R v NRC [1999] VSCA 184

R v NRC [1999] VSCA 184 - VSCA 1999 case summary — Zoe

[26]

"Wednesday 21/8/96; Between 4.30-7.00 [the complainant] and I were talking about the councellor (sic) that we went and seen today, to figure out if [she] wanted to go back tonight and [the complainant] said to me she didn't no (sic) what to say or how to say it. I told [the complainant] she only has to tell the truth and say what happened, like when she told me. I told [her] that the councellor (sic) would ask her a couple of questions like who done it or were (sic) did you stop and what happened to you, and then [the complainant] said to me they stopped at a cubby near were (sic) dead people were. [H]er dad told her to get out and open and shut the gate, their (sic) were sheep around. [The complainant] said her dad told her to go inside and see if there was a toilet, her father followed her in their (sic) ([she] remembers seeing a rope and a ladder). They had a look around, then went back outside. Daddy told [her] to lay down on the grass and pull her pants off. he then put his middle finger in her fanny. he was really rough and hard. [The complainant] kept yelling out, he kept saying shut up or I will cut your head off (he put his knife on her throat) he kept belting [her] around the ears. he then stopped doing all this to [her]. [She] said their (sic) was lots of blood. her dad got a jumper out of the car and wiped [her] fanny with it and chucked the jumper in the tree (not far away). [She] put her own pants back on, then went and had a look at the big stone thing were (sic) dead people were. Then daddy said get in the car, [she] also opened and shut the gate. On the way home her dad told her to go straight to the toilet and wipe her fanny. And also said if [she] was to tell anyone he would cut her head off. (he then re showed [her] the knife). [The complainant] said daddy undressed her in the lounge room and threw her underwear in the fire ([she] said while this was happening that if she didn't shut up he would get the rope and put it around her neck and hang her and he would go home and leave her here."

[28]

Following 21 August 1996 many efforts were made to interview the complainant in an endeavour to induce her to record in an evidentiary form the allegations said to have been made to L.S. on 21 August. Indeed it was put by the defence at the trial that L.S. had made it almost an "occupational obsession" to get the complainant to make allegations against the applicant to persons in authority, and that she was aided and abetted in this pursuit by investigating police. As early as 22 August 1996, and again on 16 September 1996, efforts were made to obtain evidence from the complainant in accordance with the V.A.T.E. procedure pursuant to s.37B of the Evidence Act. These came to nothing because the complainant would not co-operate. The complainant was also interviewed on no less than 5 occasions by Sergeant Walls. Again she refused to co-operate. On no fewer than 16 occasions between 21 August and November 1996 the complainant was taken by L.S. to see Williams, the "abuse counsellor". On only one of those occasions, namely 23 August 1996, is there a record of what occurred. On that occasion Williams video-recorded the interview. Although Williams did not give evidence, the tape was played to the jury by the applicant's trial counsel. It demonstrated that Williams had been provided by L.S. with the allegations against the applicant which were said to have been made to L.S. on the evening of 21 August. Williams transcribed those allegations onto separate pieces of paper which the complainant was requested to place in "appropriate boxes" during the playing of a "honey bear" game. Williams had deployed around her room a number of "honey-bears" which were given names such as "Mummy Bear", "Daddy Bear", "Poppa Bear", "Nanna Bear", and "Nobody Bear". The complainant was told that the game was to put the "clue" into the box associated with the statement on the piece of paper, which would be read by Williams to the complainant. Thus Williams would hand a piece of paper to the complainant upon which was written "This person told [you] that if you told a secret, he would hurt [you]"; or "this person wiped blood off [the complainant's] fanny with his jumper"; and so on. The complainant would then put the paper in the box associated with the "Daddy Bear". On the other hand, if the printed note bore the inscription "This person makes me feel very safe" or "I love this person very much", the complainant put the note in the box associated with "Mummy Bear". It was the applicant's case at trial that this type of procedure was calculated to perpetuate untrue allegations and to cement them into the mind of the complainant.

