Regina v NZ

Regina v NZ - [2005] NSWCCA 278 - NSWCCA 2005 case summary — Zoe

[36]

WEDNESDAY 17 AUGUST 2005 REGINA v NZ Judgment 1 SPIGELMAN CJ : The facts, issues, statutory provisions and relevant case law are set out in the joint judgment of Howie and Johnson JJ. I agree with their Honours' reasoning and conclusion on Grounds 1 and 2. With respect to Grounds 3 and 4, I have come to a different view. 2 Rule 4 of the Criminal Appeal Rules applies as the videotape evidence under the Evidence (Children) Act 1997 was admitted without objection, was available to the jury in the jury room and no direction with respect to the use of that evidence was sought at the trial. The Appellant must satisfy the Court that it is appropriate to grant leave under r 4 to rely on these grounds. 3 In circumstances such as the present, where there has been no error of law, the Appellant bears the onus of establishing that a miscarriage of justice has occurred. (See R v Papakosmas (1999) 196 CLR 297 at 319; R v Button & Griffen (2002) 129 A Crim R 342 at [30]-[35] per Heydon JA (note that this passage is not reproduced in the report of a case at 54 NSWLR 455); R v ITA (2003) 139 A Crim R 340 at [92]-[98] per Ipp JA with whom Buddin and Shaw JJ agreed; R v Burt (2003) 140 A Crim R 555 at [86]-[91] per Wood CJ at CL with whom Greg James and Howie JJ agreed.) 4 The principle of a fair trial is a fundamental principle of the common law. Although there are views to the contrary, the position in Australia is that the common law recognises that a right to a fair trial operates not only in favour of the accused but also in favour of the community represented by the Crown. (See Jago v District Court (NSW) (1989) 168 CLR 23 at 49-50; DPP (Naru) v Fowler (1984) 154 CLR 627 at 634; McKinney v The Queen (1991) 171 CLR 468 at 488; R v Abusafiah (1991) 24 NSWLR 531 at 536; R v Fuller (1994) 34 NSWLR 233 at 240; Spigelman "The Truth Can Cost Too Much: The Principle of a Fair Trial" (2004) 78 ALJ 29 at 44-46; Hunt "The Right to a Fair Trial: A Different Perspective?" (1999) 11 Judicial Officers Bulletin 17.) 5 The Appellant must satisfy the Court that trial counsel did not take a decision to allow the matter to proceed in the manner now complained of and that the failure to take the point did not reflect the fact that the matter now sought to be relied upon was not of sufficient significance in the issues raised in the trial. 6 In this regard the Appellant relies on an affidavit from the solicitor who instructed at the trial and, after objection was taken to a hearsay affidavit by that solicitor reporting what had been said to him by trial counsel, on an affidavit filed after the oral submissions by trial counsel. The substance of the latter affidavit is set out in the joint judgment of Howie and Johnson JJ. In addition to that affidavit, the evidence of the solicitor at the trial was to similar effect when he said: "I did not raise the matter of the tender of the video with Counsel during the trial because I assumed that by the tender of the video any playing of the video would be done in court and in the presence of the Jury, Judge, Defence Counsel and the Crown. I am now aware that facilities were available at Parramatta District Court for the playing of a video by the jury in the jury room at the time of NZs trial." 7 Leave was reserved to the Crown to cross-examine on both those affidavits (see T at 10 L30). The Crown did not seek to do so. In the absence of any cross-examination it is not appropriate for this Court to proceed on the basis of its own knowledge of the general availability of equipment in jury rooms. The solicitor and counsel for the Appellant gave evidence, that was not cross-examined upon, as to their expectation that if the jury wished to see the complainant's evidence again it would occur in open court. At the least this is sufficient to overcome the proposition that leave under r 4 should be refused because of a tactical position taken by counsel at the trial. It does not, however, play any substantial role in determining the ultimate issue in this respect, namely has the Appellant discharged his onus of establishing that there was a miscarriage of justice and that, accordingly, leave under r 4 should be granted? 8 Howie and Johnson JJ set out the relevant extracts from the case law in which a similar issue has arisen in England, New Zealand and Australia. There are, as their Honours observed, variations in the terminology adopted by different judges in those cases. This is to be expected. The application of the principle of a fair trial does not involve a fixed body of rules. What a fair trial requires depends on the circumstances of each case. 9 It is, however, noticeable that a central theme emerges from the judgments as to the significant possibility of the jury decision-making process being distorted by the jury being able to replay as often as it wishes only part of the evidence in the trial. Secondly, there is also recognition that videotape evidence, which is admitted in substitution for evidence in chief, has a different quality to other videotape evidence that may be admitted as an exhibit. By reason of this latter proposition it is not correct to approach the issue on the basis of developing a general rule applicable to all evidence in electronic form. This case is concerned, and concerned only, with the admission of evidence that constitutes the evidence in chief of important witnesses in the case, most significantly for purposes of the present trial, of the complainant in a sexual assault case. 10 The authorities give particular emphasis to the possibility that the playing of the evidence in chief in videotape form carries with it the risk that the evidence will be given disproportionate weight. Two matters are emphasised. First, repetition, in a context where other balancing evidence is not or may not be repeated at all or as often. Secondly, the force attending evidence in an audio-visual form when compared with the force of evidence that may only be available in documentary or transcript form. (See eg R v Rawlings [1995] 1 WLR 178 esp at 182H and 183E; R v Welstead [1996] 1 Cr App R 59 at 68F-G; R v O [1996] 3 NZLR 295 at 298-299; R v H [1999] 2 Qd R 283 at [18] and [36]-[40]; R v BAH (2002) 5 VR 517 at [11], [15] and [65]; R v Lewis (2002) 137 A Crim R 85 at [11] and cf [20]; R v Lyne (2003) 140 A Crim R 522 at [20]-[21] and [28]; R v MAG [2005] VSCA 47 at [20]; R v Davies [2005] VSCA 90 at [26]. See also Elliott "Video Tape Evidence: The Risk of Over-Persuasion" [1998] Crim LR 159; Corns "Videotaped Evidence in Victoria" (2004) 28 Crim LJ 43.) 11 The principle of a fair trial requires the Court to adapt its procedures and/or to give directions to the jury wherever the circumstances of a particular trial give rise to a material risk that the jury may give disproportionate weight to particular evidence. This is a principle of general application of which the use of videotaped evidence under special statutory provisions for the giving of such evidence is one set of circumstances in which the issue has arisen. 