R v RTGS

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v RTGS [2005] NSWCCA 293

FILE NUMBER(S):
2005/622

HEARING DATE(S): 07/06/2005

JUDGMENT DATE: 12/09/2005

PARTIES:
Regina v RTGS

JUDGMENT OF: Studdert J James J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1219

LOWER COURT JUDICIAL OFFICER: Knight DCJ

COUNSEL:
D. Frearson SC - Crown
R. Burgess - Appellant

SOLICITORS:
S. Kavanagh - Crown
S.E. O'Connor - Appellant

CATCHWORDS:
Criminal Law - Evidence - complainant's evidence in chief given by playing videotape - tape marked as exhibit - sent to jury on retirement - procedural irregularity - rule 4 applied - no miscarriage of justice - Verdict not unreasonable or against weight of the evidence.

LEGISLATION CITED:
Crimes Act 1900 - s 61J
Evidence (Children) Act 1997 - ss 9(1)(a), 14
Evidence Act 1995 - s 165
Criminal Procedure Rules - rule 4

DECISION:
The appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/622
STUDDERT J
JAMES J
HOWIE J
MONDAY 12 SEPTEMBER 2005

R v RTGS

Judgment

STUDDERT J: My assessment of the video tape evidence is that there was no feature of the complainant’s presentation or the way in which she gave her evidence which added weight to what the complainant said.
I have had the benefit of reading the judgment of Howie J in draft form. I agree with the conclusions which his Honour has reached and I agree with the reasons he has expressed in coming to those conclusions.
This appeal should be dismissed.
JAMES J: I agree with Howie J.
HOWIE J: On 15 March 2004 a jury convicted the appellant of an offence of aggravated sexual intercourse without consent, the circumstances of aggravation alleged being that the complainant was under the authority of the appellant. This is an offence contrary to s 61J of the Crimes Act. As a consequence of his conviction Judge Knight (the Judge) sentenced the appellant to imprisonment for 3 years with a non-parole period of 18 months. The appellant appeals against his conviction but there is no application to seek leave to appeal against sentence.
The Crown alleged that the appellant, who was the complainant’s step-uncle by marriage, digitally penetrated her vagina when he was baby-sitting her in his home. It was the Crown case that the conduct giving rise to the charge occurred sometime between January and May 1999, when the complainant was aged 11, and on the one occasion that the appellant had ever been asked to baby-sit her. The appellant accepted that he had minded the child on only one occasion but he maintained that this occurred in 1997. He denied ever having sexually assaulted the complainant or acting in any improper manner toward her.
The police interviewed the complainant about the allegation on 1 February 2002. The complainant’s account was that, when she was in Year 6, her stepfather took her and her sister to the appellant’s home to be baby-sat. The appellant’s wife went out leaving the complainant and her sister in the care of the appellant. The complainant and her sister had been playing board games but her sister wanted to go outside to play on a trampoline. As they were packing the games away, the appellant asked her if she wanted to play another game. He told her that she would like it and that he had played it with his sisters. When she asked him what it was called, he said he did not remember but that she would make money out of it. He told the complainant that she could try on some of her cousin’s clothes and, after she put on one of the cousin’s dresses, he told her to go into his bedroom.
She sat waiting for him on the bed. The appellant entered the room and lay beside her. He asked the complainant for a hug. When she complied, he put a hand down her underwear and touched her on the inside of her vagina with his fingers. She did not remember which hand he used. She estimated that it went on for 15 minutes. He asked her to take her clothes off but she refused saying she needed to go to the toilet. She went to the toilet and her vagina stung. The appellant then unlocked the back door.
The complainant told police that the incident occurred before August in 1999 because that was when she went to Thailand for six months. Her birthday was in May but she could not remember whether the incident happened before or after her birthday. In examination in chief the complainant said that she went to Thailand in August when she was in Year 6.
The Crown tendered a letter from the school that the complainant first attended in 1994 to the effect that the complainant had left in Year 6 on 20 August 1999.
In cross-examination the complainant said that the incident occurred before the appellant’s child Paige was born on 22 May 1999 but she did not know whether it occurred before or after her birthday. She did not recall the appellant’s wife being pregnant at the time. It was put to the complainant that she had travelled overseas to Thailand on a number of occasions including being out of Australia between 31 March and 8 April 1997. The complainant said that she did not recall the earlier trips but she remembered the trip in 1999 because she went from Thailand to Hong Kong on that occasion.