[53]

The applicant denied that he had been to the cemetery at Gobur on 6 August with the complainant, denied that he had been in the hut, denied that he had penetrated the complainant and denied that he had threatened the complainant with a knife. He said it was well known to L.S. that he carried a "Stanley" knife with a retractable blade. He said he had taken the complainant to kindergarten on the morning of 6 August, that thereafter he had been to the bank and done some shopping in and around Alexandra before returning to Gobur. He said that he was "partial" to "Cougar" and had purchased a 3 can "pack" on special at the supermarket. He said that he had returned to the kindergarten to collect the complainant at about 1.45 p.m., had then stopped at the milk bar in Alexandra so that the complainant could get some lollies and a Coke; had then driven to Yarck where he had called in at the bottleshop to buy 1 can of "Cougar" (not 3 as the complainant said). He then drove home to Gobur and denied that he had stopped at the cemetery. He denied that he had exposed his penis or masturbated in the car, although he agreed he drank the can of Cougar on the way home. He said he arrived home at about 2.35 p.m. (although he said he did not wear a watch). He said the car was running very roughly and could not be driven at speed. He stopped, he said, at the mail box before driving down the road to the house. L.S. was, he said, in a foul temper when he got home because of the antics of the younger boys. She had gone out to pick up the oldest boy at about 3.05 p.m. and was away for an hour. He said that he would never hurt the complainant and she was in no way injured when he brought her home. He cooked the dinner; they ate it as a family; he then washed the oldest boy's hair and told the complainant to get undressed and come into the shower. He said he did not know what happened to the "Casper" underpants and he did not throw them in the fire. In cross-examination he agreed that they had searched for the underpants but could not find them. He said that he had similar jumpers to the one found by the police but that one was not his. It was his view that L.S. had caused the complainant to implicate him and had "planted" the Cougar can and the jumper in the cemetery. He said that "L.S. is capable of anything".

[57]

"In all cases like this it is very commonly (sic) that there is going to be no other actual witness of the events in question. As fact finders you need to be fully aware of the potential dangers of convicting on the evidence of one witness unless after careful scrutiny of the evidence you are satisfied of its truth and its accuracy. In any case where there is no external evidence to support a witness as to who it was that committed offence against them, you have to consider the potential for error. I should point out also that it is not necessary as a matter of law to have supporting evidence which confirms or supports a complainant as to who committed the offence, although you may consider in some circumstances that, in its absence, then the potential for error becomes greater. That is a matter for you to assess and use your common sense. Caution would suggest that there is a risk that people may have motives or hidden reasons for falsely accusing other persons of crimes and there is a risk that the accuser could be a more convincing witness than the accused. Here, although you have heard the Crown case, that there is no direct evidence that the accused was the offender, the Crown also points to the objective evidence which they say adds to the reliability of her story. That is the finding of the Cougar can, the blue jumper, and the description of the cemetery and the hut in the cemetery, and the fact that it is uncontested that she was injured in her vagina and bleeding on 6 August 1996. All these factors, the Crown says, should lead you to have some comfort when scrutinizing her evidence, that it is in fact reliable and true. You have also heard ... the defence comments on these matters, the denial that it is his jumper, the assertion that someone, probably [L.S.] planted these things in the cemetery to ... "set him up", that [L.S.] had motive and reason to get [the complainant] to lie about these things, that she had the opportunity to know about the cemetery because of the evidence that you heard that she had been there on other occasions, although again, she disputes and denies that ... . Also you should look at the fact of memory itself. The fact that it is common human experience that time does have an effect on memory, that it can fade over time, that honest people do sometimes convince themselves that some incidents occurred in a particular way in the past. One cannot ignore that fact that human imagination, emotion, prejudice, or suggestion that could have an effect on their memory of events. It is also common human experience ... that some things stick in a person's mind and never fade to the day they die ... ."

