133 A Crim R 227
Dinsdale v The Queen (2000) 202 CLR 321
[2000] HCA 54
Gatley v The Queen (2007) 232 CLR 208
[2007] HCA 55
Jarrett v R [2014] NSWCCA 140
M v The Queen (1994) 181 CLR 487
[1994] HCA 63
McKell v The Queen (2019) 264 CLR 307
Source
Original judgment source is linked above.
Catchwords
133 A Crim R 227
Dinsdale v The Queen (2000) 202 CLR 321[2000] HCA 54
Gatley v The Queen (2007) 232 CLR 208[2007] HCA 55
Jarrett v R [2014] NSWCCA 140
M v The Queen (1994) 181 CLR 487[1994] HCA 63
McKell v The Queen (2019) 264 CLR 307[2019] HCA 5
MFA v The Queen (2002) 213 CLR 606[2002] HCA 53
Nguyen v R [2017] NSWCCA 145
Palmer v The Queen (1998) 193 CLR 1[1998] HCA 2
Papakosmas v The Queen (1999) 196 CLR 297[1999] HCA 37
R v ACK [2000] NSWCCA 180
R v DBG [2002] NSWCCA 328(2002) 133 A Crim R 227
R v Markuleski (2001) 52 NSWLR 82[2001] NSWCCA 29
R v Murray (1987) 11 NSWLR 12
R v NZ (2005) 63 NSWLR 628[2005] NSWCCA 278
R v Osborne [1905] 1 KB 551
SB v R [2020] NSWCCA 207
SKA v The Queen (2011) 243 CLR 400
Judgment (6 paragraphs)
[1]
The applicant's case at trial
The applicant's case at trial was, in substance, that the children were lying about the violence inflicted on them at his home and that Kate and Nettie were lying about the applicant's offending conduct and had a motive to lie because they had a grievance against the applicant and his family because they wanted to continue to keep living there after December 2016 when they were asked to leave. There were general attacks on the credibility of the complainants, including that they had stolen various items (which neither denied) and that they had misbehaved at school (which neither denied). His case also included that he had no opportunity to commit any of the offences because he was never alone with them at home.
The applicant denied the offences. His family members (his parents and his two sisters) were called. They all denied that there was ever any violence inflicted on the children or on him or his siblings and, notwithstanding the admissions the applicant had made to the contrary in his ERISP, denied that he had ever been left alone with the children in the entire period from 17 February 2011 to 6 or 7 December 2016. He explained that his mother would never have let "that happen" (his being alone with the children). Notwithstanding this answer, he said that she trusted him. When he was cross-examined about what he had said in his ERISP, he said that he "took [the question] in the wrong context."
The applicant's evidence did not support the case which his trial counsel had sought to make through cross-examination of the complainants that they had a motive to lie. He said that they treated each other like "real siblings", that they were all "pretty close" and that his relationship with them was "good".
[2]
Consideration of ground 7
This Court's task in addressing ground 7 is stated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen; and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. In M v The Queen, at 493, the High Court said that the appellate court must ask itself:
"... whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
[Footnotes omitted.]
The High Court also said that, in answering that question:
"... 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.]
The jury's verdicts on counts 1-3 and 5-8 indicated that it accepted the evidence of Kate and Nettie in respect of those offences, and rejected the applicant's evidence and that of his family members as to his alleged lack of opportunity to commit the offences. The jury had the advantage of seeing and hearing the evidence of the witnesses, including Kate, Nettie and the applicant, and was properly instructed as to the onus and standard of proof. All other appropriate directions were given to the jury. For the reasons given above, none of the alleged errors in the conduct of the trial has been made out.
It was open to the jury to regard as implausible the evidence adduced by and on behalf of the applicant that there was no occasion when he was left alone with Kate, Nettie and their brother (particularly having regard to the applicant's concessions in the ERISP that this had happened). Further, it was open to the jury to reject the applicant's case that Kate and Nettie had a motive to lie by reason of their thwarted wish to return to the Ambarvale home, which was, when they were evicted from it in December 2016, the only stable home they had ever known. It was also, in my view, open to the jury to reason that, if they had had such a motive, it was more likely that they would have disclosed the narrative of what the applicant had done to them, earlier than mid-2017, and that the fact that they did not disclose the narrative until that time was an indication that it took some time for them to trust ZH and their new foster parents sufficiently to make the disclosures. Further, the jury may have been impressed by Nettie's response in cross-examination to the suggestion that she had simply fabricated the assaults when she asked, rhetorically, "[w]hy would we make something like this up?" Although the prosecution is not permitted to pose such a question to an accused person, since it has the effect of reversing the onus of proof (Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 at [7]-[11] (Brennan CJ, Gaudron and Gummow JJ)), it was open to the jury to regard the spontaneous response by Nettie to the suggestion as utterly credible.
For these reasons, I am not satisfied that the jury's verdicts in respect of counts 1-3 and 5-8 were unreasonable.
[3]
Application for leave to appeal against sentence
The applicant sought leave to appeal against the aggregate sentence imposed on him by Judge Beckett on 24 July 2020 of 8 years and 6 months commencing on 5 March 2020 and expiring on 4 September 2028 with a non-parole period of 4 years and 6 months. The ratio between the non-parole period and the total term of 53% reflected her Honour's finding of special circumstances. Her Honour noted that no applicable standard non-parole period applied as the applicant was under 18 years at the time of the offending.
The offences, indicative sentences and maximum penalties are set out in the following table.
Count Section of Crimes Act Maximum penalty (years' imprisonment) Indicative sentence
1 61M(2): indecent assault with child under 16 years 10 s 10(1)(b) (of the Crimes (Sentencing Procedure) Act 1999 (NSW)) bond for 12 months without proceeding to conviction
2 Ditto 10 18 months
3 Ditto 10 16 months
5 66A(1): sexual intercourse with child under 10 years 25 4 years
6 Ditto 25 3 years, 6 months
7 61M(2) indecent assault with child under 16 years 10 18 months
8 66C(1) sexual intercourse with child over 10 years but less than 14 years 16 3 years
[4]
Ms Kluss confirmed that the basis for the sole ground of appeal in respect of the sentence was manifest excess and she relied solely on latent, rather than patent, error. That is, she contended that the sentence was outside the range which was open to her Honour. She argued that the applicant's youth made the sentence, which might have been appropriate for an adult offender, manifestly excessive.
