RTGS v The Queen

[2006] HCATrans 424

[2006] HCATrans 424

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S601 of 2005

B e t w e e n -

RTGS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 AUGUST 2006 AT 12.35 PM

Copyright in the High Court of Australia

MR A.C. HAESLER, SC:   I appear with MS R.W. BURGESS for the applicant, your Honour.  (instructed by Legal Aid Commission of New South Wales)

MR G.E. SMITH, SC:   I appear for the respondent, your Honour.  (instructed by Solicitor for Public Prosecutions (New South Wales))

GUMMOW J:   Yes, Mr Haesler.

MR HAESLER:   Thank you, your Honour.  There is an extension of time sought in relation to the – and we rely on the affidavit that was ‑ ‑ ‑

GUMMOW J:   That is not opposed?

MR SMITH:   Not opposed, your Honour.

GUMMOW J:   You have that extension.

MR HAESLER:   Thank you, your Honour.  Your Honours, I want to deal with the Evidence (Children) Act, but before I do can I make two quick points.  This appeal concerns, in part, the use of new technology and we accept that new technology must not, nor need not, be feared and, in fact, can be embraced.  What we say is that when new technology is embraced and used, the high standards of fairness which are fundamental to our justice system and our criminal justice system should apply.

GUMMOW J:   One has the impression that counsel for the present applicant at the trial was rather hopeful that the jury in looking at this film over and over again might find something in it that favoured his case.

MR HAESLER:   Counsel at the trial was doing the best he could with a bad lot once the tape had been admitted as an exhibit.  The problem for counsel at the trial, we say, was that he was at the time following wrongly a fairly standard practice in New South Wales, and that was to treat this particular and new form of delivering evidence as if it was just another exhibit.  It was a point made by the New South Wales Court of Appeal, Justice Howie and Justice Johnson, in the case of NZ, which is in the bundle before the Court.

GUMMOW J:   Is that the one in which the Chief Justice dissented?

MR HAESLER:   That is the one in which the Chief Justice dissented.  It is at tab 2 in the bundle.  At page 671, paragraph 182 Justices Howie and Johnson, speaking of the similar procedures that arose in NZ, which was argued essentially in parallel with the present matter, said of NZ:

In the present case the videotapes of the witnesses were admitted into evidence and became ‑ ‑ ‑

GUMMOW J:   Just assist us.  What is the relevant section, 9 or 11, of the 1997 statute?

MR HAESLER:   Both 9 and 11.

GUMMOW J:   How does the statute work?

MR HAESLER:   What occurs, your Honour, is that interviews with children are recorded.

GUMMOW J:   I know that.  In terms of the two sections, or three sections, I suppose.

MR HAESLER:   Yes.  The child can give evidence in a number of ways.  This is section 9.  In the form of a previous representation 9(a) is the key part of giving the evidence‑in‑chief.  They can also give evidence orally in the courtroom.  They can also use Part 4 which is what is called alternative arrangements, but for all intents and purposes are CCTV, something which even this Court is familiar.  That having been the case, section 11 entitles the child to give evidence‑in‑chief in the form of that pre‑recorded interview.

GUMMOW J:   What is the exhibit?  It is not a real exhibit, is it?

MR HAESLER:   It is not an exhibit at all.

GUMMOW J:   It is a form of recording that is viewed or heard.  It is the performance which is the evidentiary material.

MR HAESLER:   Yes, it is a performance and so the evidence is, in fact, the oral representations which are contained in the tape.

GUMMOW J:   Yes.  Now, was this point put at any stage in this litigation?

MR HAESLER:   No.  What occurred and what was unfortunately the practice until NZ and RTGS were argued was that this videotape was treated as an exhibit as were, say, police records of interview or videotapes of crimes scenes, every other exhibit.  The focus of counsel at trial’s concern was the potential for imbalance which sometimes arises when transcripts of tapes are sent to the jury room.  Justice Howie in the present case found it quite surprising that counsel had only objected to the transcript.  We say his Honour should not have been quite so surprised because in the decision of NZ, which was handed down shortly earlier, they made the point, himself and Justice Howie, about videotapes of witnesses were admitted into evidence and became exhibits without objection.  As we have already indicated ‑ ‑ ‑

GUMMOW J:   But was this point of construction agitated at all in NZ?

MR HAESLER:   It was agitated in NZ on appeal but, again, what had occurred was that counsel in NZ, counsel in RTGS, counsel in New South Wales – and we must be a bit slow on the uptake because certainly in other jurisdictions almost uniformly the matter had been agitated well before 2004 and resolved well before 2004.  But just if I can take you to what Justice Howie and Justice Johnson said:

this accords with our experience and understanding of how tape recordings are routinely dealt with in the trials of this State.

