R v B A H [2002] VSCA 164

R v B A H [2002] VSCA 164 - VSCA 2002 case summary — Zoe

[9]

Mr. Thomas was able to call upon substantial authority, which supported his submissions, from various parts of the common law world which have adopted, legislatively, similar procedures to those provided by s.37B of the Evidence Act (Vic.) in the prosecution of sexual assaults against minors. Those authorities, which emanate from England, New Zealand and Queensland, appear to speak with one voice, in the sense that they regard it as a procedural irregularity of a material kind to allow video-audio taped evidence-in-chief of a child witness, of the type contemplated by s.37B, to be given to the jury for their own unrestrained use during the course of their deliberations; and that this is so whether or not the legislation designates the tape to be an exhibit in the trial. The font of this stream of authority appears to be the "Practice Note" of the English Court of Appeal in R. v. Rawlings; R. v. Broadbent[2]. In the trial of each of the cases before the Court of Appeal, evidence-in-chief of the complainant had been given by playing to the jury a video recording of an interview which became admissible pursuant to s.32A of the Criminal Justice Act 1988, as amended by s.54 of the Criminal Justice Act (Amendment) Act of 1991. That section, like s.37B of the Evidence Act (Vic.), permitted the evidence of the tape to stand as the evidence-in-chief of the complainant provided (inter alia) that the complainant was called. The court referred to the section as a "new mode of adducing a child's evidence-in-chief authorized by section 32A of the Act ...". The issue raised in each of the appeals was whether such a tape should be made available, at the request of the jury, for viewing during the course of their deliberations. The court[3] noted that the point was "novel". It rejected the notion that it was no different from the jury having with them tape-recorded records of interview between the accused and police because "the replaying video evidence-in-chief after the summing up would give it undue prominence as against cross-examination of the complainant" and, in that respect, "has no parallel when the recording of a defendant's interview is played at that stage". The court concluded that:

[18]

The playing back to the jury, at their request, of a video-recording which forms the evidence-in-chief of a complainant is a matter under the discretionary control of the trial judge. It is part and parcel of the practice and procedure which the trial judge is bound to administer, as he or she does whenever the jury asks to be reminded of the evidence[10]. Nevertheless, for the reasons adverted to in the authorities to which I have referred, caution should be exercised by judges in this State when faced with requests by juries to replay the video-taped evidence-in-chief of child complainants admitted pursuant to the provisions of s.37B of the Evidence Act. Generally speaking, in my view, the procedure outlined by the President of the Court of Appeal of Queensland in R. v. H., to which I have referred in the preceding paragraph of this judgment, should be followed in this State. That procedure was re-affirmed by the Queensland Court of Appeal in R. v. C.[11]. Compliance with the procedure means that, in the event that the jury requests to be reminded of the complainant's evidence, or to review the video-tape, the judge should deal with the situation on the facts as they arise, bearing in mind that the maintenance of balance and fairness in the trial is the overriding consideration. If, after discussing the jury's request with counsel in open court and being careful, if directing any questions to the jury about their request, not to intrude on the confidentiality of their deliberations, the judge decides to allow the jury to view the video-tape, it should be done in open court in the presence of the accused and counsel, and should be attended, at least, by a general warning of the type to which Mc Murdo, P. referred in R. v. H. (supra). Whether fairness also requires the judge to remind the jury of the cross-examination and re-examination of the complainant will be a matter for the trial judge who is in the best position to determine whether that is necessary[12].

[65]

