Gately v The Queen

Gately v The Queen - [2007] HCA 55 - HCA 2007 case summary — Zoe

[14]

Paragraph (a) refers to the oral evidence of the complainant, which was recorded before the empanelling of the jury. The video recording was then played to the jury at the trial. A transcript of the complainant's evidence consists of five pages of evidence in chief and 22 pages of cross-examination. Paragraph (c) refers to "police statements" (that is, statements made to the police at the investigation stage) which were tendered at the trial as exhibits. The only other evidence at the trial was some formal evidence from a police officer, and some brief evidence from a friend of the complainant and from the complainant's mother and grandmother. The appellant did not give evidence.
As to par (a), I agree with Hayne J that, technically, the video recording should have been marked for identification rather than treated as an exhibit and, more significantly, that, when the trial judge decided (as he was entitled to do) to comply with the jury's request to hear again the pre-recorded evidence of the complainant, that should have been done by replaying the recording of the evidence in open court, before the judge, the jury and counsel. I agree with Hayne J's analysis of the relevant statutory provisions. The course that was taken was irregular. The irregularity occurred in the following circumstances. After the jury expressed a desire to hear the complainant's evidence again, the trial judge asked counsel to consider whether they wanted the court to be reconvened while that occurred. He should not have given them the choice. The prosecutor said he did not see any need for the court to be reconvened if the jury watched the video in the courtroom in the presence of the bailiff. He said it would "facilitate their deliberations more openly if legal counsel and other people aren't present." Counsel for the appellant concurred. He said: "Yes, that seems a sensible and practical approach. If they want to play it they can play it while here in the presence of the Bailiff and not in the presence of other members of the Court." The procedure agreed to by counsel was adopted.
An irregularity having occurred, the issue raised by the grounds of appeal, and the statute pursuant to which the Court of Appeal was exercising its jurisdiction, is whether, in the circumstances of the case, there was a miscarriage of justice. I agree with Hayne J that the question should be answered in the negative. The jury had been told to scrutinise carefully the evidence of the complainant. Evidently, they thought listening to her evidence again would help them to do that. Their request was hardly surprising, although it raised a procedural question. This was not a case in which the problem of undue weighting of some evidence at the expense of other evidence was of substantial importance. The pre-recorded evidence included the whole of the cross-examination of the complainant. Apart from the "police statements", there was very little other evidence of significance in the case. There were numerous counts in the indictment, and the jury apparently considered them separately and in detail. Their desire to scrutinise the evidence of the complainant by having it played back to them again does not raise, in the circumstances, any apprehension of inappropriate concentration on part only of the evidence, or of other unfairness to the appellant.
Paragraph (b) appears to refer to the complainant's police statement, the contents of which were substantially repeated in her pre-recorded evidence in chief. The jury requested that a copy of the statement be provided for use in the jury room. The trial judge declined the request but, with the agreement of both counsel, re-read the statement to the jury in open court. No direction of the kind referred to in the ground of appeal was requested, and, on a fair reading of the whole of the summing-up, including the directions as to the use that could be made of the statement, none was required. In oral argument in this Court, par (b) seems to have been treated as referring to the pre-recorded evidence of the complainant, although that was not "re-read to [the jury]". If that is what par (b) is about, then for the reasons given above there was not, in this case, any miscarriage of justice arising from the absence of a direction not to give undue weight to the evidence, by comparison with other evidence. For practical purposes, there was very little other evidence. The other possible form of undue weight might have been that which could arise from repetition. Here, the jury necessarily heard the complainant's version of events in her police statement, her evidence in chief, and her cross-examination. Repetition is a common feature of the criminal trial process. Cross-examination itself often elicits multiple repetitions of a complaint. There could be circumstances in which a warning needs to be given to counter the possibility of unfairness arising, but the present was not such a case.
As to par (c), I agree, for the reasons given by Hayne J, and the additional reasons given by Heydon J, that the appellant's complaint has not been made out. The written statements referred to were admissible. There was no error as alleged in the grounds of appeal.
I would dismiss the appeal.
KIRBY J. This appeal[1] concerns the general principles governing the provision to juries of direct access to pre-recorded evidence of child complainants in criminal trials involving sexual offences.
The appeal also concerns a second issue. The appellant claimed that he had suffered a miscarriage of justice at his trial because a written statement that the complainant made to police was received in evidence. That submission turned on the interpretation of s 93A of the Evidence Act 1977 (Q) ("the Evidence Act"). That section is set out, and the arguments of the parties recounted, in the reasons of Hayne J[2].
On the second basis of appeal, I agree substantially with what Hayne J has written. It is true that there were certain problems in the directions that the trial judge gave (or failed to give) concerning the use that the jury might make of the written statement when it was read to them. However, without more, there is no warrant to conclude that a relevant error or actual miscarriage of justice occurred on that account. The appeal on that ground fails.

