YBG v The State of Western Australia
[2019] WASCA 126
•28 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: YBG -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 126
CORAM: MAZZA JA
BEECH JA
PRITCHARD JA
HEARD: 12 JUNE 2019
DELIVERED : 28 AUGUST 2019
FILE NO/S: CACR 200 of 2018
BETWEEN: YBG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : IND 1427 of 2017
Catchwords:
Criminal law and procedure - Allegations of sexual penetration of a child - Interviews of child complainant recorded by video - Recordings played at trial pursuant to s 106HB of the Evidence Act 1906 (WA) - Where jury requested transcript or replaying of video recording - Whether judge's decision to provide transcript caused a miscarriage of justice - Whether inadvertent provision of transcript of the second interview, rather than of the first interview, in response to the judge's request caused a miscarriage of justice - Whether failure of judge to refer to countervailing evidence and considerations caused a miscarriage of justice
Legislation:
Criminal Procedure Act 2004 (WA), s 110
Evidence Act 1906 (WA), s 106HB
Result:
Leave to appeal on grounds 1, 3, 4 and 5 granted
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | S B Watters |
| Respondent | : | J A Scholz |
Solicitors:
| Appellant | : | Chambers Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AB v The Queen [2019] NSWCCA 82
Banks v The State of Western Australia [2018] WASCA 130
Barker v The Queen (1994) 54 FCR 451
Bulejcik v The Queen [1996] HCA 50; (1996) 185 CLR 375
Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180
CF v The Queen [2017] NSWCCA 318
Cooper v The State of Western Australia [2009] WASCA 37
Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Huggins v The State of Western Australia [2018] WASCA 61
Jarrett v The Queen [2014] NSWCCA 140; (2014) 86 NSWLR 623
King v The Queen [2012] HCA 24; (2012) 245 CLR 588
Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689
Mahmood v The State of Western Australia [2009] WASCA 220
MLS v The State of Western Australia [2018] WASCA 56
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v Lowe (1997) 98 A Crim R 300
R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628
R v Taousanis [1999] NSWSC 107; (1999) 146 A Crim R 303
R v Tichowitsch [2006] QCA 569; [2007] 2 Qd R 462
R v Wright [1999] VSCA 145; (1999) 3 VR 355
Rankins v The State of Western Australia [2018] WASCA 138
Sayed v The Queen [2012] WASCA 17; (2012) 220 A Crim R 236
Walsh v The State of Western Australia [2011] WASCA 119
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
MAZZA JA:
I have read in draft the reasons of Beech and Pritchard JJA for dismissing this appeal. I respectfully agree with them, and the orders they propose. I wish to add some comments of my own, specifically as to his Honour's response to the jury's request to have read to them the transcript of the complainant's first interview or, if possible, a reshowing of the recording of that interview and to the inadvertent provision of the transcript of the complainant's second visually‑recorded interview.
When a jury asks to be reminded of the testimony of a witness, that request should be accommodated. Where the request is broad - say, for example, where a jury asks to be reminded about the whole of a witness's lengthy testimony - a trial judge may inquire of the jury whether they wish to be reminded of a particular part or parts of the testimony. However, if the jury confirms that they wish to be reminded of the whole of the witness's testimony, that request should be granted.
A jury's request to be reminded of the evidence of a particular witness must be given due respect. It should not be assumed that such a request means that the jury have, or that there is a risk that the jury have, forgotten or are ignoring other relevant aspects of the evidence. While a judge may take the opportunity to remind the jury of contradictory evidence, it does not automatically follow that a failure to do so gives rise to a miscarriage of justice. As Beech and Pritchard JJA rightly observe, the touchstone will always be the necessity to ensure the fair trial of the accused and, in particular, any perceptible risk of an unbalanced consideration of the competing accounts.[1]
[1] See below at [93].
In this case, the jury's request was quite specific. In effect, the jury requested to be reminded of what the complainant had said in her first visually‑recorded interview. Such a request was hardly surprising, having regard to the importance of what was said in that interview and his Honour's instruction in his summing up that the jury must subject the complainant's testimony to careful scrutiny.[2]
[2] ts 132.
Given:
(a)the brevity of the trial;
(b)the trial judge's clear identification of the issue to be determined by the jury, relevantly, in relation to counts 1, 2 and 3, whether the State could prove, beyond reasonable doubt, that the alleged acts the subject of these counts had occurred; and
(c)the trial judge's clear, comprehensive summing up of the evidence and the parties' cases delivered shortly before the jury retired to consider their verdicts;
it was unnecessary for his Honour to remind the jury once again, soon after his summing up, of the appellant's contradictory testimony or to provide the jury with a transcript of that testimony.
In answer to the jury's request, his Honour decided to provide the jury with a transcript of the complainant's first visually‑recorded interview, rather than read the transcript of that interview aloud. His Honour was empowered by s 110 of the Criminal Procedure Act 2004 (WA) to provide that transcript, and ultimately defence counsel did not object to that course. For the reasons given by Beech and Pritchard JJA, this course, rather than playing the recording of the complainant's first visually‑recorded interview, was well justified and was advantageous to the appellant.[3]
[3] See below at [85] - [87].
If there is any difficulty in the present case, it is that the jury was inadvertently provided with the transcript of the complainant's second visually‑recorded interview when the jury made no request to see it and his Honour did not order its removal when he became aware of the error.
The inadvertent provision of the second interview transcript was made known to both counsel. It is, to my mind, significant to the conclusion that no miscarriage of justice was occasioned by the inadvertent provision of the second transcript that highly experienced and competent defence counsel did not apply to discharge the jury or seek some remedial direction from the trial judge as a result of the error. Indeed, defence counsel expressly stated that he did not want his Honour to do anything about what had occurred.[4]
[4] ts 161.
Of course, it would be improper for trial counsel to not take exception to a perceived irregularity in a trial with the intention, if the verdict was adverse, to raise the matter on appeal. I do not suggest that
this occurred here. To the contrary, it appears, from what defence counsel said, he can be taken to have reached the reasonable view that the inadvertent provision of the second interview transcript was insignificant and did not give rise to a perceptible risk of a miscarriage of justice.
BEECH & PRITCHARD JJA:
Introduction
The appellant appeals against his conviction of three counts of sexually penetrating a child under the age of 16 whom he knew to be his de facto child.
The appellant advances four grounds of appeal. Ground 1 challenges the trial judge's direction concerning evidence given by the complainant's mother said to relate to a change in the complainant's demeanour. The remaining grounds concern the provision, to the jury, of transcript of the complainant's interview(s), in response to a request from them.
For the reasons that follow, in our opinion, the appellant has not made out any ground of appeal, and so the appeal must be dismissed.
The charges
The appellant was tried on an indictment containing four charges. Only counts 1 to 3 are relevant to this appeal.
Those counts alleged that the appellant:
1.On an unknown date between 20 March 2011 and 21 March 2013 at Ballajura, sexually penetrated the complainant, by penetrating her vagina with his finger.
2.On an unknown date between 20 March 2012 and 21 March 2015 at Ballajura, sexually penetrated the complainant by penetrating her vagina with his finger.
3.On the same date and at the same place as count 2, sexually penetrated the complainant, by penetrating her vagina with his penis.
Each count alleged that the appellant knew the complainant to be his de facto child and, as a circumstance of aggravation, that the complainant was a child under the age of 16 years.
Count 4 alleged possession of child exploitation material. The appellant was acquitted of this count, and nothing more need be said about it.
The State case
The State case may be summarised as follows.
The complainant and her mother and brother were Indonesian. From about 2009, the complainant's mother was in a relationship with the appellant and lived with him at his house in Ballajura, Western Australia. In 2010, the complainant and her brother came, from Indonesia, to live at the appellant's house with him and their mother.[5]
[5] ts 36 - 37, 64 - 66, 145.
The appellant began engaging in minor sexual acts with the complainant, such as touching. This developed into touching the complainant's genitalia, and then into penile vaginal penetration.[6]
[6] ts 37; ts of closing addresses 7 - 8.
Count 1 related to an occasion on which the appellant penetrated the complainant's vagina with his finger. Counts 2 and 3 occurred on the same further occasion on which, respectively, digital vaginal penetration, and then penile vaginal penetration occurred, causing pain to the complainant.[7]
[7] ts 37.
Conduct of this kind went on for many years, including on a trip to Indonesia.[8]
[8] ts 35, 37.
