATCHWORDS:
Criminal Law - Verdicts - whether verdicts of co-accused inconsistent - whether reasonable basis upon which the jury could distinguish the Crown case against each of the co-accused - Evidence - sexual offences - child complainant - evidence in chief of juvenile Crown witnesses given by videotape - videotapes given to jury for replaying in jury room during deliberations - no warning to jury against giving videotaped evidence disproportionate weight - jury asked for and received complainant's cross-examination - whether fundamental procedural irregularity - Evidence (Children) Act 1997 - Rule of comity - applicability of rule of comity to issues of practice and procedure - applicability of rule of comity between jurisdictions with and without Uniform Evidence Act.

LEGISLATION CITED:
Crimes Act 1900 - ss 61J, 66C
Children (Criminal Proceedings) Act 1987 (NSW) - s 19
Evidence (Children) Act 1997 - ss 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 17, 25, 30, Parts 3, 4, 5
Evidence Act 1995 (NSW) - ss 165A, 165B
Jury Act 1977 (NSW) - ss 55A, 55C
Criminal Justice Act 1988 (UK) - s 32A(2)
Evidence Act 1908 (NZ) - ss 23D, 23E
Evidence Act 1977 (Qld) - ss 93A, 99
Evidence Act 1958 (Vic) - s 37B
Crimes (Criminal Trials) Act 1999 (Vic) - s 19
Criminal Appeal Rules - Rule 4
Evidence Act 1906 (WA) - s 1061(1)(b)
Criminal Procedure Act 1986 - ss 285, 306B

DECISION:
By majority: appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/814 CCAP
SPIGELMAN CJ
WOOD CJ at CL
HUNT AJA
HOWIE J
JOHNSON J
WEDNESDAY 17 AUGUST 2005

REGINA v NZ

HEADNOTE

The accused and a co-accused, both juveniles, were each charged with offences against s 61J of the Crimes Act and in the alternative offences against s 66C of the Crimes Act. All of the charges related to the same complainant who was also a juvenile at the time of the incident giving rise to the charges.

During the trial the evidence in chief of the complainant and several other Crown witnesses was given substantially by way of videotaped interviews with police officers. Transcripts of the videotapes were given to the jury and remained with them. Further examination in chief and cross-examination was conducted by way of video-link between the courtroom and a remote location in which the witness was present. The videotapes were given to the jury without objection along with the other exhibits when they retired to consider their verdict.

The jury found the appellant guilty of the s 61J offence and found his co-accused not guilty of the s 61J offence but convicted him of the s 66C offence.

The accused appealed. The first two grounds of appeal concerned the consistency of the verdicts given by the jury in respect of the accused and co-accused. The second two grounds concerned the use of the videotaped interviews of the Crown witnesses.

HELD

Consistency of verdicts

(Per curiam)

(1) The principles that are to be applied in resolving a ground of appeal asserting that verdicts in respect of a single accused are inconsistent apply equally when a question arises as to whether verdicts given by a jury in respect of more than one accused are inconsistent. [42]

Osland v The Queen (1988) 197 CLR 316; Jones v the Queen (1997) 191 CLR 439; R v Markuleski (2001) 52 NSWLR 82; and MFA v The Queen (2002) 213 CLR 606, considered.

(2) There was a reasonable basis upon which the jury could distinguish the Crown case against the appellant from that of his co-offender. [69]

Use of videotaped evidence

(Per Howie and Johnson JJ, with whom Wood CJ at CL and Hunt AJA agreed.)

(3) The weight which the Court will attract to the decisions of intermediate appellate in other Australian jurisdictions may be reduced where it is not the proper construction of legislation that is under consideration, but rather issues of practice and procedure involving the operation of the relevant statutory provisions in their local context. [162]

Camden Park Estate Pty Limited v O'Toole (1969) 72 SR(NSW) 188; Fernando v Commissioner of Police (1995) 36 NSWLR 567; R v Young (1999) 46 NSWLR 681; S v Boulton [2005] FCA 821, considered.

(4) A discretion to withhold an exhibit from the jury room exists at common law where there is a risk that the exhibit will be given undue influence over viva voce evidence. ([184]-[202]).

R v Evans [1998] SASRC 6798; R v Pleich (1980) 55CCC (2d) 13; R v Toten (1993) 83 CCC (3d) 5; R v Patterson (2003) 174 CCC (3d) 193; R v RWN (2004) 181 CCC (3d) 470, followed.

(Per Howie and Johnson JJ, with whom Wood CJ at CL and Hunt AJA agreed)

(5) A breach of any rule of practice or procedure in relation to the use of videotape evidence of complainants in sexual assault cases does not inevitably amount to an irregularity going to the root of the trial resulting in a miscarriage of justice. ([173]-[175], [210]-[212]).

R v Madigan [2005] NSWCCA 170; R v Domican (No 3) (1990) 46 A Crim R 428; R v Lansdell (NSWCCA, unreported, 22 May 1995, BC9504624); R v Skaf (2004) 60 NSWLR 86, considered.

(6) The request by the jury for the replaying of the videotape should be dealt with by the judge in the exercise of discretion bearing in mind the need for fairness and balance in addressing the request. However, as a general rule, the preferred procedure to be followed where the evidence in chief of a witness has been given by the playing of a videotape is:

(a) The videotape evidence of a Crown witness should not become an exhibit and, therefore, should not be sent with the exhibits to the jury on retirement;
(b) Any transcript given to the jury under s 15A should be recovered from the jury after evidence of the witness has been completed;
(c) It is for the discretion of the trial judge how a jury request to be reminded of the evidence in chief of the witness should be addressed;
(d) It would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed;
(e) If the tape is to be replayed or the transcript of the tape provided to the jury, the judge should caution the jury about their approach to that evidence when the tape is being replayed to them or the transcript of the tape returned to them in terms to the effect that “because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case”;
(f) The judge should consider whether the jury should be reminded of any other evidence, for example the cross-examination of the witness at the time that the tape is replayed or sent to the jury room, if that step is considered to be appropriate ([210]).

R v Rawlings [1995] 1 All ER 580; R v Welstead [1996] 1 Cr App R 59; R v O [1996] 3 NZLR 295; R v H (1999) 2 Qd R 283; R v C [2000] 2 Qd R 54; R v NRC [1999] 3 VR 537; R v BAH (2002) 5 VR 517; R v Lewis (2002) 137 A Crim R 85; R v Lyne (2003) 140 A Crim R 522; R v Davis (2003) 6 VR 538; R v MAG [2005] VSCA 47; R v Davies [2005] VSCA 90, distinguished.

R v Lowe (1997) 98 A Crim R 300, considered.

(Per Spigelman CJ, dissenting)

(7) As a general rule, videotaped evidence should not go to the jury room where there can be no effective supervision of its use, and accordingly, any replay should occur in open court. In the case of evidence of a complainant in a sexual assault case the general rule should be strictly enforced. In the present case, a miscarriage of justice arose ([12]-[13]).

R v H (1999) 2 Qd R 283; R v BAH (2002) 5 VR 517; R v MAG [2005] VSCA 47, followed.