So they equated the videotape with the tape recording of other forms of evidence rather than looking at this, as we say, appropriately and has now been determined to be the proper practice in New South Wales to accord with the other jurisdictions, that this form of evidence is not just an ordinary exhibit.  The oral representation as seen on the tape is the evidence and it should not be an exhibit.  It is not an exhibit.  It should only go as an exhibit in that rare situation where everyone wants it in and there has been some transparency in the discussion in the courtroom as to why it is going in rather than a simple “no objection” as is the ordinary case with exhibits.

GUMMOW J:   The question is:  is there any special leave point in this particular litigation given the way it has been conducted and given the further fact that the point now seems to be alive and understood in New South Wales?

MR HAESLER:   The point is alive and understood because of what was done by RTGS and NZ.  The special leave points are two, and that is the consequences of the failure to accord what is clearly the correct procedure – more than correct procedure, fair and proper procedures to an applicant.  In particular, it calls for special leave because RTGS was the very person who brought in his appeal this problem to the attention of the profession.  In other words, the principles were established by RTGS and NZ, the two cases running in parallel.  Those principles apply and would prevent the tender of the tape, would ensure that judges give appropriate cautions and warnings, would ensure that balance is kept by making sure transcripts or other reminders of the cross‑examination ‑ ‑ ‑

GUMMOW J:   What is your client’s present custodial position?

MR HAESLER:   My client has been released to parole.  He is subject to parole for a period.  More importantly, he will be subject to the rest of his life to being a registered sex offender and constraints on his liberty will continue forever.  So it is not just a case, “Well, he is out, he can get on with his life”.  He has to register with the police station, he can be subject to further restriction and laws are continually being passed to categorise certain categories of citizen, particularly those convicted of sexual offences, as non‑citizens for certain purposes.  So it has continuing application to him.

So the special leave point here is the consequences of someone bringing the matter to the court’s attention, in particular, the consequences where there has been a considerable procedural irregularity.  In relation to that, all of the jurisdictions, bar New South Wales, we say, have spoken with one voice, to take what was said in BAH, a Victorian decision. 

KIRBY J:   I thought in Queensland that the evidence could go before the jury.

MR HAESLER:   No, there is one Queensland decision R v C where the appeal was dismissed because the judge had failed in that he kept it out of the jury room, he had made a warning, but he had not alerted the jury to the evidence‑in‑chief that was given orally or the cross‑examination ‑ ‑ ‑

KIRBY J:   It went off on another point?

MR HAESLER:   Well, there are three points.  The first point is that it should not go to the jury room, the jury should not have unrestricted access to it.  The second point is there has to be a caution or a warning about giving it disproportionate weight.  The third point is they should be reminded of the cross‑examination.  In R v C in Queensland the judge did not remind them of the cross‑examination, but the Appeal Court, as I understand, said the judge gave a pretty careful analysis of the evidence and that was not enough, in that particular case, to cause it to – and, as Ms Burgess reminds me, there was a clear warning in that case about the disproportionate weight.

So in cases such as this we say the uniform approach really has been to give the person who suffers from the error a retrial.  There is one case of Davis in Victoria where the court said, well, that was a very old case, it was coming on the coattails of the earlier decisions, it was three years out of date, but by that time there were no copies of the exhibits, there were no copies of the tape – I do not think there was even the summing up – so there was not enough for the court to determine the matter.  But that did not qualify the clear statements of principle that we say flowed from the Victorian court in BAH and with, frankly, the English cases characterised by a case called Rawlings and others, the New Zealand cases.

KIRBY J:   But, of course, the contrary argument is that in this day and age it is a rather condescending attitude to jury capacity to weigh evidence that we keep electronic material, to which all of us now are constantly exposed, away from the decision‑maker.

MR HAESLER:   It is not a problem of keeping it away from the decision‑maker.  It is how it is presented.  In this particular case the trial judge said, “Well, you can have this tape of one portion of the evidence and you can play it to your heart’s content”, and yet did not remind them or did not caution them of the question of balance.  There is no problem with the jury having access to new technology – we have to come to grips with that – but there will be consequences while the courts determine how new technology is to be properly analysed in court.  These consequences were, with respect, carefully set out by the Chief Justice in his dissent in NZ.

So, yes, NZ and RTGS both brought this issue to the attention of the courts in New South Wales.  The court in the present case found that the procedures which they now dictate to be applied were not applied to him.  The rule 4 point we say is, with respect, a furphy because the practice, until this matter was drawn to the attention of the courts and the practitioners in the State, including the judges of this State, was to treat this videotape as an ordinary exhibit.  That was wrong.  If counsel had have wished to gain some advantage by the tender of the tape, one would surely have expected some transparency and discussion at that point rather than a simple consent and then an argument about the balance that might, one way or the other, affect the jury.