The appellant told the complainant not to tell anyone, and she did not do so for a long time.[9]
[9] ts 37; ts of closing address 4 - 5, 6.
The substance of the complainant's evidence-in-chief comprised two pre‑recorded police interviews; one conducted at her school on 24 February 2017 (the first interview) and the other conducted at a police station on 9 March 2017 (the second interview). In the first interview, the complainant described numerous instances in which the appellant played with her vagina, including during the period relevant to count 1. In the second interview, the complainant gave evidence of the conduct the subject of counts 2 and 3, as well as evidence of other sexual conduct on the part of the appellant.[10] In oral evidence, the complainant verified what she had said in the interviews.[11]
[10] ts 27, 36, 137 - 143.
[11] ts 51 - 52, 144.
In opening, the prosecutor told the jury that the most important witness in the trial, they may well think, is the complainant.[12] The prosecutor asked the jury to pay careful attention to the evidence of the complainant as they were likely to only hear it once.[13] The prosecutor went on to ask:[14]
Please don't just listen to what she says both on the discs and on the CCTV, but look at how she says it. Look at her demeanour. Consider, please, her reliability and her accuracy and her honesty.
[12] ts 35 - 36.
[13] ts 36.
[14] ts 36.
The prosecutor told the jury, in opening, that they would also hear evidence from the complainant's mother about the context of the family and how everyone came to be where they were.[15]
[15] ts 35.
The defence case
The defence case was that no sexual activity or inappropriate behaviour occurred between the appellant and the complainant.
Defence counsel put to the complainant in cross‑examination that the appellant never touched her inappropriately, which she denied.[16] The complainant denied counsel's suggestion that she was making up stories against the appellant because she hated him, including as a result of him betraying her confidence to her mother about a 'sexting' incident with a boy.[17] The complainant also denied the suggestion from the appellant's counsel that the complainant's mother had enlisted the complainant to tell lies about the appellant to assist with the financial settlement in their separation.[18]
[16] ts 58.
[17] ts 58.
[18] ts 60 - 61.
The complainant's mother denied the suggestion, by defence counsel, that she had used the complainant to make false allegations against the appellant in order to obtain a better property settlement from him.[19]
[19] ts 81.
The appellant gave evidence denying that there had been any sexual activity or other inappropriate behaviour between the complainant and himself.
The defence also submitted that it was unlikely that the appellant would have sexually interfered with the complainant undetected over such a period of time.[20] It further submitted that the occurrence of the alleged offending was inconsistent with evidence that the complainant had a desire to sit on the appellant's lap from time to time and evidence that the appellant had conversations with her about sexual education.[21]
[20] ts 152, 153; ts of closing addresses 10 - 11.
[21] ts 152; ts of closing addresses 11.
The judge's charge to the jury
The judge identified that the real issue in relation to counts 1 to 3 was whether the alleged acts of sexual penetration occurred.[22]
[22] ts 124 - 125.
There is, and could be, no complaint concerning the judge's direction as to the elements of the offence[23] or as to the burden and standard of proof.[24]
[23] ts 124 - 125.
[24] ts 125 - 127.
In explaining to the jury what was and was not evidence, the judge referred to propositions put to witnesses and denied by them.[25] As an example, the judge referred to the fact that counsel for the appellant had put propositions to the complainant and to the complainant's mother that the mother had procured the complainant to tell lies to advantage her in the Family Court proceedings against the appellant.[26] The judge told the jury that both the complainant and her mother had denied that this was so and that the propositions put were not evidence.[27]
[25] ts 128.
[26] ts 128.
[27] ts 128.
The judge told the jury that the issue as to the complainant's evidence was one of honesty, not merely reliability.[28] The jury could only convict the appellant of any of counts 1, 2 and 3 if they were satisfied beyond reasonable doubt that the evidence of the complainant of that offence was honest, accurate and reliable.[29] In order to be satisfied beyond reasonable doubt of guilt, the jury would also need to be satisfied that the appellant's denials were false and could not as a reasonable possibility be true.[30] The judge pointed out to the jury that the appellant's evidence contradicted that of the complainant; they could not both be true.[31]
[28] ts 129 - 130.
[29] ts 130.
[30] ts 130.
[31] ts 130.
The judge referred to the evidence of the complainant's mother in the following manner:[32]
You also have the evidence of the complainant's mother[.] Her evidence is relevant in this case to show the domestic context in which these things are said to have occurred and to prove features of the family relationships that existed at the relevant time.
It was suggested to her that she put her daughter up to telling lies against [the appellant] and she denied that suggestion. On her evidence she was not aware of her daughter's report of sexual abuse by [the appellant] until after she'd been interviewed at school and the police took steps to obtain and execute a search warrant.
[32] ts 130.
The judge told the jury that one aspect of the defence case was that the complainant had, or may have, concocted false allegations for either of two reasons. The first was to get back at the appellant for breaching her trust in telling her mother about incidents with boys which the complainant had told the appellant in confidence.[33] The second was lying at her mother's behest to assist her mother in their Family Court property settlement.[34]
[33] ts 130, 132 - 133, 150.
[34] ts 130, 150.
The judge told the jury that 'because of the crucial nature of the evidence of the complainant and because of the seriousness of the allegations against [the appellant], [they] should scrutinise the evidence of [the complainant] with care … bear[ing] in mind all of the matters that might have an impact on the reliability of her evidence'.[35] The jury would not convict the appellant of any charge unless, having carefully scrutinised the complainant's evidence, they were satisfied beyond reasonable doubt of its truthfulness in relation to the count.[36]
[35] ts 132.
[36] ts 132.
The judge referred to the fact that no complaint of any inappropriate behaviour by the appellant was made until after there had been a disagreement between the appellant and the complainant, arising from him telling the complainant's mother something the complainant had told him in confidence about a relationship with a boy.[37] The judge read to the jury a relevant passage from the complainant's cross-examination.[38]
[37] ts 132.
[38] ts 132 - 133, referring to ts 58.
The judge told the jury that delay was something that they could consider and it was for them to weigh its significance. The judge informed the jury that the State case was that 'the sexual activity described by the complainant became normalised and that her relationship with her mother was such that she did not communicate with her [mother]'.[39] The judge went on to make further observations concerning possible reasons for a delay in complaint.[40]
[39] ts 133.
[40] ts 133 - 134.
Towards the end of his charge, the judge gave the jury a very detailed outline of the evidence.[41] That outline encompassed, among other things, the complainant's first interview,[42] her second interview,[43] her cross‑examination,[44] and the appellant's evidence[45]. As a ground of appeal concerns the complainant's mother's evidence, we set out the material parts of the judge's summary of it as follows:[46]
[41] ts 137 - 149.
[42] ts 137- 140.
[43] ts 140 - 143.
[44] ts 144 - 145.
[45] ts 148 - 149.
[46] ts 145 - 146.
Her mother gave evidence that she was employed as a nurse in mental health. She'd come to Australia in 2008 to study. She'd met [the appellant] in January 2009 and went to live with him at the end of February that year in his house in Ballajura.
They eventually got married in July 2009. They travelled to Indonesia so that he could meet her family including her children. When the two children came to Australia in 2010 there were two student tenants living in the house, but they moved out in 2013.
[The complainant's mother] said that she sometimes saw her daughter sitting on [the appellant]'s lap watching television and sometimes she saw him take her to her room when she had fallen asleep. She marked on a floor plan where her children slept when they first came to Ballajura and where their bedrooms were after [the appellant]'s boarders had moved out.
She agreed that [the appellant] provided financially for her and her children. She observed [the appellant] to spend more time with her daughter than with her son. She observed him to buy gifts for her including a bra and motorcycling gear, a helmet and a jacket, also a saxophone and a longboard.
She observed [the appellant] to buy school clothes for her son. She said he did not buy gifts for her. She said that she had a hard relationship with her daughter because she could not talk to her.
She gave evidence of the details of the family trip to Indonesia in August 2013 after her father passed away and of the journey that [the appellant] and her daughter made to Indonesia in 2014 to being [sic] her mother to Perth.
She said that when she was living with [the appellant] there were a lot of problems with her children and with his children. She said that her daughter was rebellious towards her. She said there was no trust between them and she had referred her to a psychologist.