12 I do not detect any difference in the reasoning in the authorities from England, New Zealand and Australia with respect to a fundamental proposition that, as a general rule, videotape evidence of this character should not go into the jury room where there can be no effective supervision of its use and, accordingly, any replay should occur in open court. (See eg R v H supra at [18]; R v BAH supra at [11], [15] and [65]; R v MAG supra at [70].) This is the same approach as has been adopted with respect to the replay of audiotape evidence (see eg R v Riaz (1991) 94 Cr App R 339 at 344; Bulejcik v The Queen (1996) 185 CLR 375 at 386.) 13 The fact that the authorities refer to a general rule acknowledges that there will be circumstances in which, either in the exercise of the trial judge's discretion or by the application of rules applicable to appeals, such as r 4 or the proviso, no miscarriage of justice will occur when the general rule was not observed. However, with respect to evidence of such central significance as that of a complainant in a sexual assault case, in my opinion, the general rule should be strictly enforced. 14 In their judgment Howie and Johnson JJ give particular weight to two factors which lead their Honours to conclude that no miscarriage of justice occurred in the present case. First, the jury requested and had available to it the transcript of cross-examination. Secondly, on viewing the videotape, their Honours conclude that the mode of delivery of the evidence by the complainant was not such as to have an impact upon the jury's deliberations, even if replayed more than once. Their Honours also give weight to the fact that the Appellant did not give evidence and accordingly "there could be no imbalance in favour of the Crown case". 15 Determining whether or not all of the circumstances of the case are such that a miscarriage of justice occurred is a matter upon which judicial minds will differ. I have come to a different view in this regard. 16 I have also viewed the videotape and agree with their Honours that the complainant answers the questions in an unemotional manner which is appropriately described as "matter of fact". I would go further and say that she gives her evidence in a confident manner without prompting and with precise recollection in many respects but with an understandable hesitation about some details. Contrary to the view reached by their Honours, in my opinion, evidence given in this manner is capable of being highly persuasive. Any such effect would be reinforced by repetition. In order for videotape evidence to have disproportionate effect through repetition it is not necessary for the evidence to appeal to the emotions of the viewer. The overall impression of the complainant's evidence upon me was that it was highly persuasive and that that effect would be accentuated by repetition. 17 The Crown did not rely only on the videotape for its evidence from the complainant. She was examined in chief and repeated a number of matters of substance that were contained in her answers to questions on the videotape. 18 It is of course material that the jury called for and had available to it the transcript of the cross-examination, most of which was directed to the complainant's credit. This does distinguish this case from some of the other cases in which access to videotape evidence has been considered. Nevertheless, the videotape evidence, by its very nature, is of greater force than a transcript. Whatever impression a jury may have been left with at the end of the complainant's oral evidence as to her credibility could easily have been altered when the whole of the evidence was reviewed in the jury room, where the videotape had to be compared with the transcript. 19 Finally, I would not give weight to the circumstance that the Appellant did not give evidence in this regard. There may be a relevant imbalance in the sense of disproportionate weight being given to part of the evidence even though the accused has exercised his right not to give evidence. In the present case the possibility of disproportionate weight existed by comparison between the evidence on the videotape on the one hand and the evidence, both evidence in chief and cross-examination, available to the jury only in the form of a transcript, on the other hand. 20 In my opinion, there was a miscarriage of justice. The appeal should be allowed and a new trial ordered. 21 WOOD CJ at CL: I have read in draft the judgment of Howie and Johnson JJ. I have also viewed the videotape of the complainant's interview which was admitted as an exhibit in the trial, without objection. In my view it was entirely unremarkable. I am unpersuaded that its presence in the jury room gave rise to any tangible risk, in the context of this case, of it having been a disproportionate weight. I agree with their Honours' reasons for dismissing the appeal. I also agree with their views as to the preferred procedure for those cases where the evidence in chief of a witness has been given by means of a pre recorded videotape. 22 HUNT AJA : I agree with Howie and Johnson JJ. 23 HOWIE and JOHNSON JJ : On 18 June 2004, the appellant, a juvenile, and a co-accused, MSS, also a juvenile, were arraigned before Judge Ellis (the Judge) and a jury on an indictment containing four counts, two against each accused. The first count, with which each accused was separately charged, alleged an offence of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act , the circumstance of aggravation being that each of the accused was in company with the other. The second count in each case was in the alternative to the first count and alleged an offence of having sexual intercourse with a child between the age of 10 and 16 years contrary to s 66C of the Crimes Act . The appellant and his co-accused both pleaded not guilty to each count on the indictment. All of the charges related to the same complainant who was aged 14 years and 3 months at the time of the incident giving rise to the charges. 24 On 18 June 2004 the jury convicted the applicant of the s 61J offence. As a consequence the Judge sentenced him to a term of five years imprisonment with a non-parole period of two years and six months. That sentence was to date from 22 October 2004 and the Judge made an order pursuant to s 19 of the Children (Criminal Proceedings) Act that the appellant serve the sentence in juvenile detention. The appellant is eligible to be considered for release to parole on 21 April 2007. 25 The jury found MSS not guilty of the s 61J offence but convicted him of the s 66C offence. The Judge sentenced him to imprisonment for 18 months with a non-parole period of 9 months and also ordered that he serve the sentence in juvenile detention. On 22 June 2005 this Court, differently constituted, dismissed an appeal by MSS against sentence. 26 The appellant appeals against his conviction but there is no challenge to the sentence imposed upon him.

