(2017) 266 A Crim R 1
Azzopardi v The Queen (2001) 205 CLR 50
[2001] HCA 25
Bektasovski v R [2022] NSWCCA 246
(2022) 407 ALR 125
Burns-Dederer v R [2023] NSWCCA 191
Dansie v The Queen [2022] HCA 25
(2022) 96 ALJR 728
Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222
Source
Original judgment source is linked above.
Catchwords
(2017) 266 A Crim R 1
Azzopardi v The Queen (2001) 205 CLR 50[2001] HCA 25
Bektasovski v R [2022] NSWCCA 246(2022) 407 ALR 125
Burns-Dederer v R [2023] NSWCCA 191
Dansie v The Queen [2022] HCA 25(2022) 96 ALJR 728
Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222(2010) 220 A Crim R 19
Domican v The Queen (1992) 173 CLR 555[1992] HCA 13
Edwards v The Queen (2021) 273 CLR 585[2021] HCA 28
Elomar v R [2014] NSWCCA 303(2014) 316 ALR 206
Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29
Hofer v The Queen (2021) 274 CLR 351[2021] HCA 36
House v The King (1936) 55 CLR 499[1936] HCA 40
M v The Queen (1994) 181 CLR 487[1994] HCA 63
Mahmood v Western Australia (2008) 232 CLR 397[2008] HCA 1
MJK v R (Court of Criminal Appeal (NSW), 21 April 1995, unrep)
Papakosmas v The Queen (1999) 196 CLR 297[1999] HCA 37
Pell v The Queen (2020) 268 CLR 123[2020] HCA 12
PJ v R [2023] NSWCCA 105
R v A2
R v KM
R v Vaziri (No 20) [2016] NSWSC 23
R v A2
R v KM
R v Vaziri (No 21) [2016] NSWSC 24
R v Bauer (2018) 266 CLR 56
[2018] HCA 40
R v Lewis [1991] 1 NZLR 409
(1994) 12 CRNZ 172
The Queen v GW (2016) 258 CLR 108
[2016] HCA 6
Tully v The Queen (2006) 230 CLR 234
[2006] HCA 56
Wade v R [2006] NSWCCA 295
(2006) 164 A Crim R 583
Weiss v The Queen (2005) 224 CLR 300
Judgment (25 paragraphs)
[1]
Ellis (1994) 1 NZCrimC 592; (1994) 12 CRNZ 172
The Queen v GW (2016) 258 CLR 108; [2016] HCA 6
Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56
Wade v R [2006] NSWCCA 295; (2006) 164 A Crim R 583
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 November 1997
Category: Principal judgment
Parties: LF (Applicant)
Rex (Respondent)
Representation: Counsel:
M Johnston SC and PA Jones (Applicant)
D Scully (Respondent)
[2]
Solicitors:
Braye Cragg Solicitors (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2019/356030
Publication restriction: Pursuant to Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1), the publication of any matter which identifies or is likely to identify the complainants or any child witness in connection with this proceeding is prohibited.
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Citation: N/A
Date of Decision: 6 April 2022
Before: Bennett SC DCJ
File Number(s): 2019/356030
[3]
JUDGMENT
MEAGHER JA: The applicant, LF, seeks leave to appeal against his conviction on 6 April 2022 of three offences following a jury trial in the District Court at Newcastle. He was charged with five sexual offences involving two female child complainants.
The charged offences were that:
(1) between 1 January 2017 and 31 January 2019, at Valentine in the State of New South Wales, he did intentionally sexually touch AH1, a child under the age of 16 years (Crimes Act 1900 (NSW), s 66DB(a)) (count 1);
(2) between 1 January 2017 and 31 January 2019, at Valentine in the State of New South Wales, he did have sexual intercourse with AH1, a child under the age of 14 years, in circumstances of aggravation, namely, that she was under his authority (Crimes Act, s 66C(2)) (count 2);
(3) in the alternative to count 2, between 1 January 2017 and 31 January 2019, at Valentine in the State of New South Wales, he did intentionally sexually touch AH1, a child under the age of 16 years (Crimes Act, s 66DB(a)) (count 3);
(4) between 1 September 2019 and 11 November 2019, at Valentine in the State of New South Wales, he did intentionally sexually touch AH1, a child of or above the age of 10 years and under the age of 16 years (Crimes Act, s 66DB(a)) (count 4);
(5) on 10 November 2019, in Belmont in the State of New South Wales, he did incite AH2 to commit a sexual offence, namely, to enter into an arrangement with him to produce child abuse material, by promising to give her a mobile phone if she would allow him to take photographs of her naked, when she was 13 years old (Crimes Act, ss 91A(2) and 80G) (count 5).
LF pleaded not guilty to each count. He was found guilty of counts 1, 2 and 5 and not guilty of count 4. Given the verdict on count 2, the jury was not required to enter a verdict on the alternative charge in count 3.
The complainants were cousins and the applicant's step-granddaughters. AH1 was born in January 2008 and AH2 in September 2006.
Pre-recorded evidence hearings (Criminal Procedure Act 1986 (NSW), Sch 2, cll 82, 84, 85) were conducted before Traill DCJ on 20 November 2020 in respect of AH2, then 14 years of age, and on 18 December 2020 in respect of AH1, then 12 years of age.
Before the pre-recorded evidence hearing in respect of AH1 there was an objection to her giving part of her evidence in chief by the tender of an audio-visual recording of a JIRT interview conducted on 11 November 2019 (Criminal Procedure Act, Ch 6, Pt 6, Div 3). That objection, made by an application for an order under s 306Y (set out at [36] below), was rejected by Traill DCJ. With minor exceptions the recording was ruled to be admissible (R v LF (District Court (NSW), Traill DCJ, 17 December 2020, unrep) at [94]). AH2 had participated in a much shorter recorded interview earlier on 11 November 2019. There was no objection to her evidence in chief being given by means of that recording.
On 15 July 2022, the trial judge (Bennett SC DCJ) sentenced LF to an aggregate term of 5 years and 6 months with a non-parole period of 3 years commencing on 16 January 2022 (R v LF (No 2) [2022] NSWDC 465). The applicant is eligible for parole on 15 January 2025 and has not appealed against that sentence.
[4]
Grounds of appeal
LF seeks leave to appeal against his convictions on the following grounds:
Ground 1: Traill DCJ erred by failing to exclude the record of interview of AH1 of 11 November 2019.
Ground 2: The trial miscarried because the trial judge, Bennett SC DCJ, failed to give a warning, or inform the jury of the need for caution, as required by ss 165(2) and 165A(2) of the Evidence Act 1995 (NSW).
Ground 3: The verdicts were unreasonable or not supported by the evidence.
[5]
Leave to appeal
As each of these grounds involves a question of fact or a question of mixed law and fact, leave to appeal is required (Criminal Appeal Act 1912 (NSW), s 5(1)(b)). Grounds 1 and 2 relate to LF's convictions on counts 1 and 2, and ground 3 challenges his conviction on counts 1, 2 and 5. Having regard to the manner in which AH1's electronically recorded interview of 11 November 2019 was undertaken, and the questions to which that gives rise concerning the reliability of her evidence, leave to appeal should be granted on each of the three somewhat related grounds.
[6]
Use of pseudonyms and publication restrictions
Pseudonyms are used in relation to the appellant, LF, each of the complainants and some witnesses because there are statutory prohibitions on the publication of the names of each complainant in connection with the proceeding (Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)), as well as on the publication of information likely to lead to their identification (Crimes Act 1900 (NSW), s 578A(2)).
[7]
Factual background
It is convenient at this point to summarise the relevant factual background and the Crown and defence cases in relation to the complaints made by AH1 and AH2.
LF is the non-biological step-grandfather of AH1 and AH2, who are cousins. At the time of the trial, he had been married to his second wife, the complainants' grandmother, for about 25 years.
[8]
Crown case: counts 1 to 4 (AH1)
Counts 1 to 4 arose from two separate incidents said to have occurred when AH1 was visiting the appellant and her grandmother at their home near Newcastle. AH1 was between 8 and 11 years of age during the period in which counts 1 to 3 were charged as having occurred. When she was interviewed in November 2019, AH1 was nearly 11 years old. The incident involving count 4 was alleged to have occurred after 1 September 2019 and before that interview.
Notwithstanding that the incident relating to AH2 was the last of the charged incidents to occur (on 10 November 2019), it was following that alleged incident and AH2's JIRT interview that AH1 was interviewed and disclosed for the first time the conduct which became the subject of counts 1 to 4.
Counts 1 and 2 as charged occurred on a lounge in the sitting room of the grandparents' home whilst AH1 was watching a movie on the television. Her evidence was that she was wearing shorts and a shirt; that whilst she was sitting on the lounge LF came and sat beside her; and that he put his hand underneath her shirt and touched her breast (count 1). According to her evidence he then put his hand under her shorts and clothing and touched her vagina. AH1 said she could feel his hands and fingers moving a little bit. She said she "felt uncomfortable" and that it "just didn't feel right" (count 2).
Count 4, of which the appellant was acquitted, concerned a separate incident which allegedly occurred on the bed in the spare room of the grandparents' house when the appellant put his arm around AH1 and touched her left breast on the outside of her clothing.
[9]
Crown case: count 5 (AH2)
The following summary is taken principally from AH2's JIRT interview.
In November 2019, AH2's mother and stepfather were away on business for a week. Prior to their going, her mother had taken her mobile phone from her so that she could not use it. On Saturday 10 November 2019 at about 11am, AH2 was in the appellant's car at a local car wash. Whilst they were waiting in the queue, the appellant asked AH2 why she did not have a phone. AH2 explained that her mother had confiscated it. LF said that he could "change that" but that she would need to do for him what AH1 had done for him. He then said that he had rewarded AH1 for allowing him to take nude photographs of her and to massage her after his wife had gone to sleep. He told AH2 that no one else knew about their arrangement and that she was not to tell anyone else. This conversation formed the basis for count 5. Later that day, whilst using LF's phone at his home, AH2 saw a photograph of AH1 holding an iPhone 8.
[10]
Events leading to JIRT interviews of AH2 and AH1
LF drove AH2 home in the early evening of 10 November and gave her an iPhone belonging to his wife to use overnight. Once at her home, AH2 said she used that phone to communicate with a male friend, RL, by text messages and phone conversation. During the first phone conversation, she told him that her grandfather was being "inappropriate" towards her. By this time her parents were also at home. Her mother overheard her talking in her bedroom and discovered she was on the phone. When questioned as to how she had obtained that phone, AH2 said she had got it from a friend, "Charlie". Her mother did not believe her. AH2 then became very agitated and emotional and, when questioned further by her mother, eventually disclosed what the appellant had said about AH1 allowing him to take nude photographs of her and to give her massages.
After 8pm on 10 November 2019, AH2's mother contacted the police and made a report of what AH2 had said. At about 1pm on 11 November 2019, AH2 participated in a recorded interview at the Merewether Police Station conducted by Senior Constable Roseby in the presence of a witness intermediary. AH2 told the police that LF had said to her that, in order for him to reward her with a phone, she would have to allow him to take photographs of her naked and participate in massages, as her younger cousin had done.
Following this interview, Senior Constable Roseby conducted an interview of AH1 which commenced at 4:05pm. During the whole of the period of questioning, AH1's mother was present at the police station in a waiting room, having accompanied her daughter to the interview. That interview included six breaks and continued until 6:49pm. In the fourth break, which lasted only 3 minutes, AH1 did not leave the interview room and started to become visibly upset. During the following period of questioning (Q&A 202-241) AH1 was visibly upset and crying and said three times that she wanted to see her mum. The fifth break lasted 25 minutes, during which AH1 spent time with her mother. It was in the course of the sixth phase of questioning (Q&A 245-375) that AH1 disclosed for the first time the incidents which became the subject of counts 1 to 4.