She had noticed a change in her daughter's behaviour when she was in year 7, that is age 12. She thought that was in 2012, but in that year [the complainant] would have turned 10. She observed that [the appellant] and her daughter had a close relationship, but it changed and she said:
My daughter was not listen to him any more and sometimes my daughter thought was punishment that [the appellant] took whatever gift had been gived to her.
Upon concluding his summary of the evidence, the judge told the jury that, if they wished to be reminded of the evidence in more detail, that could be done.[47]
[47] ts 150.
The judge again informed the jury that in order to find the appellant guilty of any count of sexual penetration they would have to be satisfied beyond reasonable doubt that the acts of penetration described by the complainant had occurred and that such a conclusion could only be founded upon acceptance of the complainant's evidence as truthful.[48] The judge summarised the State case[49] and the defence case[50] in a comprehensive manner, about which no complaint is, or could be, made.
[48] ts 150 - 151.
[49] ts 151 - 152.
[50] ts 152 - 153.
The judge again referred the jury to the appellant's sworn evidence denying that the events the subject of the charges had happened. The judge told the jury that if they accepted his evidence they would acquit, that if they thought what the appellant said might be true they would acquit, and that they could not convict without finding that his denials were false. Further, the judge told the jury that, even if they rejected his evidence, they would nevertheless need to be satisfied beyond reasonable doubt, on the basis of the complainant's evidence, that the relevant events occurred. Further, the jury would have to be satisfied that his denials could not, as a reasonable possibility, be true.[51]
[51] ts 153.
Neither counsel sought any redirection as to any aspect of the charge.[52]
[52] ts 154 - 155.
We will outline the questions from the jury concerning the transcript of the complainant's evidence in the course of dealing with grounds 3, 4 and 5.
Grounds of appeal
The appellant advanced six grounds of appeal but, at the hearing of the appeal, abandoned grounds 2 and 2A.[53] The remaining grounds are in the following terms:
[53] Appeal ts 7.
1.There was a miscarriage of justice when the learned trial Judge failed to direct the jury as to the relevance and/or use that could be made by them of evidence as to the complainant's change in demeanour.
…
3.The learned trial Judge erred in the exercise of his discretion when he determined not to replay in open Court the disc of the complainant's first child witness interview.
4.The learned trial Judge erred in the exercise of his discretion by providing the jury with a copy of the transcript of the complainant's evidence from both her child witness interviews in circumstances where such a course was likely to unfairly prejudice the appellant's case and/or cause the jury to focus undue attention on particular statements in a written transcript rather than evaluating the whole of the evidence.
5.A miscarriage of justice was occasioned when the jury were provided during their deliberations with extrinsic material they had not requested[.]
Particulars:
5.1The jury were provided with the transcript of the complainant's second child witness interview.
The question of leave on each ground was referred to the hearing of the appeal.[54]
[54] Order of Mazza JA, 16 November 2018.
We begin with ground 1.
Ground 1
Ground 1 complains that the judge failed to direct the jury as to the relevance, or use to be made, of the following evidence given by the complainant's mother:[55]
[55] ts 71, 72 - 73.
Now, whilst you're living together did you observe the accused spent time with your children? - - - Yes.
And was that spending time with them both together or separately or both? - - - Separately most of the time.
Were you able to form a view as to with whom he spent more time, your son or your daughter? - - - My daughter.
And did you ever observe him buying gifts for her? - - - Yes.
…
After the time that you moved all together into the accused's house how would you describe your relationship with your daughter? - - - Quite hard because I can't talk to her.
…
Now, in the later period when you were all living together in Ballajura, how would you describe your relationship [with] the accused? - - - Quite hard. There is a lot of problems especially with my children, with his children, and some of it get along, some of it not get along together.
All right. And also during this period how was your relationship with your daughter? - - - I’m not the one that taking the power because he's – he's already swap it, you know, and especially with my time only for - for short of. So definitely that she was not listen and definitely looks like no reward from me, as - - -
All right. And what was her behaviour like during this period, that's your daughter? - - - It was rebel, especially with me. There is just no trust – very (?) (indistinct) between me and her.
And did you refer her to anybody during this period? - - - Yes, because I - - -
Who was that? - - - That's the psychologist - mind psychologist.
Okay. And where is that psychologist? - - - That was in Ballajura.
And during this period you said that she was rebellious, this is your daughter? - - - Yes.
Would she do things that you told her to? - - - No.
And what sort of period - sorry - I withdraw that. Can you tell us when, roughly, the change in her behaviour commenced? - - - That was when she was - the (indistinct) is when she was 12 years.
Okay. And what year was that? What calendar year? - - - Seven. Year 7.
Right, okay. And so it’s the year at school? - - - Yes.
All right. And what calendar year was that? It's now 2018. What year was all this happening? - - - She was year 7.
And what - in what calendar year was she in year 7? - - - 2012, '13. Yeah (?), I observe that it really start 2012.
All right. And also during this period did you see the accused and your daughter together? - - - Yes.
And how did they behave towards each other? - - - Close.
And did that change at any stage? - - - Yes.
In what way did it change? - - - That my daughter was not listen to him anymore. And sometimes that my daughter thought was punishment that Gordon took whatever gift that been gived to her. And also not to stop (indistinct) her whatever she's wanted.
The appellant's submissions in support of ground 1 may be summarised as follows:
(1)The indictment alleged counts 1, 2 and 3 had occurred within the time span of 20 March 2011 to 21 March 2015.[56]
[56] Appellant's submissions [4]; appeal ts 4.
(2)The evidence referred to in [48], which we will refer to as the complainant's mother's evidence, suggested a change in the complainant's demeanour in 2012 and 2013.[57]
[57] Appellant's submissions [3] - [4].
(3)By implication, the effect, or at least one effect, of the complainant's mother's evidence was that the change in the complainant's demeanour in 2012 and 2013 was attributable to, and explained by, the sexual offending perpetrated against her by the appellant.[58] In this respect, the appellant emphasises the link, implicit in the prosecutor's questions, between the complainant's changed demeanour and consequent need to see a psychologist and the complainant's close relationship with the appellant.[59]
[58] Appellant's submissions [4].
[59] Appeal ts 6, 8 - 9.
(4)By implication at least, the prosecutor's closing address to the jury, particularly the aspects outlined and emphasised at [53] below, suggested that the change in the complainant's behaviour was attributable to the offending by the appellant.[60]
[60] Appellant's submissions [5]; appeal ts 7 - 8.
(5)In his summing up, the judge referred to the complainant's mother's evidence about the complainant's change in demeanour, but failed to direct the jury as to the use that could be made by them of this evidence.[61] In the appellant's submission, this evidence was 'highly prejudicial'.[62]
(6)The judge failed to direct the jury that the change in the complainant's demeanour could have been attributable to events happening at the relevant time apart from the commission of the offences.[63] The appellant gives the following examples raised by the evidence at trial:
(a)the issues the complainant was having with her mother;
(b)the appellant confronting the complainant about a 'sexting' incident with a boy;
(c)the appellant lecturing the complainant about safe sex; and
(d)the complainant being a young teenage girl entering puberty.[64]
(7)A direction along the same lines as was given in Walsh v The State of Western Australia[65] should have been given in the present case.[66]
(8)That was so notwithstanding the failure of defence counsel at trial to seek any direction in this respect.[67]
[61] Appellant's submissions [6], referring to ts 146; appeal ts 7.
[62] Appellant's submissions [6].
[63] Appellant's submissions [7]; appeal ts 12, 13.
[64] Appellant's submissions [7].
[65] Walsh v The State of Western Australia[2011] WASCA 119 [67] - [68].
[66] Appellant's submissions [10] - [11]; appeal ts 12 - 13.
[67] Appeal ts 13 - 14.
In our opinion, for the reasons that follow, ground 1 is not made out.
A central premise of the appellant's submissions on ground 1 is that the complainant's mother's evidence was led to support an inference that the alleged offending had occurred. We do not accept this premise. By the time the complainant's mother gave evidence, the complainant had already been cross-examined, and the suggestion had been made that she was concocting the allegations at the behest of her mother.[68] In our view, the evidence was led in order to:
(1)indicate the close relationship between the complainant and the appellant, in contrast to the relationship between the complainant and her mother;
(2)explain the complainant's lack of complaint; and
(3)rebut the suggestion, put to the complainant in cross-examination, that her mother had enlisted the complainant to concoct the allegations made by the complainant.