[37]

The Crown case 27 On Wednesday 29 January 2003 the complainant and two of her friends, a male, JK, and a female, AJ, were celebrating the last day of the school holidays. They were planning to stay in a park overnight, together with the complainant's brother and her boyfriend. They had arranged to meet MSS, who was the boyfriend of the complainant's best friend, at the park. MSS was aged 14 years and 9 months. It was arranged that MSS would bring some alcohol with him. 28 MSS arrived at the park at 12.30 am on Thursday 30 January 2003. He had driven to the park in his father's vehicle notwithstanding that he was not a licensed driver and had not been given permission to take the vehicle. MSS brought three bottles of alcohol, one of which was a bottle of Tequila. MSS then drove the complainant and her two friends to another park, having picked up the complainant's brother and her boyfriend along the way. At the park the complainant and AJ consumed almost the whole of the bottle of Tequila, leaving them both well intoxicated. 29 At one point in time the four went with MSS for a drive in his father's vehicle. During the drive MSS received a call on his mobile phone from the appellant and picked him up in the vehicle. The appellant was then aged 15 years and 4 months and a friend of MSS. The complainant knew of the appellant from school, but not very well. MSS and his five passengers returned to the park where they stayed for a short period. MSS and the appellant then drove the complainant and her two friends to a service station so that she and AJ could use the toilet. They returned to the park briefly, but the complainant indicated that she needed to use the toilet again and so MSS and the appellant drove her back to the service station, leaving JK and AJ at the park and dropping off her brother and boyfriend at another park on the way. It was by this time about 3 am. 30 After visiting the service station the three left in the vehicle to return to the park where the complaint's friends were waiting. MSS was driving, the appellant was in the front passenger seat and the complainant was seated in the rear of the vehicle. After a short time, MSS stopped the car and joined the complainant on the back seat while the appellant drove the vehicle around the streets. MSS started to take the complainant's pants off but she was saying 'no' and pushing him away. MSS succeeded in removing her pants and underpants and then digitally penetrated her vagina. It was in respect of this act that MSS was convicted of the s 66C offence. 31 After a short while, the appellant stopped the vehicle and exchanged places with MSS who continued driving. The complainant was trying to find her clothing that had been thrown on the floor by MSS. The appellant started to flirt with her but she said that she had a boyfriend. Both the appellant and MSS told her not to worry as he would not find out. Despite her protestations and attempts to move away from him, the appellant got on top of the complainant and inserted his penis into her vagina. 32 A short time later MSS and the appellant again changed places and the appellant continued driving the vehicle. MSS attempted to have intercourse with the complainant but she pushed him way and he desisted. She then found her clothing and asked to be taken back to the park where AJ was waiting. They then returned to the park. The complainant was dishevelled and distressed. AJ asked whether the appellant and MSS had raped her and she said they had. 33 MSS and the appellant then took the complainant, JK and AJ to the park where they had dropped off her brother and boyfriend. The complainant told them what had happened. It was then about 4 or 5 am. She fell asleep in the park and later walked home with her boyfriend. The mother of a friend of the complainant found out about the allegation and contacted the complainant's mother. Complaint was made to the police on 30 January 2003 and a video-recorded interview conducted on 3 February 2003. 34 MSS attended the police station with his father and solicitor on 6 February 2003 and declined to participate in an interview. The appellant attended the police station on 13 February accompanied by his mother and solicitor and also declined to answer police questions.

[42]

There was a miscarriage of justice, as the jury's failure to extend the benefit of the doubt afforded the co-accused but not to the appellant is, in the particular and relevant circumstances of this trial, indicative of such compromise or error of approach as to justify the intervention of the court and the quashing of the conviction. 39 It is more economical and efficient when referring jointly to the respondent and MSS when considering these grounds of appeal to use the term "the accused". 40 In the course of oral argument Mr Haesler SC, who appeared for the appellant, conceded that it was open for the Court to substitute a verdict of guilty to the alternate count, the s 66C offence, if the Court upheld the first and second grounds of appeal but rejected the third and fourth grounds. In other words, he did not argue that the evidence of the complainant was so unreliable that it was not open to the jury to accept beyond reasonable doubt that sexual intercourse took place between the appellant and the complainant. Nor did he submit that, without having regard to the verdict in respect of MSS, the jury ought to have had a reasonable doubt on the s 61J offence. 41 The argument advanced in support of these grounds of appeal was that there was no rational basis upon which the jury could convict the appellant of the s 61J offence and yet acquit MSS of that offence. It was submitted that such a result was unfair to the appellant having regard to the evidence of the complainant that both accused had sexual intercourse with her without her consent and that she made clear her lack of consent to each of them at the time they were independently assaulting her. 42 In support of these arguments reliance was placed upon well-known authorities of this Court and the High Court concerned with a ground of appeal asserting that there are inconsistent verdicts arising in cases where there was a single accused facing multiple counts arising from the evidence of a single complainant: see for example Jones v The Queen (1997) 191 CLR 439; R v Markuleski (2001) 52 NSWLR 82; and MFA v The Queen (2002) 213 CLR 606. It is unnecessary to examine those authorities in detail to resolve the present grounds of appeal. However, it can be accepted that the principles that are to be applied in resolving a ground of appeal asserting that verdicts in respect of a single accused are inconsistent apply equally when a question arises as to whether verdicts given by a jury in respect of more than one accused are inconsistent. 43 In Osland v The Queen (1998) 197 CLR 316 the issue was whether a verdict of guilty of murder pronounced by the jury against one accused was inconsistent with the failure of the same jury to find the co-accused guilty of murder in a case where the prosecution was alleging that the two accused acted in concert to murder the deceased. In the course of his judgment McHugh J summarised the principles to be applied when determining whether verdicts were inconsistent as follows (footnotes omitted):

[46]