**********

IN THE COURT OF
CRIMINAL APPEAL

2005/814 CCAP
SPIGELMAN CJ
WOOD CJ at CL
HUNT AJA
HOWIE J
JOHNSON J
WEDNESDAY 17 AUGUST 2005

REGINA v NZ

Judgment

SPIGELMAN CJ: The facts, issues, statutory provisions and relevant case law are set out in the joint judgment of Howie and Johnson JJ. I agree with their Honours’ reasoning and conclusion on Grounds 1 and 2. With respect to Grounds 3 and 4, I have come to a different view.
Rule 4 of the Criminal Appeal Rules applies as the videotape evidence under the Evidence (Children) Act 1997 was admitted without objection, was available to the jury in the jury room and no direction with respect to the use of that evidence was sought at the trial. The Appellant must satisfy the Court that it is appropriate to grant leave under r 4 to rely on these grounds.
In circumstances such as the present, where there has been no error of law, the Appellant bears the onus of establishing that a miscarriage of justice has occurred. (See R v Papakosmas (1999) 196 CLR 297 at 319; R v Button & Griffen (2002) 129 A Crim R 342 at [30]-[35] per Heydon JA (note that this passage is not reproduced in the report of a case at 54 NSWLR 455); R v ITA (2003) 139 A Crim R 340 at [92]-[98] per Ipp JA with whom Buddin and Shaw JJ agreed; R v Burt (2003) 140 A Crim R 555 at [86]-[91] per Wood CJ at CL with whom Greg James and Howie JJ agreed.)
The principle of a fair trial is a fundamental principle of the common law. Although there are views to the contrary, the position in Australia is that the common law recognises that a right to a fair trial operates not only in favour of the accused but also in favour of the community represented by the Crown. (See Jago v District Court (NSW) (1989) 168 CLR 23 at 49-50; DPP (Naru) v Fowler (1984) 154 CLR 627 at 634; McKinney v The Queen (1991) 171 CLR 468 at 488; R v Abusafiah (1991) 24 NSWLR 531 at 536; R v Fuller (1994) 34 NSWLR 233 at 240; Spigelman “The Truth Can Cost Too Much: The Principle of a Fair Trial” (2004) 78 ALJ 29 at 44-46; Hunt “The Right to a Fair Trial: A Different Perspective?” (1999) 11 Judicial Officers Bulletin 17.)
The Appellant must satisfy the Court that trial counsel did not take a decision to allow the matter to proceed in the manner now complained of and that the failure to take the point did not reflect the fact that the matter now sought to be relied upon was not of sufficient significance in the issues raised in the trial.
In this regard the Appellant relies on an affidavit from the solicitor who instructed at the trial and, after objection was taken to a hearsay affidavit by that solicitor reporting what had been said to him by trial counsel, on an affidavit filed after the oral submissions by trial counsel. The substance of the latter affidavit is set out in the joint judgment of Howie and Johnson JJ. In addition to that affidavit, the evidence of the solicitor at the trial was to similar effect when he said:
“I did not raise the matter of the tender of the video with Counsel during the trial because I assumed that by the tender of the video any playing of the video would be done in court and in the presence of the Jury, Judge, Defence Counsel and the Crown.
I am now aware that facilities were available at Parramatta District Court for the playing of a video by the jury in the jury room at the time of NZs trial.”
Leave was reserved to the Crown to cross-examine on both those affidavits (see T at 10 L30). The Crown did not seek to do so. In the absence of any cross-examination it is not appropriate for this Court to proceed on the basis of its own knowledge of the general availability of equipment in jury rooms. The solicitor and counsel for the Appellant gave evidence, that was not cross-examined upon, as to their expectation that if the jury wished to see the complainant’s evidence again it would occur in open court. At the least this is sufficient to overcome the proposition that leave under r 4 should be refused because of a tactical position taken by counsel at the trial. It does not, however, play any substantial role in determining the ultimate issue in this respect, namely has the Appellant discharged his onus of establishing that there was a miscarriage of justice and that, accordingly, leave under r 4 should be granted?
Howie and Johnson JJ set out the relevant extracts from the case law in which a similar issue has arisen in England, New Zealand and Australia. There are, as their Honours observed, variations in the terminology adopted by different judges in those cases. This is to be expected. The application of the principle of a fair trial does not involve a fixed body of rules. What a fair trial requires depends on the circumstances of each case.
It is, however, noticeable that a central theme emerges from the judgments as to the significant possibility of the jury decision-making process being distorted by the jury being able to replay as often as it wishes only part of the evidence in the trial. Secondly, there is also recognition that videotape evidence, which is admitted in substitution for evidence in chief, has a different quality to other videotape evidence that may be admitted as an exhibit. By reason of this latter proposition it is not correct to approach the issue on the basis of developing a general rule applicable to all evidence in electronic form. This case is concerned, and concerned only, with the admission of evidence that constitutes the evidence in chief of important witnesses in the case, most significantly for purposes of the present trial, of the complainant in a sexual assault case.
The authorities give particular emphasis to the possibility that the playing of the evidence in chief in videotape form carries with it the risk that the evidence will be given disproportionate weight. Two matters are emphasised. First, repetition, in a context where other balancing evidence is not or may not be repeated at all or as often. Secondly, the force attending evidence in an audio-visual form when compared with the force of evidence that may only be available in documentary or transcript form. (See eg R v Rawlings [1995] 1 WLR 178 esp at 182H and 183E; R v Welstead [1996] 1 Cr App R 59 at 68F-G; R v O [1996] 3 NZLR 295 at 298-299; R v H [1999] 2 Qd R 283 at [18] and [36]-[40]; R v BAH (2002) 5 VR 517 at [11], [15] and [65]; R v Lewis (2002) 137 A Crim R 85 at [11] and cf [20]; R v Lyne (2003) 140 A Crim R 522 at [20]-[21] and [28]; R v MAG [2005] VSCA 47 at [20]; R v Davies [2005] VSCA 90 at [26]. See also Elliott “Video Tape Evidence: The Risk of Over-Persuasion” [1998] Crim LR 159; Corns “Videotaped Evidence in Victoria” (2004) 28 Crim LJ 43.)
The principle of a fair trial requires the Court to adapt its procedures and/or to give directions to the jury wherever the circumstances of a particular trial give rise to a material risk that the jury may give disproportionate weight to particular evidence. This is a principle of general application of which the use of videotaped evidence under special statutory provisions for the giving of such evidence is one set of circumstances in which the issue has arisen.
I do not detect any difference in the reasoning in the authorities from England, New Zealand and Australia with respect to a fundamental proposition that, as a general rule, videotape evidence of this character should not go into the jury room where there can be no effective supervision of its use and, accordingly, any replay should occur in open court. (See eg R v H supra at [18]; R v BAH supra at [11], [15] and [65]; R v MAG supra at [70].) This is the same approach as has been adopted with respect to the replay of audiotape evidence (see eg R v Riaz (1991) 94 Cr App R 339 at 344; Bulejcik v The Queen (1996) 185 CLR 375 at 386.)
The fact that the authorities refer to a general rule acknowledges that there will be circumstances in which, either in the exercise of the trial judge’s discretion or by the application of rules applicable to appeals, such as r 4 or the proviso, no miscarriage of justice will occur when the general rule was not observed. However, with respect to evidence of such central significance as that of a complainant in a sexual assault case, in my opinion, the general rule should be strictly enforced.
In their judgment Howie and Johnson JJ give particular weight to two factors which lead their Honours to conclude that no miscarriage of justice occurred in the present case. First, the jury requested and had available to it the transcript of cross-examination. Secondly, on viewing the videotape, their Honours conclude that the mode of delivery of the evidence by the complainant was not such as to have an impact upon the jury’s deliberations, even if replayed more than once. Their Honours also give weight to the fact that the Appellant did not give evidence and accordingly “there could be no imbalance in favour of the Crown case”.
Determining whether or not all of the circumstances of the case are such that a miscarriage of justice occurred is a matter upon which judicial minds will differ. I have come to a different view in this regard.
I have also viewed the videotape and agree with their Honours that the complainant answers the questions in an unemotional manner which is appropriately described as “matter of fact”. I would go further and say that she gives her evidence in a confident manner without prompting and with precise recollection in many respects but with an understandable hesitation about some details. Contrary to the view reached by their Honours, in my opinion, evidence given in this manner is capable of being highly persuasive. Any such effect would be reinforced by repetition. In order for videotape evidence to have disproportionate effect through repetition it is not necessary for the evidence to appeal to the emotions of the viewer. The overall impression of the complainant’s evidence upon me was that it was highly persuasive and that that effect would be accentuated by repetition.
The Crown did not rely only on the videotape for its evidence from the complainant. She was examined in chief and repeated a number of matters of substance that were contained in her answers to questions on the videotape.
It is of course material that the jury called for and had available to it the transcript of the cross-examination, most of which was directed to the complainant’s credit. This does distinguish this case from some of the other cases in which access to videotape evidence has been considered. Nevertheless, the videotape evidence, by its very nature, is of greater force than a transcript. Whatever impression a jury may have been left with at the end of the complainant’s oral evidence as to her credibility could easily have been altered when the whole of the evidence was reviewed in the jury room, where the videotape had to be compared with the transcript.
Finally, I would not give weight to the circumstance that the Appellant did not give evidence in this regard. There may be a relevant imbalance in the sense of disproportionate weight being given to part of the evidence even though the accused has exercised his right not to give evidence. In the present case the possibility of disproportionate weight existed by comparison between the evidence on the videotape on the one hand and the evidence, both evidence in chief and cross-examination, available to the jury only in the form of a transcript, on the other hand.
In my opinion, there was a miscarriage of justice. The appeal should be allowed and a new trial ordered.
WOOD CJ at CL: I have read in draft the judgment of Howie and Johnson JJ. I have also viewed the videotape of the complainant's interview which was admitted as an exhibit in the trial, without objection. In my view it was entirely unremarkable. I am unpersuaded that its presence in the jury room gave rise to any tangible risk, in the context of this case, of it having been a disproportionate weight. I agree with their Honours' reasons for dismissing the appeal. I also agree with their views as to the preferred procedure for those cases where the evidence in chief of a witness has been given by means of a pre recorded videotape.

