R v Lyne [2003] VSCA 118

18. Counts 3 and 4, which were alternative counts, related to events which were said to have occurred in Wodonga, when the applicant visited and stayed with the family for a week. S said in evidence that the applicant took off her underwear and dress and then his own clothes, laid her down on the bed and "hopped on top of me ... he put his willy in my vagina ... he grabbed it with one hand and the other hand he opened my vagina and put his willy in". After she told him to stop he got off and put his clothes back on and she noticed her vagina was wet. She said his "willy" was "sticking up" when he put it inside and "sticking up" when he removed it.

21. Count 5 involved an assertion by S that while her mother was at work and her little brother was watching television, she was in the kitchen getting a drink when the applicant came in, pulled his pants down and put his penis in her mouth. She said -

"He told me to bend down and he pushed my head down ... and then he moved up and put his willy in my mouth ... he told me to suck it, so I did [for about ten seconds], and then stopped ... he pulled his pants up and walked out."

26. S gave her evidence by way of a VATE tape pursuant to the procedure prescribed by s.37B of the Evidence Act 1958. Her evidence-in-chief had been pre-recorded during the course of an interview between S and a police officer who had been "prescribed" for the purpose. At the trial S was placed in a remote witness facility and after her competency to give evidence had been assessed and accepted, she gave short further evidence-in-chief, and was then cross-examined at some length. Various other witnesses were called in support of the prosecution case, including the mother and sister of S, but, in effect, the incriminating evidence against the applicant was all given by S herself. The defence did not call any witnesses. The applicant had taken part in a record of interview with police officers on 8 December 1999 during which he made no incriminating admissions, and denied each of the allegations made against him. In that interview the applicant agreed that he had known S from the day she was born and that he stayed with the family on numerous occasions. He agreed he had taken photographs of S but never without any clothes on. After denying each of the allegations made against him, the applicant suggested that S's mother and her partner had been fighting and "now they're picking on me so that Karen's [S's mother] got nobody to stand up for her". When asked why a ten year old would make up these things in such detail he replied "That I don't know." He said he could not recall any occasion when S would have seen him naked and said he was always discreet when staying there and that she would never have seen him without his pants on.

30. When the jury retired to commence their deliberations, a question arose as to whether the VATE tape should be made available to the jury. The tape had been made an exhibit during S's evidence-in-chief, after S had verified the contents. When the jury retired defence counsel noticed that the tipstaff was moving to take the VATE tape to the jury room, and objected to his doing so. Counsel accepted that the tape was an exhibit but submitted that it was simply the evidence of the complainant and that it should not go in to the jury room, arguing that if they wanted to hear S's evidence her evidence should be played in open court. He submitted that it would be unfair for the VATE tape to go to the jury and that it would provide an unbalanced view of her evidence if one did not provide a transcript of the cross-examination to go with it. The judge decided that he would not send the VATE tape into the jury room for the time being.

33. Some two hours later the jury returned to court and asked for the VATE tape to be provided. The judge agreed that the jury should have the tape, but said that they should understand that the tape constituted substantially the evidence-in-chief that had been given by S. His Honour continued -

"It does not include, of course, the cross-examination of her which occurred here. Now it is a matter for you. I am not going to oblige you to do it, but you will remember that it is only part of her evidence and if you want to see the other part, the cross-examination of her, we do not have a tape of that, but it is recorded and can be played back to you here. So you would have to come back here and watch it, but if you feel that in order to get the - remembering that you are only seeing part of it, if you want to see the whole lot you can play that tape and then come back here and we can show you the cross-examination of it, and in any event in respect of both the tape of her evidence-in-chief and the recorded cross-examination bear in mind that you have been - I use the word, `deprived' not in a pejorative sense - but you have not had the benefit of seeing her face at close quarters in the witness box."

