R v B A H [2002] VSCA 164

5. This application (from a jury verdict convicting the applicant of one count of incest and one count of "indecent act") raises a matter of procedural fairness in the conduct of trials in which a child complainant's evidence-in-chief is given by way of "V.A.T.E." tape pursuant to s.37B of the Evidence Act. Such material is pre-recorded (that is, prior to trial) during the course of an interview between the complainant and a police officer who has been "prescribed" for the purpose. The procedure was introduced into the legislation in this State by s.11 of the Crimes (Sexual Offences) Act 1991 (Act. No. 8 of 1991). There appears to be legislation of similar kind in Queensland (see s.93A Evidence Act 1977 (Qld.)); in New Zealand (see s.23D Evidence Act 1908) and in England (see Criminal Justice Act 1988, s.32A - introduced in 1991).

8. The procedure provided by s.37B represents a significant departure from criminal procedure as recognized by the common law, in the sense that the critical evidence led by the prosecution, and which stands as the evidence-in-chief of the complainant, is pre-recorded by police officers and committed indelibly to video/audio tape[1]. The section, therefore, has certain safeguards. It gives to the trial judge a discretion to rule the whole or any part of the tape as inadmissible (sub-s.(4)); and is admissible as if it were "the direct testimony of the witness" only if a copy of the transcript has been served on the defendant or his or her legal practitioner at least 14 days before the hearing (sub-s.(3)(a)); if the defendant and his or her legal practitioner were given a reasonable opportunity to listen to and/or view the recording (sub-s.(3)(b)); and if the witness "at the proceeding" identifies himself or herself and attests to the truthfulness of the contents of the recording and "is available for cross-examination and re-examination" (sub-s.(3)(c)).

11. In this application, no issue was taken as to the fulfilment of the pre-requisites to which I have referred in paragraph [2]. The recording was played and shown to the jury, and was attested to as being true by the complainant; and the complainant was subjected to further examination-in-chief and was cross-examined and re-examined. Appropriately to its status, as I think, the V.A.T.E. tape did not become an exhibit in the trial; it should have been, but was not, marked for identification as part of the court's record.

14. The issue before this Court is a narrow one. It relates to the use made of the V.A.T.E. tape after the jury had retired to consider its verdict. The jury requested that they be permitted to have access to the video tape in the jury room in the course of their deliberations. The judge permitted them to have such access; and no objection appears to have been taken either by prosecutor or defence counsel. However, it is clear that there was no agreement between counsel that such a course was required. Indeed, his Honour appears to have adopted the view that the jury were entitled to have such access pursuant to s.19 of the Crimes (Criminal Trials) Act. No warning was given by the judge as to the use which should be made of the tape, and no direction given as to the caution they should exercise when viewing this select portion of the evidence. It appears from the transcript that the jury had possession of the tape for in excess of two hours. Shortly before the jury were sent home for the evening, counsel for the applicant became concerned that the jury could be continuously playing the tape and giving to it "substantially greater importance" than it would have if placed in context with cross-examination. The jury were then brought back into court, and his Honour told them that his tip-staff would take control of the V.A.T.E. tape; and that if they wanted to see it again on the following day, arrangements could be made. No request was made by the jury to further review the tape.

17. Mr. Thomas, who appeared for the applicant, submitted that to allow the jury to have unrestricted access to the V.A.T.E. tape during the course of their deliberations, in the circumstances which I have mentioned, amounted to a procedural irregularity in the trial productive of unfairness to the applicant; and that this was so despite the fact that counsel, initially, took no objection to the procedure. His submission was that the procedure permitted an imbalance to occur in the trial, adverse to the interests of the applicant, because - by allowing the jury to have unrestrained access to a significant portion of the complainant's evidence-in-chief after the evidence had closed - the procedure courted the danger of giving that evidence disproportionate weight in relation to the other evidence in the trial, particularly the cross-examination of the complainant and the evidence of the applicant. If the jury wished to have that part of the evidence-in-chief of the complainant brought to their recall, so Mr. Thomas submitted, it should not have been done by giving them the tape, as if it were an exhibit in the trial, but by dealing with the matter in open court as would be the case if the jury wished to be reminded of any other part of the evidence. By allowing the jury access to this part of the evidence in the privacy of their deliberation room, the parties - and particularly the accused - were kept in sublime ignorance of the reasons why the jury wished to be reminded of this part of the evidence, and the judge deprived himself of the capacity to give to the jury further directions capable of correcting the imbalance of fairness which had occurred.

20. 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:

"... 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."[4].

However the court went on to say that the judge must bear in mind the need to guard against unfairness deriving from the replay of "only the evidence-in-chief of the complainant". The Lord Chief Justice stipulated certain "requirements" which the judge should comply with, if he allows the video to be replayed to the jury after retirement. They were:

"(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."

26. Although the procedures identified by the Lord Chief Justice in Rawlings (supra) were not meant to be read "as a statute" and were given as intended rules of guidance in those cases in which the complainant's evidence-in-chief had been pre-recorded on audio/visual tapes, they have been generally accepted and applied in England; certainly to the point of refusing to the jury unrestricted access to the tape, or a transcript thereof, during the course of their deliberations; at least without the agreement of both defence and prosecution[5]. In Welstead[6], Evans, L.J. further explained the reasons behind these rules in the following way:

"(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 s.32A itself. [I interpolate that it is also clear from s.37B of the Evidence Act (Vic.).] (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. ..."