[62]

There were particular features of the complainant's evidence in this case, and the manner in which it was given, which required the clear warning to which I have adverted. Those circumstances included the young age of the complainant both at the time when her evidence was recorded and at trial; the fact that the first complaint implicating the applicant was made after 2 weeks and was extracted by pressure; the fact that the evidence had been pre-recorded some two years before the trial in response to questions which, in some instances, were both prompting and leading; the fact that there were significant discrepancies between the evidence so given and the accounts which had been previously given; and the number and nature of interrogative procedures to which the young complainant had been subjected in the ten months between the alleged assaults and the time when her evidence was recorded. No doubt the potential unreliability of the evidence stemming from the tender years of the complainant and the intensive interrogative procedures which she had undergone were matters to which the jury would have been alert having regard to the way in which the case had been conducted and the comments which the judge made. However in this case there was a more subtle prejudice flowing to the accused as a consequence of the procedures employed in putting the evidence before the jury. As I have indicated, the evidence was secured in circumstances remote from the courtroom and, at least in part, by methods of questioning which may have been ruled objectionable if given in court. But, as this case graphically illustrated, a further prejudice potentially flowed to the applicant from the procedure adopted because he was effectively deprived of any realistic opportunity of testing the credibility and reliability of the complainant's evidence through cross-examination, which the adversarial system of justice allows as a means of determining where the truth lies. Although there may be some who would take leave to question the broad statement made in Wigmore on Evidence, Vol.5, para 1367, (Chadbourn Rev. 1974) that cross-examination "is beyond any doubt the greatest legal engine ever invented for the discovery of truth", it is none the less a potent weapon for probing the credibility and reliability of an accuser's version of events. Although there were many features of the complainant's evidence-in-chief which could, in the case of an older witness, have been tested and explored, it is apparent from the perusal of the transcript in this case that it could not be achieved with such a young complainant. In respect of many questions no answer at all could be elicited, no doubt because the tender years of the complainant rendered her incapable of forming a rational response to them. This left the applicant in what appears to have been an awkward situation because the more counsel pressed, the more likely it would have been that sympathy flowed to the child to the applicant's consequent disadvantage. On more than one occasion counsel was moved to implore "Can you answer my question, please?" and sought judicial intervention by such comments as "I would seek that she answer my questions". However, and understandably, the judge could do little, saying: "I am not going to put pressure on her unless necessary". Although it is not easy, by reading from the transcript, to judge the full extent of the difficulties encountered by counsel, it seems to me that, at the end of the day, he simply had to give up asking questions which were calculated to test the reliability of her memory. In a case where the defence was, in essence, that the complainant had been "programmed" to answer questions about confined matters in a particular way, the disadvantage was considerable. No answers could be obtained about various aspects of the mother's conduct generally or in relation to relevant events which occurred on 6 and 7 August 1996. Towards the end of what seems to me to have been an unproductive cross-examination, the prosecutor complained to the judge that the witness' memory of matters beyond that of what had occurred at the cemetery was "really not that relevant". Counsel responded - and I would have thought with some justification - that "this witness' memory is absolutely crucial ...". Whilst, perhaps, counsel can be criticized for not seeking to simplify questions, I am none the less left with the firm impression that cross-examination of the complainant was not a viable option in this case and, if anything, was counter-productive.

[63]