The sentencing judge found facts consistently with the recitation of the Crown case as set out above with respect to ground 7. In assessing objective seriousness, her Honour noted that the offending took place over three years (when the applicant was between 14 and 17 years' old). The age difference between the applicant and Kate was 11 years and between the applicant and Nettie was 7 years. The sexual acts perpetrated on Nettie were more "invasive" than those on Kate, which indicated that the applicant had become "emboldened" as the abuse continued. The offences were not isolated. The last offence against Kate was committed about a year before the children left the Ambarvale home. The last act concerning Nettie took place two months before the children left the Ambarvale home. The applicant took advantage of occasions when he was alone with the children to commit the offences, which made them opportunistic. Her Honour also found:
"Whilst there was a degree of sexual immaturity the offender knew what he was doing was wrong. For that reason he used a blindfold, at least initially, with the children and kept an eye out for the arrival home of other members of the family."
Her Honour assessed the objective seriousness of the individual offences in an absolute way, and also relative to each other. As to count 1, her Honour found the level of physical contact to be "low". Her Honour assessed that count 2 was the most serious of the offences concerning Kate, but also noted that there was no touching of her genitals and neither pain nor threats reported. Her Honour noted the degree of physical contact which was involved with count 3. As to counts 5-8, her Honour recorded the age of the applicant, the age difference, the degree of physical contact and other matters referred to above.
Her Honour considered the offending conduct to have been aggravated by the circumstance that it took place in the victims' home. Her Honour addressed the Crown's argument that the offending was aggravated by reason of the fact that the applicant was in a position of trust vis-à-vis the complainants. Her Honour did not accept the argument and preferred to address the question on the basis of the complainants' vulnerability. Her Honour set out the circumstances of the complainants' deprived upbringing which had led them to be fostered at the Ambarvale home. As her Honour found:
"Placed in the [applicant's] family they could not have faced a bigger contrast. The [applicant's] family were high functioning with parents who valued education and sporting achievements, with an expectation of excellence for their own three children."
Her Honour also found:
"The impact of this stark contrast between the lives the children had lived prior to coming to the [applicant's] family made them particularly reticent to complain.
…
The extent of their vulnerability was evident in the observation that they were jointly prepared to withstand the abuse from the offender rather than risk losing the stability of the first real home that the family had provided them.
Of course, the offender is not to be punished for the vulnerable state of the children, and the disadvantaged life they had lived up to the time they joined the family. However, whilst I decline to consider the children as a 'class of vulnerable people' such as to justify an aggravating feature under s 21A(2)(l) I do consider it part of the context of the offending. It was the very fact that these children were young and had no other protectors outside the family that meant that they were dependent on the offender's family and vulnerable to the offender's exploitation of that vulnerability. I find that the offender, despite his youth, recognised them to be such."
Her Honour noted reports which said that the applicant lacked insight, was in denial and "felt angry at being in this position and blamed the victims for his predicament, portraying himself as the victim of false accusations". As to the character evidence, her Honour said:
"I accept that the [applicant] is a loving brother and son, helpful to his family, gifted academically and in sports and considered by those persons as a worthy individual. However, none of the references put forward provide any acknowledgment that the offender is guilty of the offences charged, nor an acknowledgment of the seriousness of the charges."
Her Honour found that the applicant had good prospects of rehabilitation. Her Honour noted and accepted the opinion of Mr Milic, psychologist, that denial of the offending is not necessarily associated with a risk of re-offending and that "it is likely that the [applicant's] adolescence and psychosexual immaturity played a significant part in his offending." Her Honour found that the applicant was unlikely to re-offend.
Her Honour noted that because of each of the charges related to a serious children's indictable offence under s 3 of the Children (Criminal Proceedings) Act 1987 (NSW), each was required to be dealt with according to law. Her Honour, in the context of the applicant's youth, and the prospect that he was not fully aware of the consequences of his actions, referred to the relevant authorities on sentencing youthful offenders. Her Honour found no remorse but allowed "modest mitigation" for the efficient way in which the trial was conducted. Her Honour took into account the effect of the COVID-19 pandemic on the conditions of custody and addressed the comparable cases identified. Her Honour found special circumstances based on the fact that it was the applicant's first time in gaol.
As referred to above, no allegation of patent error is made in respect of the sentence. Ms Kluss submitted that it was too long, particularly having regard to the applicant's youth. Whether a sentence is manifestly excessive is a conclusion and does not depend on the demonstration of patent error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J).
The nature, extent and duration of the offending conduct are as set out above. The offences were not isolated conduct. While the applicant was young, he knew that what he was doing was wrong and escalated the seriousness of his offending as time went on. The gravity of the offending, which was characterised by exploitation, opportunism, a sense of entitlement and its increasing severity, warranted a relatively lengthy custodial sentence, even for a young offender. The finding of special circumstances has the effect that the applicant is required to serve only just over half the total term. If parole is granted, the remaining term will be served in the community in circumstances where he can be supervised and his rehabilitation assisted by the authorities. I am not persuaded that the sentence is manifestly excessive.
[5]
Proposed orders
For the reasons given above, I propose the following orders:
1. Refuse leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of grounds 1, 2 and 5.
2. Refuse leave to appeal in respect of ground 6.
3. Otherwise grant leave to appeal.
4. Dismiss the appeal.
Since drafting these reasons, I have had the benefit of reading in draft the reasons of Basten JA. I agree with his Honour's reasons.
CAMPBELL J: I have had the considerable advantage of reading and considering the judgment of Adamson J in draft. I agree with the orders proposed by her Honour for the reasons she expresses. I agree too with the judgment of Basten JA which I have also considered in draft.