The complainant’s stepfather gave evidence that the complainant went to Thailand in 1999 when she was in Year 6. He said that he had only taken the complainant to be minded at the appellant’s home once and this occurred in 1999 in about May on a Saturday morning. The complainant was about 11 or 12 years of age. He recalled dropping her and her sister off at about 7 or 8 am and picking them up that afternoon at about 4 or 5 pm. He was cross-examined as to the inconsistency arising from his statement to police when he said that the incident of the baby-sitting occurred when the complainant was 12 or 13.
The appellant’s estranged wife gave evidence that there was only one occasion that she and the appellant looked after the two children and that was in about May 1999. It occurred shortly before she gave birth to a daughter on 22 May that year. The appellant was at home when her brother dropped off the children. She left the house with their daughter for about an hour shortly after the children were brought to the house. She was cross-examined on the fact that she did not tell the police that the incident occurred in May 1999 but only that the complainant was aged “11 or 12” at the time. However, the witness was insistent that at the time the complainant was baby-sat, she was pregnant and this was in May 1999.
Reetha Dhanasar, a social worker with a crisis team in a mental health service, gave evidence as to notes that she had made when interviewing the complainant in November 2001. The notes referred to the complainant’s “long history of shoplifting” and that she had “shop-lifted in the past - since a child”. The complainant had told her that she had shoplifted in a group but had been let off with a warning.
In cross-examination the complainant denied that she had been caught shoplifting but said she had stolen money from either her mother or stepfather but she could not remember which. She did not remember saying to Ms Dhanasar that she had been caught shoplifting. Her stepfather gave evidence that the complainant had taken money on occasions from his moneybox. He was not aware of the complainant being in trouble for shoplifting as a child but on one occasion the police told him that she had been arrested for that activity.
The appellant gave evidence that the baby-sitting of the complainant occurred in October 1997. He was at home and watched television while the children played in the garden or in the house. During the morning his wife went out with their daughter. At some stage the complainant and her sister were in his daughter’s bedroom trying on her clothes and playing with her make-up. The appellant told them to leave the room, as his daughter did not want them interfering with her things. He said his tone of voice was loud and “probably very angry”. The two girls went into the garden and he had little contact with them thereafter. He denied being in his bedroom with the complainant or acting improperly toward her.
He gave evidence that during the morning he noticed his wallet was missing. He thought that the complainant might have taken it because he had heard that she had taken things in the past. He asked her if she had seen it but she denied that she had. He offered her two dollars if she would look for it and thought this might provide her with the opportunity to return it. He spoke to his wife later about his suspicions that the complainant had taken the wallet.
The appellant’s evidence was that he did not find his wallet and shortly after reported the loss of his Medicare card. A letter from the Health Insurance Commission was admitted in evidence to the effect that his card was reported stolen on 30 October 1997. The appellant also reported his driver’s licence as being stolen and there was evidence from the Roads and Traffic Authority (the RTA) that his licence had been replaced on 14 February 1998. The appellant stated that this was the only occasion when his licence had gone missing.
The appellant’s estranged wife agreed that the appellant had lost his wallet at some time but denied that it occurred at the time of the babysitting although she could not remember when it was. She said that the appellant accused the complainant of taking the wallet but he accused other persons as well.
In cross-examination the complainant agreed that there had been an occasion when the appellant’s wallet had gone missing but denied that it was when he baby-sat her. She said that it happened “after what he done to me” and that the appellant’s wife had asked her to help find it.
The appellant relied upon his general good character and called evidence from a number of character witnesses.
There are two grounds of appeal relied upon by the appellant. The first relates to the jury’s access to the videotape of the complainant’s evidence in chief during their deliberations and what his Honour said about the use they were to make of it. The second ground asserts that the verdict of the jury was unreasonable and against the evidence.