38. The jury had retired to consider its verdict on Wednesday 31 October at 12.32 p.m. The tape was made available to the jury at 2.31 p.m. that day. The deliberations of the jury continued until 4.30 p.m. on Wednesday and resumed at 10.00 a.m. on Thursday 1 November. At 12.13 p.m. that day the jury returned to court and asked to see the cross-examination. Due to some error the cross-examination had not been recorded, and the trial judge instead read the whole of the transcript of the cross-examination to the jury, concluding at 1.04 p.m. The jury then continued its deliberations until 4.28 p.m. on 1 November and resumed deliberations at 10.00 a.m. the following day. On Friday 2 November the jury returned verdicts of guilty on counts 2, 4 and 5 at 11.52 a.m.

42. Mr Thomas for the applicant submitted that the weight to be given to S's evidence by the jury was critical to the convictions. This was a case of "word against word", there having been no evidence or material in support of S's evidence and in cross-examination a number of issues had been raised which went to S's credit. It was argued that the judge's charge had not descended in detail to the evidence and the issues raised in cross-examination had not been dealt with in the charge. Furthermore it was put that the warning given by his Honour when the tape was provided to the jury on 1 November had not been strong. It was submitted that a miscarriage of justice had occurred as the jury had been given unrestricted access to the VATE tape albeit with some warnings and notwithstanding that the transcript of the cross-examination had been read by the trial judge. It is apparent from what has been said that the jury had unsupervised access to the tape from 2.31 p.m. on 31 October until 12.13 p.m. on 1 November before the cross-examination of S was read to them and that the VATE tape had been with the jury during their deliberations for in excess of nine hours before the guilty verdicts were delivered. Mr Thomas relied, in support of these submissions, on a body of authority commencing with R. v. Rawlings[1]; R. v. O.[2]; R. v. H.[3]; R. v. C.[4]; R. v. BAH[5]; and R. v. Lewis[6].

46. In BAH, sexual offences had allegedly been committed upon a young girl. The complainant's evidence-in-chief had been given through the VATE tape procedure. As in the present case, the jury, after some period of deliberation had passed, asked to view the VATE interview and 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 the complainant or the evidence of the applicant, who had denied the events alleged against him in the witness box.

49. Defence counsel argued on the appeal that to allow the jury to have unrestricted access to the VATE tape during the course of their deliberations amounted to a procedural irregularity in the trial productive of unfairness to the applicant and that the procedure permitted an imbalance to occur in the trial. Reliance was again placed on the line of authority commencing with the decision of the English Court of Appeal in Rawlings. Winneke, P. said[7] -

"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. 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. 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 McMurdo, 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." (Footnotes omitted.)

The general warning suggested by McMurdo, P in R. v. H.[8] is contained in the following paragraph from the judgment, which was also quoted by the President -

" ... 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.)

The principal judgment in BAH was given by O'Bryan, A.J.A., who arrived at conclusions similar to those of Winneke, P. Callaway, J.A. agreed with the judgments of the other members of the Court, adding[9] that "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". Both Winneke, P.[10] and O'Bryan, A.J.A.[11] said that s.37B of the Evidence Act does not expressly permit the VATE video to be tendered in evidence as an exhibit, although O'Bryan, A.J.A. suggested that circumstances might arise during the trial which would justify the tender in evidence as an exhibit of the VATE interview.

56. The decision in BAH was reaffirmed in R. v. Dale Lewis[12], a decision of Winneke, P., Callaway and Batt, JJ.A. Callaway, J.A. left open the qualification[13] whether unrestricted access to VATE tapes without directions from the judge is such a fundamental irregularity that the proviso to s.568(1) of the Crimes Act is incapable of application. The decisions in BAH and Dale Lewis were further referred to in the recent decision of R. v. Jack Knigge[14], another case involving the use of a VATE tape in which it was not clear from the transcript whether the jury had been given unrestricted access to the VATE tape during the course of their deliberations. Winneke, P. said[15] that "in the event that the jury did have such unrestricted access, it would have been contrary to the decisions of this Court in R. v. BAH and R. v. Dale Lewis.