I wish to make an additional comment in relation to Ground 4 and the replaying of the recordings of the police interviews with the vulnerable witnesses which constituted their evidence in chief under the provisions of Division 3 of Part 6 of the Criminal Procedure Act 1986 (NSW).
I would have understood the jury's request for "video transcripts" as a request for access to the transcript provided to each of them as an aide when the videos were played. That my colleagues and the learned trial judge have taken the other view amply demonstrates that the request was ambiguous. From her Honour's reference to AB v R [2019] NSWCCA 82 and R v NZ (AB 105), the trial judge was well aware of the care with which the jury's request was to be treated to maintain fairness and balance in the way the case of each party was to be left to the jury. Her directions at AB 107 - 109 reflect this.
Having refreshed her memory overnight, as she said, her Honour would have reminded herself of the reference in AB v R to the judgment of Hayne J in Gatley v The Queen (2007) 232 CLR 208; [2007] HCA 55 (with whom the Chief Justice the other justices agreed) concerned with Queensland legislation cognate with the relevant provisions of the Criminal Procedure Act. His Honour said (at [96]):
"The purpose of reading or replaying for a jury considering its verdict some part of the evidence that has been given at the trial is only to remind the jury of what was said. The jury is required to consider the whole of the evidence. Of course the jury as a whole, or individual jurors, may attach determinative significance to only some of the evidence that has been given. And if that is the case, the jury, or those jurors, will focus upon that evidence in their deliberations. While a jury's request to be reminded of evidence that has been given in the trial should very seldom be refused, the overriding consideration is fairness of the trial. If a jury asks to be reminded of the evidence of an affected child that was pre-recorded under [the cognate legislation] and played to the jury as the evidence of that child, that request should ordinarily be met by replaying the evidence in court in the presence of the trial judge, counsel, and the accused. Depending upon the particular circumstances of the case, it may be necessary to warn the jury of the need to consider the replayed evidence in the light of countervailing evidence or considerations relied upon by the accused. It may be desirable, in some cases necessary, to repeat the instructions required by [s 306S, s 306X Criminal Procedure Act]. Seldom, if ever, will it be appropriate to allow the jury unsupervised access to the record of that evidence."
(See also Jarret v R referred to by Basten JA at [7] above.)
Her Honour's approach accorded with that of Hayne J and cannot be criticised.
Having said that, given that the recording is evidence and the practice in New South Wales is to provide a transcript of evidence at trial if the jury so "request" (s 55C Jury Act 1977 (NSW); cf s 306Z Criminal Procedure Act), it may not be necessary in every case to play the recorded evidence. Had the jury merely requested the transcript and not the video, it would have been permissible for it to be provided with the usual direction or warning as to the use to be made of the trial transcript.
The usual direction given when a transcript of evidence is requested by the jury emphasises the care that should be taken when referring to the transcript of the evidence of a given witness during their deliberations, again in the interests of preserving fairness and balance in the conduct of the trial. I record here that after the recordings were replayed her Honour provided inter alia the transcript of the recording and the cross examination of each of the vulnerable witnesses. She also provided copies of the transcript of evidence of other witnesses at the trial. Before the recording was replayed, her Honour directed the jury in the appropriate terms (AB 107-108). The same direction would have been appropriate had the jury been given the transcript only without the video being replayed:
"However, care is to be taken, because it does fit into that class of evidence that is recorded in that way, you are really not to give it disproportionate weight. It is not to be given any disproportionate weight… You have to see it in the context of all of the evidence in the trial. Of course, [the witness's] evidence that was recorded was followed by the questions that she was asked in cross-examination by the accused and re-examination again by the Crown.
… You must take into consideration that there was other evidence that was given in relation to [the witness's] complaint, of course, directly in relation to the evidence of [complaint witnesses]. Then you must also consider in relation to her evidence the denials made by the accused in his record of interview and, of course, in the evidence that you heard he gave before the Court."
So far as the question of whether the verdicts of guilty were open to the jury is concerned, my review of the evidence accords with that of Adamson J. It was for the jury to resolve the conflicts in the evidence bearing in mind the onus and standard of proof. There is nothing in the record below that suggests in accepting the evidence of the complainants and rejecting the evidence of the applicant, the jury in any way misapplied the directions of law given by the trial judge or misused their forensic advantage.
[6]
Endnotes
Children (Criminal Proceedings) Act, s 15A.
Crimes Act 1900 (NSW), s 578A.
See generally Criminal Procedure Act 1986 (NSW), Pt 6.
[2002] NSWCCA 328; 133 A Crim R 227 at [23].
Criminal Appeal Act 1912 (NSW), s 6(1).
(2005) 63 NSWLR 628; [2005] NSWCCA 278 at [210] (Wood CJ at CL and Hunt AJA agreeing)..
[2014] NSWCCA 140 at [72]-[73] (in my judgment, RA Hulme J and Campbell J agreeing).
Summing up, 24/02/20, p 38.
Summing up at pp 52-53.
Evidence Act 1995 (NSW), s 164(1).
[2020] NSWCCA 207.
SB at [130].
(1999) 196 CLR 297; [1999] HCA 37 at [17].
Sentencing judgment, 24/07/20, p 23.
Sentencing judgment, p 24.
Sentencing judgment, p 7.
Sentencing judgment, p 14.
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: 03 September 2021
63 NSWLR 628; [2005] NSWCCA 278
R v Osborne [1905] 1 KB 551
SB v R [2020] NSWCCA 207
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Texts Cited: Criminal Trial Courts Bench Book (NSW)
Category: Principal judgment
Parties: Long (a pseudonym) (Applicant)
Regina (Respondent)
Representation: Counsel:
S Kluss (Applicant)
G Newton (Respondent)
The summing up
The trial judge began her summing up on 24 February 2020. When directing the jury about assessing a witness's evidence, her Honour said, at SU p 9:
"There are many factors which can have a bearing on a witness' honesty. In considering the question of honesty, you might consider the impression the witness made upon you and that was where I requested that you watch witnesses as they give their evidence. Demeanour and impression are important and valid factors to take into account. Did a particular witness impress you as someone doing their best to be truthful? Or did the witness impress you as someone deliberately trying to deceive you? Did the witness appear evasive or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer the question that was asked? Did the witness strike you as being objective and impartial? Or did the witness strike you as appearing to have an axe to grind or to be colouring his or her evidence in some way, or to have a particular agenda. Or to put it another way, did the witness appear to you to have another reason or motive for saying what they were saying? Did the witness make appropriate concessions about their evidence?"
