RC v R

Medium Neutral Citation: RC v R [2025] NSWCCA 180

Hearing dates: 25 June 2025

Date of orders: 07 November 2025

Decision date: 07 November 2025

Before: Adamson JA at [1]
Garling J at [2]
Sweeney J at [88]

Decision: (1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords: CRIME – Appeal and review – Appeal from District Court to Supreme Court – Appeal against conviction – Miscarriage of justice – Whether unedited transcript containing prejudicial material was provided to the jury – Standard of proof – Where balance of probabilities determined to be appropriate standard of proof where the appeal is based on a finding of fact
CRIME – Sexual offences – Indecent assault of a person under 16 years of age – Applicant found guilty by a jury – Aggregate sentence imposed
CRIMINAL PROCEDURE – Trial – Jury – Access to transcript – Irregularities – Where unedited transcript containing prejudicial material may have been provided to the jury – Where evidence from a previous trial may have been provided to the jury in a second trial after the charges relevant to that evidence had been withdrawn – Where no practitioners in the trial have any recollection of an incorrect transcript being provided to the jury – Where the primary evidence of the applicant is an unedited transcript from the court file which was marked for identification – Where the Court unable to infer that the incorrect transcript was provided to the jury based on the evidence before it – Where practitioners were alert to the need to ensure the correctness of transcripts as a result of an error earlier in the trial – Where the primary evidence at trial was of a small number of recorded interviews – Where significant discrepancies in the transcript and recorded interview would have been alerted to the Judge – Where the recording was played whilst the jury were in possession of the transcript and no discrepancy was raised by any party in the court room at the time – Where the Court was not satisfied as a matter of fact that the jury received an inappropriate transcript – Miscarriage of justice not established – Appeal dismissed

Legislation Cited: Crimes Act 1900 (NSW) s 61M(2)

Cases Cited: Brawn v The King [2025] HCA 20; (2025) 423 ALR 69
RC v R [2022] NSWCCA 281

Texts Cited: Not Applicable

Category: Principal judgment

Parties: RC (App)
Crown (Resp)

Representation: Counsel:
S Hall SC / J Leaver (App)
C Young (Resp)
Solicitors:
Legal Aid NSW (App)
Solicitor for Public Prosecutions (Resp)

File Number(s): 2018/138989

Publication restriction: Not Applicable

HEADNOTE

[This headnote is not to be read as part of the judgment]

In a trial before his Honour Judge Grant in the District Court in October 2023 (“the second trial”), the applicant, RC, was convicted of six offences, contrary to s 61M(2) of the Crimes Act 1900 (NSW) of indecent assault of a person under 16 years. Three of those offences were committed between August 2013 and June 2015, against the victim to whom the pseudonym “PH” has been given, with the other three offences committed over a three-month period in 2016, involving the victim given the pseudonym “JB”.

By way of context, the October 2023 convictions stemmed from the applicant’s second trial in relation to the charges. In a previous trial (“the first trial”), the Indictment had included three additional charges, against another complainant, given the pseudonym “CG”. The primary evidence in the first trial took the form of two specialist police interviews, known as Joint Investigation Review Team Interviews (“JIRT Interviews”), of PH and JB, oral evidence of PH and JB, and a tendered statement of CG. In the first trial, the applicant was convicted of all counts on the Indictment. On appeal to the Court of Criminal Appeal, the Court held that the statement of CG was inadmissible and thereafter quashed the convictions and ordered a new trial.

In the second trial, the Crown did not proceed against the applicant on any of the charges which related to CG. The Crown tendered the JIRT Interviews of PH and JB and provided the jury with transcripts of both interviews, which functioned as aide-memoires. The Crown tendered the recorded evidence of both complainants at the first trial, also providing transcripts to the jury. Prior to the second trial, both parties had agreed to necessary edits to the transcript, in part, because the charges related to CG were no longer being pursued.