HUNT AJA: I agree with Howie and Johnson JJ.
HOWIE and JOHNSON JJ: On 18 June 2004, the appellant, a juvenile, and a co-accused, MSS, also a juvenile, were arraigned before Judge Ellis (the Judge) and a jury on an indictment containing four counts, two against each accused. The first count, with which each accused was separately charged, alleged an offence of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act, the circumstance of aggravation being that each of the accused was in company with the other. The second count in each case was in the alternative to the first count and alleged an offence of having sexual intercourse with a child between the age of 10 and 16 years contrary to s 66C of the Crimes Act. The appellant and his co-accused both pleaded not guilty to each count on the indictment. All of the charges related to the same complainant who was aged 14 years and 3 months at the time of the incident giving rise to the charges.
On 18 June 2004 the jury convicted the applicant of the s 61J offence. As a consequence the Judge sentenced him to a term of five years imprisonment with a non-parole period of two years and six months. That sentence was to date from 22 October 2004 and the Judge made an order pursuant to s 19 of the Children (Criminal Proceedings) Act that the appellant serve the sentence in juvenile detention. The appellant is eligible to be considered for release to parole on 21 April 2007.
The jury found MSS not guilty of the s 61J offence but convicted him of the s 66C offence. The Judge sentenced him to imprisonment for 18 months with a non-parole period of 9 months and also ordered that he serve the sentence in juvenile detention. On 22 June 2005 this Court, differently constituted, dismissed an appeal by MSS against sentence.
The appellant appeals against his conviction but there is no challenge to the sentence imposed upon him.
The Crown case
On Wednesday 29 January 2003 the complainant and two of her friends, a male, JK, and a female, AJ, were celebrating the last day of the school holidays. They were planning to stay in a park overnight, together with the complainant’s brother and her boyfriend. They had arranged to meet MSS, who was the boyfriend of the complainant’s best friend, at the park. MSS was aged 14 years and 9 months. It was arranged that MSS would bring some alcohol with him.
MSS arrived at the park at 12.30 am on Thursday 30 January 2003. He had driven to the park in his father’s vehicle notwithstanding that he was not a licensed driver and had not been given permission to take the vehicle. MSS brought three bottles of alcohol, one of which was a bottle of Tequila. MSS then drove the complainant and her two friends to another park, having picked up the complainant’s brother and her boyfriend along the way. At the park the complainant and AJ consumed almost the whole of the bottle of Tequila, leaving them both well intoxicated.
At one point in time the four went with MSS for a drive in his father’s vehicle. During the drive MSS received a call on his mobile phone from the appellant and picked him up in the vehicle. The appellant was then aged 15 years and 4 months and a friend of MSS. The complainant knew of the appellant from school, but not very well. MSS and his five passengers returned to the park where they stayed for a short period. MSS and the appellant then drove the complainant and her two friends to a service station so that she and AJ could use the toilet. They returned to the park briefly, but the complainant indicated that she needed to use the toilet again and so MSS and the appellant drove her back to the service station, leaving JK and AJ at the park and dropping off her brother and boyfriend at another park on the way. It was by this time about 3 am.
After visiting the service station the three left in the vehicle to return to the park where the complaint’s friends were waiting. MSS was driving, the appellant was in the front passenger seat and the complainant was seated in the rear of the vehicle. After a short time, MSS stopped the car and joined the complainant on the back seat while the appellant drove the vehicle around the streets. MSS started to take the complainant’s pants off but she was saying ‘no’ and pushing him away. MSS succeeded in removing her pants and underpants and then digitally penetrated her vagina. It was in respect of this act that MSS was convicted of the s 66C offence.
After a short while, the appellant stopped the vehicle and exchanged places with MSS who continued driving. The complainant was trying to find her clothing that had been thrown on the floor by MSS. The appellant started to flirt with her but she said that she had a boyfriend. Both the appellant and MSS told her not to worry as he would not find out. Despite her protestations and attempts to move away from him, the appellant got on top of the complainant and inserted his penis into her vagina.
A short time later MSS and the appellant again changed places and the appellant continued driving the vehicle. MSS attempted to have intercourse with the complainant but she pushed him way and he desisted. She then found her clothing and asked to be taken back to the park where AJ was waiting. They then returned to the park. The complainant was dishevelled and distressed. AJ asked whether the appellant and MSS had raped her and she said they had.
MSS and the appellant then took the complainant, JK and AJ to the park where they had dropped off her brother and boyfriend. The complainant told them what had happened. It was then about 4 or 5 am. She fell asleep in the park and later walked home with her boyfriend. The mother of a friend of the complainant found out about the allegation and contacted the complainant’s mother. Complaint was made to the police on 30 January 2003 and a video-recorded interview conducted on 3 February 2003.
MSS attended the police station with his father and solicitor on 6 February 2003 and declined to participate in an interview. The appellant attended the police station on 13 February accompanied by his mother and solicitor and also declined to answer police questions.
The defence case
Neither the appellant nor MSS gave evidence at the trial. It was put to the complainant on the appellant’s behalf that he did not have intercourse with her.
In his address to the jury counsel for the appellant, as would be expected, stressed the onus of proof upon the Crown. He reminded the jury that there was no scientific evidence, such as DNA evidence, to support the allegation made by the complainant. He argued that the jury would not be satisfied beyond reasonable doubt on the account given by the complainant because of her unreliability, principally as a result of her consumption of the Tequila supplied by MSS and the possibility that she had consumed cannabis at the park during the evening. Counsel also relied upon inconsistent accounts between the Crown witnesses as to the state of sobriety of the complainant and how the complaint of sexual assault came to the attention of police as pointing to the general unreliability of the witnesses relied upon by the Crown as to the events of the night in question.
Grounds of Appeal
There were four grounds of appeal filed and relied upon by the appellant. They can be dealt with, as they were argued, taking the grounds two at a time. The first and second grounds concern the different verdicts given by the jury in respect of the appellant and MSS. The third and fourth grounds arise from the use of videotapes as part of the evidence in chief of the complainant and each of the other juvenile witnesses who gave evidence in the Crown case.
Grounds 1 and 2 - Unreasonable verdict
The grounds relating to the difference in the jury verdicts as between the appellant and his co-accused are as follows:
1.The conviction for the s 61J offence is unreasonable and cannot be supported by the evidence, as in the particular and relevant circumstances, that verdict is inconsistent with the verdict returned in relation to the co-accused [MSS]. There is no allowable and reasonable basis for the inconsistency.
2.There was a miscarriage of justice, as the jury’s failure to extend the benefit of the doubt afforded the co-accused but not to the appellant is, in the particular and relevant circumstances of this trial, indicative of such compromise or error of approach as to justify the intervention of the court and the quashing of the conviction.
It is more economical and efficient when referring jointly to the respondent and MSS when considering these grounds of appeal to use the term “the accused”.
In the course of oral argument Mr Haesler SC, who appeared for the appellant, conceded that it was open for the Court to substitute a verdict of guilty to the alternate count, the s 66C offence, if the Court upheld the first and second grounds of appeal but rejected the third and fourth grounds. In other words, he did not argue that the evidence of the complainant was so unreliable that it was not open to the jury to accept beyond reasonable doubt that sexual intercourse took place between the appellant and the complainant. Nor did he submit that, without having regard to the verdict in respect of MSS, the jury ought to have had a reasonable doubt on the s 61J offence.
The argument advanced in support of these grounds of appeal was that there was no rational basis upon which the jury could convict the appellant of the s 61J offence and yet acquit MSS of that offence. It was submitted that such a result was unfair to the appellant having regard to the evidence of the complainant that both accused had sexual intercourse with her without her consent and that she made clear her lack of consent to each of them at the time they were independently assaulting her.
In support of these arguments reliance was placed upon well-known authorities of this Court and the High Court concerned with a ground of appeal asserting that there are inconsistent verdicts arising in cases where there was a single accused facing multiple counts arising from the evidence of a single complainant: see for example Jones v The Queen (1997) 191 CLR 439; R v Markuleski (2001) 52 NSWLR 82; and MFA v The Queen (2002) 213 CLR 606. It is unnecessary to examine those authorities in detail to resolve the present grounds of appeal. However, it can be accepted that the principles that are to be applied in resolving a ground of appeal asserting that verdicts in respect of a single accused are inconsistent apply equally when a question arises as to whether verdicts given by a jury in respect of more than one accused are inconsistent.
In Osland v The Queen (1998) 197 CLR 316 the issue was whether a verdict of guilty of murder pronounced by the jury against one accused was inconsistent with the failure of the same jury to find the co-accused guilty of murder in a case where the prosecution was alleging that the two accused acted in concert to murder the deceased. In the course of his judgment McHugh J summarised the principles to be applied when determining whether verdicts were inconsistent as follows (footnotes omitted):
[119] The present case is not one where there were verdicts that were legally or technically inconsistent with each other on the face of the record. Verdicts are inconsistent in that sense where, for example, a person is convicted of being both thief and receiver or of attempting to commit an offence and committing that offence. In earlier times, verdicts in a conspiracy case would be inconsistent in this technical sense if one of two alleged conspirators was found not guilty and the other convicted. But it is now established that there is no necessary inconsistency in a verdict of conviction and one of acquittal in such cases.
[120] When there is no legal or technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts. In such a case, the Court of Criminal Appeal sets aside the conviction because it is unsafe or unsatisfactory
[121] In determining whether the inconsistency points to an unsatisfactory conviction, the appellate court must consider the evidence, the issues, and the directions which the jury were given. In a case where the accused claimed that his conviction should be set aside because of the inconsistency of verdicts, McGarvie J said in [Bacash [1981] VR 923 at 929] “[i]n considering this question it is vital to consider the way in which the trial Judge charged the jury”. An examination of the directions, issues and evidence may confirm that apparently inconsistent verdicts are in fact inconsistent and demonstrate that the conviction is unsafe. Just as frequently, however, examination of the issues, evidence and directions may show that apparently inconsistent verdicts are not inconsistent and that there has been no failure in the reasoning process of the jury.
In the present case there is no technical or legal inconsistency in the different verdicts pronounced by the jury so the question that arises is whether, in light of the evidence, the issues raised and the directions given to the jury, “no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts”. The appellant argues that, if the jury had a reasonable doubt about some element of the s 61J offence insofar as MSS was concerned, they ought reasonably to have held a doubt about that element in the case of the appellant.
The conduct of the trial
It was never suggested to the jury during the course of addresses or in the summing up that the verdicts for the accused had to be the same or that they were expected to be the same. The Crown in its final address told the jury that the alternative count under s 66C was available if they found “each of the accused or one of the accused is not guilty on the principal charge”.
The Judge gave the jury the usual directions as to the way they were to approach a joint trial of the accused. Thus he directed the jury, both at the outset of the trial and during the summing up, that there were two trials taking place. In his remarks at the commencement of the trial the Judge told the jury that there might be different verdicts because of the different strengths of the evidence against each accused. He also told the jury that there was some evidence admissible against one accused but not against the other. During the course of the summing up he identified this evidence as being the admissions allegedly made by MSS to AJ, a friend of the complainant.
The summing up contained the conventional direction to the jury that they were not bound to accept all of what a witness said and they could reject part of the evidence and yet act upon the remainder. Although this direction was not made in reference to the evidence of the complainant in particular, it was clearly left open to the jury to apply that general direction to the complainant. The judge also gave standard directions to the jury as to the evaluation of the honesty and reliability of witnesses and what effect a finding of a lack of honesty or reliability against a witness might have on the use to be made of any part of the evidence of that witness. In respect of the complainant’s evidence the Judge warned the jury that they had to scrutinise her evidence with care before acting upon it to convict either of the accused.
There was, therefore, nothing in the way the trial was conducted that led the jury to believe, or ought to have led them to believe, that they could not bring in different verdicts in respect of each of the two accused based upon the evidence in the trial. Rather the jury had been told that they might, by reason of the differences in the evidence, bring in different verdicts.
The Crown case
In determining these two grounds of appeal it is necessary to consider whether there was any reasonable basis upon which the jury could distinguish the Crown case against the appellant from that against MSS so entitling them to find, on the one hand, that in the case of MSS an element of the charge under s 61J was not proved beyond reasonable doubt and yet could find, on the other hand, that the Crown case against the appellant on that charge had been proved to that standard.
There were, of course, differences between the elements of the two charges that each of the accused faced. The crucial elements of the s 61J offence were: that sexual intercourse took place; that the complainant was not consenting to the intercourse; and that the accused knew she was not consenting. The crucial element of the s 66C count was that sexual intercourse took place. Consent to intercourse and the accused’s knowledge about that fact were irrelevant to proof of the alternative charge.
The alternative count was obviously before the jury in case they had a doubt about the lack of consent to intercourse. But it was also available to the jury if they had a doubt about an accused’s belief that she was not consenting. As will be seen, the case was never left to the jury against both accused simply on the basis that the relevant issues were: (1) whether intercourse took place and (2) if it did, whether the complainant was consenting. In respect of MSS a further issue arose as to whether he might have had a belief that the complainant was consenting, even though MSS’s counsel did not, for obvious tactical reasons, address on this issue.
The verdicts of the jury must be taken to mean that the they were satisfied beyond reasonable doubt that the complainant’s evidence was reliable insofar as her allegation was that both MSS and the appellant had intercourse with her. The Judge, when sentencing MSS, explained his acquittal of the s 61J offence on the basis that, although the complainant was not consenting to his assault upon her, the jury had a doubt that MSS knew she was not consenting. That finding was consistent with the basis upon which the Crown explained the presence of the alternative count to the jury: that they may have been left with a doubt on the s 61J offence of either lack of consent or the accused’s belief that the complainant was not consenting.
The complainant’s evidence
However, Mr Haesler has argued that the different verdicts cannot be explained upon any rational conclusion based upon a difference between the two accused on the issue of belief in consent, as this was not the basis upon which the trial was conducted by the Crown or the defence. He submitted that it was clear that the complainant’s account was that she was not consenting to the actions of either of the accused and made this clear to each of them both by what she said and what she did at the time that each was assaulting her. In respect of MSS the complainant’s evidence was that she had told him “no” more than once when he was assaulting her. She said it in an angry tone and while trying to push him away. She also told him “to get off”. Mr Haesler relied upon the similarity of the accounts given by the complainant as to her reaction to the acts of each of the accused as negativing any suggestion that the jury could have reached different verdicts based upon her conduct alone.
Mr Haesler submitted that, notwithstanding the finding made by the Judge when sentencing MSS, there was no reasonable basis upon which the jury could distinguish between the states of mind of the two accused when they were allegedly assaulting the complainant, particularly as neither accused had given any account of the incident either to the police or in evidence at that trial.
As has already been noted, MSS did not give evidence. On his behalf counsel appearing for him at the trial put to the complainant that MSS did not sexually assault her as she alleged and it was suggested in cross-examination of her that in effect the complainant had made up the allegation because she was indignant that MSS had rebuffed her attentions toward him during the evening. Counsel appearing for MSS stressed to the jury those matters that might undermine the reliability of the complainant including her intoxicated state and its affect upon her perceptions of what was occurring.