It was the combination of circumstances to which I have referred in the preceding paragraph which carried with it the potential for unfairness to the applicant in meeting the charges preferred against him. As I have already indicated, that potential is inherent in the procedure prescribed by s.37B of the Evidence Act because it permits the evidence-in-chief of young children to be presented as a "pre-recorded package" and without the witness having been sworn or giving her evidence viva voce in the face of the jury. These procedures represent a radical departure from the common law and, although the court is required by s.23(1) of the Act to satisfy itself that the witness is (inter alia) capable of responding "rationally" to questions about the facts in issue, that satisfaction will normally be gleaned in circumstances of limited opportunity and without the capacity of observing the witness' ability to respond to cross-examination. The aim of the sub-section is not to ensure that the evidence is credible but rather to ensure that it meets the minimum threshold of being receivable, a threshold which is not a high one (cf. R. v. Marquard (1993) 85 C.C.C. (3d) 193 at 219, 220). Although s.37B allows for evidence to be taken in the manner to which I have referred, it does so subject to the witness being "available for cross-examination" (s.37B(3)(c)(ii)), which in terms contemplates that an accused person should have a realistic opportunity of testing the witness' evidence and reliability through a procedure which our system of justice regards as "an incident of the obligation of a court to ensure that there is a fair trial" (R. v. McLennan, unreported, Court of Appeal (Qd), 20 June 1997 per Davies, J.A. at p.9; see also Kant v. Director of Public Prosecutions (1994) 73 A.Crim.R. 481 per Kirby, P. at 494). The right which the statute contemplates should be afforded to the accused will become little more than empty rhetoric where it cannot be realistically achieved because of the extreme youth of the person whose evidence-in-chief is given by way of pre-recorded interview. It was these circumstances, which may not have been readily apparent to the jury, that required the judge, in the interests of ensuring a fair trial, to do more than make the comments which she did and which, as she told the jury, they were free to reject if they were so disposed. Where circumstances arise during the course of the trial which create an apparent unfairness to the accused, as in my view they did in this trial, it is the responsibility of the trial judge to use the powers at his or her disposal to avoid the unfairness. That responsibility should have been discharged, in this case, by giving appropriate directions to the jury designed to counteract the prejudice which the accused might otherwise have suffered as a result of the inability to properly test the complainant's evidence (cf. Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 C.L.R. 23 at 47 per Brennan, J.). It was not a sufficient discharge of that responsibility for the learned judge to have merely advised the jury that they might consider that there was "potential for error" arising from the fact that the complainant was a child, a direction which in the light of the matters to which I have adverted was quite inadequate to bring home to the jury the dangers which lurked in acting solely on the evidence of this complainant (cf. R. v. Jolly [1998] 4 V.R. 495 at 502 per Kenny, J.A.).

[64]

The comments which I have made should not be interpreted as meaning that, in every case where the procedures prescribed by s.37B of the Evidence Act are employed, the judge will be obliged to give the warning which, in my view, should have been given in this case. Each case will depend on its own facts and there will no doubt be many cases where there will be no relevant unfairness simply because the evidence-in-chief has been given by means of the "V.A.T.E. procedure". The statute contemplates that the procedure can be adopted in the prescribed cases where the witness is "under the age of 18 years", and thus contemplates that there will be many witnesses who are competent to give their evidence under oath and will be capable of being properly and adequately tested by cross-examination. It is not readily apparent from the transcript why the learned judge declined to give to the jury the warning which counsel had requested and which, in my view, was warranted. She was not constrained from doing so by reason of the provisions of s.23 (2A) of the Evidence Act which, as I have previously noted, precludes a trial judge from "warn(ing) or suggest(ing) in any way" to a jury that (inter alia) children are "an unreliable class of witness". By force of this section children are no longer to be regarded as an inherently unreliable class of witness as once they were (Director of Public Prosecutions v. Hester [1973] A.C. 296 at 325, per Lord Diplock; R. v. Pahuja (1987) 49 S.A.S.R. 191 at 215, per Cox, J.); just as, by force of s.61 (1)(a) of the Crimes Act 1958 complainants in sexual cases are not to be regarded as an unreliable class of witness. But that does not mean that a trial judge is relieved from giving to the jury such warning as is required by the circumstances of a particular case to avoid a perceptible risk of miscarriage of justice (cf. Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79 at 91 per Brennan, Dawson and Toohey, JJ.; Robinson v. R. (1999) HCA 42 at [19]; R. v. Miletic [1997] 1 V.R. 593 at 606). Just as in Longman's case, supra, the applicant's ability to adequately test and defend himself against the complainant's allegation had been lost by sheer delay, so in this case the applicant was, as a matter of reality, deprived of that ability as the result of being effectively precluded from testing the complainant's version in the manner contemplated by s.37B of the Evidence Act. Although there can be little doubt that it was the underlying purpose of s.37B to strike a balance between the trauma which will inevitably be caused to a young child in giving evidence against a person accused of sexually assaulting her on the one hand, and the fairness of the trial of that accused person on the other (cf. R. v. McAndrew-Bingham [1999] 1 W.L.R. 1897 at 1904), it remains the responsibility of the judge to use his or her powers to restore fairness if the balance has become distorted.