[Emphasis added to indicate the passage which was thought to be the genesis of the jury question which prompted the further direction which is the subject of ground 5.]
In the course of explaining the concept of direct evidence, her Honour referred to the evidence of the children, who had given evidence remotely. Her Honour said, at SU pp 30-31:
"… Now I want to talk about categories of evidence. The first thing I want to talk to you about is direct evidence and evidence from which you can draw inferences. That is inferences drawn from direct evidence. Sometimes in a criminal trial the evidence relied upon by the Crown to prove its case beyond a reasonable doubt is called or drawn from direct evidence. Direct evidence is what a witness says they saw or what the accused said or did to them, or it might be an admission by an accused.
A simple example in this case is the direct evidence that is given by the … children about what they say the accused did to them. Of course you will have noticed that those children had given evidence before you by way of a recorded interview, and they have also been cross-examined from a remote location. There are two relevant directions I have to give to you in respect of the manner in which their evidence was given. The first is that they were given, remember, the records of interview. Each child had multiple records of interview. The law provides that witnesses as complainants give evidence in that way. That is an entirely standard procedure. There is nothing special about this trial in relation to the way that the children gave evidence. That is how it is done in relation to matters of this type.
You should assess their evidence in those records of interview from those locations in the same way as you would assess any evidence as if they were in the witness box. You will also notice that when the children were required for cross-examination and re-examination they were in a remote location, not in the courtroom themselves. That again is standard procedure and has nothing whatsoever to do with this accused. Any matter of this type, evidence is given in that way. So do not give their evidence any greater or lesser weight because they were giving evidence from a remote location."
Her Honour continued by giving a Murray direction (R v Murray (1987) 11 NSWLR 12 at 19E (Lee J)), with specific reference to count 4 (which is relevant to ground 6) as follows, at SU p 31:
"The next issue is in relation to how you treat evidence where it is essentially the only evidence in relation to a particular event. So when you are looking at direct evidence, evidence where there is only one person who is giving evidence in relation to whether something took place. Even though you might look at the overall context, but essentially it comes down to whether you can rely on the evidence of the particular child. For example, we will take count 4 in relation to the sexual intercourse concerning the anal intercourse. There is really only one person who that evidence relies upon and that is the evidence given by [Kate]. That is the direct evidence in respect of that case. Yes, you can look at other factors around it, but essentially if you do not accept the evidence that she has given, then I do not think it is controversial from the bar table, then you would not find it beyond a reasonable doubt, if you did not accept what she had to say about that."
In the summing up, after summarising the complaint evidence and reading extracts from the transcript concerning the complaints made, the trial judge said, at SU pp 52-54:
"That is all the evidence in relation to complaint evidence. You can see how it is developed in that chronology. This evidence is referred to at law as complaint evidence and you can use it in a different way from the other evidence. You can use it going to the truth of the facts asserted. It is for you to decide whether you accept that the complaints [were] made, and what the contents of the complaints were. As judges of the facts, that is entirely in your domain. In determining those matters you are entitled to take into account a number of factors, including the circumstances in which the complaints were made, the details of the complaints, any inconsistencies in the complaints generally, or in respect of the evidence given by the complainants.
If you find that the complaints were made substantially to the effect that the accused had sexually assaulted or indecently assaulted one or both of the complainants, then you can use evidence of what was said in the complaint as going to the truth of the facts. That is, you can use it as some evidence independent of the evidence given by the complainant in the trial. You can use the evidence that they give, the direct evidence that they say that happened, and then you can give weight to the fact of the complaints. The law says that because of the circumstances in which the complaint was made, a jury is entitled to use what was said in that complaint as evidence of the truth of what the complainant alleged. A jury is entitled, you are entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable. That is, that the allegation is less likely to have been fabricated by the complainant and more likely to be accurate.
It is a matter for you whether you draw that conclusion in the particular case …
Of course the fact that a person says something on more than one occasion does not necessarily mean that it is true or accurate. A false or inaccurate statement does not make it more reliable simply because it has been said a number of times …"
[Emphasis added to indicate the aspect which is alleged on behalf of the applicant to be erroneous.]
This direction is the subject of ground 3.
At 3.25pm on 24 February 2020, the trial judge sent the jury out to consider its verdict. Before the Court adjourned for the day, the jury sent a note:
"The jury would like to request all three video transcripts of [Kate]'s interview."
Her Honour consulted with counsel. Mr Hoare, trial counsel for the applicant, understood the jury to be asking for the transcripts only although her Honour construed the request as being for the videos of the interviews. Mr Hoare then made this suggestion:
"I suppose your Honour might just inquire from them as to whether they want to watch the videos again."
However, her Honour appeared to consider the issue to be whether the videos would need to be watched in court or whether the videos could be given to the jury for a limited time for viewing in the jury room, rather than whether the jury wanted copies of the transcripts of the interviews or to view the videos of the interviews. After consulting with counsel, the trial judge asked the jury to return to court at 4.04pm. Her Honour said, at SU pp 94-95:
"I have received your note, which will become MFI 37. In relation to [Kate]'s interview she of course made four records of interview so probably for completeness you should be provided with access to all of those, and the practical way that that is done is to simply play those again, because remember that the transcript of what is recorded is not in fact evidence. The evidence is in fact the recording, and there is law that says that in relation to that sort of evidence it just has to be played again. So that is fine. What we will do is tomorrow when you come back we will have that evidence played again and you will have the transcript as you go through it, and you will also be provided with the transcript of her examination-in-chief, cross-examination and re-examination because you cannot just look at one part of her evidence, you have to look at all of the evidence in relation to her. So we will make that available for you. The time is now getting onto 5 past 4, so obviously time to let you go this afternoon."