One of the particular matters relied upon by counsel for MSS to suggest to the jury that the complainant was unreliable was her account of the removal of her pants and underpants by MSS in the rear of the vehicle. Counsel in his address quoted a passage of the cross-examination of the complainant about this particular issue. He submitted to the jury that they “might find it hard to see how her pants could be removed in the manner described if she were conscious and without her consent”. Of course the removal of the complainant’s clothing was a matter distinctly relevant to the charge against MSS because on the complainant’s account the appellant was driving the vehicle at this time.
Another matter relevant principally to the jury’s consideration of the case against MSS was the complainant’s evidence that MSS had attempted to assault her a second time after the appellant had done so, but that she pushed him away and he desisted from any further attempt. Counsel for MSS used this evidence to criticise the complainant’s account of the act of intercourse allegedly committed upon her by MSS arguing that, if she had been able to prevent MSS’s later assault upon her, there was no reason why she could not have successfully prevented the earlier assault.
Two separate and distinct assaults
The Crown alleged that there was a common purpose involved in the two accused assaulting the complainant and relied upon the complainant’s evidence that they spoke to each other shortly before and during the assaults in a language that she did not understand. However, the case was not conducted on the basis that involved a joint criminal enterprise because each of the assaults upon the complainant was alleged to be a separate act committed independently by each accused without any assistance or encouragement from the other. Neither accused was charged with having aided or abetted the other in his assault upon the complainant. Rather each of the accused was separately charged in the indictment in relation to his alleged act of intercourse.
Therefore, the jury was required to consider the alleged act of intercourse committed by one accused independently from that alleged against the other. The jury were also entitled to view each of the assaults as being committed in different circumstances such that different considerations applied when determining whether the complainant consented to the act of intercourse committed by each of the accused and whether either of the accused might have believed that she was consenting. For example, the arguments of counsel for MSS about the unlikelihood of the removal of her clothing, if she were not consenting, and her ability to resist MSS on the second occasion might have been given significance by the jury, not just on the question of whether intercourse took place, but as to the circumstances in which it took place as being relevant to the issue of consent or the possibility of MSS’s belief in consent.
It may have also been relevant to the jury’s consideration of those two issues that the act of intercourse alleged against MSS occurred before that alleged against the appellant and was of a different and, perhaps, less serious nature. In light of the complainant’s intoxicated state, the jury might have taken into account, notwithstanding her evidence to the contrary, the possibility that the complainant had reacted differently to the assault by MSS than she did to the assault by the appellant. At least the differences in the nature and the circumstances of the two assaults upon her might have raised the possibility in the jury’s mind that there was a sufficient difference in her reactions to the two accused to have given rise to a divergence in the perceptions of MSS and the appellant as to whether she was consenting to their actions.
In this regard it may have been of significance that the relationship between the complainant and MSS was different to that between her and the appellant. MSS was one of the complainant’s friends and a member of the group that was meeting at the park to celebrate, or commiserate, on the end of the holidays. The appellant was an outsider who came late and apparently at the invitation of MSS. The complainant’s evidence was to the effect that she knew of the appellant from school but he was not a friend or associate. The jury may have reasoned that there might have been a different reaction by the complainant to the conduct of MSS than to the conduct of the appellant, particularly having regard to the different nature of the two assaults committed by them, such that they were left with a reasonable doubt as to whether MSS believed she was not consenting.
We are not satisfied that it was irrational or unreasonable for the jury to find that they were satisfied beyond reasonable doubt that the acts of intercourse took place and that the complainant had not consented to them but yet to have a doubt about how she conveyed that lack of consent to each of the accused given the different circumstances surrounding the two assaults and her state of intoxication. Even had the evidence relevant to the issues arising at the trial been the same so far as the appellant and MSS were concerned, we believe that the jury were entitled to find that there was a doubt about whether MSS knew the complainant was not consenting at the time he had intercourse with her but not to have held such a doubt in relation to the appellant. But the evidence upon which the jury could distinguish between the two accused on the issue of their states of mind at the relevant time did not rest only on the differences in the nature and circumstances of their assaults upon the complainant.
Evidence of MSS’s mental state
Although MSS did not give evidence as to his state of mind at the time he was having intercourse with the complainant, there was some evidence on that issue. AJ, the complainant’s friend, gave evidence that on an occasion some time after the incident, MSS either in a telephone conversation or in person said to her that he “fingered her but she didn’t say no”. This evidence was open to criticism because of its vagueness as to when and in what circumstances it was said and because it was not mentioned in the account she gave to police during her videotaped interview.
Mr Haesler submitted that, because the evidence should have been given no weight by the jury and because it was not relied upon by either the Crown or the defence in the way their respective cases were placed before the jury, this Court should disregard it as a possible explanation for the different verdicts. However, the Judge told the jury at the outset of the trial that there was evidence of admissions in the case of one accused and not the other, and that this fact might mean that there could be different verdicts reflecting the different strengths in the cases against the accused. Of course at that time the Judge might have had in mind that the difference in the verdicts would favour the accused who had not made the admissions, but, as it transpired, that was not how the matter was left to the jury in the summing up.
The Crown addressed the jury on this evidence asking them to accept it in proof of the fact that MSS did have sexual intercourse with the complainant. He also asked them not to act on the assertion contained in it that MSS believed that she was consenting. He argued that, if MSS had been prepared to admit to his friends that he had “fingered” the complainant, he would hardly be expected to admit that it occurred without her consent.
In the summing up the trial judge referred to the alleged admission made by MSS to AJ. He said:
If you accept that evidence, it is available to assist the Crown to prove that sexual intercourse took place between [MSS] and the complainant, but only in [MSS’s] case.
However, the Judge immediately went on:
You can use it if you accept it was said favourably for the accused [MSS] on the issue of consent and knowledge, that is the first charge which I will take you to tomorrow, requires that there is sexual intercourse without consent, the young person knowing that the complainant was not consenting. However, obviously the second part – while the first part may be said to be, if you accept it, an admission that there was sexual intercourse, that is there was fingering, the second part goes to whether it was consensual or not and therefore you can use that, if you accept it, favourably to the accused, that is you can use that as something in his favour on the issue of whether there was consent or not and/or whether there was established knowledge of lack of consent.
Now you cannot use it against him other than as going to proof of sexual intercourse having taken place, for instance if you reject the second part of the statement, that is because it is a matter for you, you can accept it was said and then you still have to determine whether or not you accept it to be true, and you can determine whether some of it is true and some of it is not. Theoretically you could accept, for instance, an admission “that I fingered her” as being true, as being supportive of the complainant, but you could then reject the claim that she did not say no.
If you did that that would not assist the Crown case because the Crown still has to prove to you that she said no. Rejecting that denial does not help the Crown case, it is still necessary for you to be satisfied beyond reasonable doubt on the complainant’s evidence that (1) she was not consenting, and, (2) that the accused knew that she was not consenting.
There was no objection to this part of the summing up or any request for further directions as to the use to be made of the statement attributed to MSS in the evidence of AJ. These directions indicate that there was a live issue raised for the jury’s consideration in the case of MSS that he might have believed that she was consenting notwithstanding that his case at trial was that sexual intercourse did not take place.
Had the evidence of the alleged confession to AJ been relied upon only to prove that MSS had admitted having sexual intercourse with the complainant, the jury might well have given it very little weight as part of the Crown case against MSS such was the unsatisfactory nature of the evidence. But insofar as the evidence might have raised an issue as to the belief of MSS about consent and thus was being used, in the words of the Judge, “favourably to the accused”, its unsatisfactory nature and the criticisms that could be made of it had less importance. In our opinion this evidence, when considered against the difference in the nature of the alleged assaults between the two accused and the differing circumstances in which the alleged assaults occurred, provided the jury with a reasonable and rational basis for distinguishing between the appellant and MSS.