The admission as evidence of the audio-visual recording of Q&A 275-420 from this interview is the subject of ground 1 of appeal, and the adequacy or otherwise of the trial judge's directions to the jury concerning the unreliability of that recorded evidence of AH1 is the subject of ground 2.
[11]
Defence case
The case for LF was that he was a person of good character and that he did not have any sexual contact with AH1 or incite AH2 to allow him to take nude photographs of her.
LF participated in an electronically recorded interview with Senior Constable Roseby on 12 November 2019 (which became Ex J in the trial). In that interview he denied having a conversation with AH2 about providing a phone to her. His case was that her mother had banned AH2 from using a mobile phone; and that she had wanted another phone and had convinced him to let her borrow one. When she was later caught by her mother using that mobile phone, she lied about what LF had said to her. There had been no conversation with AH2 about AH1 allowing him to take nude photographs of her and to massage her. Nor was the underlying allegation that he had done so true. Each had been made up by AH2.
As to the reliability of AH1's recorded interview, the defence case was as follows.
AH1 had initially denied allegations of any impropriety including the assertions that LF had taken naked photographs of her and inappropriately massaged her (Q&A 247-251). She had also given negative answers to more general questions suggesting wrongful conduct by LF (Q&A 130, 158, 246, 306). The disclosures subsequently made by AH1 and relied on by the police were the product of a sustained and inappropriate interview process (especially Q&A 201-241). The interview was conducted on the unstated premise that she had been sexually assaulted and over time created an environment in which AH1 thought she could not leave until she had made some form of allegation against her step-grandfather (Q&A 203, 247-249). She had become upset during the course of the interview and the police interviewer used her requests to see her mother as an opportunity to pressure her to implicate the accused before that could occur (Q&A 209-216, 237-239). Her evidence implicating him was ultimately unreliable and the jury could not be satisfied beyond reasonable doubt that the relevant charges were made out.
[12]
Ground of appeal 1 (error in failing to exclude part of AH1's recorded interview of 11 November 2019)
[13]
Criminal Appeal Act, s 6(1)
The grounds on which an appeal against conviction might be upheld under s 6(1) include that "the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law" or that "on any other ground whatsoever there was a miscarriage of justice". These grounds in this common form criminal appeal provision are referred to as the second and third limbs of s 6(1).
In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [9] and [13], the plurality (French CJ, Bell, Keane and Nettle JJ) described the question arising under the second limb as being "whether the judge has erred in law in the sense of a departure from trial according to law", citing Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ). In Filippou at [84], Gageler J added that to engage the second limb in a judge-alone trial any such error of law must be material to the ultimate finding of guilt.
The passage in Weiss at [18] includes that "a 'miscarriage of justice', under the old Exchequer rule, was any departure from trial according to law, regardless of the nature or importance of that departure". Neither that statement nor the statement in Filippou at [9] is to be understood as saying that any departure from a rule or principle of law bearing on the conduct of a trial, whether involving a legal error or some other form of irregularity and irrespective of whether it could have affected the outcome of the trial, will amount to a wrong decision of a question of law that engages the second limb or to a "miscarriage of justice" within the third limb of s 6(1).
In each case the error or irregularity must be of such a nature and degree that it could realistically have affected the guilty verdict (per Gageler J in Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [123]) or resulted in or constituted a sufficient prejudice to the accused that a "real chance" of a different outcome was lost (per Kiefel CJ, Keane and Gleeson JJ in Hofer at [41], [47]). In Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [74], Edelman and Steward JJ described the requisite error or irregularity as one which had "the capacity for practical injustice", or one which was "capable of affecting the result of the trial". See also AK v R [2022] NSWCCA 175 at [5]; and Su v R [2023] NSWCCA 21 at [35]-[39].
[14]
The statutory scheme
Before turning to the disposition of this first ground it is necessary to provide an understanding of the statutory scheme in which the challenged decision was made.
Part 29 of Schedule 2 of the Criminal Procedure Act, which commenced on 31 March 2015 and extended to 30 June 2022, legislated what was called the Child Sexual Offence Evidence Pilot Scheme. By cl 84(1) that scheme provided that "[s]ubject to any contrary order of the Court, evidence of a witness in proceedings to which this Part applies who is less than 16 years of age when the accused person was committed for trial … must be given at a hearing under clause 85 (a pre-recorded evidence hearing) in accordance with that clause". That hearing in relation to AH1 was scheduled for 18 December 2020.
The Criminal Procedure Amendment (Vulnerable Persons) Act 2007 (NSW) had earlier inserted Part 6 ('Giving of evidence by vulnerable persons') in the Criminal Procedure Act. Those provisions replaced the Evidence (Children) Act 1997 (NSW) and extended their application in the Criminal Procedure Act to intellectually impaired persons. Section 306Y replaced s 15 of the Evidence (Children) Act.
Section 306Y provides:
306Y Evidence not to be given in form of recording if contrary to interests of justice
(1) A vulnerable person must not give evidence by means of a recording made by an investigating official in accordance with this Division if the court orders that such means not be used.
(2) The court may only make such an order if it is satisfied that it is not in the interests of justice for the vulnerable person's evidence to be given by a recording.
In the second reading speech for the Evidence (Children) Bill, Minister Langton, speaking on behalf of Minister Whelan, said, referring to the benefits of recorded investigatory interviews, as identified by the taskforce which developed the reform (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 November 1997 at 2450-2453):
These benefits include: greater accuracy in the recording of children's evidence; a reduction in the number of interviews for child witnesses; reduced trauma for children giving evidence; assistance to children in refreshing their memory prior to giving evidence; reduced opportunity for the child's evidence to be contaminated by the involvement of others; and a possible increase in the rate of pleas by persons accused of offences against children.
…
To summarise, the Evidence (Children) Bill provides a comprehensive regime for children giving evidence in criminal proceedings. A child called to give evidence in these proceedings may now rely upon an electronic record of an earlier interview to form part or all of his or her evidence in chief, and in personal assault matters a child who decides to give evidence orally may rely upon closed-circuit television or other alternative means for giving evidence.
[15]
The argument before Traill DCJ
The appellant sought to exclude Q&A 275-420 of the interview from AH1's evidence in chief on the basis that it was "not in the interests of justice" for AH1 to give evidence in that form, so as to justify an order under s 306Y.
To be weighed in the balance were the benefits associated with the use of the recording, including the desirability of not occasioning further trauma to the child complainant, and the risk that the use of the recording would cause undue or unfair prejudice to the accused. However, the structure of s 306Y makes clear that what is involved is not a simple balancing of those competing interests. Unless the court makes a finding that it is not in the interests of justice for the evidence to be given by a recording, the entitlement conferred by s 306U is to prevail. See, to a similar effect, Basten AJA's consideration of the application of Sch 2, cl 87 of the Criminal Procedure Act in PJ v R [2023] NSWCCA 105 at [44]-[47].
The appellant submitted that the way in which the interview was conducted was likely to produce unreliable answers. The questions were leading, misleading and in some cases "improper". The effect of these factors was that the witness was placed under pressure to implicate the appellant: J[19]-[20], [25]-[28].
The appellant separately relied on ss 37, 135, 137 and 138 of the Evidence Act as justifying the exclusion of Q&A 275-420 either wholly or in part. The operation of those provisions was preserved by Criminal Procedure Act, ss 306O and 306V(4). Specifically, the appellant submitted that Q&A 287-290, 317 and 335-339 were leading and improper questions engaging the prohibition in s 37(1) and the discretion conferred by s 135 or mandatory power conferred by s 137. It was also submitted that Q&A 275, 278 and 297 (in part) were misleading, potentially confusing and liable to be excluded by ss 135 or 137. Finally, it was contended that the police interviewer made a "deliberate" decision to ask leading and misleading questions which constituted "impropriety" warranting the exclusion of Q&A 275-420 under s 138.
In response, the Crown contended that the appellant had not established that it was "not in the interests of justice" for Q&A 275-420 to be admitted in evidence. The Crown accepted that aspects of the questioning of AH1 were "concerning" (J[42]) but said such concerns were allayed by AH1's demonstrated capacity to disagree with the various propositions put to her (J[38]) and the fact that the JIRT interview was recorded, giving the jury an opportunity to see and hear the questioning and form a view as to the reliability of AH1's evidence (J[39]).
[16]
Traill DCJ's reasons
Her Honour's reasons for judgment were not available to the parties when the trial commenced before Bennett SC DCJ on 28 March 2022. The material before this Court does not establish exactly when those reasons were provided electronically to the parties, although they must have been made available at some point prior to the appellant's filing of submissions in December 2022.
With respect to the making of an order under s 306Y(1), her Honour was not satisfied that it was "not in the interests of justice" for AH1's evidence in chief to be given by the tender of Q&A 275-420, as well as Q&A 1-274 to which no objection was made. Her Honour's conclusion is stated at J[78]:
I have taken into account all the submissions on behalf of the accused and the intent of the legislation, which is to minimise the trauma of children giving evidence. The matters submitted on behalf of the accused are largely matters that arise regardless of the manner in which evidence is given and they do not mandate a finding that it is not in the interests of justice.
The "matters submitted on behalf of the accused" are summarised at J[19]-[29]. The primary judge noted that, in response to those matters, the Crown had conceded that there were aspects of the interview which were "concerning" and that the interviewing techniques adopted were "sub-optimal". The Crown did not seek to defend those techniques. Its response was that the jury would be well-equipped to consider and make a sound assessment as to the reliability of the evidence, having also had the benefit of observing the video recording of AH1's JIRT interview (J[39], [49]-[50]).
Traill DCJ's reasons for the above determination included: (1) that her Honour had viewed the interview and what was apparent was that at times when the transcript records "no audible reply", the complainant had "either nodded, shrugged or shook her head but still communicated on the recorded video". Thus the relevant evidence included the video of the JIRT interview, not just the transcript of what was said, and this had to be taken into account in assessing the extent to which there were leading questions (J[64], [65], [68]); (2) that, while there were a number of leading questions, AH1 demonstrated that she was not influenced by the form of the questioning and that she was capable of rejecting a proposition with which she did not agree (J[58]); (3) that it was "commonplace" in child sexual assault matters for a complainant to deny that the accused had done anything wrong and in a subsequent interview to make a disclosure as to what the accused had done (J[59]). This observation is directed to the suggested significance of AH1's not having referred to the alleged wrongdoing in her earlier answers to differently focused questions, whilst later having done so, albeit after showing some distress; (4) that in any case the answers which led to the disclosure of the conduct charged as counts 1 and 2 were predominately the result of non-leading questions (J[66]-[69]); (5) that the probative value of Q&A 275-420 was high because at the time of the proposed pre-recorded evidence hearing that was the only direct evidence of the conduct charged by counts 1 and 2. Her Honour considered the video recording of that part of the interview to be cogent evidence because the jury collectively could observe the responses of the complainant to the questioning and give her responses what weight they "think it deserves" (J[82], [87]); and (6) that AH1 could view her evidence in chief before being cross-examined in the pre-recorded evidence hearing, which would then no doubt focus on her memory of what had occurred (J[79]).
[17]
Disposition of ground 1
The appellant's written and oral submissions on appeal focused on J[78], and in particular on her Honour's statement that the "matters submitted on behalf of the accused are largely matters that arise regardless of the manner in which evidence is given", and on her conclusion that as such they could not support a finding that it was not in the interests of justice that AH1's evidence in chief be given by the tender of the whole of her JIRT interview.