Before the Court, on this appeal, the applicant submits that, whilst the jury were observing PH’s JIRT Interview in the second trial, they were provided with an erroneous and unedited transcript (“the unedited transcript”). The applicant submits that, instead of being edited to remove irrelevant references to the charges related to CG, the transcript provided to the jury highlighted those sections. This contention is based on the solicitor for the applicant locating the unedited transcript within the court file, which had been marked as MFI-2, suggesting that this unedited transcript had been provided to the jury as an aide-memoire whilst they reviewed the JIRT Interview of PH.

Ultimately, the applicant sought leave to appeal on the basis that the erroneous transcript was unknowingly provided to the jury, and that material of such a prejudicial nature being provided to a jury, apparently unwittingly, was an irregularity that had a meaningful potential to affect the outcome of the proceedings. Further, the Crown conceded that, if it were proven that the unedited transcript was provided to the jury, then a miscarriage of justice was established.

The Court (Garling J, Adamson JA agreeing, Sweeney J dissenting), dismissed the appeal.

Held per Garling J (Adamson JA agreeing), dismissing the appeal:

The only issue for determination in the appeal was whether, having regard to the evidence on the appeal, the Court was satisfied, on the balance of probabilities, that the jury were provided with the unedited and incorrect transcript: per Garling J at [73]. Ultimately, in assessment of the evidence before the Court on this appeal, there were several factual circumstances which contributed to a finding that the Court was not satisfied, on the balance of probabilities, that the incorrect transcript was in the possession of the jury. The facts supporting this conclusion are summarised as follows:

(1) The defence counsel and solicitor, as well as the Crown Prosecutor and ODPP solicitor, had a copy of the ‘final’ edited version of the JIRT Interview transcript. There was no reason for the ODPP solicitor to have prepared any, let alone 12, copies of the unedited transcript for the jury’s use, aside from administrative error: per Garling J at [75]-[76].

(2) There was no independent recollection by any of the practitioners involved as to what transcript was provided to the jury. Put differently, there was no recollection which exists suggesting that the incorrect transcript was provided to the jury: per Garling J at [77].

(3) The transcript of the second trial records two separate occasions where concerns about the contents of the transcripts provided to the jury were raised, suggesting that the practitioners were alert to the need to ensure their correctness. Further, the two JIRT Interviews, of PH and JB, comprised the crux of the Crown case and the practitioners would have been cognisant of the need for their correctness: per Garling J at [79]-[80].

(4) No practitioner, or the Judge, raised any concerns in the court room, and it can be assumed that they were following along as the JIRT Interview was being played: per Garling J at [81].

(5) No member of the jury drew any discrepancies to the attention of the Judge: per Garling J at [83].

Brawn v The King [2025] HCA 20; (2025) 423 ALR 69, cited.

Per Sweeney J (dissenting):

In dissent, her Honour held that there was a real, and not fanciful, risk that the incorrect transcript was provided to the jury, it being the document marked for identification by the Judge’s associate, and that the appeal should be upheld on that basis: per Sweeney J at [90]-[91].

JUDGMENT

1. ADAMSON JA: I agree with Garling J.

2. GARLING J: In these proceedings, the applicant, to whom the pseudonym “RC” has been given, was convicted of six offences after a trial before Grant DCJ in the District Court at Albury in October 2023 (“the second trial”). Three of those offences, being offences contrary to s 61M(2) of the Crimes Act 1900 (NSW) (“Crimes Act”) of indecent assault of a person under 16 years, were committed between August 2013 and June 2015, against the victim to whom the pseudonym “PH” has been given. As well, the applicant was convicted of three similar offences also contrary to s 61M(2) of the Crimes Act, occurring over a three-month period in 2016, involving a victim given the pseudonym “JB”.

3. The applicant was sentenced to an aggregate term of imprisonment of 3 years with a non-parole period of 2 years to date from 14 August 2021.

4. By the time these proceedings came before the Court, the applicant had completed serving his aggregate term of imprisonment.

5. In his application for leave to appeal against the convictions entered after the jury returned with verdicts of guilty at the second trial, the applicant identified a single ground, in respect of which he would prosecute the appeal (“the second appeal”) if leave were granted, namely:

“A miscarriage of justice occurred as a result of the unedited transcript of PH’s JIRT being provided to the jury.”