30. Similar precautions against the over-use of pre-recorded video taped evidence-in-chief of child witnesses have been observed in New Zealand where, pursuant to s.23D of the Evidence Act 1908, the evidence-in-chief of the complainant is permitted to be given by showing the video-tape to the jury. In R. v. O.[7], the New Zealand Court of Appeal adopted the safeguards outlined by the Lord Chief Justice in Rawlings (supra)[8].

33. In Queensland, pre-recorded video taped interviews with child complainants are also permitted to be played to the jury and stand as the evidence-in-chief of the complainant pursuant to s.93A of the Evidence Act 1977 (Qld). It would seem that, in that State, the legislation contemplates that the video-tape be an exhibit in the trial. In R. v. H.[9], the Court of Appeal reviewed the procedure adopted at the trial of an accused who had been convicted of a count of indecent treatment of a child under the age of 12. The complainant's evidence-in-chief had been video-recorded in accordance with s.93A and played to the jury. The judge, believing that he had no discretion to withhold the exhibit from the jury, gave it to them when they retired over the objection of defence counsel. The Court of Appeal held that the judge did have the power to withhold the video recording, and that he should have done so, basically for the reasons given by the English Court of Appeal in Rawlings and Broadbent (supra). McMurdo, P. (at 290-1) noted that the trial judge in that case (as in this one) had not been informed of the substantial body of "weighty judicial opinion" that the video-taped evidence-in-chief of a child complainant should not go into the jury room during deliberations; nor had he been informed of the reasons why such a procedure should not be followed. The learned President continued (at 291):

"... the principles discussed in the authorities I have reviewed suggest that as a general rule, at least in the absence of consent of both Crown and defence, video-taped evidence tendered under s.93A of the Act will not be permitted to go into the jury room during deliberations. If the judge decides to allow the jury to view the video-tape, 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. It is not in our view necessary in every case after replaying the video-tape 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. 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." (footnotes omitted.)

37. 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].

40. In this case the judge considered that the provisions of s.19(1) of the Crimes (Criminal Trials) Act 1999 conferred upon him a discretion to allow the jury to take with them into their room the video-tape. For this purpose he made arrangements for the provision of facilities to play the tape. It should not be thought that I am critical in any way of the judge for doing what he did. It is tolerably clear from the transcript that no one considered the propriety of the procedure. The judge was not referred to the considerable body of authority to which I have hitherto referred. It is not necessary to determine whether s.19 of the Act gave to the judge the discretion which he thought he had, although - as at present advised - I do not think that it did. If his Honour did have such a discretion, it was erroneously exercised because, by allowing the jury to have unrestricted access to the video-tape, the fairness of the trial was prejudiced. The jury had the video-tape with them for at least two hours. No one knows what use they made of it, although it is clear that they could have played it - or portions of it - several times. When it was taken back into the court's

custody, no warnings or cautions were given to the jury.

44. In this Court, counsel for the respondent submitted that, although it was inappropriate to permit the jury to have the tape in the course of their deliberations, no substantial miscarriage of justice had actually occurred. The case against the applicant, it was contended, was an overwhelming one, and conviction was inevitable. The submission raises the question whether the proviso to s.568(1) of the Crimes Act has any application, in the sense that the procedural irregularity, which occurred at the trial, was such a departure from the essential requirements of the law that it went to the root of the proceedings[13]. In England the view seems to have been taken that the sort of irregularity which occurred here, is a procedural irregularity of "a material kind" which inevitably renders the conviction unsafe. In Queensland, the view appears to be that it is a procedural irregularity that, in an appropriate case, might be saved by the proviso. Once again, I need not resolve that issue because it is clear, in my opinion, that this verdict cannot be saved by the application of the proviso. This was a case of "word against word". The provision to the jury of the complainant's evidence-in-chief was calculated to give undue prominence to a portion of the evidence adverse to the applicant. No direction was given to the jury to counter-balance the unfairness which had arisen in the trial. I am quite unable to conclude that the jury, who deliberated for a substantial time, would have inevitably convicted the applicant if they had not been allowed access to the video-tape. The convictions must be quashed and a new trial had.

49. I agree with the other members of the Court that the convictions sustained by the applicant in the court below should be quashed and a new trial directed.

52. To my mind this is a clear case: the jury were allowed unrestricted and unsupervised access to the VATE tape in the jury room for approximately two hours and the learned judge did not give them any directions or warning about the need to

remember the cross-examination or the danger of the tape's assuming undue prominence and this was a case where the evidence that stood to be eclipsed by the jury's concentration on the tape included not only the cross-examination but the applicant's own evidence.

56. Even if s.19(1) of the Crimes (Criminal Trials) Act 1999 gave the judge a discretion to allow the jury to play the tape in the jury room (which need not be decided), it would be a rare case where that was a proper exercise of the discretion and an even rarer case where it would be appropriate to do so without any safeguards.[14] It is also unnecessary to decide whether the proviso is inapplicable because there was a fundamental irregularity or because the applicant was deprived of a chance of acquittal that was fairly open to him.[15]

59. I agree with the guidance given to trial judges by the learned President in [11] of his Honour's reasons for judgment. Different consideration apply to exhibits, including video-taped records of interview and evidence of surveillance.