[68] ts 60 - 61.
In our opinion, the prosecution did not, expressly or by implication, invite the jury to use the complainant's mother's evidence as a basis to infer that the alleged events occurred.
The appellant points to the italicised portions of what the prosecutor said in closing address to the jury:[69]
[T]here was the stick, if you like, of, 'Don't tell anyone or I'll go to gaol.' The implication of that, 'Don't tell anyone', I would submit, would be very plain to her, the complainant, that if she told anyone, she, her mother and her brother, recent arrivals in a foreign [sic], would be turfed out of their home, that lives would be uprooted and changed forever.
That was the burden that he cast upon the complainant, on this young girl, by not only committing these offences but enjoining her not to tell anyone, 'Don't tell,' and as a matter of fact she didn't for a number of years. Ultimately her relationship with her mother was affected. It wouldn't be surprising. Not only is she an adolescent girl, she's undergoing this horrendous - these horrendous offences and she was sent off to counselling.
Now, you know that she spoke to police on two occasions. You've seen the recorded interviews, the child witness interviews. One was at her school and one was again at the police station. The one at the police station was after the search warrant on the accused's home and you'll remember the complainant's mother … said that when the police came and there was a search, that was the first she knew about these allegations.
The complainant had already spoken to the police in a formal interview but her mother was not aware of that so it cannot be suggested, in my submission, that she has - that the complainant's spoken to the police because she's been put up to it by her mother. She didn't even know that she'd spoken to the police.
[T]he other thing is the mother said during this period, 'Well you know, I wasn't - the relationship with my daughter was bad and we weren't even talking.' There is no evidence from anyone that the mother's told the daughter, 'Well, you know, you say these things and we'll have a better situation. We’ve got our citizenship and we'll get a great property settlement.' (emphasis added)
[69] ts of closing addresses 6 - 7.
In our view, these remarks of the prosecutor cannot fairly be taken to suggest that the complainant's mother's evidence - to the effect that the complainant became rebellious towards her at about the age of 12 - was evidence of a change of behaviour attributable to the commission of the charged offences. In our view, such a process of reasoning would have made little sense, given that the State case was that counts 1 to 3 occurred in the context of regular ongoing sexual conduct over a period of almost five years.
Consequently, in our view there was no perceptible risk that the jury would have used this aspect of the complainant's mother's evidence in the manner of which the appellant complains. This view is reinforced by the fact that the appellant's experienced and competent trial counsel made no complaint, and sought no direction, in this respect. The judge appropriately directed the jury that the complainant's mother's evidence was relevant to show the domestic context in which the alleged conduct was said to have occurred, and to prove features of the family relationships that existed at the relevant time.[70] In our view, nothing more was required.
[70] ts 130.
For these reasons, while we would grant leave to appeal on ground 1, the ground is not made out.
Grounds 3, 4 and 5: the treatment of the transcripts of the complainant's recorded interviews
Ground 3 asserts error in the judge's discretionary decision to provide the jury with a copy of the transcript of the complainant's first interview, rather than to replay the interview in open court. Ground 4 asserts error in the provision of the transcript to the jury without providing counter‑balancing evidence and without reminding the jury of that counter‑balancing evidence. Ground 5 alleges a miscarriage of justice arising from the provision to the jury of the transcript of the complainant's second interview, in circumstances where they had asked only for the transcript of the first interview.
We begin by outlining the circumstances in which the transcripts of the two interviews were provided to the jury.
The circumstances in which the transcripts were provided to the jury
In closing, defence counsel said:[71]
Now, it's been a short case so you'll be happy to know I'm not going to labour over the evidence. You've heard it being given. As the judge said, if you need to be refreshed on it, we have a transcript of it[.]
Defence counsel went on to immediately address the complainant's first recorded interview, suggesting that particular aspects of what she had said in the interview bore adversely upon her credibility.[72]
[71] ts of closing addresses 9.
[72] ts of closing addresses 9 - 10.
Later in his closing address, defence counsel said:[73]
You'll have a copy of all the exhibits. As I've said, if you want to be refreshed of any of the evidence that's been given, you send a note through and we can organise that and it’s important that you proceed knowing what the facts are and knowing what the evidence is so if you have any doubts about it, then, please, send a note through and they can be cleared up.
[73] ts of closing addresses 13.
Early in his summing up, the trial judge told the jury:[74]
[Y]ou are free during you[r] deliberations to put questions in writing that will be answered by me in open court and you can, of course, be reminded of the evidence by reference to the transcript during your deliberations if you make that request.
[74] ts 122.
A few hours after the jury had retired to consider their verdict, two requests were received from them, only one of which is presently relevant. In relation to the relevant note, the following exchange took place between the trial judge, defence counsel, Mr Utting, and the prosecutor, Mr Thiering:[75]
[75] ts 156 - 157.
STAUDE DCJ: Counsel, you've been given copies of two notes from the jury. One reads as follows:
Reading of the transcript of the first interview, or if possible a reshowing of the first interview.
Dealing with that request, I wonder if there's any objection to the jury being provided with the transcript of the first interview.
Mr Utting do you have a view?
UTTING, MR: Well, it’s a pity they weren't a bit more precise with specifically what they are looking for - - -
STAUDE DCJ: Yes.
UTTING, MR: - - - in that there is a redacted transcript which I've seen. The worry I have, for the whole lot to go in, it - in written form, it runs the risk of reinforcing the complainant's evidence.
STAUDE DCJ: Yes.
UTTING, MR: I don't know whether they can be a bit more precise. But if - - -
STAUDE DCJ: Well, I did go to some lengths in my charge to summarise the evidence of the complainant, in the hope that might avoid - - -
UTTING, MR: Yes. This.
STAUDE DCJ: - - - a request such as this. But - - -
UTTING, MR: Look, if they want it, I - - -
STAUDE DCJ: - - - it is fairly common for jurors to make a request to either be reminded of parts of the transcript, or to have access to the whole transcript of the evidence of a complainant where that is the only evidence.
UTTING, MR: Well, as I said, I've seen the redacted transcript. And if they want it, then I suppose they have it.
STAUDE DCJ: Yes. It would be easier than it being read to them, I think, to give them the transcript.
UTTING, MR: Yes.
THIERING, MR: Your Honour, yes, there is a redacted transcript. In fact, I've got a couple of copies.
STAUDE DCJ: Yes.
THIERING, MR: That might speed that up. They do say there's a preference to rewatching it. That would take about 30 minutes. I suspect going through a transcript would be quicker.
STAUDE DCJ: Yes. And I don't favour the reshowing of the evidence. It elevates the evidence.
THIERING, MR: Well, it does. And it can give particular emphasis to it.
STAUDE DCJ: Yes.
THIERING, MR: So they've got two copies of the redacted transcript available.
STAUDE DCJ: All right. Well, I think that's the best answer to the first request, is just to give the jury a couple of copies of the redacted transcript of the first interview.
THIERING, MR: Thank you.
(emphasis added)
After the jury returned, the trial judge responded to the jury's request as follows:[76]
[76] ts 159.
STAUDE DCJ: The [relevant] note reads:
Reading of the transcript of the first interview, or if possible a reshowing of the first interview.
Now, in response to that request, I can give you a couple of copies of the transcript of that first interview which are redacted, inasmuch as they've taken out those parts which were edited for reasons of irrelevance. So the transcript is of what you actually viewed on the disc.
It's not the practice of the court to reshow the evidence of the complainant in cases like this, because if the complainant had given evidence in the ordinary way you would only have seen that evidence on the one occasion. But I can give you the transcript and Mr Thiering has two copies.
THIERING, MR: I do, thank you.
STAUDE J:Mr Usher, if they could go to the foreman.
THIERING, MR: There is a slight difference between the two, only in that one is double-sided and one is printed single-sided.
STAUDE J:All right. Well, I hope that's enough for you to work by, members of the jury.
Immediately after the jury had retired again, at around 2:25 pm, the trial judge added:[77]
Counsel, if perchance there's a request made for the transcript of the other interview, then I might deal with that just by having the usher obtain it from you, Mr Thiering, and conveying it to the jury officer.
Mr Thiering indicated that, in that event, he would make the transcript and himself available.[78] Counsel for the appellant did not object to the course proposed. The court then adjourned.
[77] ts 160.
[78] ts 160.