That analysis was said to involve error because, if AH1's evidence had been given orally, defence counsel would have been entitled to object to any leading questions and the questioning would not have proceeded as it did over a period of nearly three hours. Rather, AH1's welfare as a witness would have been paramount and she would not have been subjected to any perceived pressure or questioning whilst she was visibly upset. That would have minimised the risk of questioning or other conduct that might have shaped or influenced the direction of her evidence in chief.
It was also submitted that her Honour did not consider all of the matters that made it likely that AH1's evidence was unreliable and gave rise to the risk of undue prejudice. The matters said not to have been considered included: that questions were asked on the unstated premise that the appellant had done something wrong; that the nature of questioning put AH1 under pressure to make such an allegation; that the questioning had continued even though AH1 was visibly upset and said she wanted to see her mother; and that the interviewer continued to ask questions notwithstanding that AH1 had already denied the occurrence of the conduct to which the questions were directed and in doing so refused to accept AH1's earlier denials. That manner of questioning was said to have put pressure on AH1 to implicate the appellant, thereby raising questions as to the accuracy and reliability of her evidence which could not be satisfactorily recognised and dealt with by a lay jury.
The submission in support of this last proposition was that a "jury does not have the experience to adequately appreciate the impact of such factors on a vulnerable witness". Making that proposition good is critical to the appellant's argument on this ground, for, as was noted in the second reading speech (at 2452) with respect to the application of s 306Y, it could only be "not in the interests of justice" for a child's evidence to be given by a recording if that "means of giving evidence would cause undue prejudice to the accused that could not be adequately addressed by warnings to the jury".
[18]
Ground of appeal 2 (trial miscarried because failure to give warning or inform jury of need for caution as required by Evidence Act, ss 165(2) and 165A(2))
Ground 2 is directed to the third limb of Criminal Appeal Act, s 6(1), namely, that "on any other ground whatsoever there was a miscarriage of justice".
In Hofer at [47], Kiefel CJ, Keane and Gleeson JJ identified as constituting a sufficient prejudice to the accused that there had been a failure to give a direction and warning to the jury in circumstances where there was a "real chance" that with the benefit of that direction and warning the jury might have reached a different conclusion: see also Gageler J at [123].
The appellant submits that there was a miscarriage of justice because the trial judge failed to warn the jury that AH1's evidence might be unreliable "as required" by Evidence Act, ss 165(2) and 165A(2). The sense in which his Honour's directions are said to have fallen short is that they did not properly address the reasons why that evidence might be unreliable and the need for caution in determining whether to accept that evidence.
Prior to the commencement of the trial judge's summing up, defence counsel had made a written application for a warning to be given under ss 165(2) and 165A(2) that AH1's evidence may be unreliable due to the manner in which she was questioned in the 11 November 2019 JIRT interview.
Section 165 relevantly provides:
165 Unreliable evidence
(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence -
…
(2) If there is a jury and a party so requests, the judge is to -
(a) warn the jury that the evidence may be unreliable, and
(b) inform the jury of matters that may cause it to be unreliable, and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving the warning or information.
(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A (2) and (3).
[19]
The trial judge's directions
In the course of summing up, the trial judge addressed AH1's JIRT interview on two occasions. On the first, recorded across slightly less than four pages of transcript, his Honour reminded the jury of defence counsel's central submission - that there was a reasonable possibility that AH1's answers in her interview were unreliable because of the manner in which the interview was conducted - and noted that the appropriate finding on this issue was entirely a matter for the jury. The second occasion involved an additional direction given to the jury near the end of the summing up and after short submissions by defence counsel pressing the trial judge to use the words "that the evidence may be unreliable".
That additional direction included the following passage, directed to AH1's evidence given by way of the JIRT interview:
… the evidence might be unreliable for the reasons that have been explained to you and that you should use appropriate caution in determining whether to accept the evidence that was given by [AH1] throughout the process and the weight that you attribute to it
The reasons why it was said that evidence might be unreliable were the subject of defence counsel's final address which took the jury through AH1's JIRT interview in great detail, emphasising that it proceeded over a period of just under three hours, that it included six breaks and that on two occasions it was said that the interview was concluded, only for it then to continue. This, it was suggested, might have created an impression that the interview was not going to end until AH1 provided police with "the information that they wanted", the unstated assumption being that AH1 had something to tell them about her grandfather. Accounting for the six breaks, the interview had seven phases. In the second phase of questioning AH1 gave answers to general questions which were not consistent with anything having occurred with the appellant. During the third phase, the questioning focused on the appellant and the massages. AH1's answers consistently were that nothing had happened. At the end of that phase (Q&A 161), the investigating officer announced, "we're done".
Shortly afterwards, phase four of the questioning commenced (Q&A 164), again focusing on massages with the appellant. The continuation of the questioning on that subject was said to indicate that the police did not accept AH1's denials and that there was something else they wanted her to say about the appellant. The questioning continued until Q&A 201, at which point AH1 started to cry and was clearly upset. Nevertheless the questioning continued until Q&A 241. Q&A 216, which was prefaced by the words "[b]efore you go out, and I'll just take you out in a minute", again focused on the massages with the appellant. After Q&A 241, there was then a break of 25 minutes; following which (at Q&A 262) AH1 gave an answer which led to the answers describing the conduct charged by counts 1, 2 and 4. Moving forward, after AH1 had given evidence of the incident charged as counts 1 and 2 (Q&A 375), the officer announced that he was going to "conclude the interview now". A short time later the interview continued and the subsequent questioning was directed to whether any digital penetration had occurred. At Q&A 391, AH1 was asked whether it felt "like his fingers were inside or outside", to which she responded, "a bit of both".
[20]
Disposition of ground 2
Reference has already been made to the position under the common law with respect to the circumstances in which a jury direction is required: see The Queen v GW. A warning is necessary to avoid a perceptible risk of a miscarriage of justice, which will arise when there is a feature of the evidence which may adversely affect its reliability and which may not be evident to a lay jury. Subject to the relevant statutory prohibitions (at [50]):
… where there is a feature of that kind the fair trial of the accused requires the judge to draw it to the jury's attention, explain how it may affect the reliability of the evidence and warn the jury of the need for caution in deciding whether to accept it and the weight to be given to it. (Footnotes omitted.)
In the case of warnings given with respect to the evidence of a child complainant in a sexual assault case, the relevant statutory prohibitions include Criminal Procedure Act, s 294AA and Evidence Act, ss 165(6) and 165A.
In the course of discussions with counsel in the absence of the jury, the trial judge accepted that there was evidence given by AH1 which "may be unreliable" because of the manner in which it emerged in the course of the lengthy JIRT interview. In response to the Crown's urgings that no direction was necessary because no "particular feature" of AH1 justified such a direction, his Honour observed:
The only thing is I think there's merit in the view that the interrogation of the child was persistent and in the face of multiple occasions when she wanted to go and speak with her mother and there were repeated representations to her about the fact that she was not in any trouble and that she could speak with the police officers, and she was distressed on a number of occasions, the argument is going to be that - and I anticipate that's what Mr Johnston is going to get to - because of the persistence and perhaps the zeal that was given by the police officer looking to get to what the child might have had to say, there was a measure of pressure that was applied to, at the end of the day, a little girl, and she did have the opportunity to speak to her mother along the way and then came back into the interview room, but then again was still apparently reticent to give prompt and ready responses to questions put to her.
That said, his Honour also noted that such a warning:
… would have to be accompanied by a guidance to the jury in terms that they should look at the entirety of the responses, because what did come to me was that right at the end of her evidence she was firm in her assertions of what she said is what occurred.
[21]
Ground of appeal 3 (the verdicts were unreasonable or not supported by the evidence)
In determining an appeal on the unreasonable verdict ground, the function of this Court is to make an independent assessment of the sufficiency and quality of the whole of the evidence. The question is whether, notwithstanding that there is evidence upon which a jury might convict, nonetheless it would be dangerous in all of the circumstances to allow the guilty verdict to stand (M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63). In each case the court "will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own review of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt" (Filippou v The Queen at [82]; Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 at [15]).
The authoritative guidance to be gained from the joint judgment in M v The Queen has not diminished. As was emphasised (at 493), in answering the question posed above:
… the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Footnotes omitted.)
It is necessary to consider the guilty verdicts on counts 1 and 2 separately from the verdict on count 5. In relation to each of those three verdicts, the Crown case depended upon the jury accepting beyond reasonable doubt that each relevant complainant's evidence was truthful and accurate.
I have considered the whole of the evidence in the trial. That evidence includes the audio-visual recording of AH1's November 2019 JIRT interview and her second JIRT interview, the transcripts of the JIRT interviews of AH2 and RL, the transcripts of the pre-trial evidence given by AH1, AH2 and RL as well as the trial transcripts of the oral evidence of AH1's mother, AH2's mother, AH2's step-father, the appellant's wife and Senior Constable Roseby.
It is convenient first to address the verdicts on counts 1 and 2.
[22]
Verdicts on counts 1 and 2
The only direct evidence as to the commission of these offences is that of AH1 given by her JIRT interview and orally in her pre-recorded evidence hearing. The latter included her cross-examination. In the trial her mother also gave evidence as to her observations of and conversations with AH1 during the fifth break in her interview (after Q&A 241).
The Crown case was and remains that AH1's evidence in relation to the three charged offences was credible and reliable. The defence case was and remains that the manner in which that interview was conducted was such that the nature and quality of AH1's evidence was not sufficient to eliminate a reasonable doubt as to LF's guilt on counts 1 and 2.
The appellant submits that in considering this ground the Court should view AH1's first JIRT interview, and that doing so should lead the Court to have a reasonable doubt as to his guilt on counts 1 and 2. It is also submitted that a jury acting rationally must have entertained that reasonable doubt. It might be observed that this submission is not wholly consistent with the appellant's argument made in support of ground 2 that this Court was "better placed than a jury to assess the complainant's evidence", which I have rejected for the reasons given above.
The Crown does not submit that this Court should not view the recording. Indeed it says there are good forensic reasons for the Court to do so. The video recording shows AH1's non-verbal responses, delays in responding and body language including fidgeting, as well as the periods in which she was visibly upset.
However, the Crown emphasises the continuing distinction between the role and advantages of the jury and the performance by a court of criminal appeal of its functions in making its independent assessment of the evidence, including by the viewing of an audio-visual recording of the witness' evidence.
That distinction was addressed by the High Court in Pell v The Queen:
[37] Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
[38] It should be understood that when the joint reasons in M v The Queen spoke of the jury's "advantage in seeing and hearing the witnesses" as being "capable of resolving a doubt experienced by a court of criminal appeal" as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or "constitutional" demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
(Footnotes omitted, emphasis added.)
[23]
Verdict on count 5
This offence as charged occurred whilst AH2 and the appellant were in his car at a car wash on Saturday 10 November 2019. The only direct evidence of the offence is that of AH2 given by her JIRT interview the following day (to which there was no objection) and her oral evidence given in her pre-recorded evidence hearing on 20 November 2020.
AH2 said in her JIRT interview that after she had returned home in the early evening of 10 November she messaged a male friend in Melbourne, RL, saying that her grandfather was being "inappropriate" towards her (Q&A 122-132). Later, after her mother had discovered her on the phone to RL, AH2 had "freaked out" because that was the appellant's phone. After she had calmed down, AH2 ended up "telling her [mother] everything" (Q&A 136-138). Both RL and AH2's mother gave evidence to similar effect. RL's evidence was given by a JIRT interview conducted on 10 December 2019 and his pre-recorded oral evidence was given on 20 November 2020. AH2's mother gave evidence during the trial on 4 April 2022.