The following morning, 25 February 2020, the jury sent a further note:
"At the conclusion of each video evidence, the jury would like to have a 20-minute period in the jury room to review and discuss as a group."
In response to the second note, Mr Hoare objected to the jury being allowed to see the videos of the recorded interviews (on the basis that they could not "replay" the evidence of other witnesses whose evidence had not been recorded). However, he contended that the jury ought be provided with the transcripts of the recorded interviews of Kate, together with the transcript of her evidence which had been given remotely, which included cross-examination and re-examination. In the alternative, he submitted that the videos ought be replayed in court once and that her Honour ought inform the jury that they were permitted to do this "only on this one occasion."
In discussion with counsel, her Honour confirmed having read AB v R [2019] NSWCCA 82 and R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278, decisions of this Court on the question of replaying recorded interviews of vulnerable witnesses. Her Honour also informed counsel that she would allow them to have access to the recordings but only for the purposes of their being replayed in court, and provide them with the transcript of Kate's interview (which comprised her examination in chief), cross-examination and re-examination. She also indicated that she would warn the jury not to give the recording disproportionate weight.
At 10.16am on 25 February 2020, the jury was asked to return to the Court. Her Honour said, at SU pp 100-101:
"We have received both of your notes in relation to your request to have the evidence of [Kate] made available to you again. The law is quite clear in relation to how that is to take place. You will recall that I spoke to you in the early days about the difference between exhibits and MFIs. The recording of [Kate] and the same in relation to [Nettie] and [their brother] is that their evidence that you heard played is not, in fact, an exhibit and that is because their evidence is, in fact, no different from any other witness in this court, in the sense that you only get to usually see a witness once, in that if you had asked to see any other witness, for example, a complaint evidence like [ZH], we would not be able to play you are recording. But because it is recorded, you can see it again.
However, care is to be taken that, because it does fit into that class of evidence that is recorded in that way, you are really not to give it any disproportionate weight. It is not to be given any disproportionate weight, all right? You have to see it in the context of all of the evidence in the trial. Of course, [Kate]'s evidence that was recorded was followed by the questions that she was asked in cross-examination by the accused and re-examination again by the Crown. For that reason, we will replay all of that material, the transcripts I beg your pardon, the recordings - that were made with the police. We will play all of them, not just the first three. We will play all of them because you must see them all together, and you will be provide[d] with the transcript of the cross-examination and the re-examination, or all of the evidence. I do not think there was any re-examination.
You are also - and I will give you this warning again at the end - to not just see it in an isolated way. You must take into consideration that there was other evidence that was given in relation to [Kate]'s complaint, of course, directly in relation to the evidence of [ZH] and [JH]. Then you must also consider in relation to her evidence the denials made by the accused in his record of interview and, of course, in the evidence that you heard he gave before the Court. My rulings will be in relation to it that you should guard against the risk of giving it disproportionate weight simply for the reason that it is no different from other evidence given in this case, and bear in mind the other evidence in the case.
In relation to your request for 20 minutes at the end of each of that recording, we, again, are concerned that that would mean that that would be a compartmentalised approach to the evidence and that what we are asking you to do is to look at it as a whole, in its entirety on its own, but also as part of the case and the other evidence in the case. For that reason, we will play it, all of it, as much as we can together, however, there will be normal breaks for morning tea and so on, comfort breaks, all right?"
During the luncheon adjournment, after some of the recorded interviews had been played, the jury sent a further note asking for access to the transcripts of the evidence of the mother, father and daughter of the children's new foster family (where they had moved at the end of 2016). After consulting with counsel, her Honour told the jury, when it returned to court at 2.07pm, that they would be given the whole of the transcript of the evidence of all of the witnesses. The transcript recorded that, at 2.55pm, the final recording of Kate's evidence had been replayed to the jury and the jury retired to continue its deliberations. The transcripts of the evidence, including that given out of court, were provided to the jury either after court on 25 February 2020 or on 26 February 2020.
The jury continued to deliberate on 26 and 27 February 2020. On the morning of 2 March 2020, a Monday, the jury sent the following note to her Honour:
"1. What is meant by 'making appropriate concessions'?
2. Under what circumstances can you make appropriate concessions?
3. Is there anything we can't make appropriate concessions about?"
Her Honour consulted the legal representatives (the applicant's solicitor, Mr Velcic, made submissions on behalf of the applicant, as Mr Hoare was otherwise engaged). Mr Velcic volunteered, after having consulted with Mr Hoare, that the jury should be directed that if there were any concessions to be made, they should be made in favour of the accused and that the jury should be reminded of the onus and standard of proof. There was further discussion between the trial judge and the legal representatives as to how the question ought be answered. In this context, Mr Velcic referred to "the bizarre questions [asked by] a jury in the course of deliberations."
As to question 1, her Honour reminded the jury of the context in which she had referred to "appropriate concessions" in the summing up and said, at SU pp 134:
"In the closing addresses there were some references made to … what the children said and whether they could have embellished their evidence and whether they did or they did not. So that is the most that I will have to say in relation to one."
As to question 2, her Honour told the jury that she was not sure what it meant except that it might relate to "inferences and speculation". The transcript recorded her Honour's observation that some of the jurors "seem to be nodding [their] heads". Her Honour said further, in answer to questions 2 and 3:
"But what you are not allowed to do, and it comes back to the onus of proof on the Crown, is to speculate. So your deliberations have to be based on the evidence. If there is a flaw in the evidence where you cannot be satisfied beyond a reasonable doubt then you are duty-bound to acquit. So that comes back to the fundamental direction that I gave you in relation to being satisfied of each of the elements on the elements document which relates to the indictment beyond a reasonable doubt. If you are not satisfied of any one of those elements on the evidence in the trial then you must acquit.