[65]

There were some unusual features of the complainant's evidence which, given proper opportunity, the applicant could have tested. For a start, the complainant at no time identified the Gobur cemetery as the place where these assaults occurred, nor did she identify the "grave-digger's hut" at that cemetery as the "cubby" which she was told to enter. The size of the "square" in that hut (being only 10" wide) might have been thought to raise the improbability of the applicant gaining entry through that aperture. The allegation that the applicant masturbated in the car (Count 1) was not one which had been made when the complainant first disclosed relevant matters to L.S. on 21 August 1996. It appears first to have been made to Senior Constable Stevens in February 1997 and then in the context of an allegation that the applicant frequently touched the complainant sexually when she was in the car with him in the absence of her mother. However, on that occasion, the complainant told Senior Constable Stevens that the applicant had not touched her "on the rude part" on the way to the cemetery. Yet, although in her "evidence-in-chief", the complainant repeated her allegation of masturbation, she alleged also that he had "stuck his hands down my pants and played with my private part", in contradistinction to what she had previously said. Furthermore there were a variety of versions of the threats said to have been made by the applicant and the places where those threats were said to have been made (Count 4). According to Dr. Harry the bruise on one of the complainant's ears did not appear consistent with a "beating" of the ears (Count 3). The complainant's evidence that the applicant had drunk 3 cans of "Cougar" on the way to the cemetery and had thrown 2 empty cans on the floor of the car was inconsistent with Mrs. Turner's evidence that he had bought only one can. The fact that, on the uncontested evidence of the applicant, he had bought a "pack" of 3 cans in the morning raised the possibility that someone had told the complainant of this circumstance. Her evidence did not contain allegations, previously made, that the applicant had told her that he wanted her to "hurt" herself by placing her finger in her vagina. Nor did she say that, on the following day, he had told her to tell her mother that she had "done it with a pencil".

[67]

These matters, and others, would have made a fertile field for cross-examination, if a realistic opportunity for such cross-examination had been available. In the context of the warning which, in my view, the learned judge was obliged to give to the jury, it would have been appropriate to have reminded them of these weaknesses in the complainant's evidence which an adequate opportunity to cross-examine may well have exposed, and to have further reminded them that the inability of the accused to properly test the accuracy and reliability of the complainant's account was one of the reasons why they should pay heed to the warning which was being given to them. Although her Honour mentioned some of these inconsistencies in the course of making comments to the jury she said that she was "not going to go through them all" and, of course, did not mention them in the context of a warning that it would be dangerous to act solely on the complainant's evidence. One of the strengths of the common law is its capacity to adapt its practices and procedures to accommodate the variety of circumstances which will, or may, emerge in individual cases. It has now become common place for juries to try sexual offences alleged to have been committed against children of tender years. In many of those cases, and this was one, the effectiveness which the adversarial system attributes to cross-examination will, or may be, reduced. The consequences which should flow from that factor will initially fall for consideration by the trial judge who will be required to determine its significance in the circumstances of the particular case. In some cases, for example where inherent defects and inconsistencies appear in the complainant's evidence and there is no supporting evidence, the inability to properly test the credibility of the complainant's account may lead the trial judge to withdraw the case from the jury. In other cases, an example of which in my opinion this case is one, the appropriate course will be to restore the balance of fairness by giving appropriate directions to the jury so as to alert them to the potential unfairness to the accused emanating from his inability to probe the credibility of the complainant's version of events. In the recent case of R. v. Hart (1999) 135 C.C.C. 377 at 400-01, Cromwell, J.A., speaking for the Nova Scotia Court of Appeal, posited a test which, with respect, appeals to me as a sensible one. The Court said:

[70]

It was Mr. Tehan's contention that the evidence given at the trial revealed that the complainant's evidence was demonstrated to be so unreliable that the jury, acting reasonably, could not or should not have acted upon it; and that having regard to the fact it was the central evidence upon which the jury was invited to act in determining the guilt of the accused, this Court should conclude that their verdicts were "unsafe" in the relevant sense. In support of this contention Mr. Tehan relied upon the fact that the complainant had made no spontaneous or immediate complaint to a person in authority; that the first "complaint" which she had made was to her mother in circumstances where threats had been made to her; and that thereafter her version of events had been so contaminated by the series of interviews conducted by her mother, Williams, Walls, Stevens and others that no jury, acting reasonably, could have regarded her evidence as an accurate or true version of the events upon which they were asked to return a verdict. In particular Mr. Tehan relied upon the evidence of Mr. Fagan that, in his opinion, the interview conducted by Williams on 23 August 1996 would "make a wonderful tape to show people what not to do" and that "on its own" that interview had "the ability to so contaminate a child's recall of events that it would be like ... potentially destroying evidence". It was the applicant's submission that the evidence later given and relied upon by the Crown in the form of the "V.A.T.E. procedure" was itself "destroyed" as a reliable version of events by this contaminating process. It was further contended that there was no forensic evidence to link the applicant with the offences; there were no fingerprints found on the can taken from the cemetery, no human blood detected on the jumper and nothing found otherwise at the Gobur cemetery to corroborate the complainant's allegations. In the light of the fact that the applicant had no previous history of abusing his daughter, and that he had consistently denied the complainant's allegations, and the fact that her account could not be properly tested, Mr. Tehan submitted that the verdicts were unreasonable.

[71]

Notwithstanding the powerful arguments made by Mr. Tehan, I am far from persuaded that the verdicts were unsafe in the sense that the jury, properly instructed, were bound to have entertained a reasonable doubt in respect of any of the offences with which the applicant was charged. The arguments, as it seems to me, underline the need for proper directions rather than the insufficiency of evidence to support the verdicts. Although the trial judge was disposed to the view that there was no "corroboration", there were, in my view, a number of circumstances revealed by the evidence which, if accepted by the jury, were capable of corroborating the evidence of the complainant, at least in respect of the offence alleged in count 2. The finding of the jumper, if the jury were satisfied that it belonged to the applicant and had not been "planted" by L.S., was strongly supportive of the complainant's evidence, notwithstanding that subsequent testing was unable to substantiate the presence of human blood. It was not contested that the complainant had, almost certainly on 6 August 1996, suffered a ruptured hymen which, on the evidence, the jury was entitled to find was not self-inflicted. The finding by the police of the "Cougar can" behind the hut in the cemetery was another piece of evidence capable of supporting or confirming the complainant's version of events, provided, once again, that the jury rejected the applicant's evidence that it had been "planted". Likewise the disappearance of the underpants was capable of supporting her evidence, because the jury would be entitled to conclude that the complainant herself was unlikely to have destroyed them; nor was it likely that her mother would have done so if she was, as the applicant claimed, trying to "set him up". Furthermore, if the jury accepted the evidence of L.S. that the applicant had taken an unduly long time to return the complainant from the kindergarten, they were entitled to find that he had, and had taken advantage of, an opportunity to assault the complainant. These were all matters which were corroborative of the complainant's evidence in the sense explained by Brooking, J.A. in R. v. Rayner [1998] 4 V.R. 818 at 851-2. Contrary to the underlying premise of Mr. Tehan's submissions, I am quite unable to accept that the complainant's evidence should be looked at in isolation from this supporting material in determining whether the verdicts are unsafe.