Procedural Background

6. There are some complicating features in the procedural background which require an explanation of the proceedings leading up to the trial which resulted in the convictions of the applicant.

The First Trial

7. The applicant first stood trial in respect of the offences upon which he was convicted in December 2020 (“the first trial”). Grant DCJ presided over that trial. The Indictment for the first trial also included three additional counts in respect of a different complainant, to whom the pseudonym “CG” was given.

8. When each of PH and JB had made complaints to the Police, because they were juveniles, they were interviewed by specialist police who were members of the Joint Investigation Review Team (“JIRT”). In accordance with the standard procedure, those interviews were video and audio recorded (“JIRT Interviews”) and a transcript of the interviews prepared.

9. It is not at all uncommon that, before the recordings of JIRT Interviews come to be played at trial, they are subject to editing. Some edits are made by agreement to remove irrelevant material, and some edits are made to reflect rulings on evidence given by a trial judge. In circumstances where edits are made, a fresh video is prepared of the JIRT Interview alongside a fresh transcript to reflect the edited video.

10. In the first trial of RC, the JIRT Interviews of PH and JB were played to the jury and as well, PH and JB gave further evidence, and were cross‑examined before the jury, by both the prosecutor and counsel for the defence. Their evidence in court was also recorded by audio-visual means.

11. During the course of the first trial, the prosecutor tendered a statement of CG, the third complainant who did not give any evidence in person to the jury. She was very reluctant to do so.

12. The applicant was convicted of all counts upon which he stood trial.

The First Appeal

13. The applicant appealed to the Court of Criminal Appeal which, on 14 December 2022, for the reasons it gave, held that the written statement of the complainant, CG, was not admissible in evidence in the circumstances which existed at the time, and that the Judge had erred in law by admitting it: RC v R [2022] NSWCCA 281. The Court concluded that the convictions ought be quashed and that a new trial should be ordered in respect of all counts.

14. Having regard to the obvious and demonstrated reluctance, by CG, to give evidence against the applicant at the first trial (which had led to the prosecution tendering her statement and relying upon it as evidence in the Crown case), when the applicant was arraigned for his second trial, before Grant DCJ in October 2023, the Crown did not proceed against him in respect of the three charges which related to CG.

The Second Trial

15. At the second trial:

16. the subject matter of the charges against CG became irrelevant and was not to be referred to in the course of the evidence;

17. neither of the complainants, PH or JB, gave any evidence in person before the jury; and

18. the jury was shown the recordings of their JIRT Interviews, and the recordings of their evidence from the first trial.

19. During the second trial, transcripts of the JIRT Interviews of each of the complainants were handed to the jury members, for their use as aide‑memoires during the playing of the JIRT Interviews. The videos and the accompanying transcripts were marked as MFI-2, in respect of PH, and MFI‑4, in respect of JB.

20. As well, the evidence of each of the complainants from the first trial, including cross-examination, was also played to the jury. The recordings of that evidence were marked MFI-3 and MFI-5, respectively. The jury was provided with transcripts of each of those recordings as well. Those transcripts were not tendered in evidence.

21. Prior to the second trial, in accordance with the common practice, the parties had discussed, and agreed upon, various edits to be made to the recorded material. As earlier noted, the editing, in part, occurred because the offences relating to CG were not being pursued at the second trial, and material prejudicial to the applicant had to be removed from the recordings.

22. I have earlier noted that transcripts of the recordings were provided to the jury immediately prior to the various recordings being played to the jury. The transcripts were collected back from the jury directly after the recordings were completed.

23. Prior to the playing of each recording, Grant DCJ gave the appropriate directions to the jury, including reminding them that it was what they saw and heard on the video screen which comprised the evidence, and that the transcripts were provided to them by way of an aide-memoire.

24. After the playing of the recorded JIRT Interviews and the recorded evidence from the first trial, the Crown called three further witnesses, who dealt with a variety of matters. The evidence which those witnesses gave is not of significance, or relevance, to the issues on this appeal.