The conduct of the trial 45 It was never suggested to the jury during the course of addresses or in the summing up that the verdicts for the accused had to be the same or that they were expected to be the same. The Crown in its final address told the jury that the alternative count under s 66C was available if they found "each of the accused or one of the accused is not guilty on the principal charge". 46 The Judge gave the jury the usual directions as to the way they were to approach a joint trial of the accused. Thus he directed the jury, both at the outset of the trial and during the summing up, that there were two trials taking place. In his remarks at the commencement of the trial the Judge told the jury that there might be different verdicts because of the different strengths of the evidence against each accused. He also told the jury that there was some evidence admissible against one accused but not against the other. During the course of the summing up he identified this evidence as being the admissions allegedly made by MSS to AJ, a friend of the complainant. 47 The summing up contained the conventional direction to the jury that they were not bound to accept all of what a witness said and they could reject part of the evidence and yet act upon the remainder. Although this direction was not made in reference to the evidence of the complainant in particular, it was clearly left open to the jury to apply that general direction to the complainant. The judge also gave standard directions to the jury as to the evaluation of the honesty and reliability of witnesses and what effect a finding of a lack of honesty or reliability against a witness might have on the use to be made of any part of the evidence of that witness. In respect of the complainant's evidence the Judge warned the jury that they had to scrutinise her evidence with care before acting upon it to convict either of the accused. 48 There was, therefore, nothing in the way the trial was conducted that led the jury to believe, or ought to have led them to believe, that they could not bring in different verdicts in respect of each of the two accused based upon the evidence in the trial. Rather the jury had been told that they might, by reason of the differences in the evidence, bring in different verdicts.

[47]

The Crown case 49 In determining these two grounds of appeal it is necessary to consider whether there was any reasonable basis upon which the jury could distinguish the Crown case against the appellant from that against MSS so entitling them to find, on the one hand, that in the case of MSS an element of the charge under s 61J was not proved beyond reasonable doubt and yet could find, on the other hand, that the Crown case against the appellant on that charge had been proved to that standard. 50 There were, of course, differences between the elements of the two charges that each of the accused faced. The crucial elements of the s 61J offence were: that sexual intercourse took place; that the complainant was not consenting to the intercourse; and that the accused knew she was not consenting. The crucial element of the s 66C count was that sexual intercourse took place. Consent to intercourse and the accused's knowledge about that fact were irrelevant to proof of the alternative charge. 51 The alternative count was obviously before the jury in case they had a doubt about the lack of consent to intercourse. But it was also available to the jury if they had a doubt about an accused's belief that she was not consenting. As will be seen, the case was never left to the jury against both accused simply on the basis that the relevant issues were: (1) whether intercourse took place and (2) if it did, whether the complainant was consenting. In respect of MSS a further issue arose as to whether he might have had a belief that the complainant was consenting, even though MSS's counsel did not, for obvious tactical reasons, address on this issue. 52 The verdicts of the jury must be taken to mean that the they were satisfied beyond reasonable doubt that the complainant's evidence was reliable insofar as her allegation was that both MSS and the appellant had intercourse with her. The Judge, when sentencing MSS, explained his acquittal of the s 61J offence on the basis that, although the complainant was not consenting to his assault upon her, the jury had a doubt that MSS knew she was not consenting. That finding was consistent with the basis upon which the Crown explained the presence of the alternative count to the jury: that they may have been left with a doubt on the s 61J offence of either lack of consent or the accused's belief that the complainant was not consenting.

[48]

The complainant's evidence 53 However, Mr Haesler has argued that the different verdicts cannot be explained upon any rational conclusion based upon a difference between the two accused on the issue of belief in consent, as this was not the basis upon which the trial was conducted by the Crown or the defence. He submitted that it was clear that the complainant's account was that she was not consenting to the actions of either of the accused and made this clear to each of them both by what she said and what she did at the time that each was assaulting her. In respect of MSS the complainant's evidence was that she had told him "no" more than once when he was assaulting her. She said it in an angry tone and while trying to push him away. She also told him "to get off". Mr Haesler relied upon the similarity of the accounts given by the complainant as to her reaction to the acts of each of the accused as negativing any suggestion that the jury could have reached different verdicts based upon her conduct alone. 54 Mr Haesler submitted that, notwithstanding the finding made by the Judge when sentencing MSS, there was no reasonable basis upon which the jury could distinguish between the states of mind of the two accused when they were allegedly assaulting the complainant, particularly as neither accused had given any account of the incident either to the police or in evidence at that trial. 55 As has already been noted, MSS did not give evidence. On his behalf counsel appearing for him at the trial put to the complainant that MSS did not sexually assault her as she alleged and it was suggested in cross-examination of her that in effect the complainant had made up the allegation because she was indignant that MSS had rebuffed her attentions toward him during the evening. Counsel appearing for MSS stressed to the jury those matters that might undermine the reliability of the complainant including her intoxicated state and its affect upon her perceptions of what was occurring. 56 One of the particular matters relied upon by counsel for MSS to suggest to the jury that the complainant was unreliable was her account of the removal of her pants and underpants by MSS in the rear of the vehicle. Counsel in his address quoted a passage of the cross-examination of the complainant about this particular issue. He submitted to the jury that they "might find it hard to see how her pants could be removed in the manner described if she were conscious and without her consent". Of course the removal of the complainant's clothing was a matter distinctly relevant to the charge against MSS because on the complainant's account the appellant was driving the vehicle at this time. 57 Another matter relevant principally to the jury's consideration of the case against MSS was the complainant's evidence that MSS had attempted to assault her a second time after the appellant had done so, but that she pushed him away and he desisted from any further attempt. Counsel for MSS used this evidence to criticise the complainant's account of the act of intercourse allegedly committed upon her by MSS arguing that, if she had been able to prevent MSS's later assault upon her, there was no reason why she could not have successfully prevented the earlier assault.