We are of the opinion that it was well within the jury’s right as the tribunal of fact to conclude on all the evidence that the elements of the s 61J offence were made out against the appellant beyond reasonable doubt but not to make such a finding in the case of MSS. We are unpersuaded that it was not open to the jury to find that the complainant’s evidence was generally reliable as to the conduct of both accused and her lack of consent to that conduct but to have a doubt about the detail of how she manifested her lack of consent to each of the accused taking into account the differences in the nature and circumstances of the assaults upon her and her highly intoxicated state. The alleged admission by MSS to AJ raised in a real sense the issue of his state of mind where no such issue arose in the evidence against the appellant. The jury were at least entitled to have a doubt whether the Crown had proved belief in lack of consent in the case of MSS on the s 61J charge but not to have such a doubt in the case of the appellant.
It follows that the appellant has not satisfied us that the different verdicts amount to “an affront to logic and common sense” and suggest a compromise: see MFA v The Queen at [86]. Therefore, grounds one and two must fail.
Grounds 3 and 4 - The videotape evidence
Background
The evidence adduced by the Crown from each of the complainant, her brother, her boyfriend, JK and AJ was given substantially by way of the playing of a videotape of an interview between the witness and a police officer. In each case further examination in chief and cross-examination was conducted by questioning of the witness, who was not present in the courtroom but gave the balance of his or her evidence by way of a video-link between the courtroom and a remote location in which the witness was present.
This procedure was conducted pursuant to provisions contained in the Evidence (Children) Act 1997 (the Act) and arose from the fact that each of these witnesses was under the age of 16 years at the time of giving evidence: see s 6 of the Act. Neither defence counsel raised any objection to the manner in which these witnesses gave evidence nor was it suggested in this Court that the procedure undertaken was not in accordance with the Act.
The videotapes of the interviews with the witnesses were tendered as exhibits. There was, with one minor exception, no objection to that course.
A transcript of each of the videotaped interviews was provided to the jury. No objection was taken to that course.
The videotapes were made available with the rest of the exhibits to the jury when they retired. No objection was taken to that course.
Warnings were given to the jury by the Judge as to the way they were to approach the manner in which these witnesses gave evidence in accordance with the warning prescribed in ss 14 and 25 of the Act. No further direction or warning was sought in relation to the use to be made by the jury of the videotapes during the course of their deliberations.
The jury retired to consider its verdict at 10.35 am on 16 June 2004. At midday the jury requested and received copies of the transcript of the complainant’s evidence in chief, cross-examination and re-examination.
The jury returned its verdicts at 3pm on 18 June 2004, having spent about 20 hours in deliberations. The jury had been given an exhortation to reach a unanimous verdict, a “Black direction”, at 4.35 pm on 16 June 2004.
With this background in mind it is necessary to consider the third and fourth grounds of appeal which are:
3.There was a miscarriage of justice as a result of the tender of videotapes containing only a portion of the Crown case against the appellant and there (sic) being allowed to be used by the jury during their deliberations.
4.His Honour erred in failing to warn the jury against the danger of giving disproportionate weight to the tendered videotapes during their deliberations.
The statutory provisions and their application in the trial
The Act commenced operation on 1 August 1999 and applied to proceedings commenced after that date. Section 3 contains a number of definitions of words used in the Act none of which has any particular relevance to the issues raised by the grounds of appeal.
Section 4 provides that definitions and expressions, which are defined in the Evidence Act and are used in the Act, have the same meanings in the Act as they have in the Evidence Act. The section contains some specific examples of words or expressions used commonly in the two Acts. There are only two of the examples provided that should be set out to assist in understanding the provisions of the Act with which the appeal is concerned. They are:
“previous representation” means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
“representation” includes:
(a)an express or implied representation (whether oral or in writing), or
(b)          a representation to be inferred from conduct, or
(c)          a representation not intended by its maker to be communicated to or seen by another person, or
(d)          a representation that for any reason is not communicated.
Section 5 concerns the relationship between the Act and the Evidence Act and is as follows:
The provisions of this Act are in addition to the provisions of the Evidence Act 1995 and do not, unless a contrary intention is shown, affect the operation of that Act.
Section 7 of the Act has the effect of requiring a police officer, who questions a child, whom the officer reasonably believes is under the age of 16 years, in relation to the commission of the offence by the child or any other person, to ensure that any representation, made by the child in the course of the interview and that may be adduced in evidence in a court, is recorded.
Part 3 of the Act is entitled “Giving evidence of children’s out of court representations” and contains the provisions with which these grounds of appeal are principally concerned. Section 8 relevantly states:
(1) This Part applies to evidence of a previous representation of a child made in the course of an interview during which the child is questioned by an investigating official in connection with the investigation of the commission or possible commission of an offence.
Section 9 provides for the way in which a previous representation made by a child during the course of an interview with an investigating police officer is to be given in evidence. The provision concerning the videotaped interviews with the witnesses in the present case is s 9(1)(a). The section relevantly provides:
9 (1) Subject to this Act, a child may give evidence of a previous representation to which this Part applies made by the child in any criminal proceeding wholly or partly:
(a) in the form of a recording of the previous representation made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court, or
(b) orally in the courtroom, or
(c) if the evidence is given in any proceeding to which Part 4 applies—in accordance with alternative arrangements made under section 13.
Note. See section 17.
The reference in s 9(1)(c) to Part 4 is a reference to that Part of the Act concerned with proceedings in respect of, what the Act describes as, “personal violence offences” or apprehended violence proceedings. A “personal violence offence” is defined in s 3 of the Act and includes an offence under Part 3 of the Crimes Act. Therefore, the offences under s 61J and s 66C of the Crimes Act, with which the appellant was charged, were “personal violence offences” for the purposes of the provisions of the Act. The proceedings to which Part 4 relates are set out in s 17 of the Act, and hence the note to s 9 making reference to that section. In proceedings to which Part 4 applies the child has a right to give evidence by closed-circuit television or under alternative arrangements pursuant to s 13. In the present case the witnesses also gave viva voce evidence from a remote location in accordance with Part 4.
Section 10 requires that the wishes of the child be taken into account before the child is called to give evidence other than by means of a recording of the previous representation made to a police officer.
Section 11 provides that a child is entitled to give and may give evidence in chief pursuant to s 9(1)(a), that is by the playing of a recording of the previous representation made to a police officer. The section is relevantly as follows:
11 (1)     A child is entitled to give, and may give, evidence in chief of a previous representation to which this Part applies made by the child wholly or partly in the form of a recording made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court. The child must not be present in, or be visible or audible to the court by closed-circuit television or by means of any similar technology, while it is viewing or hearing the recording.
(1AA)     Despite subsection (1), a child may, if the child so chooses, be present in court while it is viewing or hearing a recording as referred to in that subsection.
(1A)       Subject to section 15, a child who is 16 or more but less than 18 years of age at the time evidence is given is entitled to give, and may give, evidence as referred to in subsection (1) of a recording of a previous representation to which this Part applies made by the child when the child was less than 16 years of age.
Note. Under section 15 a court may order that a child not give evidence in the form of a recording if it is satisfied that it is not in the interests of justice for the evidence to be given by a recording.
(2)          If a child who gives evidence as referred to in subsection (1) is not the accused person in the proceeding, the child must subsequently be available for cross-examination and re-examination:
(a)          orally in the courtroom, or
(b)          if the evidence is given in any proceeding to which Part 4 applies—in accordance with alternative arrangements made under section 13.
(3)………….
In the present case s 11(1A) applied in the case of the complainant’s boyfriend because he, alone of the five witnesses, was over 16 years of age at the time of giving evidence.