The first ground of appeal is as follows:
The trial miscarried as a result of the trial judge:
(a) admitting the audio video tape as an exhibit;
(b)permitting the jury to have unrestricted and unsupervised access to the audio video tape of the complainant’s evidence in chief during their deliberations;
(c)directing the jury that they could watch the audio video tape to their heart’s content;
(d)failing to warn the jury that they should guard against giving the audio video tape disproportionate weight in their consideration of the evidence.
As I have already noted, the substantial part of the complainant’s evidence in chief was given by the playing of a videotape of an interview between the complainant and a police officer during which the complainant detailed her allegation against the appellant. The complainant had reported the matter to police on 1 December 2001 and the video recording was made on 1 February 2002. The complainant was aged 13 years at the time of the interview and 15 when she gave evidence before the jury. Her evidence, other than by the playing of the videotape, was given by the use of a video-link.
An edited version of the videoed interview was played to the jury during the course of the complainant’s evidence and after she had confirmed that what she had told the police during the course of the interview was true. No objection was raised by the very experienced Queen’s Counsel who appeared for the appellant at the trial to either the playing of the videotape or its admission into evidence as an exhibit. Defence counsel did, however, object to the jury being provided with a transcript of the interview on the basis that the jury might give the allegations of the complainant in written form undue weight. The trial judge accepted that submission and declined to allow the jury to have a transcript.
The taking of the complainant’s evidence by way of the playing of the videotaped interview was authorised by s 9(1)(a) of the Evidence (Children) Act 1997 (the Act). The provisions of the Act and other relevant statutory provisions are detailed in the joint judgment in R v NZ [2005] NSWCCA 278. It is unnecessary to set them out in this judgment in order to resolve the present ground of appeal. Apart from the fact that the videotape was sent to the jury room, there is no suggestion that the procedure adopted was not in accordance with the provisions of the Act.
During the course of his introductory remarks to the jury, the Judge informed them that the complainant was going to give evidence by video-link and that part of her evidence would be given by the playing of a videotape. In accordance with s 14 of the Act the Judge then informed the jury of the following matters:
there was nothing unusual in the complainant giving evidence in this way;
the accused had nothing to do with the fact that the evidence of the complainant was being given in this manner and no inference could be drawn against him because of it;
the jury should give the evidence the same weight as it would have been given had the complainant given evidence in the witness box;
the jury should draw no inference adverse to anybody from the fact that there would be a support person and a Sheriff’s officer in the room with the complainant during the course of her evidence.
Without objection from defence counsel, the videotape was sent to the jury room with the other exhibits after the jury retired to consider its verdict. During the course of the summing up the Judge repeated the warnings that he had given to the jury at the commencement of the trial about the fact that the complainant’s evidence was given by video-link and by the playing of the videotape. The judge then told the jury:
“……Now you will have [the complainant’s] evidence in chief on the video tape record of interview with you in the jury room and obviously you can look at it to your heart’s (sic) content and stop it at any particular points. I want to go over in general terms what she said but I emphasise to you that you should look at the video tape record of interview very carefully indeed yourselves.”
After the Judge had reviewed in some detail the contents of the interview between the complainant and the police officer, he said:
“Now I think that is what I want to remind you about from what is in the video tape record of interview but I do emphasise to you as I have said several times that you really must look at the video tape, which is Exhibit A, very carefully indeed.”
After reminding the jury of the cross-examination of the complainant and before moving to other evidence the judge said:
“I emphasise again to you that you must examine her evidence with great care.”
During the course of the summing up the judge gave the jury a Longman direction, by reason of the delay between the alleged offence, May 1999, and the date when the allegation was first put to the appellant, July 2003. That direction included the warning that it was dangerous to convict upon the evidence of the complainant alone “unless after having very carefully examined that evidence you are satisfied as to its honesty and accuracy having regard to the warning that I have just given you”.