What you do not have to be satisfied of beyond a reasonable doubt is the other evidence that is not an element, all right, but in relation to the elements you must be satisfied beyond a reasonable doubt and if I were to look at question 3 and question 2 together, then I would just remind you that you are to do that on the basis of the evidence. You are not to speculate if there is not evidence there. If you have a reasonable doubt in relation to a matter then you are duty-bound to acquit. I hope that assists. All right, you can continue with your deliberations."
After her Honour sent the jury out to continue to deliberate, she apologised for not asking the parties' legal representatives whether there was anything they wished to add. Both the Crown and Mr Velcic confirmed that they had nothing to add. The jury continued to deliberate on 2, 3 and 4 March 2020.
At about 4pm on 4 March 2020, the jury sent a further note to the trial judge which said:
"We have considered all the evidence but require clarity on a particular count. Would we be able to please just watch [Nettie]'s police interview on 14 August 2017 to assess demeanour?"
The jury returned to court at 4.05pm. The trial judge, after reading out the jury note said, of present relevance, at SU p 145:
"For the purpose of watching it, we will all watch it with you. So tomorrow at 10am we will reconvene and we will watch it. Because you have all of the transcript and all of the associated transcripts of the interviews, perhaps you might bring with you your own copy of that record of interview transcript. So if you bring that with you, that might assist. All right, so I will excuse you this afternoon."
After the jury had left the court, the Crown asked her Honour to remind the jury that they should not permit the video to "dwarf their overall assessment of the evidence".
On 5 March 2020, the interview that the jury had requested was replayed in court, following which her Honour said, at SU p 148:
"Can I please remind you, as I did when I gave you my summing-up initially, that it is important that you not consider pieces of evidence in isolation, that when you are assessing demeanour, of course, you are looking at all of the evidence given by that particular witness, taking into consideration that she was, of course, present in Court, although via AVL and she was asked questions in cross‑examination by the accused's representative and she was also asked questions in re‑examination by the Crown and, of course, you are to take into consideration all of the other evidence in the Crown case and the evidence that was given, of course, in the accused case. So I just again encourage you to not look necessarily at just one thing in isolation."
At 10.37am, the jury retired to resume its deliberations. At 3pm that afternoon, the jury returned verdicts of guilty in respect of counts 1, 2, 3, 5, 6, 7, and 8 and not guilty in respect of count 4 (the alleged inconsistency is the subject of ground 6).
Grounds 1 and 2: alleged failure to warn regarding pre-recorded evidence
These grounds were in identical terms. The applicable legislative provisions are as follows. Section 306X of the Criminal Procedure Act provides for a warning to be given in respect of pre-recorded evidence as follows:
"306X Warning to jury
If a vulnerable person gives evidence of a previous representation wholly or partly in the form of a recording made by an investigating official in accordance with this Division in any proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way."
Section 306ZI of the Criminal Procedure Act relevantly provides for a warning to be given where the evidence of a vulnerable person is given by means of closed-circuit television facilities as follows:
"306ZI Warning to jury
(1) In any criminal proceeding in which the evidence of a vulnerable person is given by means of closed-circuit television facilities or any other similar technology (by virtue of section 306ZB), the judge must -
(a) inform the jury that it is standard procedure for the evidence of vulnerable persons in such cases to be given by those means, and
(b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those facilities or that technology.
…"
Ms Kluss accepted that the warnings that were given in the opening remarks conformed to the substance of these provisions and that the warnings were, at least in part, repeated in the summing up. However, she submitted that her Honour was in error in failing to give the warnings at the time, and every time, evidence was given which attracted the warning. She relied on R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227, where Howie J (Meagher JA and Simpson J agreeing) said at [23]:
"For my part, I believe it is highly preferable that a trial judge gives such information and warnings as are required in respect of a particular part of the evidence that is to be given in a trial before a jury either immediately before or immediately after the giving of that evidence rather than to wait to fulfil that obligation during the course of the summing up. Generally speaking, it would be expected that any information or warning that a jury is required to consider in their assessment of a particular piece of evidence would have considerably more impact upon the jury if given at a time proximate to the evidence. This does not mean that it would not be advisable, or even necessary in some cases, to convey that information or warning again during the course of the summing up. But whether such a course is necessary in order to ensure a fair trial and one according to law will depend upon all the circumstances of the particular case and the nature of the information or warning that must be given."
Ms Kluss submitted that because FACS workers gave evidence before the children (who were each, by definition, vulnerable persons) gave their evidence, "it is probable that the jury would have forgotten what she had said to them" by the time the children gave their evidence. She submitted that the direction in the summing up did not comply with the statutory requirements since her Honour merely referred to the giving of pre-recorded evidence and giving evidence remotely as being "standard procedure" and that they ought not give the evidence any greater or lesser weight. Thus, she submitted that the direction in the summing up was insufficient to cure the deficiency that the direction had not been given at the time the evidence to which it related was given.
While ss 306X and 306ZI of the Criminal Procedure Act require the trial judge to warn the jury about the matters covered by the sections, Parliament has not specified when such warnings ought be given. This Court has said, in the passage extracted above, that it is preferable that such warnings be given before the summing up and indeed, before or immediately after the evidence is given.
However, the timing of the warnings and whether, and how often, they are to be repeated, remains within the discretion of the trial judge. While one can understand why giving the warning only in the summing up could be thought to be too late, since the jury may already have given the evidence greater or lesser weight, having not been directed to the contrary, the same concern does not arise when it is given in the opening remarks. In the present case, although evidence of non-vulnerable witnesses was given between the opening remarks (where the warnings were given) and the calling of Kate, the time between the warnings and the adducing of Kate's evidence was relatively short. To repeat a warning every time a vulnerable witness is called runs the risk of insulting the collective intelligence of the jury and, perhaps even more importantly, of giving the jurors the impression that they need not listen carefully to what the trial judge is saying because any important direction will be repeated ad nauseum. Further, there is a risk that if a trial judge keeps reminding the jury that they are not to regard pre-recorded interview evidence differently from oral evidence given in the witness box, it will only serve to highlight the difference in form, when the purpose of the warning is to the contrary. In any event, the substance of the warning was repeated immediately prior to replaying the recorded evidence. The statement that no inference adverse to the accused should be drawn from the nature of the procedure was not repeated. However, to make too much of that warning is apt to invite the jury to consider why they would think the procedure implied something adverse to the accused.