64. On 23 July 2001 the applicant was arraigned on a presentment containing two counts. Count 1 alleged that at Healesville, between 1 May 1998 and 2 May 1999, the applicant wilfully committed an indecent act with R, his daughter, a child under the age of 16. Count 2 alleged that, at the same place and between the same dates, the applicant took part in an act of sexual penetration with R in that he introduced his penis into the mouth of R. To these counts the applicant pleaded not guilty. The trial was quite short. The principal witnesses were R and the applicant. On 26 July the jury found the applicant guilty on each count. The applicant admitted a number of prior convictions and, following a plea, was sentenced to serve a term of imprisonment.

67. The applicant gave notice of appeal against conviction in which four grounds were specified. When the appeal hearing commenced Mr Thomas, counsel for the applicant, announced that he proposed to argue grounds 1 and 3 and would abandon grounds 2 and 4. Ground 1 asserted that the verdict of the jury is unsafe and unsatisfactory and provided particulars of the ground. Ground 3 asserted that the trial judge erred in allowing the jury to take the VATE interview into the jury room during its deliberations. The evidence-in-chief of R had been recorded in the form of an audio and visual recording of R answering questions put to her by a person prescribed for the purposes of s.37B.

70. Mr Thomas argued ground 3 first and, in the light of the discussion that followed, did not argue ground 1. It is fair to say that the Court indicated to Mr Thomas that, because the Crown case depended upon the evidence of R, it was essentially a jury question whether the jury was satisfied beyond reasonable doubt by her evidence. It could hardly be found that the verdict of the jury was unsafe and unsatisfactory had the trial been properly conducted and the test stated in M v. The Queen been applied by the Court.[16]

74. The circumstances of the offending may be briefly stated because the evidence was quite short. R was born on 19 December 1987 and was about 11 years old when the events leading to the charges laid occurred. The applicant is her father. Together with her siblings, R resided with her mother and father at all material times.

77. The applicant regularly took his family fishing in a river at Healesville. On a date which is uncertain, but possibly late in 1998, the family were fishing for some hours at their customary location. The applicant's wife and her three youngest children became tired and returned to the family car parked a short distance away from the fishing place. The applicant and R continued to fish. It is not altogether clear whether it was daylight or dusk when the incident which led to the charges took place. R said that the applicant called her over to where he was seated on a rock. He then touched her clothing around the area of her vagina. R said that the applicant then took his penis out of his shorts and asked her to hold it, which she did. Then the applicant requested her to move her hand up and down his penis, which she did. This conduct constituted count 1. R said that the applicant then pushed her head down towards his penis and made her suck his penis, which she did for about five minutes (count 2). The applicant next told R not to tell her mother. R said that she told her mother about the incident when she returned to the car ahead of the applicant.

80. The police received notification of R's complaint regarding her father, not from her mother, but from R's school following an investigation by the school authorities into the applicant's behaviour towards his son and two of his daughters. As a result, Senior Constable Lisa Prendergast, stationed at the Knox Sexual Offences and Child Abuse Unit and a person prescribed for the purposes of s.37B of the Evidence Act 1958, conducted an interview with R in relation to the allegation of sexual misconduct I have described. The formal interview was conducted on 3 May 1999, commencing at 12.13 p.m. An audio video recording was made of the interview both for the purposes of the investigation and s.37B of the Evidence Act 1958, should a specified legal proceeding commence and R be required to give evidence. I shall refer hereafter to the audio video recording as the VATE interview. R's mother declined to be interviewed by the police.

83. Section 37B provides an option whereby a video or audio-recording of an interview of a person with impaired functioning or is under the age of 18 may be admitted in evidence in a specified legal proceeding. Section 37B provides:

"(1) This section applies to a legal proceeding, other than a committal proceeding, that relates (wholly or partly) to a charge for - (a) a sexual offence; or (b) an indictable offence which involves an assault on, or injury or a threat of injury to, a person. (2) The evidence-in-chief of a witness for the prosecution may be given (wholly or partly) in the form of an audio or video recording of the witness answering questions put to him or her by a person prescribed for the purposes of this section if the witness is a person with impaired mental functioning or is under the age of 18. (3) Subject to sub-section (4), the recording is admissible in evidence in the proceeding as if its contents were the direct testimony of the witness if - (a) it is proved that a transcript of it was served personally on the defendant or by post on his or her legal practitioner at least 14 is days before the commencement of the hearing of the proceeding; and (b) it is proved that the defendant and his or her legal practitioner were, in accordance with the regulations, given a reasonable opportunity to listen to and, in the case of a video recording, view the recording; and (c) at the proceeding the witness - (i) identifies himself or herself and attests to the truthfulness of the contents of the recording; and (ii) available for cross-examination and re-examination. (4) The court may rule as inadmissible the whole or any part of the contents of a recording."

The grant of power conferred by s.37B is a departure from the common law rule that a witness called in a criminal trial should give evidence viva voce in the presence of the jury and the defendant. But the grant of power is subject to the limitations identified in the authorities Rawlings[17], Welstead[18] and R. v. C.[19] which will be discussed later.