The appellant submits that a jury acting reasonably would have had a reasonable doubt as to the reliability and truthfulness of AH2's evidence. When she was first caught using the mobile phone, she lied about what she was using the phone for and how she came to have it. It is said that the Crown case required that those lies be ignored. AH2's version of the conversation with the appellant is also described as implausible and internally inconsistent.
In her JIRT interview (at Q&A 67) AH2 described her conversation with the appellant:
A. So he was saying if in order for like him buying a new phone um, he said that, he said that [AH1] does this so I would have to do the same thing um, as her by doing, he said he ah, takes nude photos of her and like massage, I can't talk, massages her after his wife goes to sleep.
AH2 described that conversation as having happened "both in the morning and the afternoon" of Saturday 10 November 2019 (Q&A 72).
AH2's attention was then directed to the "morning conversation" (Q&A 73) and, having been asked about the "rewards", she answered that the appellant had told her "he rewarded [AH1] with an iPhone 8" (Q&A 75). There was then a reference to a photo AH2 had seen "yesterday" (i.e., on 10 November) of AH1 holding an iPhone 8. AH2 later explained that she had seen this photo on the appellant's iPhone after she had arrived at his home at about noon on the Saturday and was using his phone to show her grandmother a "pair of shoes" (Q&A 154-161). Her evidence otherwise continued to be that the appellant had said he would buy her a new phone in return for the photos and massages, without any reference to his having given any phone to AH1 (Q&A 87, 93, 94, 104, 105). Contrary to the appellant's submission, it was not a "particular feature of [her] allegation" that the appellant would reward AH2 with an iPhone "like he had given" AH1.
[24]
Conclusion
The following orders should be made:
1. Grant leave to the applicant, LF, to appeal against his convictions on grounds 1, 2 and 3.
2. Dismiss his appeal against conviction on each of grounds 1, 2 and 3.
WILSON J: I have had the advantage of reading in draft the judgment of Meagher JA, with which I agree. I wish to make a short additional comment only with respect to ground 2.
During a trial judge's summing up to a jury its members are always instructed to bring to bear in their deliberations the individual life experience, understanding of people and human affairs, and common sense, that each has. The combined wisdom of twelve members of the community and the breadth of experience of a cross-section of the community in judging the issues to be resolved in the trial, has been and is a highly esteemed part of our system of criminal justice. The value of the experience of twelve members of the community in the just determination of criminal charges should not be underestimated or diminished. In the applicant's trial there was no question for resolution that was beyond the capacity of a jury to determine properly and fairly. Assessing the reliability of the evidence given by AH1 was a function of the jury, and one which did not require guidance through extensive directions given by the trial judge. There was no good reason to conclude that the court was better placed than was the jury to understand the dynamics of the interview by police of AH1, and any possible impact the manner of her questioning may have had on the complainant's veracity or accuracy, such as to necessitate a warning to be given to the jury pursuant to s 165(2) and s 165A(2) of the Evidence Act 1995 (NSW). The directions given by the trial judge were more than adequate in that regard. No miscarriage occurred.
I agree with the orders Meagher JA has proposed, for the reasons so comprehensively given by his Honour.
SWEENEY J: I have had the advantage of reading in draft the judgment of Meagher JA. I gratefully adopt his Honour's thorough analysis of the evidence in the trial, the issues in the appeal and the applicable legal principles.
Meagher JA has described the circumstances in which AH1 was interviewed and her allegations obtained. I have concluded that the reliability of her evidence was significantly adversely affected by the circumstances in which it was obtained, given her age, the duration of the interview, the persistent questioning in the face of her repeated denials, and the lack of any prior complaint by her to any family member.
[25]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 20 September 2023
As Traill DCJ's ruling to allow the whole of the JIRT interview (with the minor conceded exceptions) to be used as evidence was made before the trial commenced, it falls to be determined in the light of the circumstances that existed, or were known, at the time of that ruling. In Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 at [165]-[166], the Court observed:
[165] Rulings on questions of procedure, and rulings on the admissibility of evidence, are decisions of law, and may be challenged as errors of law …. To the extent that a ruling is said to be erroneous, that issue must be determined in the light of the circumstances that existed, and were known, at the time of the ruling. It cannot be said that a ruling involved error of law by reason of events or circumstances that arise subsequently.
[166] In this case, many rulings on the admissibility of evidence were made before the jury trial commenced. A jury trial is frequently fluid; circumstances change, subsequent events may cast a different light on evidence quite properly ruled to have been admissible. Those changed circumstances do not render an earlier ruling erroneous in law. They may indicate that, by reason (for example) of changed circumstances, an earlier ruling has given rise to a miscarriage of justice - [engaging the third limb of s 6(1)].
See also Bektasovski v R [2022] NSWCCA 246; (2022) 407 ALR 125 at [2]-[5], [58]-[65]; and Burns-Dederer v R [2023] NSWCCA 191 at [48].
That second reading speech also sheds some light on the "interests of justice" with which s 306Y is specifically concerned (at 2452):
As an additional safeguard, clause 15 of the bill permits a court to order that evidence not be given in the form of an audio tape or videotape where it is satisfied that it is not in the interests of justice for the child's evidence to be given by a recording. This provision is similar to the current section 405D(5) of the Crimes Act. The rationale for this provision is that it is considered imperative that the defendant be able to make application, prior to trial, that the alternative means of giving evidence would cause undue prejudice to the accused that could not be adequately addressed by warnings to the jury. (Emphasis added.)
At the pre-recorded evidence hearing scheduled for 18 December 2020, AH1 was entitled to give her evidence in chief as provided by Criminal Procedure Act, s 306U(1) and (2):
306U Vulnerable persons entitled to give evidence in chief in form of recording
(1) A vulnerable person is entitled to give, and may give, evidence in chief of a previous representation to which this Division applies made by the person wholly or partly in the form of a recording made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court. …
(2) Subject to section 306Y, a person is entitled to give, and may give (no matter what age the person is when the evidence is given), evidence as referred to in subsection (1) in the form of a recording of a previous representation to which this Division applies made by the person when the person was less than 16 years of age.
(3) If a vulnerable person who gives evidence as referred to in subsection (1) is not the accused person in the proceeding, the vulnerable person must subsequently be available for cross-examination and re-examination -
(a) orally in the courtroom, or
…
Where the person who gives evidence in accordance with s 306U(1) is not the accused, that person must subsequently be made available for cross-examination and re-examination (s 306U(3)).
Thus the Crown proposed to tender AH1's November 2019 JIRT interview at the hearing scheduled on 18 December 2020. If the appellant's application was successful, AH1 would have given her evidence in chief directed to the charged offences orally at the pre-recorded evidence hearing. She would then have been subject to cross-examination. That evidence in chief would have been given approximately 13 months after the JIRT interview. If the cross-examination extended to the circumstances in which AH1 first disclosed the charged conduct, it was virtually inevitable that the transcript of that JIRT interview would have been marked in the pre-trial hearing and subsequently put in evidence before the jury.
As for the remaining objections relying on the Evidence Act, the Crown did not press Q&A 275, 278, 295 (in part) and 317. It maintained that the other impugned questions were not relevantly leading and, in the alternative, sought leave pursuant to ss 37(1)(a) and 192(2) to use those questions and answers as part of AH1's evidence in chief (as was the ruling of Johnson J in R v A2; R v KM; R v Vaziri (No 21) [2016] NSWSC 24 for the reasons given at [34]-[37]). The Crown further submitted that the probative value of Q&A 275-420 was "substantial", the occasion of the interview being the first time AH1 had alleged that the appellant had touched her inappropriately (J[48]), and that any unfairness to him as accused was outweighed by the harm that would be occasioned to AH1 by requiring her to give her evidence in chief again, some 13 months after the JIRT interview (J[46]).
Her Honour's responses to the appellant's separate reliance on Evidence Act, ss 37(1), 135, 137 and 138 were as follows.
As to s 37, the tender of Q&A 275, 278, 295 (in part) and 317 was not pressed and the remaining questions resulting in the disclosure of the charged conduct were predominately not leading (J[65]-[69]). To the extent that Q&A 275-420 otherwise included leading questions, her Honour was prepared to grant leave to the Crown under ss 37(1)(a) and 192(2) to rely on them (J[83]).
As to s 135, the probative value of AH1's evidence was high and the jury was well-placed to assess its reliability. There was "no real risk" of the jury misusing the evidence by giving it "more weight than it deserves" (J[87]). Her Honour's conclusion was the same in respect of s 137. The probative value of Q&A 275-420 was not outweighed by the danger of unfair prejudice to the appellant (J[88]).
Finally, as to s 138, while some of the questioning was "sub-optimal", a viewing of the recording of the interview did not demonstrate any impropriety sufficient to enliven this provision. In her Honour's view, the "concerning" way in which the interview was conducted was not deliberate or reckless (J[89]). That finding is not challenged.
In this context "undue prejudice" describes a risk that the jury will use the evidence improperly or misuse it in some unfair way; for example, by giving it more weight than it is properly due. See R v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [73]; and Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]-[92].
The Crown made two responses to these arguments. Neither response was said to turn on the standard of appellate review applicable to the question whether, for the purposes of s 306Y(2), it was not in the interests of justice for the recording to be used as evidence. This makes it unnecessary to consider further the position taken by both parties in oral argument that this was in the nature of a discretionary power to which the standard in House v The King applied.
The Crown's first response was that what her Honour is to be understood as saying in J[78] is that the matters relating to the conduct of the interview were likely to arise "regardless of the manner" in which AH1's evidence in chief was given because the interview was the first occasion on which AH1 had complained of the conduct charged.
For that reason the interview and manner in which it occurred would have remained central to the appellant's defence regardless of whether Q&A 275-420 were tendered as part of AH1's evidence in chief or she gave that evidence orally. If the latter, there was little doubt that she would have been asked questions in cross-examination about the circumstances in which her complaint first emerged in the JIRT interview. That being the position, the accuracy and reliability of her answers would have had to be assessed by the jury in any event.
That it was likely that the whole of the interview would go into evidence regardless of how AH1 gave her evidence was confirmed by senior counsel for the accused in argument before Traill DCJ, where it was said:
[In the event AH1 gave oral evidence in chief which was consistent with her interview], I'd have to frankly say it may well be that I would need to take her back through the evolution of the complaint and the - in the interview, to reveal how it came out, in the first instance. So, I don't want to, in any way, be misleading about the manner of this application.
In this Court, senior counsel acknowledged that had AH1 given her evidence in chief orally, and assuming it was to the same effect as that given in the JIRT interview, then "potentially there would have been a need to cross-examine her on the evolution of it".
The Crown's second response focused on the manner in which the interview had been conducted, which was said to call into question the accuracy and reliability of AH1's evidence; and whether the matters relied on by the appellant could be evaluated by a lay jury, either with or without the benefit of a warning or direction of the trial judge.
The following submissions were made. First, a consideration of the questions and answers throughout the interview showed that AH1 was capable of rejecting or denying many propositions that were put in the form of leading questions. She was not shown to be an "acquiescent person" tending over time to answer such questions in the affirmative, nor was she someone who departed from her previous answers to the same or similar questions when repeated by an "authority" figure. Secondly, whilst conceding that there were "aspects" of the questioning which were "concerning", the Crown's position was that their cumulative effect was not such as to make it not in the interests of justice for the complainant to give her evidence in chief by the tender of the full JIRT interview (J[38], [42]). The answers leading to the disclosure of the conduct charged as counts 1 and 2 were predominately the result of non-leading questions. Thirdly, as the interview was recorded, the jury would be able to see and hear AH1 giving her answers and to form a view as to the significance of the aspects of the questioning which were said to affect the accuracy and reliability of those answers.