Subsequently, the court reconvened following receipt of a note that the jury was not able to reach a unanimous verdict on several of the counts. At around 4:00 pm, before the jury returned, the following exchange occurred:[79]
[79] ts 161 - 162.
STAUDE DCJ: Mr Utting?
UTTING, MR: Yes. Your Honour, before we deal with that last matter from the jury, your Honour will recall the question at 20 past 2 was the transcript of the first interview that was provided to the jury. Apparently, what happened was that it was not the transcript of the first interview provided, it was the transcript of the second interview.
STAUDE DCJ: Yes.
UTTING, MR: And I'm told that it wasn't till about 3 o'clock that they got the transcript of the first interview. I don't want your Honour to do anything about it but I just want it on the transcript that - - -
STAUDE DCJ: Yes. Yes. No, Mr Utting, I was about to place on the transcript what transpired after the - - -
UTTING, MR: Yes, your Honour. I'm sorry if I jumped the gun - - -
STAUDE DCJ: No, that's quite all right.
UTTING, MR: - - - your Honour.
STAUDE DCJ: It's quite all right. I appreciate your mentioning it.
Yes, the court was last convened - it responded to a request from the jury to provide the transcript of the first child witness interview of the complainant. Mr Thiering, the prosecutor, had redacted copies available, and it was thought that to - transcript copies that he gave the jury corresponded with that request. And it was sometime later the jury sent a note to the effect that they had received, in fact, the transcript of the second interview, not the first.
So I directed that the transcript of the first interview be given to the jury. … So that's a matter of record. I don't see that there's anything that requires correction in terms of the process by which the second interview transcript went to the jury.
The jury's entitled to be reminded of the evidence. And they have been directed of the importance of their scrutiny of the complainant's testimony, which obviously they have been applying during their deliberations. (emphasis added)
Counsel said nothing further in relation to this issue.
When the jury returned at 4:08 pm, the judge said the following to the jury:[80]
Now, Mr Foreman, members of the jury, I've just placed on the transcript, as it were, the circumstances in which you were given the transcript of the second child witness interview when you'd asked for the first. And I've also recorded that you were then given the other transcript, as well as the transcript of the evidence of Detective Sergeant Baxter which you requested[.]
The judge then proceeded to give the jury a majority direction, about which there is no complaint.
[80] ts 163.
At 4:41 pm, the jury returned to deliver their verdicts.[81]
[81] ts 165.
It is convenient to outline the principal authorities on which the appellant relies, before turning to the merits of the grounds.
The principal authorities relied on by the appellant
Gately v The Queen
In Gately v The Queen,[82] the High Court held that permitting a video‑taped recording of the complainant's evidence-in-chief and cross‑examination to be replayed to the jury in the absence of the judge and counsel was irregular, but did not occasion a miscarriage of justice. Evidence of the complainant, a child, was pre-recorded and then admitted in accordance with s 21AM of the Evidence Act 1977 (Qld) which provided, relevantly, that:
1.A video-taped recording of the affected child's evidence made under this subdivision for a proceeding, or a lawfully edited copy of the recording -
(a)is as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court; …
The video‑taped recording of the child's evidence was played as the whole of the complainant's evidence at the trial. After retiring to consider their verdict, the jury requested access to the video tapes of the complainant's evidence. With the agreement of counsel, the judge permitted the video tapes to be replayed in the presence of the court bailiff but in the absence of the judge and counsel. The appellant's appeal to the Queensland Court of Appeal, on the ground that there had been a miscarriage of justice arising from permitting the jury to view the tapes of the complainant's pre-recorded evidence other than in open court, was dismissed.
[82] Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208.
Gleeson CJ, Hayne, Heydon and Crennan JJ dismissed the appeal against that decision. Hayne J, with whom Heydon and Crennan JJ agreed, concluded that no miscarriage of justice had arisen. In so concluding, his Honour emphasised that trial counsel for the appellant had consented to the jury having the access they did to the pre‑recorded evidence of the complainant.[83] His Honour also emphasised the limited evidence at trial, and the absence of any positive case on the part of the appellant.[84] Given this absence of competing accounts, allowing only the complainant's evidence to be re-examined by the jury presented no risk of an unbalanced consideration of competing accounts.[85]
[83] Gately [77].
[84] Gately [78] - [79].
[85] Gately [80].
However, Hayne J went on to explain that the jury should not have been given unsupervised access to the video recording of the complainant. Hayne J explained, by reference to the relevant provisions of the Queensland Evidence Act 1977, that the video recording is not to be treated as an item of real evidence. Rather, the evidence is what the child says in the course of the recorded interview; the record itself is not evidence.[86]
[86] Gately [89] - [91].
In explaining why giving the jury unsupervised access to the record of the interview was irregular, Hayne J said as follows:[87]
When the effect of the relevant provisions of the Evidence Act is thus understood, it becomes evident that seldom, if ever, will it be appropriate to admit the record of that evidence as an exhibit. (That is not to say that there may not be evident good sense in marking the record for identification; but that is a step that is distinctly different from receiving the record in evidence and marking it as an exhibit.)
Moreover, when the effect of the relevant provisions is understood in the manner described, it also follows that a request by a jury for access to evidence pre-recorded in accordance with those provisions should ordinarily be dealt with in the same way as any request by a jury to be reminded of evidence that has been led at the trial. Seldom would it be appropriate to meet a request of that kind by giving the jury unrestrained access to the recording to play and replay. The reasons for not allowing access of that kind lie in the need to preserve fairness and balance in the conduct of the trial.
Replaying the evidence given by one witness, after all the evidence has been given, carries risks. First, there is the risk inherent in the form in which it is presented. As was said in Butera [(1987) 164 CLR 180 at 189 - 190], there is the risk that undue weight will be given to evidence of which there is a verbatim record when it must be compared with evidence that has been given orally. Secondly, there is the risk that undue weight will be given to evidence that has been repeated and repeated recently. Other risks may arise from the circumstances of the particular trial.
The purpose of reading or replaying for a jury considering its verdict some part of the evidence that has been given at the trial is only to remind the jury of what was said. The jury is required to consider the whole of the evidence. Of course the jury as a whole, or individual jurors, may attach determinative significance to only some of the evidence that has been given. And if that is the case, the jury, or those jurors, will focus upon that evidence in their deliberations. While a jury's request to be reminded of evidence that has been given in the trial should very seldom be refused, the overriding consideration is fairness of the trial. If a jury asks to be reminded of the evidence of an affected child that was pre-recorded under subdiv 3 of Div 4A of the Evidence Act and played to the jury as the evidence of that child, that request should ordinarily be met by replaying the evidence in court in the presence of the trial judge, counsel, and the accused. Depending upon the particular circumstances of the case, it may be necessary to warn the jury of the need to consider the replayed evidence in the light of countervailing evidence or considerations relied upon by the accused. It may be desirable, in some cases necessary, to repeat the instructions required by s 21AW. Seldom, if ever, will it be appropriate to allow the jury unsupervised access to the record of that evidence.
Cooper v The State of Western Australia
[87] Gately [93] - [96].
In Cooper v The State of Western Australia,[88] this court dismissed an appeal on the ground that the judge erred in providing the jury with a copy of the transcript of the whole of the complainant's evidence. In Cooper, the complainant's evidence had not been pre-recorded, but was given orally in the usual manner. The complainant's evidence as to what had occurred was not contentious. The issue at trial was whether the person who had done the acts described by the complainant was proved to be the appellant.[89] After the jury had retired, the judge received a request from the jury that they be provided with the transcript of the evidence given by the complainant. Counsel for the appellant observed that he had no problem with that, agreeing with the judge that the complainant's evidence was not contentious.[90]
[88] Cooper v The State of Western Australia [2009] WASCA 37.
[89] Cooper [12].
[90] Cooper [11].
Pullin JA, with whom Buss and Miller JJA agreed, held that the judge had power to provide the transcript pursuant to s 110 of the Criminal Procedure Act 2004 (WA). That section provides as follows:
110.Jury may be given records etc. to assist understanding
(1)On the application of a party or on his or her own initiative, the judge may order that the jury be given, on any conditions the judge orders, any record (including any document in the court's record) or thing that may assist the jury to understand the issues or the law, or to understand and assess the evidence.
(2)Such an order may be made at any time in a trial before the jury gives its verdict.