In answer to your Honour’s point in relation to new technology, well, good, we embrace it, but there has to be balance.  With respect, those are the points we wish to make.  Perhaps if I can just draw one point from Justice Spigelman’s dissent in NZ which we say is of particular importance.  His Honour at paragraph 12 – it is in tab 1 in the bundle – which is at page 631 and 632 of the judgment – his Honour is speaking of NZ which was similar in the sense of the nature of the charges:

The fact that the authorities refer to a general rule –

which is everywhere else except New South Wales –

acknowledges that there will be circumstances in which, either in the exercise of the trial judge’s discretion –

we would say none was really exercised here because the point was not raised –

or by the application of rules applicable to appeals –

and of course ‑ ‑ ‑

KIRBY J:   You did not object to it of course.  Indeed, I think you objected to the transcript going in.

MR HAESLER:   Yes, only.

KIRBY J:   So that is a sort of a differential – successfully, as Justice Gummow has pointed out, the transcript.  So the exercise of the discretion was not really enlivened by the way the matter was conducted.

MR HAESLER:   No.

KIRBY J:   So that is a problem then coming up to this Court, though I do want to ask Mr Smith about whether the net result is that we leave the law in a situation where New South Wales, with Justice Hunt’s opinion prevailing, is contrary to that elsewhere in the nation.

MR HAESLER:   Justice Howie.

KIRBY J:   Justice Howie, was it?

MR HAESLER:   I am sorry, Justice Spigelman was the dissenting judge.

KIRBY J:   Yes, but who were in the majority?  It was Justice Wood and Justice ‑ ‑ ‑

MR HAESLER:   Sorry, in NZ the majority was Justices Wood, Hunt, Howie and Johnson.

KIRBY J:   Yes.

GUMMOW J:   They sat five, did they not?

MR HAESLER:   They sat five.  So the five judges in NZ were – that resolved the question of what the correct procedure was.  RTGS ‑ ‑ ‑

KIRBY J:   The best point you make, it seems to me, is that everywhere else in the nation you now do not get the videotape in normally and if you do get it in, the jury has to be given an extremely strong statement against the risks of disproportionate use.

MR HAESLER:   Disproportionate weight and then there should be some balance in the other material which goes before the jury, reminding of the cross‑examination.  That now is the law in New South Wales.  NZ and RTGS established that as the principle.

GUMMOW J:   But how does it get there at all?

MR HAESLER:   It should not get there at all.

GUMMOW J:   In the jury room at all?

MR HAESLER:   Well, it should not.  The only possible way we say it could go ‑ ‑ ‑

GUMMOW J:   By “it” I mean the tape.

MR HAESLER:   Yes.  The only way it could possibly go is, we say, after some discussion, transparent discussion, to say all of the parties want the jury to have that as an exhibit, and that did not occur in this case.  The real question we say of differentiation now between the States is the consequences of that failure.  We say uniformly the consequences of the failure to accord these procedures has been the right of a retrial.  New South Wales is different.  In this case we were denied that right.  The point made by the Chief Justice was that rule 4 and the proviso can apply, but he then qualified that quite significantly by saying:

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.

It was highlighting – this was in NZ, but the same principles apply here – that without wrongly having the material as an exhibit, without the warnings, without the balance, when it is central to the case in a child sexual assault case ‑ ‑ ‑

KIRBY J:   You seemed to have got a second wind, Mr Haesler.  You were about to sit down and ‑ ‑ ‑

MR HAESLER:   I was, your Honour.  I am also getting ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ flamed into more submissions by ‑ ‑ ‑

MR HAESLER:   Well, your Honour, it is an important point and not just, we say, a principle, but also with regard to the present applicant and, as

Ms Burgess keeps on giving me notes, I am quite happy to talk until the red light, but, no, that is my position.

GUMMOW J:   Thank you, Mr Haesler.  Now, Mr Smith, what is the Australia‑wide conspectus as you understand it?

MR SMITH:   Well, your Honours, we submit it is what is in NZ, but that my friend is overstating the strictness of these earlier decisions.  The case he referred to of Davis (2003) 6 VR 538, which is the last, I think, Victorian decision – and it is in the bundle of cases ‑ ‑ ‑

KIRBY J:   Yes, we have that.  It is No 3.

MR SMITH:   This was a case where an appeal was lodged some years out of time in which the main point was to try and rely on those earlier decisions concerning the admission of tapes.  The point made in this case at 541 by Justice Phillips was that those decisions – and this is at about between 10 and 11, in talking about those earlier decisions ‑ ‑ ‑

GUMMOW J:   It is Justice Winneke, is it not?

KIRBY J:   As Acting Chief Justice.

GUMMOW J:   Yes.

MR SMITH:   Yes.  Well, I am afraid it probably is.  My copy of the Victorian Reports has Phillips up the top.