[18]

In directing submissions to these matters, the appellant suggested that differences have emerged in the approaches being taken in intermediate courts in Australia, both as between jurisdictions[3] and within Queensland[4]. He also pointed to conflicting authorities on the application of the "proviso" as to the circumstances in which departure from proper procedures would occasion a fundamental miscarriage of justice such as to require an order for a retrial[5].
Similar questions have arisen for judicial decision in England[6], New Zealand[7] and Canada[8], countries that share the same conventions of jury trial for serious offences, the same fundamental requirement for fairness in the conduct of such trials[9], and like provisions for the pre-recording of the evidence of child complainants (including cross-examination) in relation to allegations of sexual offences.
There is also a growing body of academic and law reform analysis as to both the practice of (and dangers involved in) interviewing children[10] and the rules that should be observed in jury trials so as to reduce potential unfairness to an accused that might arise from the very use of recording technology[11].
The relevant material (or some of it) was placed before this Court. The applicable legislation varies between jurisdictions[12], but there is a great deal of common ground as between the conclusions reached concerning the approach to be taken to the two issues that remain for consideration in this appeal. Whilst it is doubtless appropriate to recognise and utilise technological advances that might assist juries in performing their task[13], it is self-evident that such assistance must accord with the fundamental requirements, and essential characteristics, of a fair criminal trial. Such a trial is accusatorial and adversarial[14]. In a jury trial, a heavy duty falls on the presiding judge to protect the accused against material risks of unfairness and to direct (and sometimes warn) the jury about any particular dangers of unfairness to which they need to be alert in considering an electronic recording of evidence or a printed transcript based on such a recording[15].
The reasons of Hayne J on the outstanding issues are split into two parts. His Honour first deals with whether there was a miscarriage of justice in the trial of the appellant[16]. He examines that question placing emphasis on the manner in which the appellant's counsel conducted his defence. He also considers (amongst other matters) the general principle that decisions of counsel in that context must be attributed to the client.
Hayne J concludes that the appellant has failed to establish that his trial involved a miscarriage of justice, such that there is no warrant for quashing his convictions and ordering a retrial. However, having concluded the miscarriage question against the appellant, Hayne J then proceeds to consider the general principles that should govern cases such as the present.

[23]

The appellant's submissions presented a clear suggestion that more than one "wrong decision of [a] question of law" had affected the decision of the court of trial. In so far as the reasons of Hayne J[17] suggest that the appellant's complaints were limited to an assertion that a "miscarriage of justice" had occurred in the absence of such a "wrong decision", I respectfully disagree. It is, in my view, mistaken to insist upon a rigid separation of the second and third bases of appeal stated in s 668E(1). In this case, the appellant submitted that the trial judge had misapplied the relevant law, having been prompted to make a decision as to the use of the video-recording by the jury's request and defence counsel's subsequent objection. The appellant further submitted that this error had occasioned a miscarriage of justice. Implicit in his complaint, therefore, was the claim that the trial judge had made a wrong decision on a question of law.
If the appellant's complaints in this respect were to be made out, consideration would then be required as to whether the errors involved had occasioned an actual and substantial miscarriage of justice for the purposes of s 668E(1A) ("the proviso"). The language and structure of s 668E are clear, as is the manner in which it and counterpart provisions have been interpreted since the template was first introduced in England in 1907[18]. The point is as fundamental as it is logical. The appellate court first considers any complaints of error occasioning injustice in the trial. Then, if such error is established, it turns to whether a want of actual miscarriage of justice might nonetheless deprive the appellant of success. In my view, it is a basic mistake to reverse that process of consideration. Without identified error occasioning injustice (whether on evidentiary, legal or other grounds), there is no basis for consideration of the proviso, which is addressed to the substantiality and materiality of the resulting miscarriage of justice[19].
Thus, it is necessary at an initial stage to have clearly in mind the nature and extent of any errors of law or procedure that can be shown. Such errors alone potentially open the door to the provision of relief and throw light on the question of the existence and significance of any resulting miscarriage of justice[20]. Indeed, some errors in the conduct of a criminal trial are so fundamental as to be treated as occasioning a "miscarriage of justice" of themselves. Such errors may be so basic to the postulate of a fair trial that the ensuing verdict cannot be saved by the application of the proviso[21].