60. In this Court Ms Pullen for the Crown accepted the authority of BAH and Dale Lewis, observing that the trial of the applicant had occurred prior to the handing down of the Court's decision in both cases. She submitted, however, that the circumstances of the trial of this applicant differed substantially from those before the Court in the other authorities. Reliance was placed on what had been said during the judge's charge, which included careful warnings to the jury that they should scrutinise S's evidence with considerable care, her evidence being vital in the case. Ms Pullen relied on the fact that when the jury requested the VATE tape on 31 October his Honour, with the apparent agreement of both counsel, gave the warning earlier set out as to the VATE tape and argued that the warning given was appropriate and sufficient in the circumstances of the case. The fact that the jury had later requested to hear the cross-examination and re-examination of S meant, in her submission, that no issue of unfairness arose for the applicant in this case. She submitted that S's evidence had been clear in relation to each of the allegations upon which the jury returned verdicts of guilty and disclosed no significant uncertainty. Accordingly she argued that no amount of repetition of the playing of the VATE tape would have strengthened her evidence.

63. Reliance was also placed on s.19(1) of the Crimes (Criminal Trials) Act 1999, which it was submitted conferred a discretion upon the trial judge to permit the jury to take the VATE tape into the jury room. In BAH this Court did not finally determine the applicability or otherwise of s.19(1), but rather decided that case on the basis of the unfairness to the appellant given that the cross-examination of the complainant had not also been provided to the jury. Ms Pullen submitted that the Court in BAH arguably accepted that there may be situations in which the jury might be permitted to listen to the VATE tape in the jury room; even though that situation might be rare, it nevertheless did not exclude the possibility, particularly if appropriate warnings were given. Ms Pullen forcefully argued that a VATE tape fell within the meaning of the word "document" in s.19(1)(I) of the Crimes (Criminal Trials) Act 1999 and as such the provision of a VATE tape was within the discretion of the trial judge.

66. Next it was submitted that there was evidence upon which the jury could be satisfied beyond reasonable doubt of the guilt of the applicant on counts 2, 4 and 5 and any issues raised in cross-examination which went to the credit of the complainant were before the jury when assessing her evidence. Ms Pullen argued that the jury's decision, including the fact that verdicts of not guilty had been returned on three charges, demonstrated that this was not a compromise verdict, but rather a verdict which showed careful consideration by a jury which had clearly been performing its function carefully, following thorough and precise directions from the judge on all relevant issues required to be considered.

69. The final issue raised was whether the proviso to s.568(1) of the Crimes Act 1958 should apply on the ground that there had not in any event been a substantial miscarriage of justice. It was submitted that the provision of the VATE tape with the reading of the cross-examination in the circumstances of this case had not led to a miscarriage.

73. Unfortunately the trial judge's attention was not drawn to any of the English, New Zealand or Queensland authorities referred to above. Consequently, the jury were permitted to have unsupervised access to the VATE tape for in excess of nine hours. It is, of course, impossible to say how the tape was used by the jury or how often it was played. The warning framed by McMurdo, P. in R. v. H.[16] contemplates that, when a jury is permitted to view a video-tape in open court, the jury should then be told 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. Although the trial judge did give the jury a warning when permitting them to take the tape into the jury room, it was clearly not of the kind proposed by McMurdo, P., and considerably weaker.

76. Section 19(1) of the Crimes (Criminal Trials) Act 1999 is, in my view, of no assistance to the Crown. The section was relied on by the prosecution in BAH. Winneke, P.[17] and O'Bryan, A.J.A.[18] both doubted whether s.19 empowered the judge to provide the jury with the VATE interview. Callaway, J.A.[19] thought that even if the section gave the judge a discretion to allow the jury to play the tape in the jury room, "it would be a rare case where that was a proper exercise of the discretion". I share the doubts expressed in BAH as to whether s.19 gives a trial judge a discretion to allow the jury to take a VATE tape into the jury room. But even if any such power is given by the legislation, that power must be exercised in such a way as to ensure that the trial of the accused is fair. Here, as I have said, the jury had unsupervised access to the tape for some nine hours, without an adequate warning and for four hours before the cross-examination was read to them. That is sufficient, in my view, to establish that a fundamental procedural irregularity took place in the conduct of the trial.