Dealing first with Traill DCJ's conclusion at J[78], in my view, reasonably understood, her Honour is saying that issues as to the accuracy and reliability of AH1's interview evidence would likely arise in the trial in any event, regardless of whether her evidence in chief included the JIRT interview. For that reason, her Honour did not err in describing the difficulties arising from the manner in which the interview was conducted as matters which would "arise regardless" of how the evidence in chief was given. Indeed, because those matters were likely to arise for the jury's consideration in any event, it could not be in the interests of justice to require that AH1 give her evidence in chief orally at the pre-recorded evidence hearing and then be cross-examined by reference to the JIRT interview given 13 months earlier.
That this was her Honour's conclusion is further confirmed by her finding at J[79], albeit that it overlooks that AH1 would be cross-examined in the pre-recorded evidence hearing rather than before the jury. That finding was:
In my view, it is in the interests of justice that the complainant has the opportunity to watch the videos in accordance with the legislation at the same time that it is played to the jury. Then she can be cross examined in relation to her memory.
This makes it strictly unnecessary to determine the matters addressed by the Crown's second response to the arguments in support of ground 1. Nevertheless, those matters should be addressed.
In this context, the ultimate question for the jury was whether they could be satisfied beyond reasonable doubt as to the appellant's guilt in relation to counts 1 and 2. In considering that question, it was necessary for the jury to be satisfied beyond reasonable doubt as to the accuracy and reliability of AH1's evidence. That in turn required the jury to assess whether, by reason of the manner in which the JIRT interview had been conducted, there remained a reasonable doubt as to the accuracy and reliability of that evidence, which was to be determined having regard to all of the evidence, including AH1's evidence in cross-examination in which she adhered to her answers given in the JIRT interview.
The appellant's contention was that a lay jury's general experience was not sufficient to allow a proper assessment of the accuracy and reliability of the evidence given in Q&A 275-420. At least in relation to ground 1, that contention was not sufficient to establish error on the part of Traill DCJ unless the appellant also demonstrated that her Honour could not have been satisfied that any undue prejudice arising from that supposed limitation of the jury could be cured by a warning or direction given to the jury at trial.
The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is the province of the jury; and that remains the position irrespective of whether the evidence is given in person or by an audio-visual recording (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [38]). As Basten JA observed in Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; (2010) 220 A Crim R 19 at [94], it is a "universal expectation that juries will need to assess witnesses to decide whether the witness is truthful and accurate, truthful but inaccurate, untruthful, or fantasising".
Where there is a feature of the evidence, or of the manner in which it was given, "which may adversely affect its reliability and which may not be evident to a lay jury", then subject to any statutory prohibition "the fair trial of the accused requires the judge to draw it to the jury's attention, explain how it may affect the reliability of the evidence and warn the jury of the need for caution in deciding whether to accept it and the weight to be given to it" (The Queen v GW (2016) 258 CLR 108; [2016] HCA 6 at [50]).
In Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56 at [178], Crennan J described the circumstances warranting the giving of a warning as being:
… whether all of the circumstances gave rise to some forensic disadvantage to the appellant, palpable or obvious to a judge, which may not have been apparent to the jury, thus necessitating a warning so as to avoid a miscarriage of justice. There is a clear distinction between such a case and a case where all the circumstances can be evaluated by a jury in the light of their own experiences. (Footnotes omitted.)
Traill DCJ was justified in proceeding, as her Honour did, on the basis that the issues as to the accuracy and reliability of AH1's answers in the JIRT interview were capable of being properly addressed by a jury (J[82], [87]).
In MJK v R (Court of Criminal Appeal (NSW), 21 April 1995, unrep), Sully J (Hunt CJ at CL relevantly agreeing, and Smart J agreeing), in discussing the difficulties inherent in presenting and obtaining the evidence of children, referred to two decisions of the New Zealand Court of Appeal before observing (at p 14):
What these passages make clear, and the point is reinforced by other things said in the judgment, is that in that particular trial the jury at trial had every opportunity for considering for itself the evidence of the complainants, some of whom were children of very tender years, [who] had been improperly induced or impermissibly prompted. The emphasis which Casey J gives to the proper role and to the perceived capacity of the jury identifies what justice and fairness might be thought to require in the case of the present appellant.
The reference to the judgment of Casey J is to his Honour's judgment in The Queen v Ellis (1994) 1 NZCrimC 592; (1994) 12 CRNZ 172, in which he delivered the judgment of the Court which included Sir Robin Cooke and Gault J. The passage to which Sully J (above) was referring included the following (at 600-601):
As the Courts have said in a number of cases, when dealing with young children some coaxing and guidance is necessary to bring them to the point of disclosing abuse which many of them find embarrassing or distasteful and would rather forget. It is unreal to expect them to behave as mature adult witnesses and launch into their evidence with only minimal guidance in examination-in-chief. What this Court said about the use of evidential videos in child abuse cases in R v Lewis (1990) 6 CRNZ 350, 352 bears repeating:
[It seems to us that, although it is open to the defence to suggest that the] evidence inculpating the accused was obtained by suggesting to the children what might have happened, the interviewers did not act unfairly; but, what is more important, any allegation of that kind is well within the competence of a jury to assess if they have the advantage of seeing the tapes played as a whole. … There is, as we have said, a certain degree of patient coaxing, but whether or not that can reasonably be thought to have led to any untrue statements by any of the children is essentially a matter which a jury should be well capable of evaluating. …
The interviewers in the present case were well aware of the need for a neutral approach and knew the dangers of asking leading questions (i.e. questions which suggest the appropriate answer). The jury had the advantage of listening to and observing them and the children throughout the many hours the tapes were played in Court, and they were able to assess the spontaneity and genuineness of the child's reactions and disclosures, and the effect of the interviewer's attitude and questioning.
In the present case, no evidence was led which suggested that some specialised knowledge was required in order for the jury to recognise and assess the likely impact of particular questioning techniques on the accuracy and reliability of AH1's evidence. In DPP v JG, Basten JA, while treating as a possibility that ordinary jurors might not be expected to understand the "power of suggestion in the case of a child being interviewed by a person in authority" (at [124]), acknowledged that:
If, on the other hand, it were thought that no relevant area of specialised knowledge would assist in that regard, it would be a matter for assessment by the jurors, based on their general knowledge. That is not to say that a warning would not be appropriate as to the possible unreliability of the evidence.
The present case was not one in which any risk of undue prejudice to the accused could not be addressed adequately by a warning or direction to the jury, with that subject to be addressed in the trial and during the trial judge's summing up. For that reason, there was no error in her Honour's not being satisfied that it was not in the interests of justice for AH1 to give her evidence in chief by the tender of her 11 November JIRT interview.
Finally, the appellant does not press any of the arguments made before Traill DCJ for rejecting specific questions and answers in reliance on provisions of the Evidence Act. In relation to the leading questions, it is said that Traill DCJ did not consider whether their use "in the context of the compounding pressure of the questioning process" resulted in unfairness to the appellant. The use of such questions by the interviewer, being a person in a "position of authority", was said to have created an environment in which AH1 thought that the questioner wanted her to implicate the appellant. To the extent necessary, this argument has been dealt with in the analysis above.
For these reasons, appeal ground 1 must be rejected.
In so concluding it has not been necessary to deal with the Crown's further argument that the appellant has not established that Traill DCJ's ruling and the admission into evidence of the whole of the JIRT interview was capable of affecting the outcome of the trial in circumstances where the jury received directions and a warning and was able to form a view as to the significance, if any, of the manner of questioning and conduct complained of.
The obligation to give a warning under s 165(2) arises where the evidence in relation to which the warning is sought is "of a kind that may be unreliable" and a party requests that the warning be given. The trial judge has a discretion to decline to give that warning if there are "good reasons" for not doing so.
Although the condition for the application of s 165(2) (that there is "evidence of a kind that may be unreliable") is broadly framed, it cannot arise in every case where an assertion of unreliability is made. In AL v R [2017] NSWCCA 34; (2017) 266 A Crim R 1 at [79], the Court relevantly noted:
Section 165 of the Evidence Act 1995 (NSW) refers to "evidence of a kind that may be unreliable", without purporting to exhaustively define or identify what may be meant by the phrase. Arguably, much of the evidence given by lay witnesses as to what an individual saw or heard could be challenged on one basis or another as unreliable. However, in circumstances where the history of statutory amendment suggests a desire to limit jury warnings rather than to enlarge them, it cannot have been the intent of the legislature to engage s 165 in every case where an assertion of unreliability is made. (Emphasis added.)
The fact that a matter which is said to affect the reliability of evidence is one falling within the ordinary competence of the jury might provide a "good reason" for the trial judge to exercise his or her discretion under s 165(3) for declining to give a warning.
Where a warning is required, it need not be given using any particular form of words (s 165(4)), although the language should make clear that the direction carries the authority of the court and is not a mere restatement of counsel's submissions (Domican v The Queen (1992) 173 CLR 555 at 562; [1992] HCA 13).
Section 165(6) further constrains the obligation in s 165(2) by proscribing the giving of a warning that the reliability of a child's evidence might be affected by their age. Such a warning can only be given in accordance with s 165A(2).
Section 165A provides:
165A Warnings in relation to children's evidence
(1) A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following -
(a) warn the jury, or suggest to the jury, that children as a class are unreliable witnesses,
(b) warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults,
(c) give a warning, or suggestion to the jury, about the unreliability of the particular child's evidence solely on account of the age of the child,
(d) in the case of a criminal proceeding - give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child.
(2) Subsection (1) does not prevent the judge, at the request of a party, from -
(a) informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable, and
(b) warning or informing the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it,
if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child's evidence and that warrant the giving of a warning or the information.
(3) This section does not affect any other power of a judge to give a warning to, or to inform, the jury.
The effect of s 165A is to constrain further the warnings that may be given under s 165(2) and the common law. As this Court explained in AL v R at [77]:
In all cases a direction cautioning the jury about the possible unreliability of the evidence of a child complainant in a sexual assault case can only focus on matters relevant to the particular child in the particular circumstances of the case. It cannot focus on the mere fact that the witness is a child, or derive from a feature about the witness which is an inherent feature of children more generally, such as a warning based on an assumption about the capacity of a child to lay down memory or accurately recall memory later.
In R v A2 ; R v KM; R v Vaziri (No 20) [2016] NSWSC 23, Johnson J said with respect to the operation of s 165A:
[45] It is to be kept in mind, as well, that the issue to be considered … is whether the Court should give a warning under the provision. It is not the purpose of the section to require a trial Judge to give judicial support and sanction to defence submissions concerning a child witness, unless a clear foundation has been given for the use of s 165A in the particular case.
[46] As Fullerton J stated in RGM v R [2012] NSWCCA 89 at [97] (with the agreement of McClellan CJ at CL and myself):
A trial judge has a wide discretion to offer guidance to a jury as to how to approach the evidence of a child witness which should be tailored to meet the particular circumstances of the case and the issues that the jury are likely to encounter in their deliberations. Save only where a trial judge is satisfied that the evidence of a particular child may be unreliable in a particular respect, and that there is a need for the jury to exercise caution in assessing the evidence thereby invoking the exception in s 165A(2) of the Evidence Act, it is important that a trial judge refrain from suggesting an approach to the assessment of a child's evidence in such a way that it has the appearance of a direction of law.