No objection was taken to anything said by the trial judge to the jury about the use they were to make of the videotape of the complainant’s interview with the police officer and no further directions or warnings were sought about that matter.
However, defence counsel did seek a warning under s 165 of the Evidence Act that the evidence of the complainant may be unreliable. Counsel sought that warning on the two bases: firstly, that “[the complainant] said her memory gets better with time and that is contrary to human experience” and, secondly, because of “the litany of memory problems that your Honour has given the jury”. The Crown opposed the giving of a warning under the section. Neither of the matters raised by defence counsel justified a warning under s 165 because they were the sort of considerations that a jury would have been able to appreciate fully from their common experience of life unaided by any warning by the trial judge: see R v Stewart (2001) 52 NSWLR 301; R v Fowler (2003) 151 A Crim R 166; R v El-Azzi [2004] NSWCCA 455. However, the judge decided to give a warning as sought by defence counsel.
During the course of his further directions to the jury and immediately before they retired to deliberate, the judge said:
“The second matter that I want to mention is this. I have said to you and I repeat that it is most important for you to examine very carefully indeed the evidence of [the complainant] because that is the crucial Crown evidence in the case. You will have it on the video tape and you have also been reminded of the other evidence that she gave and you need to examine that very carefully. Now the reason for that is that that evidence may be unreliable. That is the reason why you are being asked to examine it very carefully. Why may it be unreliable? Well basically for two reasons. The first reason is that she claimed that her memory got better in time. Now most people’s experience is that it is exactly the opposite, that memories get worse as time goes on or get more unreliable, but she claimed hers got better.
The second one was the matters that I have already alluded to but I will just mention them in passing to you, the fact that she said so many things that she did not recall in the record of interview, so many times where she would give, she would backtrack I think I mentioned to you that she says it occurred after her birthday and then she said it might have been before her birthday, then she said it was when Paige was born and then later she said Paige was not born. At one stage there was some suggestion it was at night and then she said it was not.
Then you have the questions as to her general credibility in relation to saying to Reetha Dhanaser that she had a long history of shoplifting. As I have already pointed out to you she also said that she did not recall shoplifting but she had been told that by her parents and of course her stepfather denies ever saying that and denies also in the most emphatic terms that she had a long history of shoplifting. I have raised with you the question as to whether she is fantasising when she told Reetha Dhanaser. Of course you may come to the conclusion that you are not satisfied that Reetha Dhanaser’s note is accurate. I mean it may be that that is a conclusion that is open to you. It is a matter for you but if you came to the conclusion that her note was accurate then certainly there are some problems with [the complainant] having told her that she had a long history of shoplifting which of course on the other evidence is simply not true.
So for those reasons the evidence may be unreliable and you need to examine it very carefully. Remember I have said to you in another context but it applies here equally as well that it would be dangerous to convict the accused on the evidence of [the complainant] alone unless after having very carefully examined that evidence you are satisfied as to its honesty and its accuracy and having regard to the warning that I have just given you.”
The judge gave the jury another Longman direction in the same terms as that given in the body of the summing up. He also informed the jury that they could be reminded of any part of the evidence from his notes or the evidence could be replayed. With one minor and irrelevant exception, defence counsel made no request for any further warnings or directions.
Similar complaints, as those that have been raised under this ground of appeal, were considered in R v NZ, referred to above. The Court in that case was constituted by a bench of five judges in order to consider the very issue that arises here. I note that the appeal in NZ was argued after the hearing of this appeal. However, following the delivery of the decision in NZ the Court received further submissions from the parties as to the application of that decision to the facts of this case and I have taken those further submissions into account.