25. The applicant’s case consisted of an agreed fact which was announced to the jury – that he had no record for any sexual offences. He did not give evidence, and no witnesses were called on his behalf.

26. The entirety of the empanelling of the jury, the evidence, addresses from counsel and the Judge’s summing up, occupied about a day and a half.

27. In the course of the playing of the recording which comprised the pre-recorded evidence-in-chief and cross-examination of JB from the first trial, during which a transcript had been provided to members of the jury, it became apparent that there was some discrepancy between the transcript with which the jury had been provided and the recording which was being shown to them.

“Members of the jury, thanks for your patience. It would appear that there might be some words missing from the transcript on p 9 between line 44 and line 45. But as I said to you before, it’s what you see [and] hear which is the important thing, so we’re going to replay that now because you’ll hear the words. There’s a bit missing in the transcript. That sometimes happens.”

28. The recording, MFI-5, was then played in its entirety to the jury.

29. This episode occurred at a point in time after the JIRT Interview of PH and the recording of his evidence from the first trial had been played.

30. The jury retired to consider their verdict at 12.25pm on the second day of the trial. After lunch on that day, the Court was reconstituted at 2.08pm to deal with two jury notes.

31. The first jury note comprised a request to have the evidence of the complainant’s grandmother read to the jury. By agreement with counsel, the Judge informed the jury that they would be provided with a transcript of her evidence as soon as it was available.

32. The second jury note read as follows:

“Could the examination and cross-examination be watched again from the previous trial?”

33. His Honour agreed, and the Court set about replaying the recordings to the jury. Again, in the course of the replaying of the recordings, the jury were provided with a transcript, which was then removed from them once that recording was replayed in its entirety.

34. It is clear from the transcript of the second trial that transcripts of the recordings were distributed to the jury, and collected from the jury, at the commencement, and completion of, the playing of each recording to the jury.

35. Before replaying the recordings, the Judge reminded the jury, as he had earlier done, that what the jury saw and heard on the recordings was the evidence upon which they should act, and that the transcript was simply being provided to them to assist them whilst the recordings were being played.

36. Ultimately, on the third day, the jury returned with its verdicts.

Evidence on the Second Appeal

37. On the second appeal, the applicant relied upon a number of affidavits - one, from the applicant himself dated 13 March 2025, which described and explained the delay in his institution of the appeal.

38. The second affidavit was that of his solicitor, Ms Janet Witmer, also affirmed on 13 March 2025. Relevantly, Ms Witmer’s affidavit includes the following statements:

“8. In the first trial, the transcript was edited to remove unnecessary and prejudicial material.

9. However, in the second trial, the transcript of the JIRT (being the same JIRT as in the first trial), identified as MFI2 in the second trial was neither edited nor redacted. Instead, the prejudicial portions were highlighted in yellow, and it appears that no solicitor or counsel noticed this.

…

14. In early December [2024], counsel identified that the unedited transcript of the JIRT had been given to the Jury.

15. The writer then made enquiries of the Court, the Defence and the Crown.

16. However, the solicitor for the Applicant now works in Victoria and has almost no memory of the trial and could not confirm or otherwise whether the JIRT transcript had been edited.

17. Sharyn Hall SC, who was counsel, informed me that she had spoken to the Crown’s barrister, Max Pincott who also had very little memory of the trial and could not confirm or otherwise whether the JIRT transcript had been edited. Additionally she spoke to the defendant’s solicitor, Chris Maxwell who similarly could shed no light on the question of the redaction of MFI2.

18. Enquiries were made to the Director of Public Prosecutions, but the acting solicitor was no longer working for the DPP and we were referred to the Court file.

19. Further enquiries were made of the Court, and we were provided with a scan of the court documents, which included a highlighted and unedited MFI2 with the identifying tag.”

39. The applicant also relied upon the affidavit of Julian Stevens, a solicitor employed by Legal Aid NSW, affirmed on 14 March 2025, who was assisting with the appeal.