Pullin JA held that the transcript of evidence was a 'record' or 'thing' within the meaning of s 110.[91] His Honour then made the following observations as to the exercise of the discretionary power conferred by s 110:[92]
The discretionary power conferred must be exercised judicially and so as not to give rise to a miscarriage of justice. Where there are competing versions of an event then it may be necessary, if a transcript is to be given to the jury, to provide a transcript of evidence given by other witnesses about the event. It may be that in some such cases an appropriate direction might be sufficient to guard against any imbalance in favour of one side or the other. Each case will depend on its own circumstances. In this case, because of the appellant's denial that he was the intruder, there was no other transcript of evidence about the events in the complainant's bedroom on the night of the attack. Both parties consented to the provision of the transcript and the consent given on behalf of the appellant was by experienced senior counsel.
[91] Cooper [18].
[92] Cooper [19].
Pullin JA then considered the decision of the High Court in Gately. His Honour observed that, while the reasons in Gately do not suggest there was any equivalent of s 110 of the Criminal Procedure Act 2004 (WA), it would not appear that that is a significant distinguishing factor.[93]
[93] Cooper [20].
Pullin JA explained why the receipt of the transcript in the circumstances of Cooper occasioned no miscarriage of justice as follows:[94]
In this case, although the appellant denied that he committed the offences, he advanced no competing evidence about what happened to the complainant in her bedroom during the attack.
The appellant submitted that for the jury to be permitted to re-read the transcript of the horrific attack on the complainant would over-emphasise the nature of that evidence and prejudice the appellant. That submission cannot be accepted. The jury had heard the evidence of the complainant. It was referred to by the judge and counsel. The transcript was nothing more than an accurate record of the complainant's evidence and may have assisted the jury in determining whether each of the incidents constituting the offences had occurred. There was no miscarriage of justice and this ground should be dismissed.
Ground 3: disposition
[94] Cooper [21] - [22].
The appellant makes the following submissions in support of ground 3:
(1)The appropriate course, based on the decision in Gately, was to replay the interview in open court and not to provide the transcript to the jury.[95]
(2)The judge's observation that '[i]t's not the practice of the court to reshow the evidence of the complainant in cases like this' is contrary to the approach taken in Gately.[96]
(3)In exercising his discretion as to how to respond to the jury's request, the judge was influenced by what would be quicker.[97]
[95] Appellant's submissions [17]; appeal ts 15, 16.
[96] Appellant's submissions [18]; appeal ts 16.
[97] Appellant's submissions [18]; appeal ts 16.
By their note, the jury requested that the transcript of the first interview be read to them, or if possible, the first interview be reshown to them. In closing address to the jury, defence counsel told the jury that the transcript, which evidently included the transcript of the interviews, was available to them upon their request. Moreover, counsel invited the jury's specific attention to particular aspects of the contents of the transcript of the first interview.[98]
[98] See [59] - [60] above.
The appellant properly accepts that, under s 110 of the Criminal Procedure Act, the court had power to provide the transcript of the first interview to the jury.[99] Thus, in responding to the jury's request, the judge had, in effect, four options:
(1)inform the jury that their request was refused;
(2)replay the interview in open court;
(3)have the transcript of the interview read aloud in open court; or
(4)provide transcript of the interview to the jury.
[99] Appellant's submissions [19]; appeal ts 16.
Ensuring the fairness of the trial is the touchstone for the judge's decision in response to the jury's request.[100]
[100] Gately [96].
A jury's request to be reminded of evidence that has been given in the trial should very seldom be refused.[101] It is not suggested, and it could not reasonably be suggested, that the judge should have refused the jury's request.
[101] Gately [96].
No party suggested, at trial or on appeal, that the judge should have provided the disc containing the interview to the jury to enable them to watch it in the jury room. To have done so would have been inappropriate and irregular, essentially for the reasons given in Gately. While there are differences in the statutory language of the Queensland provisions and s 106HB of the Evidence Act 1907 (WA), in our view the same conclusion applies. The effect of s 106HB is that the evidence is what the child says in the course of the interview; the record of the interview is not evidence.
The appellant does not suggest that the judge should have had the transcript read aloud in court, in preference to providing it to the jury. Rather, the appellant submits the judge should have had the video replayed in court.
The judge expressed concern that reshowing the evidence, by playing the video of the interview, would elevate its significance. While the judge made that observation in the course of an interchange with the prosecutor, defence counsel did not express any contrary position.
The judge's view was well justified. In his closing address, the prosecutor invited the jury to recall what they had seen on the video interviews, saying 'look at her demeanour because she is a very compelling witness'.[102] Having watched the interview, we think it was well open to the judge to consider, as his Honour evidently did, that to replay the interview and, thereby, enable the jury to observe, again, the complainant's demeanour during the interview, would likely prejudice the defence.
[102] ts of closing addresses 7.
In these circumstances, in deciding to provide the transcript of the interview in preference to replaying the interview in court, the judge exercised his discretion in a manner informed by, and favourable to, the best interests of the appellant.
Further, counsel for the appellant at trial consented to, or acquiesced in, the judge's decision to provide the transcript in preference to replaying it in open court.[103] That is a matter to which significant weight must be given in determining whether the judge's decision gave rise to a miscarriage of justice.[104] Moreover, it is difficult, to say the least, to assert that the judge erred in adopting a course in which all parties agreed or acquiesced.
[103] ts 156.
[104] Gately [77]; Cooper [20].
For these reasons, we are not persuaded that the judge erred in deciding to provide the jury with the transcript of the first interview, or that that decision gave rise to a miscarriage of justice. Ground 3 fails.
Insofar as the appellant complains that, in providing the transcript, the judge did not provide, or refer to, counter-balancing material, that complaint is made by ground 4, to which we now turn.
Grounds 4 and 5
Appellant's submissions
The appellant put his submissions in support of grounds 4 and 5 compendiously. Those submissions are to the following effect:
(1)While s 110 of the Criminal Procedure Act enabled the trial judge to give the jury a copy of the relevant transcript, the discretion to do so is one to be exercised with caution, and where applicable, accompanied by competing and balancing material.[105]
(2)The jury were inadvertently provided with a transcript of the second interview. When the error was discovered, they were then provided with a transcript of the first interview, but the transcript of the second was never retrieved from them.[106]
(3)At no stage during their deliberations were the jury provided with the transcript, or reminded, of the cross-examination of the complainant, or of the appellant's evidence. Consequently, the jury had with them the transcript of the complainant's evidence‑in-chief without any counter-balancing material.[107]
(4)The absence of counter-balancing material, or of any reference to it, gave rise to a miscarriage of justice.[108]
(5)Further, of itself, the provision to the jury of the unrequested transcript of the second interview also gave rise to a miscarriage of justice.[109]
Ground 4 - disposition
[105] Appellant's submissions [19], referring to Gately [78] - [80] and Cooper [19].
[106] Appellant's submissions [20] - [21]; appeal ts 19.
[107] Appellant's submissions [23] - [24]; appeal ts 19, 21, 22.
[108] Appellant's submissions [25]; appeal ts 18 - 19.
[109] Appellant's submissions [26]; appeal ts 19.
Ground 4 is wrongly framed so as to assert error. In the absence of dispute by any party, the judge did not err. However, we resolve the ground on its substantial merits, by reference to whether the absence of provision of, or reference to, counter-balancing material gave rise to a miscarriage of justice.
In exercising the discretion under s 110 of the Criminal Procedure Act the principles outlined at [72] and [75] above apply. The power must be exercised in a manner consistent with a fair trial[110] and, thus, so as not to give rise to a miscarriage of justice.[111] In exercising the power under s 110, the need to guard against the risk of unbalanced consideration of competing accounts must be borne in mind.[112] The cases have recognised two matters arising in relation to videos or transcript that may give rise to this risk: the permanent form of videos or transcript; and the repetition to the jury of such evidence more recently than the other evidence.
[110] Gately [96].
[111] Cooper [19].
[112] Gately [80], [94] - [96]; Cooper [19].
As to the first matter, although the weight to be given to a complainant's and accused's evidence is a matter for the jury as the tribunal of fact, the law has long recognised the existence of a danger that a jury may give disproportionate weight to material that is in permanent form, such as a video, written record of interview or transcript, as compared to other evidence, given orally. In Driscoll v The Queen[113] and Butera v Director of Public Prosecutions (Vic)[114] that concern was said to bear upon whether particular evidence was admissible or should, as a matter of discretion, be excluded.