[54]

The consent of trial counsel: There are several reasons why the consent of trial counsel to the course adopted is not conclusive for the outcome of this appeal.
First, it is the overriding duty of a trial judge to conduct a lawful and fair trial. That duty cannot be delegated to counsel on either side. In this case, trial counsel did initially object to the provision of the recording to the jury. That objection ought to have alerted the trial judge to the problem inherent in the course he was proposing.
Secondly, it was the trial judge himself who first suggested the provision of the recording to the jury for unsupervised use during their deliberations. It was the prosecutor who proposed the expedient that avoided the proper course of providing supplementary access to the recording in open court in the presence of the appellant and both counsel, which might have enlivened consideration of the need for appropriate warnings or directions to the jury about the use they might make of the evidence. The consent of the appellant's trial counsel to that course was, as I have said, a mistake. But the fundamental error originated with the trial judge and the prosecutor, each of whom, under our system of criminal justice, had special responsibilities to ensure the fairness of the conduct of the trial.
Thirdly, this was not unploughed territory in the law of Queensland. The Court of Appeal of Queensland, in repeated rulings and in clear terms, had correctly called to notice the applicable principles[43] and such authority of this Court as touched on the matter[44]. It had also noted overseas authorities that collected relevant considerations to guide trial judges[45]. It was the duty of the judge in the appellant's trial to advert to, and comply with, those considerations. It was the specific responsibility of the prosecutor to be aware of them and to remind the judge about them. The entire fault cannot fairly be placed at the door of the appellant's trial counsel, still less the appellant himself. I regard this as involving inappropriately the application of games theory to the criminal trial. That theory may have a place in politics and business management, but in criminal trials, where liberty is at stake, the appellate court is concerned with substance, not merely with who was to blame for breaching the applicable rules. I adhere to what I said in Conway v The Queen[46]:

[56]

Fourthly, it was not suggested that the appellant's counsel's oversight of the Court of Appeal authority and acquiescence in the course proposed by the trial judge was based on a tactical or forensic decision, now being disclaimed on appeal because it did not pay dividends at trial. The record clearly shows that there was a common error shared between the judge and counsel on both sides. The reference in the proviso to a "miscarriage of justice"[47] focuses attention on the position of an appellant. In this matter, the appellant was entitled to expect that, in essential respects, his trial would be conducted in his presence in a public court, according to law and without lapsing into potential unfairness[48].
A binding decision of counsel? I acknowledge that the principle that an appellant is bound by the conduct of his counsel stands against a conclusion of actual miscarriage[49]. However, this is not an inflexible principle, nor is it one that could displace the language and purpose of the Code, a statute entrusting to courts (including this Court) the protection of defendants against the consequences of mistakes in the conduct of criminal trials that occasion a miscarriage of justice.
Just as the failure of trial counsel to reserve points or to perceive and raise grounds of appeal is not fatal to the case of an accused person who comes to the judicature of the Commonwealth for protection against injustice[50], so the mistaken acquiescence of trial counsel in the proposals of the judge and the prosecutor is not, in the end, conclusive of this appeal. This is particularly so because trial counsel's initial objection to the course initiated by the judge was correct. That objection should have alerted the judge and the prosecutor to the applicable principles expressed and repeated in successive decisions of the Queensland Court of Appeal.
What is the practical use of courts of criminal appeal laying down clear rulings to be observed in criminal trials if, when they are not observed by the judge or prosecutor, this Court (whilst substantially endorsing those rulings) does not proceed to afford the accused, who is adversely affected, the relief that he seeks? Apart from the injustice in the particular case, this approach, when it becomes a common practice of this Court, presents a serious question as to whether further appeal to uphold basic principles had any point. The best way that this Court can reinforce principle in such matters, where a miscarriage has occurred, is to order a retrial. That is when principle tends to be learnt and applied.
Failure to give or call evidence: It is true that the failure of the appellant to give or call evidence removes one consideration that would otherwise have been very important in a case of this kind. Had such evidence been received, it would have been essential for the trial judge to remind the jury of it as a counterweight to the repetition of the complainant's evidence. Moreover, a direction or warning as to the balancing of the competing evidence would have been appropriate.
Nevertheless, the failure of the appellant to give or call evidence is not fatal to his complaint. It is an essential feature of the system of criminal justice observed in Australia that it is accusatorial in character. It is no part of the function of this Court to penalise the appellant because he elected to put the prosecution to proof of its charges. In one sense, the appellant's conduct of his case made it more, not less, important that the balance of the trial should be safeguarded through observance of the applicable rules concerning access to the pre-recorded evidence.
Resulting issues for trial: It is true that the issues presented for the jury's determination were relatively straightforward in that they ultimately revolved around the acceptance or rejection of the complainant's evidence. But in the usual case, the complainant (or prosecution witnesses) would, in our system of criminal justice, have but one chance to convince a jury to return a verdict adverse to the accused. To permit repeated re-presentation of the prosecution's evidence without any judicial supervision or countervailing remarks and otherwise than in open court creates a serious potential for injustice to a defendant. As Spigelman CJ remarked in R v NZ[51]:

[60]

The appeal should be allowed. The orders of the Court of Appeal of the Supreme Court of Queensland should be set aside. In place of those orders, the appeal to that Court should be allowed; the appellant's convictions should be quashed; and a new trial should be ordered.
HAYNE J. The principal issue in this appeal concerns the application of particular provisions of the Evidence Act 1977 (Q) ("the Evidence Act") governing the giving of evidence by a young person allegedly the victim of sexual offending. Pursuant to those provisions, the complainant's evidence‑in‑chief and cross‑examination were video‑recorded. (There was no re‑examination.) The recording was played to the jury at the appellant's trial in the District Court of Queensland.
In the course of debate between the trial judge and counsel about what material the jury should have available during their deliberations, trial counsel for the appellant agreed that it "seem[ed] a sensible and practical approach" for the jury, when considering their verdict, to be able to play the recording in the courtroom "in the presence of the Bailiff and not in the presence of other members of the Court". The appeal in this Court was conducted on the footing that, during their deliberations, the jury were able to and did play the recorded evidence of the complainant otherwise than in the presence of the trial judge and counsel for the parties.
In his appeal to this Court, the appellant alleged that there had been a miscarriage of justice. That is, he invoked the third of the three grounds of appeal provided for by s 668E(1) of the Criminal Code (Q) ("the Code")[55]. The appellant did not seek to contend that there had been any wrong decision of any question of law.
Two particulars of the allegation of miscarriage of justice related to the jury's access to the recorded evidence of the complainant. First, he alleged that the trial judge erred in allowing the jury, during their deliberations, to play the pre‑recorded evidence of the complainant, and secondly that the trial judge should have directed the jury that "they should not give undue weight to the evidence". The appellant placed the chief weight of his argument upon the first of these particulars.
The third particular given by the appellant of the alleged miscarriage of justice at his trial was that a written statement made by the complainant to police was wrongly received in evidence. Whether the written statement was wrongly admitted in evidence turns upon particular provisions of the Evidence Act. It will be convenient to deal with this issue (and the statutory provisions that govern its disposition) separately from the complaints made about the jury's access to the recording of the complainant's evidence.
In dealing with the appellant's principal complaint about the access the jury had to the pre‑recorded evidence of the complainant, it is first necessary to say something about the charges brought against the appellant and their disposition at trial, next to refer to the relevant provisions of the Evidence Act, and then to refer to some aspects of the course of events at trial and on appeal to the Court of Appeal of the Supreme Court of Queensland. These reasons will demonstrate that the course of events at the appellant's trial is determinative of the appellant's principal complaint (about the access the jury had to the record of the complainant's evidence) and the related issue about the directions to be given to the jury about that evidence. It will be necessary none the less to consider some more general questions about the meaning and application of the relevant provisions of the Evidence Act.

[77]