40. That affidavit contained the following material. Mr Stevens identified that the transcript of the JIRT Interview of the complainant, PH, used in the first trial, was marked MFI-8. This Court, on appeal, was not provided with a copy of MFI-8 from the first trial. The transcript used in the second trial was, with respect to PH, as earlier noted, marked MFI-2.

41. Mr Stevens says that, in the preparation of the appeal, “all relevant trial material was requested from the Court of Criminal Appeal section of the District Court of NSW Registry”.

42. He then said this:

“6. As part of that material, our office was provided a scanned copy of MFI 2 in the 2023 trial. The MFI was a complete transcript of PH’s JIRT which included portions that were highlighted in yellow. I observed that there were no redactions to the transcript.”

43. Mr Stevens made enquiries with the relevant DPP office, who were unable to provide him with any copy of MFI-2 which might have been in their possession.

44. Mr Stevens then engaged in an exercise of listening to a copy of the JIRT Interview, which was contained in the court file, and which was marked MFI‑9, from the first trial. He compared that interview with the highlighted parts of the unedited transcript of MFI-2.

45. A comparison of those two items undertaken by Mr Stevens showed that there had been some editing within the contents of the transcript. He lists the details of those in the following way:

“a) Last two words of A 35 – not edited.

b) Q122 – first line of Q133 – edited.

c) Q136 – A 138 – not edited.

d) A164 – Q165 – edited.

e) Q167 – A167 – not edited.

f) From ‘after’ Q171 – edited.

g) Q186 – A187 – not edited.”

46. On the appeal, the Crown relied upon the affidavit of Philippa Winston, a solicitor in the employ of the Office of the Director of Public Prosecutions (“ODPP”). Ms Winston, by reference to the file kept physically by the ODPP and the computer files in relation to the proceedings, made the following statements:

“4. At the second trial of this matter in October 2023, the Crown was represented by Crown Prosecutor Mr Pincott and Ms Coleman, solicitor. The applicant was represented by Mr Watson, barrister, and Mr Moody, solicitor.

5. On 26 September 2023, Ms Coleman emailed the Crown Prosecutor, Mr Watson and Mr Moody and attached ‘proposed transcript and timing edits’ to the evidence of the two complainants. …

6. On 29 September 2023, in the week before trial, Ms Coleman emailed the Crown Prosecutor, Mr Watson and Mr Moody. …

7. The email attached ‘final copies’ of the relevant transcripts for trial consistent with the edits agreed between the parties. A copy of the final edit of the JIRT Interview for the complainant PH is attached and marked ‘C’.”

47. None of the witnesses for the applicant, or for the Crown, were cross‑examined in the course of the appeal proceedings.

Submissions for the Applicant

48. The applicant’s submissions contended that the transcript of PH’s JIRT Interview which was provided to the jury, was the unedited and highlighted version that appeared on the court file marked as MFI-2 (“the unedited transcript”). He further submitted that, for the purposes of this appeal, the highlighting in MFI-2, which was made available to this Court, was intended to indicate parts of the JIRT Interview that should have been edited out and which were edited out in the transcript distributed by email from Ms Coleman, the solicitor at the ODPP, to the lawyers involved in the second trial (“the final transcript”).

49. The following submission was put on the assumption that the copy of MFI-2 in the court file was a copy of the transcript that the jury received:

“23. The transcript the jury received on the two occasions that they were played MFI-2 was the full transcript of PH’s original, unedited JIRT Interview. That version of the transcript:

a) did not redact portions of the interview that had been removed from MFIs 8 and 9 in the original trial, and

b) did not redact prejudicial references to assertions that the applicant had ‘tried to molest’, had been ‘trying to rape’ and threatened to rape CG.”

50. The applicant submitted that it was clear that the allegations which were contained in the transcript formed no part of the Crown case and that:

“… the parties and his Honour may not have been aware that an unedited version of the transcript of MFI-2 went to the jury.”

51. Ultimately, the applicant submitted that material:

“… of such a prejudicial nature being provided to a jury, apparently unwittingly, was an irregularity that had a meaningful potential to affect the outcome of the proceedings.”