[49]

Two separate and distinct assaults 58 The Crown alleged that there was a common purpose involved in the two accused assaulting the complainant and relied upon the complainant's evidence that they spoke to each other shortly before and during the assaults in a language that she did not understand. However, the case was not conducted on the basis that involved a joint criminal enterprise because each of the assaults upon the complainant was alleged to be a separate act committed independently by each accused without any assistance or encouragement from the other. Neither accused was charged with having aided or abetted the other in his assault upon the complainant. Rather each of the accused was separately charged in the indictment in relation to his alleged act of intercourse. 59 Therefore, the jury was required to consider the alleged act of intercourse committed by one accused independently from that alleged against the other. The jury were also entitled to view each of the assaults as being committed in different circumstances such that different considerations applied when determining whether the complainant consented to the act of intercourse committed by each of the accused and whether either of the accused might have believed that she was consenting. For example, the arguments of counsel for MSS about the unlikelihood of the removal of her clothing, if she were not consenting, and her ability to resist MSS on the second occasion might have been given significance by the jury, not just on the question of whether intercourse took place, but as to the circumstances in which it took place as being relevant to the issue of consent or the possibility of MSS's belief in consent. 60 It may have also been relevant to the jury's consideration of those two issues that the act of intercourse alleged against MSS occurred before that alleged against the appellant and was of a different and, perhaps, less serious nature. In light of the complainant's intoxicated state, the jury might have taken into account, notwithstanding her evidence to the contrary, the possibility that the complainant had reacted differently to the assault by MSS than she did to the assault by the appellant. At least the differences in the nature and the circumstances of the two assaults upon her might have raised the possibility in the jury's mind that there was a sufficient difference in her reactions to the two accused to have given rise to a divergence in the perceptions of MSS and the appellant as to whether she was consenting to their actions. 61 In this regard it may have been of significance that the relationship between the complainant and MSS was different to that between her and the appellant. MSS was one of the complainant's friends and a member of the group that was meeting at the park to celebrate, or commiserate, on the end of the holidays. The appellant was an outsider who came late and apparently at the invitation of MSS. The complainant's evidence was to the effect that she knew of the appellant from school but he was not a friend or associate. The jury may have reasoned that there might have been a different reaction by the complainant to the conduct of MSS than to the conduct of the appellant, particularly having regard to the different nature of the two assaults committed by them, such that they were left with a reasonable doubt as to whether MSS believed she was not consenting. 62 We are not satisfied that it was irrational or unreasonable for the jury to find that they were satisfied beyond reasonable doubt that the acts of intercourse took place and that the complainant had not consented to them but yet to have a doubt about how she conveyed that lack of consent to each of the accused given the different circumstances surrounding the two assaults and her state of intoxication. Even had the evidence relevant to the issues arising at the trial been the same so far as the appellant and MSS were concerned, we believe that the jury were entitled to find that there was a doubt about whether MSS knew the complainant was not consenting at the time he had intercourse with her but not to have held such a doubt in relation to the appellant. But the evidence upon which the jury could distinguish between the two accused on the issue of their states of mind at the relevant time did not rest only on the differences in the nature and circumstances of their assaults upon the complainant.

[54]

If you did that that would not assist the Crown case because the Crown still has to prove to you that she said no. Rejecting that denial does not help the Crown case, it is still necessary for you to be satisfied beyond reasonable doubt on the complainant's evidence that (1) she was not consenting, and, (2) that the accused knew that she was not consenting. 67 There was no objection to this part of the summing up or any request for further directions as to the use to be made of the statement attributed to MSS in the evidence of AJ. These directions indicate that there was a live issue raised for the jury's consideration in the case of MSS that he might have believed that she was consenting notwithstanding that his case at trial was that sexual intercourse did not take place. 68 Had the evidence of the alleged confession to AJ been relied upon only to prove that MSS had admitted having sexual intercourse with the complainant, the jury might well have given it very little weight as part of the Crown case against MSS such was the unsatisfactory nature of the evidence. But insofar as the evidence might have raised an issue as to the belief of MSS about consent and thus was being used, in the words of the Judge, "favourably to the accused", its unsatisfactory nature and the criticisms that could be made of it had less importance. In our opinion this evidence, when considered against the difference in the nature of the alleged assaults between the two accused and the differing circumstances in which the alleged assaults occurred, provided the jury with a reasonable and rational basis for distinguishing between the appellant and MSS. 69 We are of the opinion that it was well within the jury's right as the tribunal of fact to conclude on all the evidence that the elements of the s 61J offence were made out against the appellant beyond reasonable doubt but not to make such a finding in the case of MSS. We are unpersuaded that it was not open to the jury to find that the complainant's evidence was generally reliable as to the conduct of both accused and her lack of consent to that conduct but to have a doubt about the detail of how she manifested her lack of consent to each of the accused taking into account the differences in the nature and circumstances of the assaults upon her and her highly intoxicated state. The alleged admission by MSS to AJ raised in a real sense the issue of his state of mind where no such issue arose in the evidence against the appellant. The jury were at least entitled to have a doubt whether the Crown had proved belief in lack of consent in the case of MSS on the s 61J charge but not to have such a doubt in the case of the appellant. 70 It follows that the appellant has not satisfied us that the different verdicts amount to "an affront to logic and common sense" and suggest a compromise: see MFA v The Queen at [86]. Therefore, grounds one and two must fail.