90. When the trial began, the prosecutor informed the trial judge that the VATE interview with R had been edited and that the Crown proposed to have the evidence-in-chief of R given in the form of the edited VATE interview. This procedure was not opposed by counsel for the applicant. At the same time, the prosecutor applied pursuant to s.37C of the Act for a direction that alternative arrangements be made for the giving of evidence by R from a place other than the courtroom by means of closed-circuit television that would enable communication between that place and the courtroom. The court made an order which allowed the jury to hear and see in the court the edited VATE interview as the evidence-in-chief of R and gave a direction to allow cross-examination to be conducted from a place other than the courtroom. The judge gave the jury the warning required by s.37C(4) not to draw any inference adverse to the defendant or give the evidence any greater or lesser weight because of the making of those arrangements.

93. The playing time of the edited VATE interview was 41 minutes. After the VATE interview was seen and heard by the jury, it was not marked as an exhibit, but was in the custody of a court officer throughout the trial, at least, until a late stage of the jury's deliberations when the jury requested to view the VATE interview in the jury room. The judge provided the jury with the VATE interview and it then remained in the jury room for a little over two hours.

96. The VATE interview constituted the evidence-in-chief of R. She was not sworn as a witness. She said that what she told Senior Constable Prendergast in the VATE interview was the truth and there were no mistakes that she needed to correct. The prosecutor asked R a few questions and then she was cross-examined by counsel for the applicant for between two or three hours over two days. The cross-examination was conducted fairly and elicited some inconsistent answers about the incident, particularly as to the state of the light and the positions of R and the applicant at the time when the incident concerning count 2 occurred.

99. R was the principal prosecution witness. The applicant had denied in a record of interview with the police that he had offended in the manner alleged. The applicant gave evidence on oath in his own defence and was cross-examined. He denied the charges and made no relevant admissions of guilt. The case for the prosecution depended upon R's evidence which was not corroborated by other evidence.

102. The jury was informed by the police informant that R's mother would not be called by the Crown because she declined to be interviewed. Nor was she called by the defence. R's evidence that she made a fresh complaint to her mother, although properly admitted in evidence[20], was neither supported nor denied by her mother. Nothing turns on the failure to corroborate the evidence of a fresh complaint by R.

105. The judge charged the jury and then corrected or clarified some matters of fact. The charge concluded at 2.25 p.m. In my view, the charge, as a whole, was favourable to the applicant and no request was made by counsel for the applicant for a re-direction on the law or the facts. At 4.02 p.m. the jury asked to view the VATE interview and in court expressed a preference to do so in the jury room. The judge acceded to the request, there being no objection raised by either counsel. No further direction was given to the jury about the use it could make of the VATE interview nor was the jury reminded of the cross-examination of R and the evidence of the applicant as counter-balancing matters.

108. At about 6.20 p.m. the judge brought the jury back into court and told them that he proposed to adjourn the hearing until the following day. Following a request from counsel for the applicant, the VATE interview was returned to the custody of a court officer overnight. Next day the jury resumed its deliberations and no further request was made to view the tape. At about midday the jury returned a guilty verdict on both counts.

112. I turn now to ground 3. The transcript of the trial makes it quite clear that the judge was of the opinion that the jury was entitled to the VATE interview subject to his judicial discretion when the jury made its request to view the VATE interview and that the basis for his opinion was s.19 of the Crimes (Criminal Trials) Act 1999.

115. It is perfectly clear that s.37B of the Evidence Act does not expressly empower a trial judge to provide a VATE interview to the jury and s.37C is only concerned with alternative arrangements for giving evidence in certain proceedings by means of closed-circuit television.

118. It is necessary to set out in full s.19 of the Crimes (Criminal Trials) Act 1999:

"(1) For the purpose of helping the jury to understand the issues, the trial judge may order on the application of a party or of his or her own motion that copies of any of the following shall be given to the jury in any form that the trial judge considers appropriate - (a) the presentment; (b) the summary of the prosecution opening and the notice of pre-trial admissions of the prosecution; (c) the defence response to the summary of the prosecution opening and the defence response to the notice of pre-trial admissions; (d) any document admitted as evidence; (e) any statement of facts; (f) the opening and closing speeches of the prosecution and the defence; (g) any address of the trial judge to the jury under section 14; (h) any schedules, chronologies, charts, diagrams, summaries or other explanatory material; (i) transcripts of evidence; (j) transcripts of any audio or audio visual recordings; (k) the trial judge's summing up; (l) any other document that the trial judge thinks fit. (2) The trial judge may specify in an order under sub-section (1) when any material is to be given to the jury."

122. In 1993 Parliament enacted the Crimes (Criminal Trials) Act. The 1993 Act was repealed by the 1999 Crimes (Criminal Trials) Act. The purpose of the 1993 Act is stated in s.1: to facilitate the efficient conduct of criminal trials. The purpose of the 1999 Act is stated in s.1: to increase the capacity for judicial management of criminal trials and make other changes for the purpose of improving the efficiency of criminal trials.