In my view, the trial judge not only complied with the statutory provisions referred to above, but did so in a way which highlighted their import. I am not persuaded that leave under r 4.15 ought be granted in respect of grounds 1 and 2.
Ground 3: alleged error with respect to complaint evidence
The basis for ground 3 is the highlighted passage, "That is, you can use it as some evidence independent of the evidence given by the complainant in the trial", in the summing up concerning complaint evidence. Ms Kluss argued that this direction was erroneous as the complaint evidence was not independent of the complainant and that the direction had the effect of giving unwarranted weight to that evidence.
It was common ground that complaint evidence could not, as a matter of logic, be independent of the complainant since the complainant was, inevitably, the source of the complaint evidence (even in cases where another witness gives evidence of the complaint by the complainant). However, the complaint evidence was relevant and admissible on two separate bases. First, the complaint evidence was admissible, even at common law, if it was a recent complaint of an alleged sexual offence, and was admissible as a prior consistent statement: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 (Papakosmas) at [12] (Gleeson CJ and Hayne J). Second, the use of complaint evidence for the hearsay purpose (namely, to prove the truth of the underlying facts complained of) was subsequently authorised by legislation, which created an exception to the hearsay rule as long as the complaint was made when the underlying facts were fresh in the memory of the complainant. Neither of these two uses of the complaint evidence required it to be independent of the complainant. Evidence of complaint cannot corroborate the conduct complained of, because its source remains a statement by the victim. However, it may be corroborative of the fact of complaint of which the victim has given evidence. Corroboration is, by definition, independent evidence: Papakosmas at [16]. When and to whom the victim first complained may be important to her credibility. Legal principles relating to the requirements as to corroboration (which are no longer part of the law) were not matters explained to the jury, nor should they have been. Complaint evidence has been referred to as corroborating a complainant's direct evidence of an offence since it is regarded as making it stronger: see the discussion of R v Osborne [1905] 1 KB 551 in Papakosmas at [16]-[17].
Accordingly, her Honour was in error in describing the complaint evidence as independent. The source of the error was the Criminal Trial Courts Bench Book (the Bench Book), in its then form, which formed the basis of the direction her Honour was giving. The Bench Book has subsequently been corrected as a result of this Court's decision in SB v R [2020] NSWCCA 207 (SB). The question for present purposes is the effect of the error. Lawyers might be acutely conscious of the distinction between evidence which, being independent, is capable of being corroborative and evidence, such as complaint evidence, which not being independent is not capable of being corroborative. However, the relevant effect of the direction is its effect on the jury, not its effect on a punctilious lawyer. In common parlance, the word "corroborative" means making stronger or more credible. The requirement that corroborative evidence be independent is one on which the law insists but which has not necessarily found its way into common usage. Even in R v Osborne, the House of Lords described the complaint evidence as being "corroborative of the complainant's credibility", terminology which was criticised by Gleeson CJ and Hayne J in Papakosmas as "strictly speaking, inaccurate".
I am not persuaded that her Honour's reference to the complaint evidence as "independent" was capable of having any real bearing on the jury's understanding of her Honour's directions as to the use to which the complaint evidence could be put.
Further, leave is required under r 4.15 as the point was not taken at trial. Ms Kluss submitted that this Court ought grant leave because it would have been futile to object to a direction which corresponded with the then current Bench Book. She referred to SB in support of this contention. The Bench Book is designed to be of assistance to trial judges and counsel but it does not have authoritative force. I would refuse leave under r 4.15.
Ground 5: alleged error as to the reference to "appropriate concessions"
Ms Kluss argued that her Honour failed to engage with the jury's request for an explanation as to the meaning of appropriate concessions and submitted that this omission had led the trial to miscarry because the trial judge had, effectively, withheld from the jury, guidance as to how they ought assess the complainants' evidence. She submitted that, as the credibility of the complainants was the principal issue in the trial, her Honour's failure had led to a miscarriage of justice.
At the outset, it is important to note that the assessment of the credibility of witnesses is regarded as a matter falling almost entirely within the domain of the jury. There is relatively little that trial judges can say to juries on the topic of credibility since the jury's assumed ability to assess credibility for itself is one of the foundations of the system of trial by jury. Beyond directing the jury that jurors should observe not only what witnesses say but also how they say it; that it is open to them to accept or reject all or part of a witness's evidence; and warning the jury that some witnesses might be unreliable for various specified reasons (such as that they are criminally involved), judges generally leave assessment of credibility to the good sense of the jury: see, generally, McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5.
It is relatively plain from the transcript that her Honour and the parties' legal representatives were unsure what to make of the jury's questions about "appropriate concessions". Indeed, Mr Velcic's observation about jury's asking "bizarre" questions while deliberating supports this inference. Further, I infer that the jury simply did not understand the phrase since its third question on the topic indicated that the jury considered that it was the party responsible for making appropriate concessions or otherwise. It would seem to have been common ground that, rather than having the trial judge giving a lecture on what lawyers mean by a witness making appropriate concessions, it would be more effective to remind them of general concepts such as the standard and onus of proof and the difference between speculation and inference. Mr Velcic agreed with this course. After this consultation, her Honour (as set out above) proceeded to direct the jury about these general matters. As her Honour noted, this appears to have been what the jury was interested in, since some jurors nodded when her Honour referred to speculation and inference. No further questions on this topic were forthcoming, by which I infer that the jury regarded her Honour as having satisfactorily answered, if not its questions, then at least its concerns.
I reject Ms Kluss's submission that her Honour should have done more, or should have answered the questions differently. Leave under r 4.15 is required as Mr Velcic endorsed the approach proposed by her Honour. I would refuse leave under r 4.15 to argue this ground.