"In our judgment it is a matter for the judge's discretion as to whether the jury's request for the video to be replayed should be granted or refused. He must have in mind the need to guard against unfairness deriving from the replay of only the evidence-in-chief of the complainant. Usually, if the jury simply wish to be reminded of what the witness said, it would be sufficient and most expeditious to remind them from his own note. If, however, the circumstances suggest or the jury indicate how the words were spoken is of importance to them, the judge may in his discretion allow the video or the relevant part of it to be replayed. It would be prudent where the reason for the request is not stated or obvious for the judge to ask whether the jury wish to be reminded of something said which he may be able to give them from his note or whether they wish to be reminded of how the words were said. If the judge does allow the video to be replayed, he should comply with the following three requirements. (a) The replay should be in court with judge, counsel and defendant present. (b) The judge should warn the jury that because they are hearing the evidence-in-chief of the complainant repeated a second time well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case. (c) To assist in maintaining a fair balance, he should after the replay of the video, remind the jury of the cross-examination and re-examination of the complainant from his notes whether the jury asked him to do so or not. For completeness, we should refer to our judgment in Reg. v. Atkinson (unreported), 1 August 1994, C.A. In that case, we rejected submissions that the judge was wrong to allow the jury at their request to see again in retirement the video of interviews with the complainant which had been put to her in cross-examination as inconsistent statements. There, no point arose as to evidence-in-chief being given greater prominence than cross-examination or other evidence-in-chief since the video of the interviews was not evidence-in-chief at all and the judge made that abundantly clear to the jury on a number of occasions."[25]

[70]

"(1) The video-recording of the child's interview is not itself evidence in the case. The evidence is given orally and by means of the video-recording so far as the evidence-in-chief is concerned. This is clear from section 32A itself. (2) The video recording enables the jury to observe the child's demeanour as a witness, just as it can do if the evidence is given orally and in court. The fact that it is a recording enables it to be replayed if the jury so requests, and subject to stringent safeguards this procedure is allowed: Rawlings. This facility cannot be made available to them when the evidence is given in the normal way in court. It is an advantage, therefore, derived from modern technology which is allowed to assist them in their evaluation of the child's evidence. (3) Whatever use may be made of the video, after the evidence-in-chief has been given, it is essential to remember that it contains only part of the evidence of the witness in question. The stringent safeguards required by the judgment in Rawlings are designed to maintain a `fair balance' when the jury does see the video again. (4) If a transcript of the video-recorded interview is available, the jury should not normally be permitted to take it with them when they retire, unless the defence consents: Coshall. This is because there is no effective safeguard in such circumstances against the jury giving that part of the child's evidence disproportionate weight. (5) The value to the jury of `tools' which may assist them in following and understanding a witness' evidence has been recognised and approved by this court in Sekhon (observation logs). A transcript of the video-recording was given to the jury in Coshall for use during the child's evidence, and this was not the subject of complaint in this court, as distinct from allowing the jury to keep it when they retired. (6) It was submitted in Rawlings that the reason for refusing to let a jury have transcripts of a witness's testimony is that `one part of the total corpus of evidence should not be given disproportionate weight and importance' (at p.225 and p.181E). We would add that there is equally no question of providing the jury with a transcript of the whole of the evidence, because of the burden which this would place upon them and the limited value of any such exercise."[28]

[83]

"[T]he learned trial judge was not informed of the discretion he had pursuant to s99 of the Act, nor was he informed of the substantial body of weighty judicial opinion that the videotaped evidence of a child under the equivalent of s93A of the Act should not go into the jury room during deliberations. There is a real danger that in replaying a videotape, possibly many times, the jury may overemphasise that evidence, as against other evidence in the case, particularly cross-examination. ... as a general rule, at least in the absence of the consent of both Crown and defence, videotaped evidence tendered under s93A of the Act will not be permitted to go into the jury room during deliberations. If the jury request to hear the evidence of the complainant child a trial judge must deal with each situation on the facts as they arise. As Shepherdson J notes in his judgment, a trial judge must be careful that any questioning does not intrude on the confidentiality of the jury's deliberations.[38] If the judge decides to allow the jury to view the videotape, this should generally be done after discussing the proposed procedure with counsel in open court. The judge should also warn the jury that because they are hearing the evidence-in-chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case.[39] It is not in our view necessary in every case after replaying the videotape to remind the jury of the cross-examination and re-examination of the complainant from the judge's notes or transcript, where this is not requested by the jury.[40] In many cases this may be wise but every case will depend on its own facts. The overriding consideration for the trial judge must be fairness and balance, something which can be difficult to achieve in emotive sexual cases which are particularly likely to arouse feelings of prejudice in the jury.[41] As Shepherdson J points out in his judgment, such an approach is consistent with the comments of Brennan CJ in Bulejcik v The Queen.[42]"

At a glance

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Judgment (128 paragraphs)

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