125. Section 19 in the 1999 Act replaced s.16 in the 1993 Act. Section 19 has a heading: Jury Documents. However, in the construction of the section, the heading does not form part of the Act because the heading was not inserted into the Act by an Act passed on or after 1 January 2001[21]. Document is used in sub-clauses (d) and (l). There is no definition of 'document' in the Crimes (Criminal Trials) Act, but in the Interpretation of Legislation Act 'document' is defined in s.38 and the definition applies in all Acts and subordinate instruments, unless the contrary intention appears:

"Document includes, in addition to a document in writing" -

[paragraphs (a), (b), (c) and (f) are not relevant]

"(d) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom. (e) any film (including microfilm), negative tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom;"

131. The definition of 'document' in sub-clause (e) could apply to the VATE interview and, thus, an extended meaning given to 'document' in s.19(l). There are difficulties, however, in the circumstances of the present case in the judge providing the VATE interview to the jury pursuant to s.19(l). The foreman of the jury did not inform the court why the jury wanted to view the tape and sub-s.(1) of s.19 provides as a pre-condition for giving to the jury any of the prescribed documents: for the purpose of helping the jury to understand the issues. It is impossible to know the purpose of the jury when it requested to view again the VATE interview. The fundamental issues in the trial were whether the evidence of R was more credible than the evidence of the applicant and satisfied the jury beyond reasonable doubt of the elements of each charge. The evidence of R included, of course, not only her evidence-in-chief, but also her cross-examination. It was potentially unfair to have the one without the other for the cross-examination contained material inconsistencies. At the same time the whole of the evidence of the applicant was also important for it contradicted R's evidence in critical respects and answered her allegations. If the jury was having difficulty in determining the fundamental issues in the jury room, the judge should have inquired of the jury judiciously the nature of their difficulty and the purpose of the request and dealt with the matter accordingly. Another matter of less importance is that the jury was provided the original VATE interview and not a copy, as specified in sub-s.(1).

134. I entertain considerable doubt whether any paragraph in s.19 empowered the judge to provide the jury with the VATE interview in the circumstances I have described. At common law the judge should have refused the request and advised the jury that the VATE interview had to be seen in open court in the presence of counsel, the accused and the public, as had been done earlier in the trial. Further, as I shall indicate soon, a further viewing of the VATE interview in court should have been accompanied by an appropriate judicial direction and reminder about the cross-examination of R and the evidence of the applicant. The failure to do so gave undue weight and prominence to the evidence-in-chief of the principal prosecution witness to the detriment of the inconsistencies brought out during the cross-examination of R and the defence case founded on the applicant's sworn evidence.

137. The court was informed by counsel for the parties that the practice in relation to a VATE interview is not uniform in the County Court. In some trials a VATE interview has been admitted in evidence and marked as an exhibit. Some judges have allowed the jury to have a VATE interview, whether or not it became an exhibit to be used in the jury room, along with all the exhibits. In other trials a more strict approach has been taken and the VATE interview has not been given to the jury for viewing in the jury room.

140. There is a considerable body of judicial opinion in Australia and overseas to which I shall refer shortly, which demonstrates that judicial practice in Victoria is not in harmony with the practice in other jurisdictions. Further, that the practice of giving the jury a VATE interview to view in the jury room is a fundamental procedural irregularity in a trial. Mr Thomas for the applicant submitted that a serious procedural irregularity occurred in the present case and it caused a miscarriage of justice which cannot be saved by the proviso to s.568(1) of the Crimes Act 1958.

144. In England, Parliament inserted s.32A in the Criminal Justice Act 1988 in 1991, permitting in certain proceedings which include sexual offences, a video recording of an interview conducted between an adult and a child which relates to an issue in the proceeding to be given in evidence. Sub-section (3) permits the video recording to be tendered in evidence, subject to the power of the court to exclude evidence, unless the court is of the opinion having regard to all the circumstances of the case that in the interests of justice the recording ought not to be admitted.

147. The equivalent section in Victoria is s.37B of the Evidence Act 1958. It was inserted in the Act in 1991. Unlike the English section, s.37B does not expressly permit the video recording to be tendered in evidence.

150. When the Crimes (Sexual Offences) Bill was introduced into the Legislative Assembly on 13 March 1991, the Attorney-General in the Second Reading speech said of what was to become s.37B of the Evidence Act:

"The second measure is to provide an option whereby a video or audio-recording of an interview of a child complainant may be admitted as evidence. The recording would serve as the child's evidence-in-chief, saving him or her from having to recount the allegations in detail and presenting the court with the freshest possible account of the alleged events."

154. Notwithstanding that the section does not expressly permit the video recording to be tendered in evidence, circumstances may arise during a trial which would justify the tender in evidence as an exhibit the VATE interview. Counsel for the accused may agree to the tender or may be required to tender it on account of the line taken during cross-examination.

157. The English Court of Appeal, in R. v. Rawlings and Broadbent[22] considered an appeal where a complainant's evidence-in-chief had been given by means of a video recording pursuant to s.32A of the Criminal Justice Act 1988. After the jury retired to consider its verdict the jury asked the judge for the video recording because it wished to be reminded of the complainant's evidence-in-chief. The judge acceded to the request and the video recording went into the jury room without any warning against unfairness deriving from its replay or offer to remind the jury of the cross-examination of the complainant and the evidence-in-chief of the accused. Lord Taylor of Gosforth, C.J. read the judgment of the court.[23] His Lordship noted that s.32A of the Act allowed the video tape to be made an exhibit before it is played and observed[24]:

"But whether it is made an exhibit or not cannot be conclusive as to whether the jury can have it replayed. Even an exhibit, as already pointed out, is not always automatically and in its complete form to be made available to the jury on request. Conversely, even if the video is not an exhibit, the jury must be entitled to be reminded of its contents. The question at issue is simply how that should be done."