52. Ms Hall SC explained, in her oral submissions, that the applicant’s contention was:

“… that in the usual course, what would be provided to the jury would be the exact same copy as what is marked for identification, and so at its highest, what the applicant submits that your Honours could take from the presence of the marked up copy of MFI-2 being before the court, is that the jury were provided with information they ought not to have been.”

53. Ms Hall SC submitted that this Court was not obliged to make a positive finding that the wrong transcript, in fact, was handed to the jury, rather, she submitted that it was sufficient if this Court was satisfied:

“… that there is [a] very high risk that this [unedited] transcript was before the jury and that there is, resulting from that, prejudice to the applicant.”

54. Ms Hall SC also accepted that, if the Court were to be satisfied that the incorrect transcript was placed before the jury, the Court must apply the test found at [10] in Brawn v The King [2025] HCA 20; (2025) 423 ALR 69, where the High Court said:

“For other errors or irregularities to constitute a miscarriage of justice, they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty … In this context, ‘could’ is to be understood as meaning ‘having the capacity to’, and ‘realistically’ distinguishes the relevant assessment of the possibility of a different outcome from a possibility that is fanciful or improbable. This threshold to establish that an error or irregularity is material must be satisfied by the appellant, but that burden is not onerous. It does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.”

The Crown’s Submissions

55. The Crown submits that the Court would not be satisfied that the erroneous unedited transcript was provided to the jury and that, accordingly, the factual foundation for the applicant’s contention that there had been a miscarriage of justice had not been made out.

56. The Crown submits that consideration of the whole of the evidence does not support a finding that the unedited transcript of PH’s JIRT Interview was provided to the jury. The Crown draws attention to the following matters which can be established from the transcript of the second trial, and the available emails between the parties prior to the start of the second trial.

57. The end result of the exchange of emails between the Crown and lawyers for the applicant, in the week prior to the trial commencing, was that the solicitor for the Crown emailed, to the applicant’s representatives (barrister and solicitor), a “final copy” of the relevant transcripts for the trial which were consistent with the edits agreed between the parties. The document attached to that email which relates to PH’s JIRT Interview, which was called “final [PH] JIRT”, removed the highlighted yellow portions from the unedited transcript.

58. The Crown draws attention to the fact that this means that PH’s transcript was not simply missed or overlooked, but rather that an edited transcript was prepared in advance of the trial, which reflected the agreement of the parties, and that, on the probabilities, that transcript was provided to the jury.

59. The Crown next submitted that the trial transcript, when considered as a whole, demonstrated that the parties were alive to the issue of editing and conscious to ensure that only admissible evidence was before the jury. The Crown draws attention to the exchange which took place on the first day of the trial, in the absence of the jury, with respect to the recorded JIRT Interview of JB to which I have referred at [24]-[28] above.

60. As well, the Crown draws attention to the fact that, prior to the playing of the recording of JB’s evidence-in-chief from the first trial, there had been an omission from the transcript of three introductory questions and answers. The prosecutor sought, and was granted leave, to read the questions aloud to the jury.

61. The Crown submitted that this Court would be satisfied from the trial transcript that, not only were edits agreed in advance of the trial, but that care was being taken by the legal practitioners, during the trial, to ensure that the transcripts and the recordings matched, and in circumstances where this was not so, corrections were made promptly.

62. The Crown notes that neither the Judge, nor his associate, nor any of the lawyers present in the courtroom when the JIRT Interview was played to the jury raised any issue about the accuracy of the transcript of that interview.

“And then again, I think it’s at Q144 of the interview, if you look at it, if you get a chance to look at it, he says this, the officer said this ‘You know, there’s a big difference between trying and doing something’.”

66. In the highlighted transcript upon which the applicant’s case is principally based, Q144 was in the following form:

“Q144 So what time of year was that in year 7?”

67. Whereas in the edited transcript prepared by the solicitor for the Crown and distributed by email, Q144 is in these terms:

“Q144 Cause it’s, you understand that it’s two different things, trying to do something and doing something?”