Whether the limitation imposed by ss 165(6) and 165A(1) is engaged in the present case and, in turn, whether the "circumstances" said to affect the reliability of AH1's evidence are such as to satisfy the condition in s 165A(2) are not questions that arise in this case. The trial judge made directions about the reliability of AH1's evidence, and the issue is whether those directions were adequate in the sense that they were sufficient to avoid any perceptible risk of a miscarriage of justice.
At the conclusion of his address, defence counsel submitted:
Where does that leave you with [AH1]? A particular matter of concern is that this interview was conducted with an expectation that she would provide certain information, and that didn't come forth, but then pressure was continued. You may well know, you know, we don't rely on evidence produced under torture because it's unreliable. You may well think that evidence that's produced under pressure of this sort may well be unreliable. You need to be satisfied beyond reasonable doubt that this information, provided in the manner that it is, is accurate and reliable and sufficient to find the accused guilty of this offence.
If you think there's a reasonable possibility that when [AH1's] saying, "There's nothing else to tell you about", she's telling the truth, he's not guilty. If you think there's a reasonable possibility that we only got to the answers to these questions because of the pressure she was placed under, he's not guilty. It's submitted you'd be extremely cautious about accepting the evidence that's being produced in this particular matter. Accordingly, in relation to [AH1], in relation to counts 1 to 4, you'd find the accused not guilty.
In addressing the reliability of AH1's evidence in the JIRT interview, the trial judge commenced by summarising defence counsel's submission:
Finally, Mr Johnston was critical of the police officer who interviewed [AH1] and, going into some detail, identifying characteristics in the interview process upon which he submitted that there was the possibility that the officer's persistence in the face of [AH1's] apparent unwillingness to communicate the information he sought, led to her providing information that she believed he wanted to hear. I have reduced the careful analysis in the submissions made by Mr Johnston to that nutshell, hoping not to do injustice to what he had to say you, but it seems to me that fairly summarises the position taken by the accused. He submits that in the circumstances her responses, that is [AH1's] responses, implicating the accused in wrongdoing and her continuation of those propositions in her evidence before the judge in the earlier proceedings for the taking of her evidence, is to be seen as unreliable. Whether that is the appropriate finding is entirely a matter for you to decide. (Emphasis added.)
In that part of his summing up, the trial judge said:
… On an assessment of the interview process, one could come to the view that the police officer was persistent and was concerned to elicit information from [AH1] regarding allegations that he had learned from [AH2], describing to him representations made by the accused to her. Now, in that interview with [AH1], she disavowed any suggestion of misconduct such as [AH2] attributed to the accused when he said, "this is the type of thing that I have been doing with [AH1]". But then she went on to describe other conduct, which is founding counts 1, 2 and 3 and 4. So, Mr Johnston carefully analysed all of that. But do not overlook that what the police officer was pursuing in that interview was not - was information that came to him via [AH2] which in turn, upon the evidence, came from the accused as representations she attributed to him concerning his interaction with [AH1].
We often say to juries, you decide the case according to all of the evidence, and this applies particularly here where there is apparently a measure of persistence by the police officer in pursuing information from this child. It requires you to consider the matters that Mr Johnston raised when determining whether or not you can accept as truthful and accurate the allegations of misconduct that [AH1] attributes to the accused. You would look to the interview. You would look to the evidence she gave. You would look to the cross-examination that was administered and you would look to the propositions advanced to her that what she said about these allegations was untrue.
Consider all of that but bear in mind that she was a child. She was submitted to an extensive interview. The police officer, I do not mean to imply any criticism of him, he was persistent in pursuing information from the witness, and the question is what impact does that have upon her reliability, and that is the challenge that is before you to decide, whether or not she was truthful and accurate in her assertions that the accused touched her in the way that she claims and upon which the counts 1 through to 4 have been drawn.
If you accept that she is truthful and accurate in those respects, that would lead to the finding that the offences have been proven. But if you have a reasonable doubt, if there is a reasonable possibility that she was affected by the conduct of the interview, in the circumstances which are evident before us by way of the recording, if she has persisted in the allegation thereafter because of what happened before in the interview, such as to leave you with a reasonable doubt about those matters, then you would be required to return a verdict of not guilty in respect of the counts brought against the accused in respect of her. (Emphasis added.)
At the conclusion of the summing up, the trial judge invited the parties to indicate any matters of law that may have been misstated. Defence counsel pressed his Honour to use the words "the evidence may be unreliable" in relation to AH1's JIRT interview, being the language of ss 165(2) and 165A(2). He also requested the trial judge to state the reasons why that evidence may be unreliable and to tell the jury about the "need for caution" (s 165A(2)(a), (b)).
The trial judge's response included:
… between you and I, we have certainly gone through the reasons in some depth and I do not want to go and rehearse them all again. But I will use the phrase, "may be unreliable" … because I think I have said that in other words in any event.
The trial judge then gave a further direction to the jury in the following terms:
I have spoken in some depth about [AH1]'s interview and the matters that were raised by Mr Johnston in his submissions regarding the impact it has had in, according to what he said to you, in your assessment of the reliability, truth and accuracy of the evidence that fell from [AH1]. Just to put the issue clearly and unequivocally before you, the proposition advanced is that the evidence given by [AH1] for the reasons advanced, with regard to the conduct of the interview and the formulation of questions, and the duration of the interview et cetera, for those reasons, the evidence [AH1] gave by way of the interview and subsequently in the Court might be unreliable.
That is not to suggest that this is my view of the matter. I do not offer a view one way or another, these matters are entirely within your province, but you must bear in mind that the evidence might be unreliable for the reasons that have been explained to you and that you should use appropriate caution in determining whether to accept the evidence that was given by [AH1] throughout the process and the weight that you attribute to it, and for that reason I have said to you to make sure you consider your recollection of how she presented in response to the questions posed to her throughout the entire process. (Emphasis added.)
Earlier in his summing up the trial judge had said, putting into context the first sentence of the second paragraph of the direction extracted above:
I will be trying to express no opinion in relation to the facts at all, except where there is no real dispute about them. … I do not intend to try to persuade you one way or another as to what the result of the trial should be. … I might, during these remarks, refer to matters that to my mind are of significance and should not be overlooked, but please, do not infer therefrom that I am attempting to communicate a view to you.
On the following day the Crown submitted that any warning should make clear that AH1 "was capable of negating leading questions", to which his Honour said:
I can't put something to them in those terms, but I can make sure that they look at the entirety of the interview and recall the entirety of … her presentation and look at the entirety of the evidence given before the judge at first instance under cross-examination in which it was put to her squarely that what she said was wrong and she didn't accept that, and that's as much as I can do and that's all I would be prepared to do.
The trial judge's summing up commenced later on 6 April 2022. The additional direction about the possibility that AH1's evidence "may be unreliable" in terms requested by defence counsel was given at the end of that summing up (extracted at [107] above). The question raised by ground 2 is whether those directions, viewed in context, were adequate in the sense that they were sufficient to avoid the risk of a miscarriage of justice. To do so, the trial judge had to draw to the jury's attention the features of the interview process and questioning which might result in unreliability in AH1's evidence and to warn the jury of the need to exercise caution in deciding whether to accept her evidence and in assessing the weight it should be given.
The appellant essentially makes two submissions. The first is that, notwithstanding that the trial judge did warn the jury that AH1's interview evidence "might be unreliable", the warning was premised on material raised in defence counsel's submissions and did not explain why in the accumulated experience of the court that evidence might be unreliable. The second related submission is that his Honour erred in failing to address the matters raised in the appellant's written application for a warning under ss 165(2) and 165A(2) dated 3 April 2022. Those matters included the effect of departures from protocols and safeguards for interviewing young children, including the use of leading questions, repeated questioning by a person in a position of authority and lack of regular breaks, on the reliability of AH1's evidence. It was said that these were matters with which a jury may not have been acquainted, making it necessary for the trial judge to explain why in the experience of the court such matters may make a child's evidence unreliable.
In response, the Crown says that a warning under ss 165(2) and 165A(2) was not required; and that the jury were capable of assessing the effect of the impugned aspects of the interview on the reliability of AH1's evidence in the light of their own experience. It says it was sufficient for the trial judge to draw attention to the importance of this issue and to remind the jury of the detailed submissions made by defence counsel.
In Wade v R [2006] NSWCCA 295; (2006) 164 A Crim R 583, Hunt AJA addressed the requirement that a direction of law - specifically, in that case, a Longman direction as to the effect of a delay in complaint - must be conveyed to the jury as having "the weight and authority of the court". His Honour explained (at [2]) that what is meant by this phrase:
… is no more than that the various warnings which either the legislature or the appellate courts have required trial judges to give in relation to various issues to be determined by the jury must be seen by the jury to be given on the judge's own behalf, and not merely by way of reference to what counsel may have submitted to the jury. It does not require any particular form of words to demonstrate that the direction is being given by the judge on his or her authority.
To similar effect, Studdert J (Beazley JA agreeing) observed in R v TJF [2001] NSWCCA 127; (2001) 120 A Crim R 209 at [66] that, in giving a warning under s 165(2):
… it may very well be that counsel in address reminded the jury of those features of the evidence, but what counsel may have said in address and what the judge may have said in his summing up by way of reminding the jury of the submissions of counsel, does not substitute for a direction of principle, stated by the judge to be such, in the context of informing the members of the jury of the principles of law which they were required to apply to their deliberations.
That passage from R v TJF was considered by Basten JA in Raad v R [2012] NSWCCA 268 as follows:
[81] That passage, relied upon by the applicant, is not precisely to the point: explaining the need for caution in respect of elements of unreliability of evidence does not involve a statement of legal principle. It is a legal principle that the warning is required and must be given by the trial judge. It is also a legal principle that statements by counsel emphasising the need for caution will not substitute for such a warning.
[82] The warning given in fact took both courses, correctly. It identified the reason for giving warnings about such evidence and, to the extent that it was not obvious, explained the sources of unreliability. It also explained the matters relied upon by reference to the evidence of Ms Ahearn. There was no failure to give a warning because counsel had said enough in addresses; there was no parroting of what had been said in addresses, nor did the trial judge suggest that the warnings did not carry the authority of the law and accumulated judicial experience. This ground must be rejected. (Emphasis added.)
That a direction of law must be given with the "authority of the court" does not preclude a trial judge from referring the jury to matters raised by counsel in their submissions in order to substantiate the reasons for giving that direction. What is required is that the direction be expressed in language that makes clear to the jury that it must be complied with. That mandatory quality is what distinguishes a direction of law from a comment: as to which see Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [16]; and Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 at [49]-[52].
Where the relevant direction is that the evidence of a witness might be unreliable, as was given here, it is particularly important that the trial judge does not unduly impinge upon the function of the jury in assessing the reliability of and weight to be given to that witness' evidence. The position might differ where the matters said to affect the witness' reliability fall outside the ordinary experience of a lay jury: Tully v The Queen at [178]. But that was not the case here. The assessment of the effect of the interviewing process and questioning techniques on the reliability of AH1's evidence were matters for the jury drawing on its ordinary experience.
In my view, the trial judge's directions were sufficient to avoid the risk of a miscarriage of justice and were in that sense adequate. They were given following defence counsel's very detailed and comprehensive address to the jury as to the features of the questioning which produced a risk of unreliability in AH1's evidence. Those features included: that the interview went for nearly three hours, creating in the nature of the questioning an impression that the interviewer wanted AH1 to say something about the appellant; that this process in turn created and continued pressure on AH1 to say something about her grandfather; that the focus of the questions was on him and the pursuit of questions previously answered favourably to him suggested that the interviewer did not accept her earlier answers; that the continuing of questioning whilst AH1 was upset on the premise that something had happened involving the appellant created further pressure; and that the sustained questioning directed to the conduct of the appellant and the asking of leading questions continued to suggest that she should reveal what had happened with the appellant.