161. The ratio decidendi of the decision is contained in the following passage which, with insignificant variations, has been applied since in decisions in Queensland and New Zealand.

164. In the following passage, the Court in Rawlings gave guidelines to a trial court faced with a jury's request for the video to be replayed to ensure fairness in the trial.

"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]

168. Since the decision in Rawlings was delivered, similar problems have arisen and been dealt with in England, applying Rawlings.[26] If the evidence-in-chief of a witness is admitted in the form permitted by s.32A of the English Act and if it has to be replayed, the precautions suggested in the passage in the case of Rawlings cited above are used. This is the uniform practice in English courts.

171. Before departing from the English authorities, I should refer in more detail to two of the authorities cited.

174. In Welstead, the court was concerned with transcripts of the s.32A video recording being made available to the jury in the course of the trial but were withdrawn when they retired to consider their verdicts. The court held that the trial judge was entitled to allow the jury to have copies of the transcript of the video recordings whilst those recordings were being played, provided (1) that the transcripts would in fact be likely to assist them in following the evidence of the witness in question; (2) that the judge made clear to the jury that the transcripts were made available to them only for that limited purpose, and that they should concentrate primarily on the oral evidence; and (3) that the judge gave the jury such directions, both at the time and in the summing up, as would be likely to be effective safeguards against the risk of disproportionate weight being given to the transcripts.

The Court of Appeal (Lord Justice Evans and Garland and Connell, JJ.) drew the following conclusions from Rawlings, Coshall and Sekhon[27]:

"(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]

The Court referred to Butera v. DPP (Vic.)[29] with approval.[30]

180. In Boakes, because the audio video recording was of rather poor quality and was not easy to follow, a transcript of the video recording was provided to the jury in court and they took it with them into the jury room when they retired. The jury did not ask for a copy of the transcript and the judge did not give the jury the warnings or precautions suggested in Rawlings. The court considered there was a serious risk of disproportionate weight being attached to one part of the evidence, the complainant's evidence-in-chief as against the rest of the evidence, including the cross-examination of the complainant and the evidence of the defendant: "The necessary fair balance was not maintained. That amounted to a material irregularity and the convictions must be quashed."[31]

183. No transcript issue arose in the present case, but it may be helpful if something is said about the matter.

186. The course taken by the trial judge in Welstead and approved by the Court of Appeal occasions no difficulty. The problem that arose in Boakes has arisen and been considered by courts in Victoria, not in relation to s.37B of the Evidence Act as far as I am aware, but in relation to the admissibility of transcripts of recordings of police records of interview with the accused and covert surveillance of the accused per telephone intercepts or otherwise. In R. v. Narula[32] the Full Court held that a transcript of tape-recorded conversations, proved or admitted to be correct, is admissible if the tape recording itself would, if tendered, be admissible. Narula concerned covert recordings of conversations in a foreign language. Transcripts of translations of the tapes, together with the tapes themselves were admitted and tendered in evidence. In Butera the High Court approved a transcript of a translation of a tape-recorded conversation between co-conspirators in a foreign language admitted in evidence to be given to the jury when it retired.

189. In my experience as a trial judge, I know that sometimes the sound from an audio or an audio video tape is difficult to understand and a jury will need to be provided with a transcript. The customary warning must be given to the jury to the effect that the best evidence is the tape or video, and the transcript is only an aid to its understanding. If the tape or video has been tendered in evidence and the jury wishes to hear it in the privacy of the jury room, it will usually be permitted to do so, and if the jury asks for a transcript it will generally be allowed to have a transcript accompanied by a careful warning that the transcript is not the best evidence and may only be used to assist in understanding the audio sounds.

192. Cases may arise where the jury will request or a party may apply that a transcript of a VATE interview be provided because the jury is having difficulty hearing and understanding the words. The judge in his discretion may accede to the request by providing the transcript for use in the court with a warning that the transcript is not the best evidence and is only an aid. Although s.19 of the Crimes (Criminal Trials) Act 1991 allows a trial judge to give to the jury a copy of "transcripts of evidence" (para (i)) and "transcripts of any audio or audio visual recordings" (para (j)), I consider that the judge should decline to allow the jury to have a transcript of a VATE interview in the jury room to guard against unfairness in the trial of the kind identified by Lord Taylor in Rawlings. The discretion must be exercised so as to safeguard against the risk of disproportionate weight being given to the transcript. The procedure in Welstead should be followed. The decisions in Narula and Butera should not be extended to a VATE interview, in my opinion. The procedure in Rawlings should apply accompanied, if the need arises, by the provision of a transcript in the courtroom.