68. The question described immediately above as Q144 in the edited transcript was Q158 in the highlighted transcript.

69. Whilst the Crown submits that whilst it was not an identical quotation, the reference in the closing address by the Crown Prosecutor to Q144 strongly supports a conclusion that the prosecutor was working from the numbering in the final transcript.

70. Accordingly, the Crown submitted that, when all of the circumstances are looked at in their entirety, this Court would not be satisfied that the unedited transcript was the document provided to the jury. It submits that a more likely option is that the transcript was tagged with the MFI-2 label in error.

71. The Crown accepted that if the highlighted, unedited version of PH’s JIRT Interview did go to the jury, then a miscarriage of justice would be established. It accepts that the provision of the highlighted transcript to the jury was a material error in the sense that it could realistically have affected the reasoning of the jury to its verdict. The Crown did not rely upon the proviso in those circumstances.

Discernment

72. As just observed, the Crown conceded that if the unedited and highlighted transcript was given to the jury whilst they watched the recorded JIRT Interview of PH, there would have been an irregularity in the trial process of sufficient materiality to have resulted in a miscarriage of justice.

73. It follows from this concession, which I accept is appropriately made, that the only issue which falls to be determined by this Court is whether, having regard to the contents of the appeal book containing, as it does, the transcript of the second trial, and the further evidence placed before the Court, the Court is satisfied, on the balance of probabilities, that the jury were provided with the unedited (and hence incorrect) transcript.

74. The jury was provided with a transcript whilst viewing the JIRT Interview. The second trial transcript records that the JIRT Interview was played and for the purpose of watching that interview, the jury were provided with a transcript. The transcript was removed from the jury immediately at the conclusion of the playing of the recording of the JIRT Interview.

75. With respect to the availability of transcripts prior to the trial, the unchallenged evidence of Ms Winston, a solicitor in the ODPP, is that, prior to the commencement of this second trial, having reached an agreement with the defence counsel as to what edits should be made to the transcript of the JIRT Interview, and the interview itself, a copy of the final version of the transcripts was prepared and then emailed to counsel and solicitors for the defence. The evidence satisfies me that this final and edited transcript consisted of 172 questions and occupied 15 pages. The unedited transcript consists of 190 questions and 17 pages. As well, there is highlighted on that version a series of questions and answers which do not appear in the final edited version.

76. To my mind, the significance of this fact is that the defence counsel and solicitor had a copy of the “final version”, as did the Crown Prosecutor and ODPP solicitor who were in the courtroom. There was no reason, unless an administrative error occurred, for the ODPP solicitor to have prepared any, let alone 12, copies of the unedited transcript for use in the Court by the jury. The only transcript which was relevant to be copied for the purpose of distribution to the jury was the edited final transcript.

77. I am also satisfied from all of the material presently before the Court that there is no independent recollection by any of the practitioners involved in the hearing of the trial, as to which transcript it was that was given to the jury. Differently put, no-one who was present in Court during the second trial positively asserts that they have a recollection of or knowledge gleaned in another way, which demonstrates that the unedited transcript was given to the jury during the playing of the JIRT Interview with PH.

Orders

87. I proposed the following orders:

88. Grant leave to appeal.

89. Appeal dismissed.

90. SWEENEY J: I have had the benefit of reading in draft the judgment of Garling J, and am grateful for his Honour’s account of the evidence and issues.

91. I have come to a different conclusion from his Honour’s.

92. In the circumstances described by his Honour, where no one involved in the trial has a recollection about the transcript, the fact that the unedited transcript of a complainant’s interview was marked for identification by the judge’s associate has significance.

93. I am of the view that there is a risk, and not a fanciful risk, that the jury had access to the unedited transcript which included allegations of misconduct by the applicant against a child who was not a complainant in his trial. As the Crown acknowledged, that would cause a miscarriage of justice in his trial.

94. In those circumstances I would order that his convictions be quashed and order a new trial. I appreciate that if that were the order of the Court that RC has served his sentence would be a consideration in whether a new trial occurred. I would not order an acquittal, as the applicant sought, because to do so would in my view distort the record.

95. I am aware that my view is in the minority.

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