Section 12 provides for the admissibility of the evidence of the previous representation notwithstanding the hearsay rule and is as follows:
(1)          The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of evidence of a previous representation to which this Part applies given by a child under this Part, in the form of a recording made by an investigating official.
(2)          Evidence of a previous representation to which this Part applies of a child who is not the accused person in a proceeding that is given by the child in the form of a recording made by an investigating official is not to be admitted unless it is proved that the accused person and his or her lawyer (if any) were given, in accordance with the regulations, a reasonable opportunity to listen to and, in the case of a video recording, view the recording.
(3)          The court may rule as inadmissible the whole or any part of the contents of a recording adduced as evidence under this Part.
Section 12(3) gives the court the power to rule as inadmissible any part of the contents of the recording. In the present case counsel for MSS objected to the videotaped interview with the complainant on the basis that it showed a toy bear sitting near her. Although the Crown had prepared a copy of the tape with the image of the bear obscured by pixilation, the trial judge allowed the original to be shown to the jury. Counsel for the appellant indicated that he had no objection to the original videotape being shown to the jury. There had been some editing of the recording of the complainant’s interview before it was shown to the jury by agreement between the parties.
Section 13 permits alternative arrangements to be made for the giving of evidence in accordance with Part 4 and there is no need to reproduce the section to deal with the grounds of appeal.
Section 14 requires that a warning be given to the jury where evidence is given by the use of a recording and is as follows:
If a child gives evidence of a previous representation wholly or partly in the form of a recording made by an investigating official in accordance with this Part in any proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way.
There is a requirement that a similar warning be given to a jury found in s 25 of the Act in Part 4 in relation to the child giving evidence by closed-circuit television or some similar method, as was used in the present case. Section 25 provides:
25 (1)     In any criminal proceeding in which the evidence of a child is given by means of closed-circuit television facilities or any other similar technology (by virtue of section 18), the judge must:
(a) inform the jury that it is standard procedure for children’s evidence in such cases to be given by those means, and
(b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those facilities or that technology.
(2)          In any criminal proceeding in which the evidence of a child is given by means of closed-circuit television facilities or any other similar technology (by virtue of section 19), the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those facilities or that technology.
(3)          In any criminal proceeding in which arrangements are made for a person to be with a child giving evidence (by virtue of section 20 or 27), the judge must:
(a) inform the jury that it is standard procedure in such cases for children to choose a person to be with them, and
(b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the presence of that person.
(4)          In any criminal proceeding in which alternative arrangements for the giving of evidence by a child are made (by virtue of section 24 or 28), the judge must:
(a) inform the jury that it is standard procedure in such cases for alternative arrangements to be used when children give evidence, and
(b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those alternative arrangements.
In the present case, towards the end of his opening remarks to the jury, the Judge referred to the procedure to be used for taking the evidence of the complainant and the other young witnesses. He told the jury:
The procedure to be adopted in this case for quite a few of the witnesses is a procedure which is available and used regularly for witnesses who are children, that is who are under 18 years of age.
After explaining how the procedure would be adopted he said to the jury:
What you need to understand is that you obviously must watch and listen carefully to the tapes being played, that it is evidence before you. There is a facility by which any documents can in fact – that little machine there – documents can be shown to a witness by placing it on there and it appears on the screen for the witness.
But I need to warn you that you should not draw any inference which is adverse to the accused, either of them, or give any greater or lesser weight to the content of the video simply because the matter has proceeded in this manner. In other words, the fact that you are getting evidence via a video interview of a statement made as the first complaint to authorities which would mean in this case some time about eighteen months ago, and that you then see the complainant as she is now, approximately eighteen months older, but that you see her via a tv screen rather than live, is no different than if she was sitting here in the witness box doing and saying exactly what she will be doing and saying as she sits in the remote location or as she sat during the recorded interview.
So you need to be clear that you can’t draw any adverse inference against the accused. You can’t say well we’ll give this evidence less weight because we’d prefer for her to be here. You can’t say we give it more weight because we think it’s better. The fact is, it is a procedure that has been adopted within the court system to try and facilitate these types of trials and nobody ought to receive greater or lesser weight for their evidence by reason of the new system and no accused ought to be prejudiced by reason of the new procedures being adopted. It is, as I have said now, the normal procedures for courts and you treat it in exactly the same way as you would if the witness was actually here.
There is no suggestion that what his Honour said to the jury did not appropriately warn them as to the way they were to approach the procedure to be adopted for the giving of the evidence of these witnesses.
Section 15 contains a general power for the judge to order that a witness not give evidence by use of a recording and is in the following terms:
15(1) A child must not give evidence by means of a recording made by an investigating official in accordance with this Part if the court orders that such means not be used.
(2) The court may only make such an order if it is satisfied that it is not in the interests of justice for the child’s evidence to be given by a recording.
We can envisage that one instance where this section might be utilized is if the trial judge comes to the view that for some reason the form of the interview is overly prejudicial to the accused.
Section 15A is the final section in Part 3 and concerns the provision to the jury of a transcript of the recording of the previous representation. It is as follows:
15A The court may order that a transcript be supplied to the court or, if there is a jury, to the jury, or both, of all or part of evidence of a previous representation to which this Part applies made by a child that is given in the form of a recording if it appears to the court that a transcript would be likely to aid its or the jury’s comprehension of the evidence.
As has already been noted, the jury were provided with transcripts of the videotaped interviews of each of the witnesses. In respect of the complainant, the playing of the videotape was commenced before the transcript was provided. However, at some stage the tape was stopped and the Judge suggested providing the transcript to the jury before continuing with the playing of the tape. Counsel appearing for the appellant is recorded as saying in answer to that suggestion:
I don’t have any objection with that your Honour, it will make it easier to follow.
When providing the transcript to the jury the Judge gave the usual directions as to the way the jury members were to use the transcript in aid of their understanding of what was being said on the tape recording.
As has already been noted, Part 4 of the Act contains provisions relating to the use of closed-circuit television or similar technology for the taking of evidence from children in specific types of proceedings such as the trial of the appellant. It is unnecessary to reproduce any further provisions of that Part.
Part 5 of the Act contains miscellaneous provisions. The only section that should be specifically noted is s 30 that preserves the general discretion of a court to control proceedings before it. The section states:
Unless a contrary intention is shown, nothing in this Act limits any discretion that a court has with respect to the conduct of a proceeding.
Note. See, for example, Part 3.11 (Discretions to exclude evidence) of the Evidence Act 1995.
Relevant provisions of other Acts
As has already been noted, s 5 of the Act provides that the provisions of the Act are additional to the provisions of the Evidence Act. We have also noted that s 30 of the Act preserves the discretion of the court to conduct the proceedings as it thinks fit.
Further, s 12(3) of the Act provides that the court may rule as inadmissible the whole or any part of the contents of the recording of the child’s previous representation to the police officer. The court would make such a ruling on the basis of the rules for the admissibility of evidence and the discretions to reject otherwise admissible evidence found in the provisions of the Evidence Act.
In addition there are specific provisions of the Evidence Act that may impact upon the practices to be followed in relation to evidence given by children in accordance with the Evidence (Children) Act. For example, although there are provisions in the latter Act that prescribe specific warnings to be given to a jury in relation to the evidence of children adduced pursuant to that Act and that have been set out above, there are also provisions in the Evidence Act that may either require or prohibit warnings being given in respect of that evidence. So ss 165A and 165B of the Evidence Act deal specifically with warnings, directions or information that may, or may not, be given in relation to the evidence of children both generally and with respect to a particular child witness. Section 165 of the Evidence Act would also apply so that a judge may be required to give a warning or information to the jury in relation to the evidence or some aspect of it, if request is made by one of the parties.
In respect of transcripts, the power in s 15A of the Evidence (Children) Act to provide a transcript of the recording to a jury is supplemented by the general power found in s 55C of the Jury Act which is as follows:
A copy of all or any part of the transcript of evidence at a trial or inquest may, at the request of the jury, be supplied to the members of the jury if the judge or coroner considers that it is appropriate and practicable to do so.
We have already noted that in the present case the jury asked to be provided with a transcript of the complainant’s evidence during the course of their deliberations. In accordance with s 55C a transcript was provided of the viva voce evidence given by the complainant in evidence in chief, cross-examination, and re-examination.
The approach in other jurisdictions
In support of these grounds of appeal Mr Haesler relied upon a series of decisions in Victoria, Queensland, New Zealand and England some of which hold that giving a jury unsupervised access to videotaped evidence of a complainant during their deliberations will result in a fundamental irregularity in the conduct of the trial such that a miscarriage of justice would arise.
(a) United Kingdom
The series of cases relied upon by the appellant has its genesis in the decision of the Court of Appeal in R v Rawlings [1995] 1 WLR 178. In delivering the judgment of the Court Lord Taylor of Gosforth CJ set out a number of principles to be applied where a complainant’s evidence in chief is given by way of videotaped evidence (at page 183):
In our judgment, it is a matter for the judge's discretion as to whether the jury's request for the video to be replayed should be granted or refused. He must have in mind the need to guard against unfairness deriving from the replay of only the evidence-in-chief of the complainant. Usually, if the jury simply wish to be reminded of what the witness said, it would be sufficient and most expeditious to remind them from his own note. If, however, the circumstances suggest or the jury indicate that how the words were spoken is of importance to them, the judge may in his discretion allow the video or the relevant part of it to be replayed. It would be prudent where the reason for the request is not stated or obvious for the judge to ask whether the jury wish to be reminded of something said which he may be able to give them from his note or whether they wish to be reminded of how the words were said.
If the judge does allow the video to be replayed, he should comply with the following three requirements. (a) The replay should be in court with judge, counsel and defendant present. (b) The judge should warn the jury that because they are hearing the evidence-in-chief of the complainant repeated a second time well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case. (c) To assist in maintaining a fair balance, he should, after the replay of the video, remind the jury of the cross-examination and re-examination of the complainant from his notes, whether the jury asked him to do so or not.
The relevant provision considered by the Court of Appeal is found extracted in the judgment of the Court. Section 32A(2) of the Criminal Justice Act 1988 relevantly states:
(1)……….
(2) In any such proceedings a video recording of an interview which-(a) is conducted between an adult and a child who is not the accused or one of the accused ("the child witness"); and (b) relates to any matter in issue in the proceedings, may, with the leave of the court, be given in evidence in so far as it is not excluded by the court under subsection (3) below.
(3) Where a video recording is tendered in evidence under this section, the court shall (subject to the exercise of any power of the court to exclude evidence which is otherwise admissible) give leave under subsection (2) above unless ... (c) the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording ought not to be admitted ...
(5) Where a video recording is admitted under this section-(a) the child witness shall be called by the party who tendered it in evidence; (b) that witness shall not be examined in chief on any matter which, in the opinion of the court, has been dealt with in his recorded testimony.
(6) Where a video recording is given in evidence under this section, any statement made by the child witness which is disclosed by the recording shall be treated as if given by that witness in direct oral testimony ... and in estimating the weight, if any, to be attached to such a statement, regard shall be had to all the circumstances from which any inference can reasonably be drawn (as to its accuracy or otherwise).'
R v Rawlings
We have already quoted the relevant part of the judgment in which the Court laid down what were in effect guidelines for the use of videotapes as evidence in chief of a witness. It should be noted that the practice of the trial courts in England, as stated in the judgment, differs from the practice of trial courts in this State. The trial judge in England uses his or her notes to remind the jury of the evidence even if a transcript is available. The Court noted that it was usual for a trial judge to refuse to give the jury a transcript of some part of the evidence because of the undue weight that may be given to the evidence contained in the transcript. In this State the jury is regularly given a transcript of the evidence or parts of the evidence where the jury requests it.
The Court noted the competing arguments made before it on the use of the videotape after the jury had retired. It was argued, on the one hand, that the jury should be able to remind itself of the evidence from the best source available, being the videotape of the witness’s statement. On the other hand, it was argued that replaying the videotape to the jury after retirement could give undue prominence to the evidence in chief at the expense of cross-examination.
The Court considered decisions in respect of the use of tape recordings of interviews between police and the accused by the jury after retirement and which held that if the jury wished to view the tape they should be allowed to do so. The Court referred to R v Riaz (1991) 94 Cr App R 339 in which it was held that, if the jury wished to review the tape of the interview, they should do so in open court. The Court in Rawlings, however, distinguished that situation from that where the tape was the evidence in chief of a witness because of the risk of undue emphasis to the evidence in the videotape over the cross-examination of the witness.
The Court held that the videotape could be made an exhibit but this was not a decisive factor in determining whether the tape should be replayed to the jury after its retirement.
R v Welstead
In R v Welstead [1996] 1 Cr App R 59 the Court was concerned with a ground of appeal asserting that there had been a miscarriage of justice arising from the use made by the jury of the transcripts of the evidence in chief of the complainant given by videotape. The judge had permitted the jury to have the transcripts during the playing of the video but withdrew them from the jury during their retirement. In the judgment of Evans LJ, dismissing the appeal, reference is made to an unreported decision of Coshall where the Court held that the need to maintain a fair balance “exists equally upon the supply to the jury of the transcript of the video tape” as it did with the re-playing of the tape itself. The Court also held in Coshall that, unless counsel consent, it is not generally appropriate for the jury to be supplied with the transcript.
Evan LJ, in delivering the judgment of the Court in Welstead, summarised the position with regard to videotapes and transcripts at 68-69 as follows:
(1) The video-recording of the child’s interview is not itself evidence in the case. The evidence is given orally and by means of the video-recording so far as the evidence-in-chief is concerned. This is clear from section 32A itself.
(2) The video recording enables the jury to observe the child’s demeanour as a witness, just as it can do if the evidence is given orally and in court. The fact that it is a recording enables it to be replayed if the jury so requests, and subject to stringent safeguards this procedure is allowed: Rawlings. This facility cannot be made available to them when the evidence is given in the normal way in court. It is an advantage, therefore, derived from modern technology which is allowed to assist them in their evaluation of the child’s evidence.
(3) Whatever use may be made of the video, after the evidence-in-chief has been given, it is essential to remember that it contains only part of the evidence of the witness in question. The stringent safeguards required by the judgment in Rawlings are designed to maintain a “fair balance” when the jury does see the video again.
(4) If a transcript of the video-recorded interview is available, the jury should not normally be permitted to take it with them when they retire, unless the defence consents: Coshall. This is because there is no effective safeguard in such circumstances against the jury giving that part of the child’s evidence disproportionate weight.
(5) The value to the jury of “tools” which may assist them in following and understanding a witness’ evidence has been recognised and approved by this court in Sekhon (observation logs). A transcript of the video-recording was given to the jury in Coshall for use during the child’s evidence, and this was not the subject of complaint in this court, as distinct from allowing the jury to keep it when they retired.
(6) It was submitted in Rawlings that the reason for refusing to let a jury have transcripts of a witness’s testimony is that “one part of the total corpus of evidence should not be given disproportionate weight and importance” (at p.225 and p.181E). We would add that there is equally no question of providing the jury with a transcript of the whole of the evidence, because of the burden which this would place upon them and the limited value of any such exercise.