Justice Johnson and myself gave the principal judgment of the Court in NZ. Wood CJ at CL and Hunt AJA agreed with the joint judgment. A majority of the Court concluded that the appeal should be dismissed because no miscarriage of justice had arisen on the facts of that case notwithstanding that the jury had been given unrestricted access to the videotapes of the police interviews with the witnesses, including that with the complainant, during the course of their deliberations. The Chief Justice would have allowed the appeal as he was satisfied that a miscarriage of justice had occurred.
The joint judgment in NZ reviews in detail the decisions in other jurisdictions that were relied upon by the appellant in that case and have been relied upon by Ms Burgess, who appears for the appellant, to support this ground of appeal. It is unnecessary for present purposes to review those decisions or the other material considered by the Court in NZ. It is enough to indicate that there is authority in England, New Zealand, Victoria and Queensland to the effect that the jury should not be permitted to have unrestricted access to the videotape of a complainant’s interview with police during the course of their deliberations. This is because the jury might give disproportionate weight to the evidence in chief of the complainant by replaying the videotape in the jury room resulting in an imbalance in the trial in favour of the Crown. However, if the court retained control of the videotape, it could ensure fairness where the jury wanted the tape replayed by cautioning them against giving too much weight to it and by reminding them of the cross-examination of the complainant and any defence evidence.
In the joint judgment in NZ, Johnson J and myself set out a preferred practice in relation to the videotaped evidence in chief of a child witness as follows at [210]:
(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.
Insofar as the videotape of the complainant’s interview with police was made an exhibit and was sent to the jury room during the course of the jury’s deliberations, the conduct of the trial of the appellant did not comply with the preferred procedure. Further, rather than the jury being warned in accordance with (e) above, they were encouraged by the trial judge to replay the tape “to your heart’s content” and were exhorted to look at the tape “very carefully indeed yourselves”.
The decision in NZ makes it clear that, simply because the tape of the complainant’s interview has been sent to the jury room during their deliberations, it does not necessarily follow that there has been such an irregularity in the conduct of the trial that the verdict of the jury must be set aside. The question that arises, where the preferred procedure has not been adopted, is whether there has been a miscarriage of justice. The divergence of opinion between the majority in NZ and the Chief Justice appears to be only on the issue of whether a miscarriage of justice occurred in the particular facts and circumstances of that case.
In NZ the majority did not apply rule 4 of the Criminal Procedure Rules notwithstanding that there was no objection to the tapes becoming exhibits because an affidavit of defence counsel at the trial was received by the Court explaining why no objection was taken. Counsel stated that on the basis of his experience he believed that the tapes would not go into the jury room even though they were marked as exhibits. He understood that, if the jury wanted to see the tapes again, they would have to be replayed in the courtroom.
In the present case there is nothing before the Court to explain why defence counsel did not object to the tapes being sent to the jury. I have already noted that he had considerable experience in criminal trials. Counsel’s failure to object, or even to raise his concerns, about the jury having unrestricted access to the videotape during the course of their deliberations is particularly significant in the present case because he did object to the jury being provided with a transcript of the tapes on the basis that the jury might attribute too much weight to the evidence in chief of the complainant by having it in written form. As I have already indicated, it is the concern that the jury might attribute undue weight to the videotaped evidence in chief of the complainant that has led to the general approach in other jurisdictions and, since the decision in NZ, in this State of withholding the videotape from the jury room.
It is perhaps somewhat surprising that, while defence counsel was alive to the prejudicial effect of the transcript of the taped evidence, he did not apparently hold such a view in relation to the videotape itself. Even if he thought, erroneously as it transpires from the decision in NZ, that the tape had to become an exhibit and even assuming that he believed that accordingly it would be sent to the jury room, counsel said nothing to indicate that he thought the trial might be rendered unfair or unbalanced by the jury replaying the tape as the judge urged them to do. For example, he did not ask the judge to remind the jury to take into account the cross-examination of the complainant or the evidence of the appellant when considering the tape in the way the trial judge suggested they should.
On one view the trial judge’s directions in regard to the use to be made by the jury of the videotape exacerbated the fact that they had unrestricted access to it in the jury room. He effectively encouraged them to replay it and to pay particular regard to it during the course of their deliberations. However, the preferred procedure set out in the passage from NZ quoted above, suggests that the jury should be cautioned about giving the tape disproportionate weight when it is replayed to, or by, them.
However, defence counsel raised no objection to the statements made by the judge as to how the jury were to approach the use of the tape during their deliberations. This was notwithstanding that he asked the trial judge to give a warning under s 165 that the evidence of the complainant might be unreliable. In complying with that request it became clear, if it was not before, that the judge was exhorting the jury to replay the tape because it might indicate to them that she was unreliable. In particular the judge pointed out in the course of giving this warning that one of the reasons why her evidence might be unreliable was:
“…….the fact that she said so many things that she did not recall in the record of interview, so many times where she would give, she would backtrack I think I mentioned to you that she says it occurred after her birthday and then she said it might have been before her birthday, then she said it was when Paige was born and then later she said Paige was not born. At one stage there was some suggestion it was at night and then she said it was not.”
It seems to me that the reason why defence counsel raised no objection to the judge’s invitation to the jury to replay the tape “to their heart’s content” and to “look at the video tape record of interview very carefully indeed yourselves” is because that is what counsel wanted the jury to do. He wanted the jury to be in a position to note her lack of memory for detail and her inconsistency in the taped interview as undermining her reliability.
It should be noted that of course this was not a case where the jury sought to have the tape replayed to them sometime after the summing up concluded and during the course of their deliberations. The directions with regard to the replaying of the tape were given in the context of the summing up as a whole where the cross-examination of the complainant and the evidence in the defence case had been summarised by the trial judge in some detail. Further, the trial judge had reminded the jury of counsel’s addresses and cautioned the jury on two occasions that it might be dangerous to convict on her evidence. No complaint could have been made, nor was made, as to the fairness of the summing up as a whole.
The jury commenced to deliberate at 1 pm and returned with a guilty verdict at 3.45pm. So any replaying of the videotape tape, it being 25 minutes in length, must have occurred within a relatively short period of time after the summing up finished, if at all. It is difficult to believe that the jury would have replayed the tape continuously throughout the whole of the period of their deliberations so it is unlikely in the extreme that they played the tape a number of times.
However, I appreciate that it is the risk that the jury might have replayed the tape, or part of it, repeatedly and in a situation where they did not have the ability to replay the cross-examination or the defence evidence in the same way that gives rise to the possibility of unfairness and imbalance and hence the risk of a miscarriage of justice. I note that in R v BAH (2002) 5 VR 517 the videotape was sent to the jury room when they requested to see it again about 1½ hours after they had retired. It was left with the jury for a period of 2 hours before being recovered by the judge, and it was held that this gave rise to a miscarriage of justice in a case where no warnings were given to the jury about the use to be made of it.
But there is a difference in the approach adopted by the majority in NZ to that adopted by at least some judges in Victoria as to the consequences for the jury’s verdict of the fact that the jury had unsupervised access to the videotape. In NZ the majority, although generally treating the provision of the tape to the jury as an irregularity, considered whether that irregularity resulted in a miscarriage of justice having regard to the particular facts and circumstances of the case. The approach in Victoria appears to be stricter such that the irregularity would, depending upon the views of different judges of the Court of Appeal, result either invariably, or almost invariably, in a miscarriage of justice.
The Court in the present case was invited to watch the videotape and did so during the course of the hearing. The contents of the tape are little different to that described in the joint judgment in NZ and, so far as I could tell, there was little in it by way of the complainant’s demeanour or otherwise that might have impacted upon the jury’s determination of whether to believe her account. There was certainly not the confidence in her answers that the Chief Justice apparently detected in the videotape in NZ. While I accept that minds might differ as to the impact of the taped evidence of the complainant and that a jury might approach it differently to a trained lawyer, the contents of the videotape seem to me to sit comfortably with defence counsel’s apparent lack of concern with the remarks made by the Judge about the use of it by the jury when summing up in the passages I have quoted above. This is because, as I have explained, the exhortation of the judge was aimed at a scrutiny of the contents of what she said in light of defence counsel’s criticisms of it as emphasised by the trial judge both during the body of the summing up and when giving the s 165 warning.
Both parties relied upon counsel’s addresses to indicate whether defence counsel sought to obtain any benefit from the jury having access to the videotape during their deliberations. A significant part of the Crown’s address was directed to inviting the jury to watch the videotape and to ask, “Am I looking at a liar or am I looking at a girl telling the truth?” In particular the Crown invited the jury to detect the “embarrassment on the part of this poor girl” when making her allegation to the police. On a number of occasions he asked the jury to look at the demeanour of the complainant during particular parts of the interview. He concluded “if after listening to that video, after watching that video, after watching that girl you can say to yourself, ‘I am convinced she is telling me the truth’, then you must convict the accused”.
Defence counsel answered the Crown by submitting to the jury that it was not a case of determining whether the complainant was a liar or not because it was too difficult to approach the case by trying to speculate about what was going on in the complainant’s mind. He said:
“Are you expected, members of the jury, to work out for yourselves by looking at a video, by looking at a witness and say to yourselves, “Well yes, she looks impressive. She appears to be clear. That’s good enough for me”? With the greatest respect to the Crown, in our submission that’s not really the way it works, particularly in a case like this.”
In relation to the complainant’s evidence defence counsel submitted, “This is a case of too many don’t remembers”. He pointed out the inconsistencies in her accounts, the evidence of the counsellor, the fact that the complainant maintained her memory got better over time and the delay in complaint. He submitted:
“….You would have to have a reasonable doubt on the evidence, what little there is of it. It’s not simply a case as the Crown invite(s) you to say, “Well I’ve seen [the complainant]. She looks impressive, therefore I’ll accept her”. That’s a very simplistic approach, its an approach fraught with problems, and the only way you can assess her evidence is to put it to the test, and the test against the other evidence, including the evidence of [the appellant] and if you approach it in that light it’s apparent that there are some major, major flaws in her evidence.”
I believe that this is a case where rule 4 should apply. It seems to me that defence counsel did not see any prejudice arising to the appellant from the videotape being with the jury during their deliberations or with the directions given by the Judge about the jury’s approach to the tape in the context of the summing up as a whole. I appreciate that in the present case, unlike NZ, the appellant gave evidence. Also unlike NZ the jury was not provided with a transcript of the cross-examination of the complainant. But also, unlike NZ, the jury verdict came a relatively short period of time after the conclusion of the summing up during which the judge had extensively reminded the jury of the cross-examination of the complainant, the evidence of the appellant and the criticisms made of the complainant’s evidence by defence counsel. I do not believe that in those circumstances and in light of the contents of the further directions given to the jury including the s 165 warning that, even if the jury replayed the tape, it brought about an imbalance or unfairness in the trial giving rise to a miscarriage of justice.
As I shall indicate shortly when dealing with the next ground of appeal, the case had an unusual feature being that to a large extent the complainant’s reliability was determined by a subsidiary issue that became central to the outcome of the jury’s deliberation: were the jury satisfied beyond reasonable doubt that the incident of baby-sitting took place in 1999? The content of the tape had little to do with that issue.
I do not believe that a miscarriage of justice has been shown. I am unpersuaded that the jury’s verdict would have been any different had they not had unrestricted access to the videotape during the course of their deliberations or had the judge given any further warning or direction as to the manner in which they were to approach the contents of the tape when replaying it. The ground of appeal should be rejected.
The second ground of appeal is that the verdict is unreasonable or cannot be supported by the evidence. The test to be applied by this Court in determining such a ground of appeal is well established by decisions of the High Court such as M v The Queen (1994) 181 CLR 487 particularly at 493-4 approved in Jones v The Queen (1997) 191 CLR 439 at 451. The issue is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.
In support of the ground of appeal the appellant points to a number of aspects of the complainant’s evidence in order to lead the Court to a conclusion that the jury ought to have entertained a reasonable doubt about her reliability. I accept that these matters should be considered in combination although it is necessary to consider each separately in order to see what strength each argument has in support of the general proposition that the verdict was unreasonable.
I note that the complainant’s allegation was not corroborated. Insofar as the allegation of sexual assault was concerned, it was a case of word against word, that is the complainant’s evidence had to be considered in the light of the sworn testimony of the appellant.
There was a delay in complaint from about May 1999 to November 2001. The appellant was also disadvantaged by the further delay before the allegation was brought to his notice in July 2003. However, as has already been noted, a major issue that arose was the date of the incident when the appellant looked after the complainant and her sister and the applicant relied upon documentary evidence obtained from the Health Commission and the RTA to support his assertion that it occurred in 1997 when he lost his wallet.
I do not find the delay before complainant in this matter to be exceptional or necessarily inconsistent with the complainant’s allegation given her age, the nature of the relationship with the appellant and the fact that she had a disturbed family life by reason of the divorce between her parents resulting in her mother residing overseas.
Nor does it strike me as particularly significant that there was some later contact between the appellant and the complainant at family social events where her stepfather was present or that the complainant was prepared to pose, apparently quite happily, for a photograph with the appellant. This is a matter that has to be viewed realistically against the dynamics of relationships between young children and adults in extended family situations.
I note that the appellant called positive evidence of good character.
None of these matters are particularly unusual in cases such as the present. They are relevant to an assessment of the complainant’s evidence but not decisive and must be viewed with due consideration of the jury’s ability to evaluate the evidence before them from their common life experiences: R v Williams (1999) 104 A Crim R 260 at [48].
The evidence of the social worker as to her notes of conversations with the complainant about shoplifting was relevant to the general reliability of the complainant on a marginal issue but the suggestion that it indicated that the complainant might have been prone to fantasy was in my opinion far-fetched.