[72]

Nor can I accept Mr. Tehan's submission that the complainant's evidence was rendered so unreliable by the repeated interrogation procedures which had preceded it, that the jury were bound to disregard it. Provided that appropriate directions have been given, it is ultimately a matter for the jury to determine the reliability of evidence (Rozenes v. Beljajev [1995] 1 V.R. 583 at 556-7). Mr. Tehan, in the course of argument, relied heavily upon the opinion given by Mr. Fagan to the effect that repeated interviewing of a young child, unless carried out with extreme care and in accordance with accepted procedure, has the capacity to influence and distort the child's accurate recall of events. It would seem to me from a reading of his evidence, that many, if not most, of Mr. Fagan's criticisms were directed at the interview of the complainant by Ms. Williams on 23 August 1996 which he said had the "potential" to destroy any accurate recall which the complainant may have. However, in the long run, he appeared to concede that, if the complainant had given, in a free and voluntary manner, a version of events before that interview which was consistent with the version later given in evidence, that would add "a confidence level" to a conclusion that the version was truthful. That concession seems to me to be a significant one because, if the jury had taken the view that the version of events claimed to have been given to L.S. on 21 August 1996 was spontaneous, it was also open to them to conclude that, because of the thread of consistency which existed between that version and the one given in evidence, the intervening interviews (including that of 23 August) had not had the effect to which Mr. Fagan referred. It must be remembered that in a criminal trial it is not the function of an expert to usurp the fundamental role of the jury in determining the reliability of the evidence. No doubt it is open to an accused person to lead evidence from an expert witness which is designed to "impeach" the evidence of a critical crown witness, provided that the evidence is within a field appropriate for expert evidence (cf. Bromley v. R. [1986] HCA 49; (1986) 161 C.L.R. 315 at 322 per Brennan, J.; G. v. Director of Public Prosecutions [1998] Q.B. 919 at 926 per Phillips, L.J.; Farrell v. The Queen (1998) 72 A.L.J.R. 1292 at 1299 per Kirby, J.). I assume that her Honour was prepared to admit the opinion of Fagan, consistently with the principles explained in these authorities, to assist the jury in forming a view as to the reliability of the complainant's evidence. It thus became part of the evidence before the jury upon which they were to make their ultimate conclusions.

[108]

The next matter I desire to mention relates to the potential for a miscarriage of justice to occur in a trial of this nature, where the accused is charged with offences involving alleged sexual impropriety in respect of a young child. The potential for that arose here, in part, from the forensic disadvantage which was imposed upon the applicant as a result of a cumulation of circumstances. First, under s.37B of the Evidence Act, the complainant was able to give her evidence otherwise than in the immediate presence of the jury and the applicant. Her evidence-in-chief was given principally by means of a video tape and she was located in another room during her cross-examination. Moreover, the VATE tape procedure was such that some of the evidence was given in response to leading questions. All this was a significant departure from the procedure that is usually required to be followed, absent a statutory dictate to the contrary, in order to secure a fair trial to the accused. As the President has highlighted, the potential for further and greater unfairness arose from the inability of the applicant's counsel meaningfully to cross-examine the complainant as to the weight and reliability of her evidence due to her refusal to answer, or answer responsively, a number of questions put to her during cross-examination. On one view, some of the appellant's responses were not surprising given the form of the questions that were put to her. Be that as it may, however, the complainant's young age and her demeanour produced the risk that the applicant's cross-examination, however skilful, would not have effectively tested the weight and credibility of her evidence. The disadvantage to the applicant was all the more acute given that its reliability was, on one view, open to doubt. These circumstances alone called for an appropriate direction to the jury. To these circumstances must be added the particular features of the complainant's evidence which are identified in para.[33] of the President's reasons.

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