[113] Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 542.
[114] Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180, 189 - 190.
Other cases, including those to which we have already referred, have considered the same concern in weighing whether, taking into account all the circumstances of the case, including the directions given by the trial judge, the provision to the jury of material in a permanent form, such as a video or transcript, gave rise to a miscarriage of justice.[115] In those cases, central to the evaluation of whether there was a miscarriage of justice was whether, in all the circumstances, there was a real or perceptible risk that the jury would give disproportionate weight to the evidence in permanent form in preference to the other evidence, which was given orally.[116]
[115] See, for example, Gately; Cooper; R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628 [208] - [210]; and the cases outlined in R v NZ [122] - [154].
[116] See, for example, Gately [78] - [81]; Cooper [20] - [22]; CF v The Queen [2017] NSWCCA 318 [87] - [93]; AB v The Queen [2019] NSWCCA 82 [43] - [50].
As to the second matter, in considering whether a miscarriage of justice has arisen in given circumstances, cases have also recognised the relevance of the risk of undue weight being given to the evidence in permanent form because it is being repeated to the jury and more recently than the other evidence, given orally.[117]
[117] Gately [95]; R v NZ [208]; CF v The Queen [59].
The cases have also recognised two ways of seeking to avoid the risk of unbalanced consideration of competing accounts: by a warning concerning recent repetition, and by provision or a reminder of the other evidence. As to the first of these, some judges have suggested that, in replaying a video tape to the jury, or providing them with a transcript of it, generally, the judge should caution the jury to bear the other evidence in mind and guard against the risk of giving that video tape or transcript evidence disproportionate weight due to its repetition well after all the other evidence.[118] This first way of proceeding is not relevant to this case as neither the appellant's grounds of appeal nor his submissions complain of the absence of a warning of this kind. We turn to the second, upon which the appellant relies.
[118] R v NZ [208], [210](e), and the authorities quoted in R v NZ at [123], [134], [149]. However, it has been recognised that, while this is a preferred procedure, there is no rule that it must, in every case, be done; the relevant question on appeal from such a case is whether, in the circumstances of that case, failure to give such a warning gave rise to a miscarriage of justice. See, for example, R v NZ [209], [211] - [212]; Jarrett v The Queen [2014] NSWCCA 140; (2014) 86 NSWLR 623 [72] - [73]. See also Gately [5], [82], [96]; Cooper [19].
A number of cases have recognised that, depending on the particular circumstances of the case, it may be necessary to remind the jury of countervailing evidence or considerations relied on by the accused, or provide the jury with that countervailing evidence.[119] Some cases have suggested that, if transcript of part of a witness' evidence is to be provided, this would normally be done.[120] Whether failure to do so will give rise to a miscarriage of justice depends upon the circumstances of each particular case.[121] As Howie and Johnson JJ, with whom Wood CJ at CL and Hunt AJA agreed, said in R v NZ:[122]
[W]here a request is made by the jury to be reminded of the evidence in chief of the witness ... [and] a judge … furnish[es] the jury with transcript of that part of the evidence of the witness … [W]e 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. … [W]hile it is not necessary to take such a course in every case, 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. (citations omitted)
[119] Gately [96]; Cooper [19]; see also R v NZ [204] - [210] and the authorities discussed in R v NZ [122] - [154].
[120] R v Lowe (1997) 98 A Crim R 300, 309; R v NZ [204].
[121] R v Lowe (309); R v NZ [205] - [206], [211] - [212]; Cooper [19].
[122] R v NZ [204] - [205].
In our view, in the circumstances of this trial, it was not incumbent on the judge to provide the jury with the transcript of the complainant's cross-examination and/or the transcript of the appellant's evidence. To have done so would have been to provide the jury with the substantial majority of the transcript of the trial, in circumstances where they had asked for one particular aspect of the evidence.
In our respectful view, it would have been preferable for the judge, in the course of providing the jury with the requested transcript, to have reminded them to bear in mind, in considering that transcript, that:
(1)the complainant's evidence was challenged, referring to the cross-examination of the complainant; and
(2) the appellant gave directly conflicting evidence.
As the cases referred to in [98] above suggest, that is a course which often has much to commend it. However, in the end, as already noted, the critical question is whether the failure to so remind the jury gives rise to a miscarriage of justice. In determining the question of miscarriage of justice, it is important to bear in mind, as we do, that, unlike the position in a number of the authorities,[123] the appellant challenged the complainant's evidence, gave evidence and advanced a positive case. Also, unlike in some of the other cases, the transcript given to the jury in this case encompassed only the complainant's evidence-in-chief.[124] Nevertheless, taking the matters at [101] - [108] below into account, we are not persuaded that the judge's failure to remind the jury in the manner we have indicated gave rise to a miscarriage of justice in the circumstances of this case. In essence, that is because we do not think there is any real risk that the jury would have overlooked, or failed to give appropriate consideration to, the matters of which we have suggested they might have been reminded.
[123] See, for example, Gately [4], [5], [78] - [80]; Cooper [12], [19], [21]; R v NZ [218], [221].
[124] See, by way of contrast, Gately [68]; Cooper [11] - [15]; R v NZ [77], [219], [221].
First, the trial was brief. In particular:
(1)The evidence lasted just over one full day, spanning approximately 11:33 am on 11 June 2018 to 11:40 am on 12 June 2018.
(2)The complainant's interviews were played on, and the complainant gave evidence on, 11 June 2018.
(3)The State case closed on the morning of 12 June 2018.
(4)The defence case closed less than an hour later.
(5)Closing addresses were delivered that afternoon.
(6)The following morning, 13 June 2018, the judge gave the summing up.
(7)The jury retired at 11:34 am, before delivering their verdict that afternoon.
Secondly, the need to evaluate the defence's challenges to the complainant's veracity and the directly conflicting accounts of events in the evidence of the complainant and the evidence of the appellant was at the forefront of closing submissions made by the prosecutor and by defence counsel.[125]
[125] See, for example, transcript of closing addresses 9 - 12.
Thirdly, the judge gave a detailed outline of the complainant's evidence in cross-examination[126] and of the appellant's evidence.[127]
[126] ts 144 - 145.
[127] ts 148 - 149.
Fourthly, the judge's direction put considerable emphasis on the issues concerning the complainant's veracity and the existence of the conflicting testimony of the appellant. That reflected the reality of the central issue at trial concerning counts 1 - 3: was the jury satisfied beyond reasonable doubt as to the complainant's version of the events the subject of counts 1 - 3, having regard to, and notwithstanding, the conflicting evidence of the appellant denying that he committed the offences and having regard to the matters to which the defence pointed in undermining the complainant's credibility. In the course of the direction, the judge told the jury the following:
(1)The essential issue in the trial was one of honesty, in that the defence said that the complainant had made up false allegations.[128]
(2)In order to be satisfied of guilt, the jury would not only have to be satisfied that the complainant's evidence was honest, but also that the appellant's evidence was false and could not, as a reasonable possibility, be true.[129]
(3)The appellant's evidence contradicted the evidence of the complainant; both accounts could not be true.[130]
(4)Because the evidence of the complainant was crucial, the jury should scrutinise her evidence with care, and bear in mind all matters that might have an impact on its reliability.[131]
(5)If the jury accepted the appellant's evidence, or if it might be true as a reasonable possibility, the jury must acquit.[132]
(6)The jury could convict the appellant of counts 1 - 3 only if they accepted the truthfulness of the complainant's evidence about those matters.[133]
(7)The jury had heard sworn evidence from the appellant denying the allegations the subject of counts 1 - 3. If that evidence gave rise to reasonable doubt, the verdicts must be acquittal. The jury could not convict without finding that the denials were false and could not, as a reasonable possibility, be true.[134]
(8)Even if the jury rejected the appellant's evidence, they would nevertheless need to be satisfied beyond reasonable doubt, on the basis of the complainant's evidence, that the events the subject of counts 1 - 3 happened.[135]
In following these directions, the jury were necessarily required to give close attention to the countervailing evidence and considerations.
[128] ts 130.
[129] ts 130.
[130] ts 130.
[131] ts 132.
[132] ts 132.
[133] ts 150 - 151.
[134] ts 153.
[135] ts 153.