After a prosecutor had presented the indictment against the appellant (a step that had to occur[67] before evidence could be taken under subdiv 3 of Div 4A) the complainant's evidence (both evidence‑in‑chief and cross‑examination) was taken and video‑taped. A little over a month later, the appellant was arraigned on the indictment, and a jury was empanelled.
The prosecutor opened the case to the jury. Evidence was adduced, in the ordinary way, from the investigating police officer. The prosecutor then, without objection, provided the members of the jury, and the trial judge, with a transcript of the recorded evidence of the complainant. The prosecutor did not tender the tape as an exhibit but the trial judge, of his own motion, marked it as an exhibit. He directed the jury that the transcript was "merely an aid for you" and that "the evidence in the proceedings is what is contained on the tape itself, the sounds, what you hear and, indeed, what you see". The recording of the complainant's evidence was then played to the jury. (The transcripts provided for the use of the jury were recovered before the jury commenced their deliberations.)
As the trial came towards an end, there was some discussion between counsel for the parties and the trial judge, about what directions should be given to the jury, and about what material the jury should have access to in the jury room. Trial counsel for the appellant indicated that he would be "asking that the statements - and I mean not only the written statements, but the pre‑recorded evidence of the complainant ... not be taken into the jury room". The prosecutor said that he supported that request.
Next morning, the jury sent a message to the trial judge saying, among other things, that "our deliberations would be assisted by having copies of [the complainant's] two statements". In the ensuing discussion about the response that was to be made to this message, the trial judge expressed doubts about what the jury meant by the reference to the complainant's "two statements". But without resolving those doubts, counsel for the parties and the trial judge discussed what material should be made available to the jury. During that discussion, the trial judge suggested that, in the course of their deliberations, the jury could themselves play the pre‑recorded evidence of the complainant (as well as a record of some evidence given by another child witness). Trial counsel for the appellant submitted that the pre‑recorded evidence should not go into the jury room. The trial judge said that the jury "are entitled to have resort to [the recordings] by coming into [the courtroom] and having those passages played". He asked counsel for both parties to consider whether the Court should be reconvened for that to be done. The prosecutor responded at once, and suggested that there was no need to reconvene the Court if the jury were in the courtroom, watching the video with the Bailiff. And trial counsel for the appellant agreed that this seemed "a sensible and practical approach".
When the jury came back into court, the trial judge dealt with the message that had been sent. The jury's speaker said that what the jury wanted was the transcript of the recordings that had been played in court. The trial judge told the jury that the transcripts had been no more than an aid to understanding but that the jury could have access to the recordings "by simply asking the Bailiff, and during the course of your deliberations you can listen to those videotapes again". That was to be done in the courtroom; the tapes "won't go with you into the jury room". The use that might be made of the pre‑recorded evidence of the complainant was not the subject of any further submission during the trial.
The appellant appealed to the Court of Appeal against his convictions. That Court (Williams JA, Muir and Atkinson JJ) dismissed[68] the appeal.
One of the several grounds advanced by the appellant, in the Court of Appeal, was that there had "been a miscarriage of justice on the basis that the jury were permitted to view tapes of the pre‑recorded evidence of the complainant during the course of their deliberations in the courtroom and not in open court". In dealing with this ground, the Court of Appeal proceeded on the footing that the jury had watched and listened to the pre‑recorded evidence of the complainant late on the afternoon of the first day on which they retired.
The principal reasons of the Court were given by Atkinson J, who said[69] that "[t]here is no general rule that video recordings made under s 21AM of the [Evidence Act] cannot be taken by the jury into the jury room for their consideration". Noting[70] that counsel for both parties had "consented to the jury having the capacity to watch the s 21AM video recordings" her Honour concluded that there was no merit in the ground advanced by the appellant.

[78]