196. I turn next to a new Zealand authority. In R. v. O[33], s.23D of the Evidence Act 1908 allows the complainant's evidence-in-chief in a sexual violation case to be given by showing a video-taped interview prior to trial. During the jury's deliberation the jury informed the judge that it required a transcript of the interview. When the videotape was played to the jury in court the jury did not have a transcript, but a transcript had been provided in evidence and produced as an exhibit. The judge brought the jury into court and read the entire transcript of the complainant's video-taped interview to the jury. No part of the complainant's evidence given in court, either in chief or in cross-examination, was read to the jury, nor did the judge make any reference to it. The New Zealand Court of Appeal in allowing the appeal said:

"In our view, this was one of those cases where replaying the videotape, this time making sure that the jury could hear what the complainant was saying, was appropriate. This would have enabled the jury to appreciate not only what she was saying, but also how she said it. To ensure balance, the judge should then have read to the jury possibly the rest of the complainant's evidence-in-chief and in the circumstances, probably the whole of the cross-examination. If, on replaying the videotape, the jury indicated they still cold not hear what the complainant was saying, the alternative course of permitting the jury to have the transcript while the videotape was being played, would have been appropriate."

200. The court referred to Rawlings and applied R. v. Thomas[34], a case decided on similar facts. The first part of the headnote to R. v. O.[35] reads: "A jury, in the course of their deliberations, should not be provided with videotapes and equipment for replaying them to enable the jury to replay the tapes to themselves in the jury room" must be understood as applying to a videotaped interview pursuant to s.23D of the Evidence Act 1908 (N.Z.). Videotaped evidence and taped evidence of the kind I referred to in paragraphs [54] and [55] and transcripts admitted in evidence in accordance with the Butera principle may be used in the jury room with appropriate directions.

204. Next, I turn to Queensland authority. Section 93A of the Evidence Act 1977 is equivalent to s.37B of the Evidence Act (Vic). In R. v. H[36], a decision of the Queensland Court of Appeal (McMurdo, P., Shepherdson and Jones, JJ.,) the error alleged was in the trial judge allowing a video cassette of the complainant child's evidence-in-chief to be taken into the jury room by the jury while considering their verdict. The facts were on all fours with the present case. In Queensland, s.99 of the Evidence Act 1977 empowers a court to direct that a statement in a document admitted in evidence may be withheld from the jury during their deliberations if the court considers they might give the statement undue weight.

207. Section 99 confers upon a trial judge a discretion to exclude from the jury a videotaped statement by a child under the age of 12 years made by way of s.93A and tendered as an exhibit and any exhibit admitted in evidence. There is no equivalent to s.99 in Victoria.

210. In R. v. H., McMurdo, P.[37] said:

"[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]"

214. In a more recent decision the Court of Appeal, Queensland, revisited s.93A of the Evidence Act 1977. In R. v. C.[43], the court, constituted by McMurdo, P., McPherson, J.A. and Atkinson, J., was concerned with a ground of appeal which alleged error by the trial judge inadequately referring to the jury to the cross-examination of the complainant and the evidence of witnesses inconsistent with the complainant's evidence. After the jury heard and saw the complainant's taped evidence replayed at their request, the judge declined to read the cross-examination of the complainant, but gave the jury a direction which in terms warned them that the evidence-in-chief should not be given undue weight and should be considered with the cross-examination which the jury might think disclosed a number of inconsistencies in her evidence.

217. McMurdo, P. referred to R. v. H.[44] and said:

"H. does not give clear guidance to trial judges as to the procedure to be followed when a jury request to listen to or view a complainant's tape tendered by way of s93A Evidence Act 1977. The divergence in the views expressed by Shepherdson J and me was not resolved by Jones J who agreed with both. Unsurprisingly, I prefer the view I expressed in H. at para17. The trial judge has the conduct of the trial, understands its nuances and is best placed to ensure fairness and balance. It is desirable that the trial judge has a discretion in each case to determine the most appropriate course. Here, the trial judge declined to read the cross-examination of the complainant and the evidence of other witnesses which was inconsistent with that of the complainant. He reminded the jury of that evidence, however, in a general way. The evidence at trial was not complex and was in short compass commencing at 2 pm on 11 January 1999 and concluding at 11.01 am on 12 January 1999. His Honour's redirection to the jury on this issue was fair and balanced and highlighted the internal inconsistencies in the complainant's evidence and the inconsistencies between her evidence and the version she gave to her mother and her teacher more effectively than the reading of many pages of transcript. He told them that any passage of the transcript in which they were interested could be read to them. His Honour's redirections sufficiently balanced the possibility of over-emphasis upon the replay of the complainant child's taped evidence as against other evidence in the case. There can be no justifiable complaint about his Honour's mode of dealing with the jury's request to replay the complainant's evidence by way of video and audio tapes tendered under s93A Evidence Act 1977."

222. In Victoria, the problem raised in the present case by allowing the jury to have the VATE interview in the jury room during their deliberations has not been considered previously in the Court of Appeal. VATE interviews were considered in R. v. NRC[45] and R. v. MTP[46], but in another context.

225. When the jury requested to view the VATE interview in the jury room, no submissions were made by counsel and no reference was made to Rawlings[47] and the authorities to which I have referred.