79. The last issue argued for the prosecution was whether the proviso to s.568(1) of the Crimes Act should be applied. In Lewis, Winneke, P. said of a like submission[20] -

"To permit the jury to have unrestricted access to a VATE tape during the course of their deliberations will, in all but exceptional circumstances, constitute a fundamental irregularity in the trial which will not readily be saved by the proviso to s.568(1) of the Crimes Act. As the reasons for decision in BAH disclose, this view appears to be in line with the views accepted in other common law jurisdictions in which the `VATE tape procedure' is permitted by statute."

Batt, J.A. agreed with the President. Callaway, J.A.[21] reserved the point for future consideration.

84. In the present case the jury's deliberations extended into a third day, showing that they did not readily arrive at their verdict. The applicant had in his record of interview denied each of the offences. There were some inroads made into the complainant's evidence-in-chief in cross-examination. The applicant was entitled to a fair trial according to law. The proviso cannot, I think, be applied, because the applicant lost a chance of acquittal which was fairly open.

87. The application should, in my opinion, be granted and the appeal heard instanter and allowed and a new trial ordered.

91. I consider that, for the reasons given by Charles, J.A., the application for leave to appeal should be granted and the matter disposed of as is proposed by his Honour. In light of the authorities to which Charles, J.A. referred in his judgment, it will only be the very exceptional case where it will be appropriate for the VATE tape to be given to the jury during the course of their deliberations, irrespective of the judicial warning that may accompany it.

94. The overriding consideration is, as was made plain by McMurdo, P., in R. v. H[22] and by Winneke, P. in R. v. BAH[23], fairness and balance, and that may be difficult to achieve where the jury has an unrestricted opportunity to replay the

VATE tape on as many occasions as they wish. Such a situation clearly produces the risk that the jury might give the complainant's evidence disproportionate weight simply because of the visual form of her evidence which is effectively repeated to them. The impact of this on the jury's mind is unlikely to be balanced by the transcript (or even a video recording) of her cross-examination that they may have available to them in the jury room and by any (appropriate) warning that may have been given to them by the judge. It seems to me that in all but the exceptional case, fairness and balance (to the accused and the Crown) can only be achieved if the VATE tape is replayed in open court so that the judge, the accused's counsel and the prosecutor have the opportunity of putting the matter in proper context. In my view, even the replaying of the VATE tape in open court should be approached with caution as is made clear in R. v. Rawlings[24] and R. v. Welstead[25].

99. On three occasions since October 2002 this Court has considered the use which a jury might make of a VATE tape which constitutes the evidence-in-chief of a complainant in a sexual offence case. In my opinion, the Court has not entirely ruled out the possibility that a jury might be permitted access to a VATE tape in the jury room during their deliberations. It is clear, however, that only in exceptional circumstances would unrestrained access not constitute a fundamental irregularity in a trial.

102. The overriding consideration, as is made clear in the passage from the judgment of the President in R. v. BAH which Charles, J.A. cited[26], is the maintenance of balance and fairness in the trial process. The particular threat to a balanced and fair trial which access to a VATE tape poses is that its use may give disproportionate weight to the evidence of the complainant contained on the tape. That risk was

highlighted by McMurdo, P. in R. v. H.[27]

106. In her able submissions Mrs Pullen argued that this was an instance where a fair trial had not been prejudiced by the course which was taken. In this case only five witnesses gave evidence and the opening address of the prosecutor and all of the evidence was completed between 2.23 p.m. on 29 October 2001 and 3.12 p.m. the next day. The only evidence as to the circumstances of the alleged offences which supported the Crown case was that of the complainant, the applicant not giving evidence and his record of interview amounting to a total denial of the allegations. The trial judge made it very clear to the jury that the complainant's evidence was not supported by other evidence and had to be scrutinised with great care. In those circumstances the total focus of the jury's attention must have been on the complainant's evidence, and both the length of their deliberations and the verdicts which they returned suggest that they approached their task with care.