Any rule of practice or procedure in relation to the use of the videotape by the jury after it is played as evidence in chief should take into account the varying situations where such evidence may be used. Of course the fact that the videotape contains the evidence of the complainant of the allegations giving rise to the charge brings the issue into sharp focus. But it should not be assumed that imbalance or unfairness would follow from all breaches of any practice that this Court might adopt in relation to the use of videotape evidence as evidence in chief of a witness. For example, in the present case it could not reasonably be suggested that the evidence of each of the witnesses who gave evidence by way of the playing of a videotape had the same significance to the Crown case or that the replaying of any one of the videotapes by the jury after retirement, if it occurred, was likely to have the same impact upon the jury’s deliberation or was likely to give rise to the same degree of unfairness or imbalance in the jury’s consideration of the Crown case as might have resulted from the replaying of the videotape of the complainant’s evidence in chief.
Nor should it be assumed that the replaying of the videotape of the evidence of the complainant would always have the same effect upon the fairness of the trial. It may be the case, for example, that there is an imperfection in the videotaping of the witness’s statement that deprives it of the impact it might otherwise have presented. For those who have experienced the results of police efforts to videotape the interrogations of suspects in this State, it would come as no surprise that the tape may not in fact contain an image of the witness. In one of the videotapes played in the present case, the jury were confronted throughout the whole of the child’s interview with the back of the police officer’s head and the child could not be seen. In such a case there might be little difference between the replaying of the videotape and the replaying of an audiotape of the evidence given by the witness, a not uncommon occurrence in the District Court: cf Bulejcik v The Queen [1996] 185 CLR 375 where the jury asked to hear the recording of the dock statement of the accused replayed for the purposes of voice identification.
For reasons we shall give later, we do not believe that this Court should follow the statements of some members of the Court of Appeal in Victoria to the effect that a breach of any rule of practice or procedure in relation to the use of videotape evidence should inevitably be viewed as an irregularity going to the root of the trial and thereby resulting in a miscarriage of justice. Because we envisage a variety of situations in which such evidence would be placed before a jury and because the significance of that evidence will vary dramatically from case to case, we do not believe that any hard and fast rule should be developed about the result of a breach of the preferred or appropriate procedure with regard to such evidence.
As Eames JA recognised in Lyne at 531 ([33]), quoted above, changes in technology will continue to effect changes to the way criminal trials are conducted and the procedural rules to ensure the fairness of the trial have to keep pace with those changes and be adjusted accordingly. In his article, to which reference has already been made, Mr Corns notes that it was not in the far distant past that the tape recording of police interviews with suspects was viewed as impractical or “radical”. One does not have to be very prescient to envisage a time when all the evidence in a trial is recorded by videotaping. It is now recorded on audiotape in most, if not all, Local and District Courts in this State. Western Australia has gone some way down this path with provisions enabling the whole of a complainant’s evidence including cross-examination to be recorded for later use in a trial: see Evidence Act 1906 (WA) s 106I(1)(b).
(b)Evidence by electronic recording
There are many occasions when evidence is placed before a jury by the use of electrical recording of images and the human voice. The most obvious cases are where there has been a recorded interview of a suspected person by the police and the lawful recording of conversations by the use of a listening device or a telephone interception. But there are also videotaped re-enactments of the offence, video-taped identification parades and views of the scene of a crime often with the use of computer enhancements. These are common features of modern criminal trials.
In our experience the practice in this State is for the tape or computer disc containing the recording that is to be played to the jury to be received as an exhibit in the trial before it is played. Very often the original recording will have been edited as a result either of an agreement between the parties or a ruling made by the trial judge. Almost invariably where the recording is of the human voice, there will be a transcript of the recording available. It is the usual practice for the transcript to be placed before the jury either to aid them in discerning what is said on the tape recording or as an aide memoire to enable the jury to refer to the contents of the recording during their deliberations without the need to replay the tape: see Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; R v Dellapatrona (1993) 31 NSWLR 123. The jury are invariably directed that the evidence in the trial is what they hear on the tape and not what they read in the transcript where there is divergence between the two.
The recording is a “document” for the purposes of the Evidence Act: see the Dictionary to that Act. The transcript is admissible as proof of the contents of the document without any verification of it: s 48(1)(c) and R v Giovannone (2002) 140 A Crim R 1 at [61]. Section 15A of the Evidence (Children) Act empowers the court to order that a transcript be provided to the jury where it would “be likely to aid….the jury’s comprehension of the evidence”. That section would not preclude the judge providing the jury with a transcript of the videotape as an aide memoire under s 48(1)(c) or permitting the jury to retain it for that purpose.
Defence counsel appearing for the appellant at the trial has filed an affidavit suggesting that in his experience tape recordings played to the jury, although admitted as exhibits, are not generally made available to the jury during retirement and, therefore, he did not understand that in the present case the videotapes would be sent to the jury room with the other exhibits. We shall return to this affidavit and its relevance later. However, with respect, our experiences and understanding of the conduct of criminal trials, at least in courthouses in major population centres, are quite to the contrary to that of defence counsel in this trial. We believe it to be the almost invariable practice for the jury to receive the video/audiotape admitted as an exhibit in the jury room when they retire to consider their verdict. It is commonplace in our experience for the jury room to be installed with the means by which the jury are able to replay the tape or disc admitted into evidence during the course of their deliberations. The jury, therefore, has ready access to, for example, the recorded interview between the accused and police or the recordings of intercepted conversations. It also has during its deliberations the transcripts of those recordings.
This also appears to be the experience and understanding of Mr Haesler a very experienced practitioner in criminal trials in this State given the following statement appearing in his written submissions to this Court:
If the usual practice was followed [in this case] the jury had their copy of the transcripts throughout the trial and unrestricted access to the tapes when the Exhibits were sent out at the conclusion of the summing up. Facilities to play tape exhibits are available to all juries in New South Wales.
The Crown did not seek to cavil with the correctness of that statement.
(c) Not tendering the videotape
In the present case the videotapes of the witnesses were admitted into evidence and became exhibits without objection. As we have already indicated, this accords with our experience and understanding of how tape recordings are routinely dealt with in trials in this State. The videotapes were also sent to the jury room with the balance of the exhibits, again, a common, if not universal, practice. A question arises as to whether the judge had power to withhold the videotape from the jury even if he had been asked to do so.
There is a discussion in the judgment of McMurdo P in R v H about the power of a judge at common law to withhold an exhibit from the jury. Reference was made to decisions of the Full Court of the Court of Appeal of South Australia in R v Bradshaw (1978) 18 SASR 83, R v Stephenson (1978) 18 SASR 381, and R v Evans [1998] SASRC 6798. In the first two of those decisions there were different views expressed by the members of each bench as to whether a judge could withhold an exhibit on the basis that it may be given too much weight during the course of deliberations. A majority of the judges believed that such a power existed. The Court in Evans, appears to have been unanimous in holding that such a power did exist. Perry J with whom the other members of the court agreed, stated (footnotes omitted):
The ordinary practice is that all exhibits go into the jury room subject to the limitations of size, security or convenience. No doubt there is a discretion to withhold an exhibit from the jury room if it is of such a nature as to be likely to be given disproportionate weight in their deliberations, although if the jury sends out a message asking to see the excluded exhibit, the judge will no doubt reconsider his decision.
The existence of a residual discretion to withhold an exhibit from the jury room where there is a risk that the exhibit will be given undue emphasis over viva voce evidence has been recognised in Canada: Pattenden Judicial Discretion and Criminal Litigation 2nd Ed, Clarendon Press, 1990 at 212; R v Pleich (1980) 55CCC (2d) 13 at 32-33; R v Toten (1993) 83 CCC (3d) 5 at 48; R v Patterson (2003) 174 CCC (3d) 193 at [51]; R v RWN (2004) 181 CCC (3d) 470 at [14] ff. It should be noted that this last authority in fact deals with a videotape used as evidence of a complainant in a trial for a sexual assault offence.
We would follow Perry J and the Canadian authorities and accept that at common law such a discretion existed. However, s 55A of the Jury Act provides:
Exhibits in jurors’ deliberation room
A judge or coroner may refuse to allow an exhibit at the trial or inquest being left with the jurors after they have retired if satisfied that the exhibit or the safety of the jurors would be put at risk.
On one view this section limits the power that a judge could have exercised at common law prior to the enactment of the section. It could be argued that Parliament, having entered into the field, has defined the extent of the jurisdiction to withhold an exhibit from the jury in a criminal trial or coronial proceedings. However, we doubt that Parliament could have intended to limit the power of a judge to withhold an exhibit from the jury where the interests of justice required otherwise.
There seems to us to be no reason in policy why the legislature would have intended to restrict the power to that specified in the section. Based upon our experience it was the case that prior to the enactment of s 55A a judge would withhold an exhibit from the jury room in cases where there was some danger to the jury or the exhibit from unsupervised access to it. This situation arose most usually in the case of weapons or drugs. We believe that s 55A was enacted simply to codify this practice without seeking to suggest that there was no other occasion when a judge could withhold an exhibit if it were really necessary to do so in order to ensure a fair trial.
We are confirmed in this view when consideration is given to the fact that the provision arose from Recommendation 52 of the NSW Law Reform Commission’s Report 48 (1986) Criminal Procedure: The Jury in a Criminal Trial. The recommendation was in terms similar to the provision found in s 55A. However, the commentary to the recommendation recognised that a discretion may exist “to exclude ‘exhibits of a highly inflammatory and prejudicial nature’”. There is a footnote to the this passage referring to a statement in the judgment of Stephen J in Kozul v The Queen (1980-1981) 147 CLR 221 at 234 acknowledging the possibility of such a power. After referring to the undoubted power of the court to withhold exhibits which would present a danger to the jury or where the integrity of the exhibit might itself be put at risk, the commentary concludes with the following statement:
The discretion of the judge to exclude exhibits on these grounds should be confirmed.
The second reading speech introducing the bill that amended the Jury Act by the inclusion of s 55A, and many other provisions, says nothing specific about the purpose of the provision: see Hansard 24 November 1987, p 17132. However it does contain the general comment that:
The reforms will not make any fundamental changes to the jury system, but are designed to render it more efficient, to enhance the ideals upon which it is based, particularly those of fairness and representativeness.
It is not difficult to envisage situations where a document may become an exhibit in a trial but where the court might want to withhold it from the jury because the contents of the document might be given too much weight because they were set out in a formal document and signed by the person making the statement contained in the document. For example, such a situation may arise where a deposition becomes admissible in evidence under s 285 of the Criminal Procedure Act where one of the preconditions for admissibility under the section is fulfilled, such as that the witness is dead.
There is no provision in the Evidence (Children) Act that specifically permits or requires the admission of the videotape into evidence as an exhibit. The relevant sections state, in effect, that the child may give evidence in the “form of a recording……that is viewed or heard, or both, by the court”. The form of words used in these provisions might be contrasted with that used in respect of the giving of evidence by a complainant at a retrial under the recently enacted s 306B of the Criminal Procedure Act. Section 306B(1) states:
(1) If a person is convicted of a sexual offence and, on an appeal against the conviction, a new trial is ordered, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant.
However, we believe that it was likely to have been a matter of complete indifference to the legislature how the court would deal with the actual videotape once it had been played to the jury. We cannot see why it should not be assumed that Parliament would have left such a matter of detail to be dealt with by the provisions of the Evidence Act, if there were any applicable, or for the court simply to apply those procedures that it thought to be appropriate to the conduct of the trial in the particular case. It can safely be assumed that Parliament would understand that the court regularly had electronically recorded material played to a jury during the course of a criminal trial and had procedures in place for dealing with such a situation.
However that may be, it is unnecessary to resolve the issue of whether the legislature intended that the videotape once played would, or would not, become an exhibit in order to deal with the third and fourth grounds of appeal. Mr Haesler conceded during argument that he did not rely upon the fact that the tapes in the present case were admitted into evidence as having any bearing on the fairness and balance of the trial or the merits of these grounds of appeal. It is what happened after the tapes were admitted into evidence that he viewed as significant. If it is accepted that a judge does have power to withhold an exhibit from the jury to ensure a fair trial to the accused, then it does not matter strictly speaking whether the videotape becomes an exhibit or not.
We believe that there is no basis upon which the tape should become an exhibit because once it is played to the jury as the evidence in chief of the witness it becomes part of the court record just as does a recording of the viva voce evidence of any other witness. That this is so is apparent from the wording of ss 11(1) and 15(2): see [88] and [96] above, which emphasise that the evidence in chief of the witness is given “by a recording”. It is in this regard that the videotaped evidence of a child witness differs from evidence of earlier events established by way of videotaping, such as recorded interviews with police or identification parades, see Davies at [26]. As was made clear in Bulecjik, a recording of the evidence given in court or the transcript of that evidence is not itself evidence, cannot be tendered by either party and cannot be made an exhibit: 386; 400.
We believe, with respect, that there is merit in the views expressed in the cases, to which we have referred, that the videotape should not, as a matter of course, be sent to the jury after it retires to consider its verdict. If the jury wish to have the tape replayed, the judge can determine how best to accommodate the jury’s request depending upon the significance of the tape and the likelihood that unfairness or imbalance in the trial would result by giving the jury access to it. The judgments in Bulecjik make it clear that there can be no objection to refreshing the jury’s recollection from the playing of a tape recording of a witnesses evidence: see 384, 400.
(d) Withholding the videotape from the jury room
We have already indicated that in our view, to preserve the balance and the fairness of the trial, the videotape should not as a matter of course be sent to the jury room after the jury retires to consider its verdict for the reasons given in the decisions in other jurisdictions to which we have referred. We have already acknowledged that there is a difference between this type of evidence and that arising commonly from the use of videotapes. This is largely because the videotape played under s 9(1)(a) is the evidence in chief of a Crown witness and very often will be critical to the Crown case. As the jury will not have available to it a videotape of the cross-examination of the witness or the evidence of defence witnesses, there is a real risk of imbalance arising.
We acknowledge that this may seem an over-cautious approach but we believe that it is better to err in that way when there appears to us to be little significant impediment created to the jury’s deliberations by withholding some part of the evidence from them where it is appropriate to do so. The practice we prefer may require reconsideration as more evidence becomes recorded by videotape and so the difference between the evidence in chief of a child witness called by the Crown and other evidence in the trial becomes less dramatic.
We also accept that in many cases the fact that the videotape evidence of a child witness has been made an exhibit or otherwise sent to the jury during their deliberations may have no impact at all upon the fairness or balance of the trial. As we have already noted, not all evidence contained in a videotape of a child witness will necessarily be such that the jury’s unrestricted or unsupervised access to it could lead to a miscarriage of justice.
Hence we believe that there should be a discretion in the trial judge to determine what to do with the tape if the jury request to have it replayed. The judge might determine that the tape should be replayed in open court or that it might be sent to the jury for them to replay it as they wish. How the judge determines to deal with the jury’s request will depend upon an assessment of the risk that the unsupervised replaying of the tape may give rise to unfairness and imbalance that cannot be overcome by a suitable warning or a reference to the other evidence in the case.