KIRBY J:   Phillips is at the bottom of the page.

MR SMITH:   He is at the bottom, I am sorry, yes.  Justice Winneke said:

Those decisions are confined to their own facts and make no earth‑shattering changes to the law.  Indeed, they refer to and apply various decisions in other States of Australia, New Zealand and the United Kingdom where the VATE tape procedure is used.

The second point I wish to make from that page is at just above paragraph 10:

On the material before us, we do not know whether defence counsel at trial was happy for the VATE tape to go before the jury or not.  For all we know, he may have been relying upon it to demonstrate that the complainant was a liar.

That is what has happened here.

KIRBY J:   You make a point in this case that there were a lot of statements “I don’t know, I don’t know” and that counsel said, “Well, you can look at it to your heart’s content” and ‑ ‑ ‑

MR SMITH:   That is right.

KIRBY J:   ‑ ‑ ‑ maybe this was a strategic decision and that this case would then go off on that point rather than on the point of principle.

MR SMITH:   Well, that is our primary submission.

KIRBY J:   The other argument is that the net result throughout the nation is that there is a lot of caution about this for the reason that citizens now live in the world of virtual reality and they watch Big Brother and other programs and then they go in and they see a tape.  The risk is that they may, unless the judge gives them a very strong direction, give disproportionate weight to the tape.  That is the risk.

MR SMITH:   His Honour did give warnings about this witness, considerable warnings ‑ ‑ ‑

KIRBY J:   They were long warnings and they were very good warnings in this case and they are not complained about.

MR SMITH:   Perhaps more than was necessary.

KIRBY J:   But the question is, you know, the risk that in the television and video age that citizens just get overwhelmed by virtual reality instead of the evidence in the trial.

MR SMITH:   Well, your Honour, in some ways it might be that the jurors seeing a witness in the witness box and seeing her demeanour, and perhaps if she breaks down and matters like that, are more likely to be affected by that than watching another tape.  Your Honours, the Court of Criminal Appeal watched the tape and they said there was nothing about it from what they could see that made it look as though it would raise emotions.  The impression was it was very flat, like many of these tapes are; just question, answer, question, answer, question, answer. 

The fact that Mr Bellanto objected to the transcript going to the jury and the fact that his Honour allowed that objection, refused to let – this is even at the trial stage while the evidence is being given, not in the jury room, this is at the trial stage – would not allow the jury to have the transcript.  They had to just watch it.  We submit that if there were ‑ ‑ ‑

GUMMOW J:   We do not need to hear you any further, Mr Smith.

MR SMITH:   Thank you.

GUMMOW J:   Yes, Mr Haesler.

MR HAESLER:   Your Honour, just in relation to what Justice Winneke said in Davis, his Honour did not resile from what he had said in the earlier decisions and, in fact, drew attention to, in the passage my friend took you to, there is no “earth‑shattering” decisions because the uniform practice had been to grant retrials.  Davis was the exception.  In regard to the Court of Criminal Appeal looking at the tape, they had the full transcript of the proceedings and, of course, the cautions, something that the jury did not get the benefit of.  Counsel at the trial who then appeared, when talking to the jury about the tape, was, of course, responding to the fact that they had it as an exhibit.  At 110 of the application book there is an extract from what counsel said and he was not stressing the tape.  He said:

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 –

What the jury had, of course, was the comments by the trial judge that they must really look at the videotape very carefully indeed and they can view it to their heart’s content.  That came, of course, after counsel’s addresses.

GUMMOW J:   The issue whether the video recording of the evidence of witnesses, especially complainants in sexual offences, and as provided by legislation such as the Evidence (Children) Act 1977 (NSW), should be provided to the jury for their private viewing when considering their verdict, is potentially an important question.

The risk of the jury giving such evidence disproportionate importance and weight in the absence of a very clear judicial direction is arguably a real one.  The courts and judges throughout the Commonwealth have differed over the resolution of this matter:  see, for example, R v NZ [2005] 63 NSWLR 628, a decision by majority in the New South Wales Court of Criminal Appeal.

However, we do not consider that this case affords a suitable occasion on which to decide the point.  First, trial counsel did not object to the tender of the videotape; secondly, by way of contrast, counsel did object to the tender of the transcript; thirdly, counsel said that the jury should look at the video to their heart’s content, presumably believing that there would be forensic advantage in their doing so; and fourthly, the applicant has served the custodial part of his sentence.

We take into account the seriousness of the conviction of the applicant and its continuing consequences as Mr Haesler, his counsel, has appointed out.  We take into account also his past good character.  However, we consider that the point of principle that we have adverted to above should await another case before it comes before this Court for consideration.  No other point that is put forward warrants the grant of special leave and special leave is refused.

We will now adjourn to reconstitute.

AT 1.02 PM THE MATTER WAS CONCLUDED