It is important to recognise the statutory basis underpinning the appellant's submissions to the Court of Appeal about the access the jury had had to the pre‑recorded evidence of the complainant. The ground of appeal which the appellant advanced invoked the third of the three grounds stated in the criminal appeal provisions of the Code. Those provisions, which substantially follow the common form of appeal provisions derived from the Criminal Appeal Act 1907 (UK), require the Court of Appeal to allow an appeal against conviction if it is of the opinion, first, that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or second, that the judgment of the court of trial should be set aside on the ground of any wrong decision of any question of law, or third, that "on any ground whatsoever there was a miscarriage of justice"[71]. The appellant's complaint was that there had been a miscarriage of justice[72], not that there had been any wrong decision of any question of law.
Trial counsel for the appellant consented to the jury having the access they did to the pre‑recorded evidence of the complainant. Great weight must be attached to that consent in considering whether there was a miscarriage of justice. So much follows inevitably from the adversarial nature of a criminal trial[73]. As was said in R v Birks[74], "[a]s a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted". It is for the parties, by their counsel, to decide how and on what bases the proceeding will be fought[75]. Consent by counsel for a party to a course of conduct is usually an important indication that that party suffers no miscarriage of justice by pursuit of the intended course. But, as the cases[76] concerning allegations of incompetent representation illustrate, the miscarriage of justice ground may yet be established despite the course that is taken by an accused person's counsel at trial. In the present case there was no allegation of incompetent representation. The circumstances surrounding trial counsel consenting to the course that was followed require the conclusion that there was no miscarriage of justice.
The appellant did not give evidence at his trial. He did not call any evidence in his defence. There was no evidence that he had made any out‑of‑court admission, whether to police or otherwise. There was no evidence led of the appellant having been interviewed by police about the matters alleged against him.
The appellant advanced no positive case in answer to the allegations made. In final address, his counsel submitted to the jury that the prosecution had not established its case beyond reasonable doubt and sought to persuade the jury to that view by reference to what were said to be "very grave inconsistencies" in the complainant's account of events.
It follows that the critical evidence to be considered by the jury (and in one sense the only evidence about which they had to be satisfied) was the evidence given by the complainant. No doubt the jury would have had to assess the veracity of the complainant's evidence in the light of the other evidence adduced as part of the prosecution's case (including evidence of a complaint made about the appellant's conduct and some evidence of previous accounts the complainant had given of the relevant events). But in the end, both the prosecution's case, and the appellant's answer that the prosecution had not proved its case beyond reasonable doubt, depended entirely upon what the jury made of the complainant's evidence. Competing arguments were put to the jury by the parties, but the evidence that the complainant had given was not controverted otherwise than by the appellant's cross‑examination. To allow only the complainant's evidence to be re‑examined by the jury presented no risk of an unbalanced consideration of competing accounts of what was alleged to have happened.
In those circumstances, there was no miscarriage of justice occasioned by the jury having the access they did to the complainant's pre‑recorded evidence.
The appellant further contended that the trial judge should have directed the jury that they should not give undue weight to the pre‑recorded evidence of the complainant. The argument was advanced under cover of a ground of appeal which directed attention to "the complainant's statement [being] re‑read" to the jury. It may be that the reference to "the complainant's statement" should be understood as referring to the complainant's written statement to police but the appellant's arguments were directed largely to the need to warn about misuse of the video‑recorded evidence. No direction of this kind was sought at trial. For the reasons that lead to the conclusion that, in this particular case, there was no miscarriage of justice occasioned by the jury having the access they did to the complainant's pre‑recorded evidence, this contention should also be rejected.
The grounds of appeal asserting error in connection with the jury having the access they did to the complainant's pre‑recorded evidence were not made out.
It is as well, however, to say something further about the operation of the relevant provisions of the Evidence Act and, in particular, about the proposition[77] that "[t]here is no general rule that video recordings made under s 21AM of the [Evidence Act] cannot be taken by the jury into the jury room for their consideration".

[79]

Whether a jury may have access "[in] the jury room" to recordings of evidence made under subdiv 3 of Div 4A of the Evidence Act is a question about whether a jury may have unsupervised access to the recording. It is not, as some statements made at the trial of the appellant may appear to have supposed, a question about geography. Thus, when it was said[78] that "[t]here is no general rule that video recordings made under s 21AM of the [Evidence Act] cannot be taken by the jury into the jury room for their consideration", the proposition should be understood as denying the existence of a general rule that a jury may not have unsupervised access to recordings of the kind now in question.
The unstated premise for the proposition that a jury may have unsupervised access to recordings of evidence made under subdiv 3 of Div 4A of the Evidence Act is that the record of that evidence is a piece of real evidence, properly received in evidence as an exhibit. That premise is not right. The record of evidence given under these provisions is no more a piece of real evidence receivable at trial than is the written or electronic record of oral evidence given at the trial in the ordinary way.
It may be accepted that, divorced from its context, s 21AM of the Evidence Act might suggest that when the evidence of an affected child is pre‑recorded, the record itself is admissible evidence. Section 21AM(1) says that a "video‑taped recording of the affected child's evidence ... is as admissible as if the evidence were given orally in the proceeding" and that the recording is "admissible in ... any rehearing or re‑trial of ... the proceeding". When regard is had, however, to some fundamental considerations about the nature of the trial process, and to some particular textual indications found in the relevant division of the Evidence Act, it is evident that the record itself is not ordinarily admissible as a piece of real evidence.
First, there are some fundamental characteristics of Australian trial processes, particularly at a criminal trial, that must be borne at the forefront of consideration. Subject to whatever statutory modifications may have been made to applicable rules of procedure, a criminal trial in Australia is an accusatorial and adversarial process[79]. It is essentially an oral process[80]. Subject to exceptions, the hearsay rule excludes evidence of out‑of‑court assertions when tendered as evidence of the truth of the assertions. As a result, the focus of the trial falls chiefly upon what is said in the evidence given in the courtroom. As three members of this Court said in Butera v Director of Public Prosecutions (Vict)[81]:

[81]