228. I am of the opinion that a serious procedural irregularity occurred when the judge provided the VATE interview to the jury. I have no doubt that the jury was entitled to be reminded of the evidence-in-chief of R, but replaying the VATE interview should have been done in court. Before acceding to the jury's request, I consider the judge first should have enquired of the jury in open court by appropriate means why the jury wished to have the VATE interview replayed. Upon being satisfied that the jury needed to be reminded of the evidence-in-chief, the judge should have warned the jury in appropriate terms of the imbalance which may follow replaying the video and offered to remind the jury of the cross-examination and re-examination of R's evidence and the evidence of the accused. This would have achieved a fair balance in the evidence.

231. In the future, in order to maintain a fair balance, a trial judge ought to follow the procedure adopted in Rawlings[48] and R. v. C[49], with such modifications as are required to accommodate the circumstances of the case.

234. A miscarriage of justice occurred, in my opinion, for the applicant did not have, as he was entitled to have, a fair trial according to law. The proviso to s.568(1) of the Crimes Act 1958 cannot be applied because the procedural irregularity was fundamental and the applicant lost a chance of acquittal which was fairly open.[50] The prosecution case depended upon the evidence of the victim. When undue weight was given to the evidence-in-chief of the victim correspondingly, due weight would not be given to the evidence of the applicant.

237. The appeal should be allowed, in my opinion, and a new trial ordered.

[1] Cf. R. v. NRC [1999] VSCA 184; [1999] 3 V.R. 537 at 540.

[2] [1995] 1 W.L.R. 178.

[3] The judgment of the court was delivered by Lord Taylor of Gosforth, C.J.

[5] R. v. Coshall, Court of Appeal, unreported, 17 February 1995 (Transcript); R. v. Boakes, Court of Appeal, unreported, 14 May 1996; R. v. Welstead (1996) 1 Cr.App.R. 59; R. v. John M. [1996] 2 Cr.App.R. 56; R. v. Roberts, Court of Appeal, unreported, 24 March 1998; R. v. McQuiston (1998) 1 Cr.App.R. 139; R. v. Smith, Court of Appeal, unreported, 17 February 1998.

[7] [1996] 3 N.Z.LR. 295 at 299-300.

[8] See also R. v. Thomas (1992) 9 C.R.N.Z. 113 at 114, per Anderson, J.

[9] [1998] 2 Qd.R. 283.

[10] Cf. Bulejcik v. R. (1996) 185 C.L.R. 375 at 386, per Brennan, C.J. (who dissented as to the outcome).

[11] [2000] Qd.R. 54 at 56.

[12] Cf. R. v. Saunders [1995] 2 Cr.App.R. 313 at 317-8.

[13] Wilde v. R. [1988] HCA 6; (1988) 164 C.L.R. 365 at 373, per Brennan, Dawson and Toohey, JJ.

[14] Section 19(1) is concerned with the provision of copies but the word "copies" is ambiguous. It does not always mean a reproduction: a person may say, for example, that he or she owns "two copies" of a particular textbook. The discretion to provide copies of transcripts of evidence (para (i)) makes me hesitate to say that s.19(1) is incapable of applying to a VATE tape, but in practice the question will not arise. It will almost always be preferable to play the tape in open court accompanied by appropriate directions.

[15] The answer to that question might be affected by whether his Honour exercised a discretion that was not available or simply fell into error in the exercise of a discretion that was conferred on him by s.19(1).

[16] M v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487.

[17] R. v. Rawlings and Broadbent [1995] 1 W.L.R. 178.

[18] R. v. Welstead [1996] 1 Cr.App.R. 59.

[19] R. v. C. [1999] QCA 246; [2000] 2 Qd.R. 54.

[20] R. v. J (No. 2) [1998] 3 V.R. 602.

[21] See Interpretation of Legislation Act 1984, s.36(2A) inserted by Act No. 60 of 2000.

[22] [1995] 1 W.L.R. 178.

[23] R. v. Rawlings and Broadbent, the Court of Appeal comprised Lord Taylor of Gosforth, C.J., Curtis and Gage, JJ.

[26] R. v. Coshall [1996] 1 Cr.App.R. Part IC Sweet & Maxwell; [1995] (17 February) T.L.R. 93; R. v. John M [1996] 2 Cr.App.R. 56; R. v. Welstead [1996] 1 Cr.App.R. 59; R. v. Boakes [1996] EWCA Crim. 439; R. v. Boberts [1998] EWCA Crim. 1054; R. v. Smith [1998] EWCA Crim.578.

[27] R. v. Sekhon (1987) 85 Cr.App.R. 19.

[29] [1987] HCA 58; (1988) 76 A.L.R. 45.

[32] [1987] VicRp 55; [1987] V.R. 661.

[33] [1996] 3 NZLR 295.

[34] (1992) 9 CRNZ 113 (CA).

[35] Tompkins, J. at 301. The Court of Appeal comprised Eichelbaum, C.J., Gault and Tompkins, JJ.

[36] [1999] 2 Qd.R. 283.

[41] See De Jesus v. The Queen [1986] HCA 65; (1986 61 A.L.J.R. 1 per Gibbs, C.J. at 3.

[42] (1996) 185 C.L.R. 376 AT 386.

[43] [1999] QCA 246; [2000] 2 Qd.R. 54.

[45] [1999] VSCA 184; [1999] 3 V.R. 537.

[46] [2002] VSCA 81

[47] R. v. Rawling & Broadbent (supra).

[50] R. v. Glennon [1994] HCA 7; (1993-1994) 179 C.L.R. 1.