109. In those circumstances had the jury, upon requesting the VATE tape, received not only that tape but also a tape of the cross-examination of the complainant, and had that material been accompanied by appropriate warnings, including a reminder as to where the onus of proof rested, then, arguably there might not have been a real risk, or at least, not so pronounced a risk that the jury would give disproportionate weight to the complainant's evidence over that otherwise before them. Nor would there have been so clearly a risk that they might have approached their task in an unbalanced way.

112. That, however, was not the way in which the jury came to use the VATE tape in this case. Absent from this trial were any of the safeguards required by the Court in the subsequent decisions of R. v. BAH[28], R. v. Lewis[29], and R. v. Knigge[30] to ensure that access to the VATE tape was not at the expense of a fair trial. The principles so recently set out by the Court in those cases were carefully and fully considered, are consistent with high authority and are founded on fundamental principles concerned with ensuring the fairness of criminal trials. No challenge has been sought to be made as to the correctness of those decisions.

115. Although the fundamental principles which guide the conduct of criminal trials in common law countries have altered little, if at all, over recent decades the manner in which trials are conducted has altered quite significantly. One relevant factor has been the introduction of technology in the trial process, and that will be of continuing importance. The use of VATE tapes is one relatively recent example of the employment of technology in the trial process and, as was the case for video taped records of interviews, their use during a trial is subject to the overriding obligation of the trial judge to ensure fairness in the trial process.[31]

118. Modern courtrooms are often equipped to video tape the evidence in a trial, and computer technology and the incidence of computer literacy of jurors means that the manner in which jurors conduct their deliberations, and the ways in which they review the evidence may be quite different in years to come from the approach now adopted. That, in turn, may impact upon the understanding and development of principles by the courts for ensuring fairness in the trial process. However, the use of modern technology and the convenience and efficiency it offers for court users, including jurors, must not be, nor need it be, to the prejudice of the high standards of fairness which are fundamental to our criminal justice system.

121. The question whether the VATE tape could have been tendered under s.19(1) of the Crimes (Criminal Trials) Act 1999 need not be answered because even if it was able to be tendered its use by the jury would still have been subject to the control of the trial judge in ensuring the fairness of the trial. In that regard, the present case clearly fails to comply with the principles stated in the recent decisions of this Court for ensuring a fair trial. This, therefore, is not an appropriate case for the exercise of

the proviso to s.568(1) of the Crimes Act 1958. It follows that the appeal must be allowed, and a new trial be ordered.

That the application for leave to appeal against conviction be granted.

That the appeal be treated as heard instanter and allowed and the convictions on counts 2, 4 and 5 recorded in the court below be quashed.

The Court directs that a new trial be had on counts 2, 4 and 5.

A certificate under the Appeal Costs Act will be granted.

[1] [1995] 2 Cr.App.R. 222.

[2] [1996] 3 N.Z.L.R. 295.

[3] [1999] 2 Qd.R. 283.

[4] [1999] QCA 246; [2000] 2 Qd.R. 54.

[5] [2002] VSCA 164; (2002) 5 V.R. 517.

[6] [2002] VSCA 200.

[8] [1999] 2 Qd.R. 283 at 291.

[12] [2002] VSCA 200.

[14] [2003] VSCA 94.

[16] [1999] 2 Qd. R. 283 at 290-291.

[22] [1999] 2 Qd.R. 283 at 291.

[23] [2002] VSCA 164; (2002) 5 V.R. 517 at [10], [11].

[24] [1995] 1 W.L.R. 178 at 183.

[25] (1996) 1 Cr.App.R. 59 at 68-69 per Evans, L.J.

[28] [2002] VSCA 164; (2002) 5 V.R. 517.

[29] [2002] VSCA 200.

[30] [2003] VSCA 94.

[31] No similar rules governing access to and use by the jury of a video-tape record of interview have, however, been developed.