The whole of the oral evidence of an affected child, adduced by the prosecution at a relevant proceeding, is pre‑recorded. (In this and in other important respects the Evidence Act differs from some generally similar provisions made in other jurisdictions[82].) The record is then played before the jury and the jury both hear and observe the child giving evidence. The evidence that the affected child gives, although given at a "preliminary hearing", is given subject to all applicable rules governing relevance and admissibility. It is pre‑recorded in accordance with, and for the achievement of the purposes described in, s 21AA - to preserve the integrity of the evidence and to limit the distress and trauma that the child might otherwise experience when giving evidence. None of those considerations suggests that the record itself is to be treated as an item of real evidence. All point only to the conclusions that the evidence is what the child says, and that the record itself is not evidence. Those conclusions are reinforced by the fundamental characteristics of a criminal trial that have been mentioned earlier.
Two textual considerations support those conclusions. First, there is the reference in s 21AM to the recording being admissible in any appeal from the proceeding. To speak of the record as an item of evidence in an appeal (as distinct from a record of evidence that is to be considered in an appeal) is incongruous. It follows that the reference in the same section to the recording being "as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court" is not to be understood as requiring the reception of the recording as an item of real evidence. Rather, it is to be understood as doing no more than permitting the child's evidence, taken earlier, to be imparted to the jury by the playing of the recording.
Secondly, the directions that s 21AW requires a trial judge to give are consistent only with the relevant evidence consisting of what the child says, as distinct from whatever electronic record may be made of the questions and answers. Those directions make little sense if the relevant evidence is the record rather than the information that is conveyed when the recording is played.
Several of the steps taken at the trial of the appellant in relation to the recorded evidence of the complainant were of a kind similar to those that would be taken in dealing with recordings of out‑of‑court statements made by an accused person, tendered at trial as admissions. In particular, the provision of a transcript of the recording as an aid to understanding what was said, coupled with a direction that the recording not the transcript was the relevant evidence, reflect principles of the kind discussed in Butera[83]. But the critical difference between Butera and cases of the kind now under consideration is that Butera concerned the admission of evidence of out‑of‑court assertions as an exception to the hearsay rule. The relevant evidence in Butera was what the accused person had said on an earlier occasion. In cases like the present, the affected child gives evidence of what he or she knows, saw, or did. The evidence that the child gives is direct evidence, not hearsay. Unless some exception to the hearsay rule is engaged, the child may not give evidence of an out‑of‑court assertion as evidence of the truth of its content.
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[84], 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.

[83]

Although the prosecution played the complainant's pre‑recorded evidence to the jury, the prosecution also tendered a written statement the complainant had made to police describing what the appellant had done. The prosecution tendered the statement relying upon s 93A of the Evidence Act.
There was an issue in the Court of Appeal about the form of the legislation that was to be applied. After the trial, but before the appeal to the Court of Appeal was decided, s 93A had been amended[85]. The amendment altered the age requirements for engaging s 93A. There was room for debate whether the complainant, being 16 years old at the time of the trial, met the age requirements stated in the section as it stood before the amendment. The amendment was expressed[86] as having retrospective effect. In the Court of Appeal, the appellant argued that the relevant form of the section to apply was as it stood at the time of the trial. That argument was resolved against the appellant in the Court of Appeal[87] and it was not maintained in this Court. It was accepted that the relevant form of the legislation to be considered is as it stood after those amendments.
In this Court the appellant alleged that the trial judge erred "in permitting the prosecutor to tender written statements (in particular the statement of the complainant) taken pursuant to [s 93A of the Evidence Act] in circumstances where the complainant ... had already given full pre‑recorded evidence". This argument was not made at trial, or in the Court of Appeal. The appellant's argument in this Court extended to the reception in evidence of a written statement made by another young person to whom the complainant had first made a complaint about the appellant's conduct. That other young person had also given pre‑recorded evidence. No separate question arises about the reception of that statement and it is convenient to proceed by reference only to the written statement of the complainant.
Section 93A, so far as presently relevant, provided that:

[90]