When first addressing the question of the unreliability of AH1's evidence, the trial judge referred to the "characteristics" of the interview process and to defence counsel's submission that the interviewer's "persistence" in the face of AH1's apparent unwillingness to communicate the information he sought may have caused her to provide information that she believed he wanted to hear, raising a risk that her evidence may be unreliable. Having done so, the trial judge repeated that the interviewer had been "persistent" in pursuing information and formulated a question for the jury as being "what impact does that have upon her reliability". The jury was also reminded that it was for it "to decide whether or not she was truthful and accurate in her assertions". Finally, the jury was directed that if it considered there to be a "reasonable possibility that she was affected by the conduct of the interview, in the circumstances which are evident before us by way of the recording, … then you would be required to return a verdict of not guilty".
In giving the additional direction sought by defence counsel, the trial judge repeated to the jury that the assessment of the reliability, truth and accuracy of AH1's evidence was a matter "entirely within its province", but stressed that in making that assessment the jury "must bear in mind" that AH1's evidence "might be unreliable for the reasons which have been explained to you". His Honour then directed the jury to use "appropriate caution in determining whether to accept the evidence that was given by AH1 throughout the process [and] the weight you attribute to it".
The trial judge's own comments on aspects of the interviewing process and references to the features comprehensively described by defence counsel were sufficient to inform the jury of the reasons underlying the trial judge's direction that AH1's evidence might be unreliable. Nothing further was required to enable the jury to bring its collective experience to the task of assessing the reliability of that evidence, a factual question about which the trial judge expressed no opinion.
His Honour's directions were sufficient to avoid any perceptible risk of a miscarriage of justice, and, for that reason, ground 2 should be dismissed.
The appellant's argument is made principally by reference to particular aspects of AH1's JIRT interview. For the purposes of the following analysis, it is convenient to divide that interview into seven phases of questioning, interspersed by six breaks of varying lengths.
The first and second phases included general introductory questions, some questions about sleep overs at AH1's grandparents' house, and questions about the phone which AH1 received as a Christmas present in December 2018 (Q&A 1-134). In that context, in response to a question as to whether anything had happened when she stayed over at her grandparents' house "that you don't like", AH1 answered, "um, no" (Q&A 130). There was a pause between the "um" and the "no".
In the third phase (Q&A 135-161), AH1 was asked about photographs taken of her and massages given to her. She rejected the suggestion that anyone had taken photos of her otherwise than at school (Q&A 135ff); and described the massages given to her by the appellant in terms that suggested no wrongdoing. She also answered "not really" when asked whether there was anything else she wanted to say about time spent at her grandparents' house (Q&A 158). Curiously, perhaps, she was then told that "the interview is now concluded" (Q 161).
Eight minutes later the fourth phase of questioning commenced. The focus of these questions (Q&A 162-201) was on the massages given to AH1 by the appellant at his house. AH1's answers suggested no offending or untoward conduct.
After a short break of three minutes, the questions resumed (Q&A 202-241). By this point AH1 was visibly upset. Her head was down and she was crying. Questions were directed to why she was crying and what had upset her (Q 203, 206, 207, 211, 215). Some of the questions assumed that there had been some conduct at her grandparents' house or something said which was causing her to be upset. AH1 on three occasions (A 209, 210, 215) stated that she wanted to see her "mum". The questions persisted, the interviewer apparently believing that pressing for the source of the upset might reveal wrongdoing by the appellant (Q 210-211). The questions then focused on the massages and what AH1 might wear and whether she was ever massaged whilst lying on her back (Q&A 216-235). Notwithstanding that she was upset, AH1 answered each of these questions clearly and did not depart from her earlier evidence to the effect that there was nothing untoward in any of the massaging. This was so notwithstanding that some of the questions put allegations of misconduct by the appellant (Q&A 247, 251).
At the end of this fifth phase of questioning AH1 spent some time with her mother who, in her evidence, described her daughter as seeming "quite upset". After "probably five minutes" (it is likely this was longer because the break was for 25 minutes), AH1 was asked to return to the interview room. AH1 told her mother that she thought the witness intermediary (Michelle) was funny and her mother's impression at the time was that "she seemed quite happy to go back in with them".
During cross-examination in her pre-recorded evidence hearing AH1 agreed that she had been upset because she wanted to see her "mum", answered "not really" to whether she felt scared in the interview room, and answered "yeah maybe" to whether in view of the questions asked about her grandfather she felt that the police thought he "had done something wrong". She also answered "no" to whether anything she had said in the first interview was not quite right or accurate, and "no" to whether there was anything recorded as said that she wanted to change.
Returning to the JIRT interview, during the sixth phase of questioning (Q&A 245-375) AH1 was no longer crying. She was asked a series of leading questions. The first, answered "no", was whether there was "anything more" to tell about what "we've been talking about" (Q&A 246). The second, which was answered "I don't think so", was whether her grandfather had said to her that he would get into trouble if somebody found out what he had done (Q&A 247). The remainder, which were answered "no" or "I don't think so", were directed to what AH2 had reported the appellant as saying about what he did with AH1 (Q&A 249-256).
There was then a turning point. The interviewer asked whether there had been something AH1 wanted to say but had not felt "able to tell me" (Q 261). That question accepts that there may have been earlier opportunities in the interview for AH1 to speak about the misconduct of the appellant. AH1 gave no verbal response, and shrugged her shoulders. The investigator said "sometimes?" and AH1 answered "yes" (Q&A 262). Then AH1, in a series of questions and answers, described an incident which became the subject of count 4 (Q&A 265-304). Her evidence included that the appellant had put his arm around her chest area whilst she had her clothes on and was sitting on a bed (Q&A 291-296).
The interviewer then asked whether there was another thing that AH1 did not want to tell him which was upsetting her. She answered "no" (Q&A 306). He invited a further answer to which AH1 replied "not really" (Q&A 307). When re-asked that question, AH1 said "yeah" (Q&A 308), shrugged and then nodded to questions directed to whether there was another thing she wanted to say (Q&A 310).
In the following questions and answers (Q&A 313-346), the incident which was the subject of counts 1 and 2 was described. In this sequence of questioning, there were periods of delay, some questions were not answered audibly, some of those were answered with a nod or shake of the head, and AH1 was teary and fidgeting, often with her head down. Her evidence as to where and how she was touched (Q&A 336-356) was given with the use of a body diagram which became Ex F in the trial. When asked how the appellant's hand had felt on the area she had circled on the diagram, she described it as feeling "uncomfortable" (Q&A 346), as not feeling "right" and as "wrong" (Q&A 354-355).
The seventh and final phase of the questioning (Q&A 376-420) followed a short five minute break. The initial questions in this phase (Q&A 385-391) were directed to whether the appellant's fingers had penetrated "to any extent" AH1's "genitalia" (see Crimes Act, s 61HA).
In response to a leading question about whether the appellant's hand was "inside or outside" her genitalia (described by the interviewer as being "the part where you go to the toilet"), AH1 answered "a bit of both" (Q&A 387). She described what she had felt as "his fingers, his hands" (Q&A 389). In response to a further leading question as to whether it felt like his fingers were "inside or outside" her genitalia, she again responded "um, it was a bit of both" (Q&A 391), with a delay after the "um".
The appellant's submissions identify the following aspects of AH1's interview as giving rise to a reasonable doubt as to the accuracy and reliability of her evidence.
First, it is said that AH1's negative answers to Questions 130, 158, 246 and 306 are inconsistent with the appellant's being guilty of counts 1 and 2. If she had been a truthful and reliable witness she would have answered those questions differently. It is said to follow from the fact that she did not do so that she was not telling the truth when giving these answers, which in turn gives rise to the reasonable possibility that she was not telling the truth in her subsequent answers relating to the subject matter in counts 1, 2 and 4.
When assessing whether AH1's answers to these earlier questions cast any real doubt about the veracity of her answers to the questions after Q&A 306, the following matters are relevant. AH1 was being interviewed having not previously made any complaint and in circumstances where the initiating subject matter justifying that interview was a complaint (made by AH2) about which AH1 was unaware. In that context, the interviewer was seeking to explore that subject matter and in doing so asked leading questions and continued to press some questions notwithstanding AH1's earlier negative responses. Whilst some of the general questions posed in the early phases of the interview provided an opportunity for AH1 to disclose the circumstances of those two counts, it is reasonably apparent from the way in which AH1 eventually answered the questions concerning that conduct (Q&A 262ff) that she had great difficulty in doing so. As the Crown submitted, there is nothing unusual about a child complainant being initially unwilling or unable to talk about sexual offending.
Secondly, it is said the interviewing officer asked leading questions which in the context of the "compounding pressure" of the questioning process resulted in unfairness which "arguably produced the only evidence implicating" the appellant. It is apparent from the above analysis of the interview that the interviewer persisted through the fourth and fifth phases, and the first part of the sixth phase, in questioning directed to the subjects of massaging and nude photographs. In addressing those questions, AH1 was consistent in rejecting any suggestion that the asserted conduct of the appellant involved impropriety. It was in the fifth phase of the questioning that AH1 became visibly upset. Nevertheless, she continued to maintain that none of the suggested conduct had occurred. This shows that she was capable of dealing with each of the questions on its merits and notwithstanding that they were in a leading form and to some extent repeated and were asked by a person in a position of apparent authority.
However, that was not the questioning which elicited the evidence relied on as supporting counts 1 and 2 or 4. That questioning occurred after AH1 had spent time with her mother and no longer appeared to be upset. At Q&A 261 it became apparent that there might have been things which she "wanted to tell" the interviewer. From that point the direction of the questioning focused on the answers being given by AH1 rather than the subjects introduced by the interviewer, who was no longer formulating leading questions by reference to AH2's earlier JIRT interview.
The questioning from Q&A 313 related to the conduct which became the subject of counts 1 and 2. That questioning was directed by AH1's answers, albeit given slowly and with reluctance and difficulty. Such hesitancy was not surprising, this being the first time that AH1 had described those events. Her descriptions in this sequence of questioning of how she felt when she was touched - "uncomfortable", and "wrong" - were not prompted (Q&A 346, 354, 355). Her answer, "a bit of both", to the question whether his hand was "inside or outside" and her evidence that she could feel "his fingers" (Q&A 387, 389) were cogent and believable as describing an event that she had actually experienced.
Thirdly, it is said that the interviewing officer proceeded on the basis that something involving the appellant had happened and, particularly in the fifth phase of the interview in which AH1 was visibly upset and repeatedly asked to see her "mum", that he created the impression that he would keep her in the interview until she implicated the appellant. Although AH1 was upset during this period of questioning, she continued to deny any of the suggested conduct of the appellant. She did so thinking "yeah, maybe" the police thought her grandfather had done something wrong. She then spent time with her mother, whose impression was that she was "quite happy" to go back to the interview.
At the start of the sixth phase AH1 was asked some further leading questions about the massages given to her. The interviewer thereafter had no more leading questions to ask and the questioning proceeded as described above. In her cross-examination about the answers given from this point in the interview, AH1 said that there was nothing that she had said that was not "quite right, quite accurate" or that she wanted to change.