Fifthly, it is appropriate to proceed on the conventional basis that, as a general rule, jurors understand and obey the trial judge's directions.[136] In this case there is no sound basis to think otherwise.
[136] R v Glennon [1992] HCA 16; (1992) 173 CLR 592, 603; Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13]; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [29]; Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689 [42]; Huggins v The State of Western Australia [2018] WASCA 61 [488] - [489]; Rankins v The State of Western Australia [2018] WASCA 138 [52], [140].
The jury's request concerning the first interview did not explain the reasons for the request. Nor did it identify any specific parts of the interview as of particular interest to the jury. As already noted, in his closing address, defence counsel referred to a specific part of the first interview.[137] In this light, one inference is that the jury requested the transcript in order to assist their evaluation of defence counsel's submission concerning the particular passage of the first interview to which he had referred. However, the reason(s) for the jury's request remain a matter of speculation. In our view, whatever the reason(s) for the jury's request, there is no reason to suppose that, in receiving transcript a little after 2:00 pm, the jury would have overlooked, or failed to act in accordance with, the directions given to them by the judge that morning.
[137] See [59] above.
In this regard, it may be noted that when the court reconvened at about 4:00 pm, by which time the jury had been provided with both transcripts, the judge observed that the jury had been directed as to the importance of their scrutiny of the complainant's evidence, 'which obviously they have been applying during their deliberations'.[138] Neither counsel cavilled with this observation. On a review of the record of the trial, we share the judge's confidence that this was so.
[138] ts 162.
Sixthly, counsel for the appellant at trial did not request any further direction from the judge as to the complainant's evidence in cross‑examination, the appellant's evidence, or any other countervailing material. The failure of competent and experienced counsel at trial to request any further direction in this respect bears upon this court's evaluation of whether, viewed as a whole, what the judge did, and what his Honour told the jury, gave rise to any risk that the jury would give inappropriate weight to the content of the transcript.[139]
[139] Gately [5], [82]; R v NZ [213] - [216], [220]. See also, by parity of reasoning, King v The Queen [2012] HCA 24; (2012) 245 CLR 588 [55]; Mahmood v The State of Western Australia [2009] WASCA 220 [65]; Sayed v The Queen [2012] WASCA 17; (2012) 220 A Crim R 236 [76]; Banks v The State of Western Australia[2018] WASCA 130 [43]; R v Wright [1999] VSCA 145; (1999) 3 VR 355 [2].
For these reasons, we are not persuaded that the judge's failure, in providing the jury with the transcript in accordance with their request, to remind the jury of the countervailing evidence and considerations gave rise to any real or perceptible risk that the jury would overlook, or fail to give appropriate attention to, those matters. To the contrary, in his charge to the jury, the judge had identified the task for the jury in a manner that made consideration of those other matters integral to the performance of the jury's function. In our view, having commenced deliberations at about 11:30 am that morning, there is no real or perceptible risk that, when provided with the transcript in accordance with their request at about 2:20 pm, the jury would thereafter have failed to give appropriate consideration to the countervailing matters, or would thereafter have given disproportionate or excessive weight to the transcript they had been given. In other words, there is no perceptible risk of the jury having given unbalanced consideration to the competing accounts.
For these reasons, while we would grant leave to appeal, we would not uphold ground 4.
Ground 5 - disposition
The question raised by ground 5 is whether a miscarriage of justice was occasioned by the inadvertent provision, to the jury, of the transcript of the complainant's second interview, in response to their request for a transcript of the first interview. For the following reasons, we are not persuaded that it was.
A miscarriage of justice under s 30(3)(c) of the Criminal Appeals Act 2004 (WA) encompasses any case where, as a consequence of irregularity or otherwise, the accused has not had a trial according to law, or otherwise has not had a fair trial.[140] We begin with the first touchstone of whether there was a miscarriage of justice - whether there was a departure from the requirements of a trial according to law.
[140] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [14]; MLS v The State of Western Australia [2018] WASCA 56 [118].
Any breach of the rules of evidence or procedure, or any other departure from a trial according to law, will amount to a miscarriage of justice, regardless of the nature and significance of that departure.[141] In our view, the provision and retention of the transcript of the second interview did not involve a breach of the rules of evidence or procedure or, in any other respect, a departure from a trial according to law. In particular, the judge's inadvertent provision of the transcript of the second interview was not beyond power. Quite apart from s 110 of the Criminal Procedure Act, a judge conducting a jury trial has power, as an incident of the court's power to regulate the procedure of the trial, to permit the jury to be provided with material as an aid to understanding and considering the evidence.[142] The judge exercised that power in causing the transcript to be provided to the jury, notwithstanding the inadvertent provision by the prosecutor to the court of the transcript of the second, rather than first, interview.
[141] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18] and the additional cases collected in fn 141 in Banks [74].
[142] Bulejcik v The Queen [1996] HCA 50; (1996) 185 CLR 375, 386; R v Taousanis [1999] NSWSC 107; (1999) 146 A Crim R 303 [9] ‑ [14]; R v Tichowitsch [2006] QCA 569; [2007] 2 Qd R 462 [7] ‑ [8], [52].
We turn to whether the provision to, and retention by, the jury of the transcript of the second interview rendered the appellant's trial unfair. We repeat what we have said at [93] above. For the following reasons, we are not persuaded that the appellant has had an unfair trial or that, otherwise, there was a miscarriage of justice.
First, it would have been unmistakably clear to the jury, from what the judge said to them in response to their request for the first transcript, that the judge intended that they be provided with the transcript of the first interview.[143] There is no risk that the jury might have considered that the judge was, in effect, directing or recommending that they have regard, instead, or in addition, to the transcript of the second interview.
[143] ts 159.
Secondly, the transcript of the second interview did not contain any inadmissible material. It was a record of what was said in the second interview which the jury had viewed. In this respect, the position is fundamentally different from Barker v The Queen[144], on which the appellant relies,[145] in that the jury in Barker had access, in the jury room, to material that had been ruled inadmissible.
[144] Barker v The Queen (1994) 54 FCR 451.
[145] Appellant's submissions [26].
Thirdly, immediately after providing the jury with what everyone (mistakenly) believed to be the transcript of the first interview, the judge informed counsel that, if the jury requested a transcript of the second interview, it would be provided in a similar fashion. No objection was raised, or concern voiced, by defence counsel.[146]
[146] ts 160.
Fourthly, insofar as the appellant contends there was a lack of counter‑balancing material, we repeat what is said in [101] ‑ [106] above. The judge had directed the jury in a manner that required the jury to focus upon whether the jury was satisfied beyond reasonable doubt as to the complainant's version of the events the subject of counts 1 ‑ 3 having regard to, and notwithstanding, the conflicting evidence of the appellant. That necessarily required close attention to the countervailing evidence and considerations. There is no perceptible risk that the jury would have lost sight of those directions after having received the two transcripts of the complainant's interviews.
Fifthly, the judge specifically observed that he saw no need for any further direction arising from the provision to the jury of the second transcript, in circumstances in which the jury were 'obviously' applying the judge's earlier direction to their deliberations.[147] Defence counsel at trial did not suggest otherwise. To the contrary, counsel specifically stated that he did not want the judge to do anything about the provision of the wrong transcript.[148] Counsel's approach was a strong indication that the obviously inadvertent provision to the jury, of the transcript of the second interview, did not give rise to a concern as to the fairness of the trial, or to any risk of the jury overlooking the countervailing evidence or considerations against acceptance of the complainant's evidence. Moreover, the approach taken by counsel for the appellant involved a choice not to seek a further direction or to seek a discharge of the jury. Generally at least, an accused is bound by their counsel's conduct of the trial.[149] We are not persuaded that the circumstances of this case call for a departure from this general position.
[147] ts 161 - 162.
[148] ts 161.
[149] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [9]; R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [48]; Huggins [376]; MLS [121].
Taking all these matters into account, we are not persuaded that the inadvertent provision to the jury of the transcript of the second interview, and the retention of that transcript, rendered the appellant's trial unfair or meant that he did not have a trial according to law, or otherwise gave rise to a miscarriage of justice.
For these reasons, while we would grant leave to appeal in respect of ground 5, the ground is not made out.
Conclusion
For the above reasons, we would make the following orders:
1.Leave to appeal on grounds 1, 3, 4 and 5 is granted.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Beech28 AUGUST 2019
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