Section 98 of the Evidence Act gave the court discretion to reject any statement notwithstanding that the requirements of s 93A (or other provisions of the same part of the Act) were satisfied. That discretion was exercisable "if for any reason it appears ... to be inexpedient in the interests of justice that the statement should be admitted". And s 99 of the Evidence Act permitted the court to direct that a statement in a document be withheld from the jury during their deliberations if it appeared that "if the jury were to have the document with them during their deliberations they might give the statement undue weight".
The essence of the proposition advanced by the appellant on this issue was that a party cannot tender an out‑of‑court statement as evidence of the facts, and at the same time call oral evidence from the maker of the statement upon the same subject. That proposition should be rejected.
The stated premise[89] upon which s 93A is engaged is that the maker of the statement which it is sought to tender in evidence is available to give evidence. Any other party may require that the party tendering the statement "call as a witness the person whose statement is so admitted"[90]. Nothing in the text of the section suggests that the party tendering the statement may not choose to call the maker of the statement as a witness. If the tendering party is required by an "other party" to "call as a witness" the maker of the statement, nothing in the text of the section suggests that the tendering party may not adduce evidence‑in‑chief from the maker about the matters that are the subject of the statement. The maker of the statement is to be called "as a witness", not only "made available for cross‑examination"[91]. And if the tendering party chooses to call the maker of the statement as a witness, nothing in the text of the section suggests that some different rule applies such that the tendering party is precluded from adducing evidence‑in‑chief from the maker about the matters dealt with in the statement.
These textual considerations point against the proposition advanced by the appellant. They are reinforced by other considerations. First, the statutory rule enacted by s 93A does not have universal application. The section makes a special rule for children and intellectually impaired persons. That rule is made for the evident purpose of preserving the integrity of the evidence of such persons, by allowing evidence of an account of relevant events that was made before, sometimes well before, the trial of the relevant proceeding. But if the party relying on the account of a child or intellectually impaired person is able to and wishes to have that person give their account orally, as well as in the form of the statement that has previously been made, there is no reason to prevent that being done.
Secondly, a statement admitted under s 93A is admitted as evidence of the facts that the statement tends to establish; it is not admitted to bolster the credit of the maker of the statement. The general rule[92] that prior consistent statements of a witness are not admissible to bolster the credit of the witness is not engaged. Because the statement is admitted as evidence of the facts it tends to establish, the hearsay rule is engaged. But the statute provides an exception. It operates according to its terms. Whether or not the maker of the statement is called to give evidence, the statement of a child is admissible as evidence of the facts that the statement tends to establish, if the conditions specified in s 93A are satisfied.
This third ground of appeal fails.

[97]

There are cases holding that legislation in this form does not permit the tender of previous inconsistent statements[102] or previous consistent statements, including the proofs of witnesses[103]. The argument for this outcome is that the latter course in particular undercuts the benefits of oral trial in cases of factual controversy. A witness's proof of evidence can be a document carefully prepared by a lawyer who is under the influence of high hopes of what the witness may say as distinct from what the witness is initially prepared to say, who has one eye to the avoidance of future difficulties, and who relies heavily on the employment of leading questions. Thus a witness's proof can sometimes be something which is not really the witness's own statement. In contrast, witnesses who answer non-leading questions, whether they do so along the lines the party calling them wants or not, are giving their own evidence. The technique of oral question and answer enables witnesses to do themselves better justice by giving evidence which is theirs, not someone else's, and renders it easier for triers of fact to assess their reliability and credibility as they are speaking directly to those triers of fact, and not through the medium of a written statement of questionable provenance.
However, the better view is that on the true construction of legislation taking the form of s 92(1) of the Act, prior written statements can be tendered as of right[104]. That outcome in English law was reversed by legislation[105]. But it remains the law in Australian jurisdictions having legislation in the form of s 92(1) of the Act.
It is one thing to approve or disapprove of legislation. It is another thing to construe it. Section 93A is dealing with a narrow field, and with peculiar problems - those concerned with evidence from children and intellectually impaired persons. The legislation rests on the assumption that an account given before the trial "can be of more probative value than present testimony, particularly if the present memory is faulty or it is difficult for the witness to articulate it in court"[106]. The legislative judgment is that it is more important to have before the trier of fact a clear statement from these types of witnesses, even if it is in an unsworn document, than to preserve the principle of orality in its full integrity.
The arguments of the accused rested on an appeal to traditional analysis, and to the startling outcome that would eventuate if s 93A were construed adversely to the accused. The outcome is less startling when it is remembered that certain types of crime and other unlawful conduct can be hard to prove without the relaxation effected by s 93A. It is also less startling when some of the safeguards provided in the Act are borne in mind. One is that it is a condition of admissibility that the maker of the statement be available to give evidence (s 93A(1)(b)) and be called by the tendering party if any other party requires it[107]. A second is the discretion to reject the evidence conferred by s 98[108]. A third is s 130[109]. A fourth is s 99[110]. A fifth is s 100[111]. But even without these safeguards, the construction of s 93A advocated by the accused cannot be maintained in the face of its language.
There is one other provision which may support the construction of s 93A stated by Hayne J. It is s 103, which provides:

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