We appreciate that it can be argued that the playing of the tape to the jury as evidence in chief of the child witness should be dealt with in the same way as the evidence in chief of any other witness. As we have pointed out earlier, the purpose of the provision was to preserve the evidence and assist the witness in giving evidence rather than to disturb the balance of the trial by placing the evidence of the child witness in a special category. If the evidence were dealt with on a par with the evidence of every other witness, it would follow that, if the jury wished to be reminded of the evidence, they could simply be assisted by the judge reminding them of the evidence in chief of the witness, together with the cross-examination or they could be provided with a transcript of the whole of the witness’s evidence.
However, it seems to us that such a course would deprive the jury of the best method available of reminding them of not only what was said by the witness in evidence in chief but also how it was said. In our experience it is not unusual for a judge, when supplying a jury with a transcript of the evidence of a witness, to direct them that they should try to recapture how the witness gave evidence rather than simply to rely upon the written text of the evidence set out in the transcript. We are also aware that, because a transcript is not available or because the jury ask for it, the evidence, or certain parts of the evidence, of a witness are often replayed to the jury from the audio recording of the proceedings made by the Court Reporting Service. There may be little difference between replaying the audiotape of the evidence in chief of a witness and replaying the videotape evidence of a child witness.
The means by which a jury has in the past been reminded of evidence has generally been regarded as a matter for the trial judge’s discretion exercised after hearing counsel and with the interests of a fair trial for both the prosecution and the defence in mind: Bulejcik at 386. So, in our view, it should be a matter for the discretion of the judge how he or she accommodates the jury’s wishes to be reminded of the evidence in chief of a witness given by the playing of a videotape. The judge will no doubt take into account the significance of the evidence and its capacity to create unfairness or imbalance in deciding what course to take.
(e) Provision of transcripts
We have already referred to s 15A of the Evidence (Children) Act that permits the judge to order a transcript of the videotape evidence be provided to the jury where it would be likely to aid the jury’s comprehension of the tape. If the transcript is provided for that purpose, it would be expected that the jury would use the transcript when the tape is first being played. In such a case we believe that the transcript should then be withdrawn from the jury. If the jury wishes later to have the transcript of the tape as an aide memoire the judge should determine how best to satisfy the jury’s request.
In the normal case of a witness giving all evidence viva voce and where a request is made by the jury to be reminded of the evidence in chief of the witness, the judge has two options. The judge can use his or her notes or the transcript to refresh the jury of the salient aspects of the evidence or the judge could provide the jury with the transcript. Often the judge might ask the jury if they wished to be reminded of the whole of the evidence or only part of it. We would expect that normally a judge would not comply with a request to be reminded of part of the evidence of a witness simply by furnishing the jury with the transcript of that part of the evidence of the witness without requiring that the jury should also have the transcript of the cross examination or at least reminding the jury of the cross-examination of the witness: R v Lowe (1997) 98 A Crim R 300 at 309. This would be done in order to maintain balance and fairness so that the jury should not pay regard to the evidence in chief without being reminded of the attack made upon the reliability of the evidence by the defence. What further the judge did to remind the jury of the defence case would be a matter for the judge’s discretion.
However, we do not believe that the failure of a judge to furnish the jury with the transcript of the cross-examination or to remind them in any detail of the cross-examination would necessarily result in a miscarriage of justice: Lowe at 309-310. We respectfully agree with the view expressed by the Court in R v H that, while it is not necessary to take such a course in every case where the jury ask to be reminded of the evidence in chief of a witness, it might be wise to do so. But, as we have been at pains to point out, each case depends upon its own facts and the response of the judge is best left as a matter of discretion.
We believe that no different approach should be adopted in relation to the evidence in chief given by the playing of a videotape. If the jury wants to be reminded of the evidence the judge could, instead of replaying the tape, offer them assistance either by summarising the whole of the evidence including all or part of the cross-examination or by providing the jury with the whole or part of the transcript of the evidence of that witness. What is done depends upon the nature of the jury’s request and how that might be addressed with balance and fairness. One would expect the same approach to be adopted if the request were made in respect of the evidence of a defence witness, including the accused.
Although s 55C of the Jury Act empowers the trial judge to supply a transcript of the evidence or part of the evidence where the jury requests it, the judge would be entitled to refuse the request unless the jury received the transcript of some other part of the evidence: Lowe, above. The judge would no doubt direct the jury that they should consider the whole of the transcript being supplied and not just that part in respect of which the request was made. The judge would act upon the basis that the jury would comply with that direction. We understand that this is how such requests are routinely dealt with in trials in this State.
(f) Warnings
We believe that the judge should give a warning to the jury as to the caution with which they are to approach the replaying of the videotape of the evidence in chief of a witness in the manner suggested by McMurdo P in R v H. The general warning is to the effect that:
because they are hearing the evidence in chief of the [witness] repeated for a second time and well after all the evidence, they should guard against giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case.
Of course it does not matter what words the judge uses to express that warning.
Again the failure to give such a warning may or may not result in a miscarriage of justice. Much may depend upon the significance of the evidence in the case and what other warnings have been given to the jury about the evidence of the witness whether there is other evidence corroborating the witness or otherwise proving the offence and when the request for the replaying of the tape is made. A relevant matter may be whether defence counsel made any request for such a warning.
(g) The preferred procedure
We should by now have made clear our view that this Court should not lay down any rule of practice or procedure to be followed in every case where the evidence in chief of a witness has been given by the playing of a videotape. However, we can summarise our views as to the procedure to be followed generally:
(a) The videotape evidence of a Crown witness should not become an exhibit and, therefore, should not be sent with the exhibits to the jury on retirement;
(b) Any transcript given to the jury under s 15A should be recovered from the jury after evidence of the witness has been completed;
(c) It is for the discretion of the trial judge how a jury request to be reminded of the evidence in chief of the witness should be addressed;
(d) It would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed.
(e) If the tape is to be replayed or the transcript of the tape provided to the jury, the judge should caution the jury about their approach to that evidence when the tape is being replayed to them or the transcript of the tape returned to them in terms to the effect that “because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case”;
(f) The judge should consider whether the jury should be reminded of any other evidence, for example the cross-examination of the witness at the time that the tape is replayed or sent to the jury room, if that step is considered to be appropriate.
But other than expressing those views, we believe that the request by a jury for the replaying of the tape should be dealt with by the judge in the exercise of discretion bearing in mind the need for fairness and balance in addressing that request.
It is, therefore, strictly unnecessary to consider the consequences of any failure to comply with any particular procedure or to give any particular warning or to remind the jury of any particular part of the evidence as a response to the jury’s request to have the tape replayed. We acknowledge that the view has been expressed in Victoria that, at least in relation to the evidence of a complainant, unrestricted access to the tape and an absence of a warning or a reminder of cross-examination would result in a procedural irregularity of such a nature that the proviso could not be applied. Perhaps the strongest statements to that effect are by O’Bryan JA in R v BAH, by Winneke P with whom Batt JA agreed in R v Lewis and Charles JA in R v Lyne. But that was not the universal view of all the judges of the Victorian Court of Appeal. It does not appear to be the view of the Queensland Court of Appeal in R v H, as was noted by Winneke P in R v BAH.
We favour the view that a more flexible approach should be adopted by considering the significance of the evidence in the circumstances of the trial as a whole. This is the approach that is normally adopted where material has found its way into the jury room either by accident or by an incorrect ruling by the trial judge. The most recent example is R v Madigan [2005] NSWCCA 170. In that case a surveillance logbook was wrongly admitted into evidence as an exhibit and went to the jury room on retirement of the jury. The Court applied the proviso notwithstanding the error or the fact that the jury by having the logbook available to them in the jury room might, contrary to the judge’s direction, have looked through it and found material prejudicial to the accused. This is the general way that this Court considers an irregularity occurring in the trial by extraneous material finding its way into the jury room or otherwise coming to the attention of members of the jury: R v Domican (No 3) (1990) 46 A Crim R 428 at 448; R v Lansdell (NSWCCA, unreported, 22 May 1995, BC9504624); R v Skaf (2004) 60 NSWLR 86 at [234] ff.
(h) Was there a miscarriage of justice in the present case
As we have already noted the videotapes in the present case were admitted as exhibits without objection by the appellant’s trial counsel. No objection was made to the jury receiving and retaining the transcript of the videotapes. The tapes were sent to the jury room with the rest of the exhibits. No request was made by counsel for any direction from the trial judge about the use of the videotapes during their deliberations. The absence of objection to the course taken and the absence of any request for restrictions on the jury’s use of the tapes during their deliberations gives rise to an issue whether rule 4 should apply.
It is in that regard that the appellant placed before the Court an affidavit by trial counsel with regard to the failure to object to the tapes. That affidavit contains the following paragraph:
It never occurred to me at the time that the jury might have been in a position to play the videos, so the “tender” I thought was harmless. My experience has always been that juries in the past have had to request equipment to play the things and that if that was the case they would have been played in court if permission was granted. Had that happened, I think I would have resisted such replay, requesting that the transcript of trial including the cross-examination be reread – a somewhat unnecessary process given they had transcripts of the evidence in chief. With the benefit of hindsight the “automatic” provision of transcripts, again following usual practice in regard to E.R.I.S.P.’s, was in error. In fact the main reason these were produced was to alert me to the editing of irrelevant material.
As we have already indicated, counsel’s experience differs markedly from our experiences and understanding of the availability of a device in the jury room to replay tapes tendered in evidence. As we have noted earlier, counsel who appeared before us apparently assumed, as we have done, that jury rooms, particularly at a major court complex such as at Parramatta where the trial took place, would be equipped with the means whereby the jury could replay the tape and that the tapes and transcripts would be sent to the jury room as a matter of course. This makes trial counsel’s understanding of the situation even more curious.
However that may be, as counsel noted the jury were provided with the transcripts of the videotape by consent and retained them during their deliberations also by consent. The fact that they had available to them throughout the hearing the transcripts of the videotapes raises the question of whether there is a real chance that the jury would have replayed the tapes, as it was unnecessary for them to do so in order to be reminded of the evidence in chief of the witnesses. We would not assume that they did. If there was any divergence between the transcript and the videotapes the jury would have presumably noted those when they first heard the tapes played. It seems to us that the case is not so very different from those where a jury has asked for, and been provided with, a transcript of the evidence in chief of the complainant.
We have ourselves viewed the videotape and it contains a quite unremarkable account of the complainant’s allegations. It is about 29 minutes in length. There is a fixed camera positioned perhaps 5 metres from where the complainant is sitting. She remains seated on a lounge through out the interview generally with her arms folded. The police officer asking the questions sits between the complainant and the camera. The complainant is unemotional throughout and gives her account in, what might be described as, a matter of fact manner. Even when giving explicit and intimate details of the alleged assaults upon her, she does so with no apparent change in tone or emotion and certainly without any facial or other gestures that might in any way impact upon a person watching the videotape. We cannot see how the replaying of that tape, even more than once could itself have had the slightest impact upon the jury’s deliberations.
Because the jury had the transcript of the videotape and because the image on the videotape lacks any obvious power to influence the jury in whether they accepted the complainant or not, we do not believe that the irregularity in providing to the jury the videotape of the complainant’s evidence, if there was an irregularity, could have brought about a miscarriage of justice in the circumstances of this particular case. It should be recalled that there was no defence case, in that the appellant did not give, or call, evidence. This will not necessarily be decisive on the question of whether a miscarriage of justice occurred by the procedure adopted with the videotape but it is a relevant matter to be taken into account.
Perhaps most importantly in this case the jury themselves requested that they be provided with a transcript of the cross-examination of the complainant during the course of their deliberations. This suggests to us that, rather than there being a risk that the jury would place too much weight upon the evidence of the complainant because they had been provided with the videotape and the transcript, the jury were considering that material in the light of the attack made upon it by defence counsel and wanted the means to remind themselves of the content of that attack. They were doing precisely what they would have been directed to do had trial counsel thought it appropriate to ask for such a direction. Defence counsel knew they had the transcript of the complainant’s evidence in chief and yet never asked that they be provided with a transcript of the cross-examination or asked for a warning that, in considering the transcript during their deliberations, they should take into account the cross-examination.
Nor did counsel ask the judge to warn the jury not to place too much weight upon the evidence of the complainant simply because they had a copy of it in written form. Whatever counsel thought about the position so far as the videotapes were concerned, it does not excuse his failure to ask for a warning that is commonly given when jurors have statements or depositions with them in the jury room if he really thought that the jury’s access to the transcript might give rise to imbalance or unfairness.
Although rule 4 strictly applies in the present case, we are prepared to deal with the grounds of appeal on the basis that we should set aside the verdicts unless we are persuaded that no miscarriage of justice has occurred by the presence in the jury room of the videotape of the complainant’s interview with police. We are so satisfied. It is impossible in our opinion to conclude that the trial was unbalanced by the presence of that material in the jury room when the jury themselves corrected whatever imbalance there might have been by asking for, and being supplied with, the transcript of the cross-examination of the complainant. As there was no defence case, there could be no imbalance in favour of the Crown case. We take into account in coming to this view that the trial judge gave the appropriate warnings and directions as to the way the jury were to approach the evidence of the complainant in a fair and balanced way that was not, and could not have been, the subject of any complaint.
We are satisfied that in the circumstances of the present case, even if they had not been given unrestricted access to the videotapes, particularly that of the complainant’s evidence, the jury acting reasonably would have inevitably convicted the appellant. We take into account in reaching that opinion that the jury had some difficulty reaching a verdict and were given the benefit of a Black direction. But we do not believe that any difficulty they may have had in finding the offence proved beyond reasonable doubt based upon the complainant’s evidence was overcome by the presence of the videotapes in the jury room or the absence of any warning or direction about the approach they were to take to the tapes during the course of their deliberations.
We would reject the third and fourth grounds of appeal. We would, therefore, dismiss the appeal.

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LAST UPDATED: 23/08/2005

[2005] NSWCCA 278

17 August 2005