Ground 6: alleged inconsistency between the verdicts of guilty for counts 1-3 and 5-8 and the verdict of not guilty for count 4
The applicant argued that the verdicts were inconsistent because the jury, by its verdicts, had apparently accepted Kate's evidence on count 1, 2 and 3 but not on count 4. A complaint that a jury verdict is unreasonable because of inconsistency with other verdicts gives rise to the question whether the differentiation can be explained as a matter of logic and reasonableness: see the summary of authorities in Nguyen v R [2017] NSWCCA 145 at [34]-[47] (Macfarlan JA, Campbell J agreeing) and [52]-[53] (Adamson J).
Further, one cannot assume that different verdicts are inconsistent merely because a jury returns different verdicts with respect to different counts in respect of the same complainant. Thus, it cannot be inferred from the jury's verdict in respect of count 4 that the jury did not find Kate credible and otherwise reliable, particularly where guilty verdicts have been returned on other counts concerning Kate.
In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ said at [34]:
"In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others."
In R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 (Markuleski), Wood CJ at CL explained, at [221], that an acquittal on a particular count did not amount to a positive finding that the act did not occur or that the evidence of the complainant was rejected as a lie or as lacking in credibility. Further, his Honour, when listing the possible explanations for differences between verdicts returned by juries, identified the following at [235(h)]:
"the jury were entitled to conclude, in relation to the event in respect of which the accused was acquitted, that the complainant misunderstood or misinterpreted what it was that had occurred (R v ACK [2000] NSWCCA 180 provides an example of such a case)."
In R v ACK [2000] NSWCCA 180, James J (Spigelman CJ and Ireland J agreeing) said at [51]:
"It was submitted that the verdict of not guilty on the first count was inconsistent with the verdicts of guilty on the second and third counts. However, the different verdicts on count 1 and counts 2 and 3 are capable of being explained on the basis of the evidence of complaint. The complainant complained to Miss H that the appellant had rubbed his penis over her, being conduct of the kind alleged in the second and third counts on which the appellant was convicted, but did not complain to Miss H that she had been anally penetrated, which was conduct of the kind alleged in the first count."
In the present case, the evidence in respect of counts 1, 2 and 3, which concerned Kate, was qualitatively different from the evidence in respect of count 4. For counts 1, 2 and 3, Kate gave detailed, explicit evidence about the acts of indecent assault which were perpetrated on her by the applicant. However, for count 4 (penile-anal sexual intercourse) Kate's evidence was relatively limited. She did not refer to the facts in count 4 in her first interview on 25 July 2017 but did refer to them in the second interview on 14 August 2017. Kate said that the applicant had called her into his room, while Nettie and their brother were "out the back yard". When she went to his room, he wrapped a brown scarf around her eyes and told her to turn around. He asked her to pull her pants down, which she did, and left them around her "legs". He then asked her to lie down on the bed, which she did. Kate said that, while she was lying face down, he then "put his, um his, um, his, like, doodle in." When she was asked what she could feel, she said, "I just felt something in my bum." She said that she "felt a bit scared" and "[bit] the blanket." When she was asked whether it hurt, she said, "Uh, a little bit." She said, "[h]e just pushed in," and "[h]e just stayed still and then, um he took it out." She said that it was "in" for a "little time" and that he was "staying still" while "his doodle was in [her] butt." When Kate was asked how she knew that it was his "doodle", she said, "'cause it was round". By the time Kate took off scarf which had blindfolded her, the applicant had his pants back on.
In cross-examination, Kate said that she did not feel the applicant's "doodle" going inside her and when she was asked, "[w]hat did you feel?", she answered, "[n]othing." Although she confirmed that he had put his "doodle" in the place "where [the] poo comes out", she maintained that she did not feel anything when this occurred.
The present case appears to me to be an example of the appropriately cautious approach of the jury to the decision whether the Crown had proved count 4 beyond reasonable doubt. The jury might have reasoned that, had there been such penetration, it would be inevitable that it would have hurt Kate more than "a little bit." Because count 4, unlike counts 1-3 (which charged indecent assault), charged sexual intercourse, it was necessary, in the context of penile-anal intercourse, that there be penetration by, in this case, the applicant's penis, into Kate's anus: s 61HA(a). Putting his penis between her buttocks would not be sufficient to amount to penetration, and thus, would not be sufficient to establish sexual intercourse. The jury may well have accepted Kate's description of what had happened, in so far as the applicant's penis had touched her buttocks (which would have amounted to indecent assault, had that been charged), but not been satisfied beyond reasonable doubt that there had been any actual penetration of her anus, and therefore not have been satisfied that there had been unlawful sexual intercourse. On this basis, the jury's verdict in respect of count 4 may have reflected an acceptance of what Kate said about what happened and adherence with the trial judge's directions about the need for the Crown to establish penetration beyond reasonable doubt. It was open to the jury to consider that Kate had misunderstood or misinterpreted what had occurred, a situation referred to by Wood CJ at CL in the passage extracted above from Markuleski.
This explanation for the jury's verdict of not guilty of count 4 is sufficient, as Ms Kluss accepted. Indeed, Ms Kluss conceded that it was "perfectly available as a conclusion."
In further support of this ground, Ms Kluss relied on the circumstance that, as recorded in the transcript, Mr Hoare asked her Honour in the short adjournment on the afternoon of 24 February 2020 (during the course of the summing up) whether her Honour had given a Markuleski direction (that if the jury were to find the accused not guilty on any count, particularly due to doubts about the reliability of the complainant's evidence, the jury would have to consider how that conclusion affected its consideration of the remaining counts). The transcript recorded (as Ms Kluss accepted) that her Honour had given a Markuleski direction earlier that day. Ms Kluss submitted that this Court could infer from the fact that the direction had not impinged on Mr Hoare's consciousness that "it is unlikely that the jury would have given it any weight or attention …". I regard this submission as a non sequitur. It is the experience and observation of trial judges that juries listen attentively to the summing up. If the attention of particular jurors is waning, judges adjourn proceedings for a short period to allow jurors to refresh themselves and focus on the directions which are being given to them.
For these reasons, I would refuse leave to appeal in respect of ground 6. The submissions in support of this ground were without merit.