The principal matter relied upon by the appellant is that the complainant was unsure of the date of the commission of the offence and gave inconsistent accounts of the circumstances surrounding the incident giving rise to the charge. For example, she was not sure whether the appellant’s estranged wife was pregnant at the time of the baby-sitting or whether the incident occurred before or after the complainant’s birthday, which was on 26 May. However, she was unshaken in her belief that the incident occurred in Year 6 shortly before she went to Thailand in August 1999. She had been on other trips overseas including one of about a week’s duration in 1997 but she did not recall those trips during her evidence. The 1999 trip appeared to be significant because of its duration, almost 6 months, and because she went to Hong Kong during the trip.
The trial judge told the jury that they could not convict the accused unless they were satisfied beyond reasonable doubt that the incident occurred in May 1999 and not in 1997. That direction was probably unduly favourable to the appellant because it is clear that the appellant and the complainant were speaking of the same event, that is the only time that the appellant ever baby-sat the complainant. It did not matter strictly when that event occurred.
However, this issue became of critical importance to the credibility of both the complainant and the appellant. If the jury concluded beyond reasonable doubt that the baby-sitting incident occurred in 1999, as the Crown witnesses asserted, this was of major significance in the determination of the charge. Of course it did not mean that by deciding that question in favour of the Crown the jury must find the complainant’s allegation to be proved beyond reasonable doubt. But it did mean that they must have found against the appellant on the substantial part of his evidence and this would have had the effect of bolstering the reliability of the complainant on the crucial issue.
In my view it was well open to the jury to find, as they must have done, that the baby-sitting occurred in 1999 despite the documentary evidence indicating the loss of the appellant’s licence and Medicare card at an earlier date. The appellant’s wife gave evidence that at the time of the baby-sitting incident she was pregnant with her child Paige and she was hardly likely to be mistaken about that fact even if she was, as she admitted, not good with dates. She was adamant that the accused’s wallet went missing after that date, so far as she was aware. As she and the appellant were married in 1997, the jury could have reckoned that she would have been aware if the incident of the baby-sitting had occurred in that year, as the defence asserted. The fact that she told the police that the incident occurred when the complainant was 11 or 12 was consistent with her recollection of when the event occurred. The circumstance that she was at the time of giving evidence undergoing a divorce from the appellant does not suggest to me that she would be untruthful in her account of the relevant events.
Similarly the evidence of the complainant’s stepfather was that the baby-sitting occurred in 1999 when the complainant was in Year 6. The fact that he told the police that the complainant was “12 or 13” at the time was more consistent with the fact that the incident took place in 1999 than in 1997 when the complainant would have been 8 or 9.
In my opinion the ground should not be upheld. As I do not believe that either ground is made out, I propose that the appeal be dismissed.

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LAST UPDATED: 12/09/2005

[2005] NSWCCA 293

12 September 2005