AH1 then gave the following evidence in cross-examination which was wholly consistent with her previous answers:
Q. The next question is [question 335], "Did he touch you?" Do you see that?
A. Yeah.
Q. And at that point in time it is recorded as "no audible reply". Do you see that?
A. Yeah.
Q. Which means you didn't say anything. But in the interview, when we looked at the interview, it looked like that you might have nodded your head. Do you recall nodding your head or not?
A. Yeah, maybe.
Q. You don't have a memory of that.
A. No.
Q. The next question is question 336, "Can you show me where he touched you, using the diagram." Do you see that?
A. Yeah.
Q. And your answer was, "Um, around there and-" he says, "It's okay," "And around there." Okay?
A. Yeah.
Q. And we've seen you on the video pointing to some area on the drawing. Do you recall that?
A. Yeah.
Q. Just focusing on that question at 335, "Did he touch you?" did you feel, at that point in time, under pressure to answer yes from the police officer?
A. Not really.
Q. Did you think he wanted you to say that you'd been touched by your granddad?
A. Yeah, kind of.
Q. Now, you've just described some areas where you were touched in the interview. I just want to clarify those in my next questions if that's okay. Perhaps we can just close the interview for a minute. Okay?
A. Yeah.
Q. Now, you've described at one point that your granddad put his hand underneath your clothing. Do you recall saying that to the police officer?
A. Yeah.
Q. Which bit of clothing did he put his hand under?
A. My shorts.
Q. Now, do you recall that you were wearing shorts?
A. Yeah.
Q. Are you clear about that?
A. Yeah.
Q. What short of shorts were you wearing?
A. Just one that had, like, a little bow.
Q. Were you wearing anything under the shorts?
A. Yeah.
Q. What were you wearing under the shorts?
A. Undies.
Q. Did his hand just go under the shorts or under the undies as well or you don't remember?
A. Yeah. Under the undies as well.
Q. A little earlier today, her Honour said to you that there will be times when I put a proposition to you or make a statement to you and ask you whether it occurred or not, okay? This is one of those times. Do you understand? So what I'm going to say to you is your granddad didn't put his hand under your shorts. Do you agree with that or do you disagree with that?
A. Disagree.
Q. Is it the case that when you said that he put his hand under the shorts in the interview, you just said that because the police officer placed you under pressure?
A. No.
Finally, the appellant pointed out that during the course of the JIRT interview AH1 gave inconsistent evidence as to the sequence in which the two charged incidents had occurred. At one point she described the lounge incident (counts 1 and 2) as having occurred "way before" the bedroom incident (count 4) (Q&A 313-314). Later, she agreed that the bedroom incident had happened first (Q&A 414-415). On the evidence, the order in which these two incidents happened did not assume any significance in resolving the question whether the incidents had in fact occurred. Further, and in any event, the fact that AH1 might have been confused about the sequence of events is not such as to give rise to a reasonable doubt about the accuracy and reliability of her evidence.
Taking all of the evidence into account, in my view it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 1 and 2. I do not have a reasonable doubt that the appellant was guilty of those counts. In so concluding, I have not given any significant weight to the tendency evidence tendered in the Crown case.
In cross-examination AH2 described the gist of what the appellant had said at the car wash as being "[h]e would give me a phone for a reward if I could do the things that he does to [AH1]". The questioning then turned to what reward AH1 may have received. AH2 agreed that she was not aware that AH1 had an iPhone 8 until the early afternoon on 10 November 2019. She then agreed that at the car wash there was no conversation with the appellant about AH1 having received a phone as a reward. The following exchanges then occurred:
Q. Was it you - you've used the - you have used the word, reward. Was there any discussion whilst you were in the car was as to what the reward was?
A. No, there was not.
Q. [AH2], I'm going to suggest to you, that when - and listen to the statement, then I'll ask you to agree or disagree - when you were in the queue for the car wash, there was no discussion about you receiving a reward to get a phone, would you agree or disagree?
A. Me receiving a reward?
Q. A reward to get - that again. When you were in the queue for the car wash, there was - [LF] didn't say to you, I will give you an iPhone if you do certain things. Do you agree or disagree?
A. Disagree.
Q. You say that he said something about giving you an iPhone if you did certain things.
A. Yes.
Q. You understood - you say that you understood those things to be taking photos, naked?
A. Yes. And massaging my body.
Q. What words did [LF] use to say - talk about the naked photos and the massaging your body?
A. Exact - he said that in order to get the rewards, you know what you have to do, which is what [AH1] does, which is taking nude photos and massaging her body.
Q. At this point in time, when you say that that conversation occurred with you, did [LF] make any suggestion to you that you would receive a phone?
A. Yes.
The appellant submits that AH2's answer to the first of the questions in the above exchanges was given on the understanding that the question was directed to the "reward" for her rather than for her cousin, AH1, to which the two previous questions had been directed. On this basis it is said that AH2's answers to the following questions involved the giving of "changed" evidence and that her evidence that the appellant had offered her a phone was "made up" because she later saw the photo of AH1 at her grandparents' house.
That is not a reasonable understanding of the first part of this sequence of cross-examination. AH2's consecutive answers - "Me receiving a reward" and "Disagree" - confirm that her answer to the preceding question was given understanding it as directed to the "reward" to AH1. In her re-examination, AH2 agreed that her JIRT interview answer to Q 75 was not correct and that the appellant had not said at the car wash that he had rewarded AH1 with an iPhone 8.
On this understanding of AH2's evidence in cross-examination, her version of the conversation with the appellant remained consistent with what she had said in her JIRT interview and was that she had been offered a phone in exchange for nude photographs and massages.
The evidence of RL and AH2's mother was of complaints by AH2 that she had received an offer to the same effect.
Her mother's evidence was that AH2 arrived home "closer" to 6pm; that more than half an hour later she had discovered that AH2 had a phone in her room; and that AH2 said she was listening to music on the phone, which a friend, "Charlie", had given her. Her mother described her emotional state by that time as "agitated", "very emotional", "pretty hysterical" and trembling. AH2 then said, "you don't understand". Then, following further exchanges and "calming" by her mother, AH2 said, "It's to do with grandad".
The dialogue between mother and daughter continued, AH2 describing herself as "scared", communicating that nothing inappropriate had been done to her and disclosing that she was "scared for [AH1]". AH2 said she knew that because the appellant had "told" her in the car that day. She then told her mother that the appellant had said that "he had a reward thing he did with [AH1]" and that he was "massaging her body, and taking nude photographs of her". None of this evidence was challenged in cross-examination.
After making these disclosures to her mother, AH2 also spoke to her stepfather. Although he could not recall her words very well, his evidence was that AH2 told him she had "been asked to let someone take photos of her and touch her and in return she would get things".
AH2's mother's description of her behaviour depicts someone who was unusually upset and very agitated and who took some time to disclose what she maintained her grandfather had said to her that morning at the car wash. Her mother plainly regarded her emotional state as real and not pretended, and the contrary was not suggested.
In this context, her initial "lies" to her mother as to what she was doing with the phone, and from whom she had obtained it, were to be seen as attempts to deflect an inquiry which would have required her to identify the appellant and disclose what she believed had been happening to her cousin, AH1; all of this in circumstances where she was behaving like someone who was not ready or comfortable to do so. This is a much more plausible explanation for why she was untruthful to her mother than that she was worried about getting into trouble for having secured another phone.
It is also a more plausible explanation for why, in her exchanges with her mother, AH2 had taken some time to reveal what it was that she was ultimately "scared" about.
It is submitted for the appellant that this allegation implicating him lacked credibility in circumstances where, by the evening of the day on which she first became aware of it, AH2 had made no complaint to her grandmother, had not earlier attempted to contact her mother and had allowed the appellant to drive her home. From the perspective of a 13 year old, there were no doubt many reasons why she did not involve her grandmother before her mother and did not involve her mother until that evening. None of these asserted delays in making complaint provides a reason to doubt the accuracy and reliability of her version of events.
In relation to AH2's complaint to RL, the defence case was that the timing of any disclosure to him was not clear. That disclosure may have occurred a day or two later, rather than before AH2 had told her mother, as she maintained.
AH2's evidence was not precise as to when she arrived home. She said it was between 5pm and 6:30pm and also agreed in her JIRT interview that she was dropped home at about 6:15pm (Q&A 117), having been shown the Extraction Report for her grandmothers' phone (which became Ex 5). She agreed that she was direct messaging RL on that phone from 5:26pm. She maintained that those messages were sent after she had left her grandparents' house. There were further direct messages to RL at 6:05pm and 6:23pm. After she arrived home and went to her room, AH2 spoke to RL and said her grandfather was being "inappropriate towards me". She did not remember whether she then told RL "what that stuff was". She denied having given him any more details about the appellant's conduct after that time and agreed that she was on the phone to RL when her mother had come into her bedroom.
In RL's JIRT interview on 10 December 2019, he recalled that "one day [AH2] just messaged me and said she needs to talk about something" (Q&A 12); then she called him (Q&A 80) and told him that her grandfather had said that if she wanted to keep that phone she would need "to send him topless pictures or to let him touch her" (Q&A 15, 108). RL's evidence was that the reference to the sending of "topless pictures" occurred on the day that AH2 had first said that there was a problem. He recalled that during their conversation AH2 "said she didn't know what to do" and that he "kept telling her over and over to tell her parents, but she didn't want to", including for the reason that "she didn't want to get him into trouble" (Q&A 95, 112-113, 131). She later messaged saying that her parents "found out, or she told them" (Q&A 97). In cross-examination, RL said that when AH2 first spoke to him she communicated "the idea" that she had "borrowed a phone of her grandfather and he had requested topless photos of her to keep that phone". He said that his communications with AH2 after her parents had found out were "probably" by message rather than via phone call.
This evidence does not leave any reasonable doubt as to AH2 having communicated to RL the essence of what she maintained the appellant had said to her at the car wash in a telephone call in the early evening of 10 November 2019 and before she had told her mother and stepfather.
Having considered all of the evidence in relation to count 5, I do not have a reasonable doubt that the appellant was guilty of count 5. In other words it was, in my view, open to the jury to be satisfied beyond reasonable doubt as to his guilt on that count. As with the analysis in relation to counts 1 and 2, I have reached this conclusion without the need to rely on the tendency evidence led in the Crown case.
For these reasons, ground 3 should be dismissed.
I agree with Meagher JA as to the disposition of Ground 1. I cannot see how the accused would have been assisted by the exclusion of the recorded interview of AH1, because, had she given oral evidence in chief, the circumstances of the interview would likely have to have been elicited in cross examination of her in order for the accused to raise the issue of the reliability of her evidence for the jury to consider.
As to Ground 2, the learned trial judge did not direct the jury that AH1's account in her interview may be unreliable with the weight and authority of the court, but only reminded the jury of counsel's submissions about that issue. In my view that was not sufficient, in the circumstances of this case, to avoid the risk of a miscarriage of justice. Therefore I respectfully disagree with Meagher JA in respect of the dismissal of Ground 2.
As to Ground 3, my own review of the evidence of AH1, the circumstances of her interview and the lack of prior complaint by her, leaves me with a reasonable doubt about the applicant's guilt of the offences charged in relation to her. Being mindful of the role of the jury, I am of the view the jury should have had such a doubt about the evidence in respect of Counts 1 and 2. I have come to that view bearing in mind that children are sometimes reluctant to disclose sexual misconduct they have experienced.
The evidence of AH2 had issues about reliability and honesty but I agree with Meagher JA's analysis of her evidence and his conclusions about the jury's verdict on Count 5.
Since I am in the minority on Grounds 2 and 3, I have stated my reasons briefly.