[55]

Grounds 3 and 4 - The videotape evidence Background 71 The evidence adduced by the Crown from each of the complainant, her brother, her boyfriend, JK and AJ was given substantially by way of the playing of a videotape of an interview between the witness and a police officer. In each case further examination in chief and cross-examination was conducted by questioning of the witness, who was not present in the courtroom but gave the balance of his or her evidence by way of a video-link between the courtroom and a remote location in which the witness was present. 72 This procedure was conducted pursuant to provisions contained in the Evidence (Children) Act 1997 (the Act) and arose from the fact that each of these witnesses was under the age of 16 years at the time of giving evidence: see s 6 of the Act. Neither defence counsel raised any objection to the manner in which these witnesses gave evidence nor was it suggested in this Court that the procedure undertaken was not in accordance with the Act. 73 The videotapes of the interviews with the witnesses were tendered as exhibits. There was, with one minor exception, no objection to that course. 74 A transcript of each of the videotaped interviews was provided to the jury. No objection was taken to that course. 75 The videotapes were made available with the rest of the exhibits to the jury when they retired. No objection was taken to that course. 76 Warnings were given to the jury by the Judge as to the way they were to approach the manner in which these witnesses gave evidence in accordance with the warning prescribed in ss 14 and 25 of the Act. No further direction or warning was sought in relation to the use to be made by the jury of the videotapes during the course of their deliberations. 77 The jury retired to consider its verdict at 10.35 am on 16 June 2004. At midday the jury requested and received copies of the transcript of the complainant's evidence in chief, cross-examination and re-examination. 78 The jury returned its verdicts at 3pm on 18 June 2004, having spent about 20 hours in deliberations. The jury had been given an exhortation to reach a unanimous verdict, a " Black direction", at 4.35 pm on 16 June 2004. 79 With this background in mind it is necessary to consider the third and fourth grounds of appeal which are:

[95]

(a) United Kingdom 106 The series of cases relied upon by the appellant has its genesis in the decision of the Court of Appeal in R v Rawlings [1995] 1 WLR 178. In delivering the judgment of the Court Lord Taylor of Gosforth CJ set out a number of principles to be applied where a complainant's evidence in chief is given by way of videotaped evidence (at page 183): In our judgment, it is a matter for the judge's discretion as to whether the jury's request for the video to be replayed should be granted or refused. He must have in mind the need to guard against unfairness deriving from the replay of only the evidence-in-chief of the complainant. Usually, if the jury simply wish to be reminded of what the witness said, it would be sufficient and most expeditious to remind them from his own note. If, however, the circumstances suggest or the jury indicate that how the words were spoken is of importance to them, the judge may in his discretion allow the video or the relevant part of it to be replayed. It would be prudent where the reason for the request is not stated or obvious for the judge to ask whether the jury wish to be reminded of something said which he may be able to give them from his note or whether they wish to be reminded of how the words were said. If the judge does allow the video to be replayed, he should comply with the following three requirements. (a) The replay should be in court with judge, counsel and defendant present. (b) The judge should warn the jury that because they are hearing the evidence-in-chief of the complainant repeated a second time well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case. (c) To assist in maintaining a fair balance, he should, after the replay of the video, remind the jury of the cross-examination and re-examination of the complainant from his notes, whether the jury asked him to do so or not. 107 The relevant provision considered by the Court of Appeal is found extracted in the judgment of the Court. Section 32A(2) of the Criminal Justice Act 1988 relevantly states:

[100]

R v Rawlings 108 We have already quoted the relevant part of the judgment in which the Court laid down what were in effect guidelines for the use of videotapes as evidence in chief of a witness. It should be noted that the practice of the trial courts in England, as stated in the judgment, differs from the practice of trial courts in this State. The trial judge in England uses his or her notes to remind the jury of the evidence even if a transcript is available. The Court noted that it was usual for a trial judge to refuse to give the jury a transcript of some part of the evidence because of the undue weight that may be given to the evidence contained in the transcript. In this State the jury is regularly given a transcript of the evidence or parts of the evidence where the jury requests it. 109 The Court noted the competing arguments made before it on the use of the videotape after the jury had retired. It was argued, on the one hand, that the jury should be able to remind itself of the evidence from the best source available, being the videotape of the witness's statement. On the other hand, it was argued that replaying the videotape to the jury after retirement could give undue prominence to the evidence in chief at the expense of cross-examination. 110 The Court considered decisions in respect of the use of tape recordings of interviews between police and the accused by the jury after retirement and which held that if the jury wished to view the tape they should be allowed to do so. The Court referred to R v Riaz (1991) 94 Cr App R 339 in which it was held that, if the jury wished to review the tape of the interview, they should do so in open court. The Court in Rawlings , however, distinguished that situation from that where the tape was the evidence in chief of a witness because of the risk of undue emphasis to the evidence in the videotape over the cross-examination of the witness. 111 The Court held that the videotape could be made an exhibit but this was not a decisive factor in determining whether the tape should be replayed to the jury after its retirement.

[127]

[18] In the case for this Court's consideration, the learned trial judge was not informed of the discretion he had pursuant to s99 of the Act, nor was he informed of the substantial body of weighty judicial opinion that the videotaped evidence of a child under the equivalent of s93A of the Act should not go into the jury room during deliberations. There is a real danger that in replaying a videotape, possibly many times, the jury may overemphasise that evidence, as against other evidence in the case, particularly cross-examination. S99 of the Act clearly gives a trial judge a discretion to withhold such an exhibit from the jury room, although such a discretion exists independently of the Act. Without in any way limiting that exercise of discretion, the principles discussed in the authorities I have reviewed suggest that as a general rule, at least in the absence of the consent of both Crown and defence, videotaped evidence tendered under s93A of the Act will not be permitted to go into the jury room during deliberations. If the jury request to hear the evidence of the complainant child a trial judge must deal with each situation on the facts as they arise. As Shepherdson J notes in his judgment, a trial judge must be careful that any questioning does not intrude on the confidentiality of the jury's deliberations. If the judge decides to allow the jury to view the videotape, this should generally be done after discussing the proposed procedure with counsel in open court. The judge should also warn the jury that because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case. It is not in our view necessary in every case after replaying the videotape to remind the jury of the cross-examination and re-examination of the complainant from the judge's notes or transcript, where this is not requested by the jury. 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. As Shepherdson J points out in his judgment, such an approach is consistent with the comments of Brennan CJ in Bulejcik v The Queen [(1986) 185 CLR 375 at 385-386]. 124 Shepherdson J generally agreed with the judgment of the President. However, he emphasised that the jury's deliberations lacked balance by the fact that they could replay the videotape in the circumstances where they neither had access to the transcript of the cross-examination nor had been reminded of the salient parts of the cross-examination. His Honour held that s 99 was a reflection of a common law power to withhold an exhibit. He went on at 295:

[146]

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 videotaped 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 videotape, 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 videotape, 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, above. 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. 135 Although Winneke P raised the issue of whether the irregularity that occurred in the trial was one that could be overcome by the proviso or whether to the contrary it was "such a departure from the essential requirements of the law that it went to the root of the proceedings", he found that he did not have to decide that question. Winneke P was unable to conclude that the jury would have inevitably convicted the accused had the irregularity not occurred. 136 Callaway JA agreed with the President. His Honour stated at 524:

[150]

[11] As this Court pointed out in R v BAH, the procedure contemplated by s37B of the Evidence Act represents a significant departure from criminal procedure as recognized by the common law. There is no doubt that the statutory procedure was introduced to mitigate the potential for emotional trauma which commonly afflicts child complainants when they are asked to recount - perhaps years later - events which are extremely personal and embarrassing to them. However, it should not be forgotten that what is visually and audio recorded is but part of the evidence in the trial; and - in the majority of cases - will be but part of the complainant's evidence in the trial. To permit the jury to have unrestricted access to this portion of the evidence, after the close of evidence, addresses and charge, is calculated to create an imbalance of fairness adverse to the interests of the accused because it courts the danger that the jury will afford disproportionate weight to this portion of the evidence taken out of its context. Of course the jury is entitled to be reminded of that portion of a child witness's evidence recorded on a VATE tape; as it is entitled to be reminded of any other evidence in the trial. But if it does wish to be so reminded, then it should be done in open court and accompanied by the "balancing warnings" to which this Court referred in R v BAH. 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 s568(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. It is my opinion that, in this State, a VATE tape should not be admitted as an exhibit in the trial; rather it should be marked "for identification". In my view s37B of the Evidence Act permits this pre-recorded form of evidence to stand as "the evidence-in-chief of a [child] witness for the prosecution" (subs(2)) and the recording is admissible in the proceedings "as if its contents were the direct testimony of the witness ..." (subs(3)). The purpose of these provisions is, as I have said, to alleviate potential distress of child witnesses in giving evidence in the types of proceedings to which the provisions apply. Otherwise, the use of the technology - which s37B contemplates - is not intended to distort the balance of fairness in the trial which the common law procedure in criminal trials is designed to preserve. 140 Callaway JA agreed with the judgment of the President but with two qualifications, only the second of which is relevant to the present issue. His Honour stated at 92:

[173]

Considerations of comity 155 The appellant has urged the Court to adopt the procedures and principles set out in the above decisions of intermediate appellate courts in Victoria and Queensland in support of his argument that we should uphold Grounds 3 and 4. In particular reliance is placed upon statements of members of the Court of Appeal of Victoria that have held that the provisions of the video tape to the jury giving them unsupervised access to it is a fundamental irregularity going to the root of the trial. The importance of those statements to the facts in the present matter is that no objection was taken to the procedure adopted and no request was made for any direction or warning as to the way the jury should approach the use of the videotape during the course of its deliberations. In the normal case the appellant would face the hurdle of rule 4 of the Criminal Appeal Rules . It is appropriate then to consider the applicable principles when this Court is being asked to follow decisions of intermediate appellate courts in other Australian jurisdictions with respect to similar legislation. 156 When construing Commonwealth legislation, this Court is entitled to reach its own decision, different from that of an intermediate appellate court of another State. However, a rule of comity applies so that the Court may depart from such a decision with caution and when satisfied that the law and justice of the case require such a result: R v Mai (1992) 26 NSWLR 371 at 382; R v Hookham (1993) 31 NSWLR 381 at 390-391. In Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492, it was stated that an intermediate appellate court should not depart from an interpretation placed upon uniform national legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong. 157 The New South Wales Court of Appeal has considered the approach that is appropriate when High Court dictum and a Victorian decision are inconsistent with New South Wales authority. In Camden Park Estate Pty Limited v O'Toole (1969) 72 SR(NSW) 188, the Court (Herron CJ, Sugerman and Jacobs JJA) said at 190E:

[179]

The matters I have referred to all combine both to confirm me in my own view of the meaning of the words in question in the present case and to make me think that the Court should depart in the present case from the rule of comity pursuant to which it usually follows the decisions of courts of like position in other Australian jurisdictions on similar points . I regard that rule as a sound one for most purposes. The matters I have mentioned which seem to me to be present in the case now before us lead me to think that the reasons for adopting the view which I think is the right one are so strong that in this case an exception should be made to the rule. (emphasis added) 160 The rule of comity referred to in Fernando appears to have application where the Court is considering a decision of another Australian intermediate appellate court that has interpreted an identical or substantially similar provision in a State statute. It might be said, at one level, that there is no controversy arising from the decisions of the intermediate appellate courts in Victorian and Queensland. There is no debate about the proper construction of the NSW, Victorian and Queensland statutory provisions. The Victorian and Queensland statutes permit the videotape of the complainant's interview to be played as part of the evidence in chief of the complainant at the trial. The NSW provision, in broad terms, provides to the same effect, although there appear to be some differences in the statutory schemes, for example, by s15 of the NSW Act the court can refuse to allow the evidence to be given by the playing of the videotape if it is not in the "interests of justice" to do so. There does not appear to be a corresponding Victorian provision to this effect. 161 The decision in R v BAH and the other cases, upon which the appellant relies, relate to what follows, in two respects, once the videotape is played to the jury as part of the complainant's evidence in chief: firstly, the circumstances in which the replaying of the videotape can occur and, secondly, any directions which may be required in the event that the tape is replayed. Issues of this type may be affected by local practice, for example, whether exhibits usually go to the jury room and whether the jury is provided with the transcript of evidence, or parts thereof, upon request. Certain provisions in the Jury Act (NSW) are also pertinent, see ss 55A and 55C, and there are no equivalent provisions in Victoria. 162 To the extent that the principles in the Victorian and Queensland cases constitute a type of common law gloss on the relevant statutory provisions, the question arises whether that common law gloss is subject to the Fernando rule of comity. 163 In answering this question, it is necessary to bear in mind that there is an elaborate statutory scheme in NSW contained in the Evidence Act which is to be read and applied in conjunction with the Evidence (Children) Act : see s 5 referred to above. Victoria and Queensland do not have an Evidence Act based upon the Commonwealth model, having not yet followed the Commonwealth, NSW and Tasmania in this regard. The relevant Victorian and Queensland legislation is not part of an inter-related statutory scheme governing the law of evidence, as is the case in this State. This appears to us to be a significant point of distinction between the relevant provisions in this State and those in Queensland and Victoria. Does this make a difference to the application of the Fernando rule of comity? 164 In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562-3, the Full High Court said:

[185]

Conclusions (a) Fairness considerations 169 It is clear that the consideration guiding the decisions that are relied upon by the appellant and to which we have referred in detail is to ensure the fairness of a trial where important, if not crucial, evidence in the Crown case is given, at least partially, by the playing of a videotape of what is in effect the complaint upon which the prosecution is based. That policy is to some degree a reaction to what has been seen as a radical departure from a criminal trial as it was understood at common law by evidence being given in a form other than viva voce by the witness in the body of the court. 170 It is clear from the second reading speech introducing the Evidence (Children) Bill that the procedure of recording a child's statement or interview with police was not introduced only to produce material to be used in court: see Hansard Legislative Assembly 25 November 1997, pp2451-3. One of the objectives of introducing this procedure was to reduce the trauma for children giving evidence, but it was also to aid in maintaining the reliability of the child's account from contamination or a failure of recollection over time. While such measures are admirable, it is clear that they cannot be allowed to interfere with the fairness of a criminal trial and they were not intended to have that result. 171 Parliament itself has taken some measures to ensure the fairness of a trial where such a procedure is used. So the provisions of the Act require that the judge give the jury directions and warnings as to the manner in which they are to approach this type of evidence and other exceptional procedural steps taken in respect of child witnesses: see the warnings set out in ss 14 and 25. But simply because the legislature has gone some way in this regard, it does not follow that the court should refuse to exercise its undoubted power to fashion procedural and other safeguards to guarantee that the introduction of procedures to assist a child witness does not result in unacceptable unfairness to an accused person. 172 The cases cited all involve the evidence in chief of a complainant in a sexual assault matter. But the consideration of fairness, although perhaps more apparent in such a case by reason of the nature of such a prosecution, is not limited to a prosecution for a sexual offence or to the evidence of the complainant. In the present case a number of Crown witnesses gave evidence by this method. The provisions relied upon by the Crown apply to all child witnesses regardless of their importance to the Crown case or the type of offence being tried. It is not difficult to imagine scenarios where the evidence given by the playing of a videotape can be crucial to the Crown case although not being the evidence of the complainant or the victim of the offence charged. For example, evidence of an admission made to the witness or evidence of identification of the accused as the perpetrator of the offence might be given in this form. 173 Any rule of practice or procedure in relation to the use of the videotape by the jury after it is played as evidence in chief should take into account the varying situations where such evidence may be used. Of course the fact that the videotape contains the evidence of the complainant of the allegations giving rise to the charge brings the issue into sharp focus. But it should not be assumed that imbalance or unfairness would follow from all breaches of any practice that this Court might adopt in relation to the use of videotape evidence as evidence in chief of a witness. For example, in the present case it could not reasonably be suggested that the evidence of each of the witnesses who gave evidence by way of the playing of a videotape had the same significance to the Crown case or that the replaying of any one of the videotapes by the jury after retirement, if it occurred, was likely to have the same impact upon the jury's deliberation or was likely to give rise to the same degree of unfairness or imbalance in the jury's consideration of the Crown case as might have resulted from the replaying of the videotape of the complainant's evidence in chief. 174 Nor should it be assumed that the replaying of the videotape of the evidence of the complainant would always have the same effect upon the fairness of the trial. It may be the case, for example, that there is an imperfection in the videotaping of the witness's statement that deprives it of the impact it might otherwise have presented. For those who have experienced the results of police efforts to videotape the interrogations of suspects in this State, it would come as no surprise that the tape may not in fact contain an image of the witness. In one of the videotapes played in the present case, the jury were confronted throughout the whole of the child's interview with the back of the police officer's head and the child could not be seen. In such a case there might be little difference between the replaying of the videotape and the replaying of an audiotape of the evidence given by the witness, a not uncommon occurrence in the District Court: cf Bulejcik v The Queen [1996] 185 CLR 375 where the jury asked to hear the recording of the dock statement of the accused replayed for the purposes of voice identification. 175 For reasons we shall give later, we do not believe that this Court should follow the statements of some members of the Court of Appeal in Victoria to the effect that a breach of any rule of practice or procedure in relation to the use of videotape evidence should inevitably be viewed as an irregularity going to the root of the trial and thereby resulting in a miscarriage of justice. Because we envisage a variety of situations in which such evidence would be placed before a jury and because the significance of that evidence will vary dramatically from case to case, we do not believe that any hard and fast rule should be developed about the result of a breach of the preferred or appropriate procedure with regard to such evidence. 176 As Eames JA recognised in Lyne at 531 ([33]), quoted above, changes in technology will continue to effect changes to the way criminal trials are conducted and the procedural rules to ensure the fairness of the trial have to keep pace with those changes and be adjusted accordingly. In his article, to which reference has already been made, Mr Corns notes that it was not in the far distant past that the tape recording of police interviews with suspects was viewed as impractical or "radical". One does not have to be very prescient to envisage a time when all the evidence in a trial is recorded by videotaping. It is now recorded on audiotape in most, if not all, Local and District Courts in this State. Western Australia has gone some way down this path with provisions enabling the whole of a complainant's evidence including cross-examination to be recorded for later use in a trial: see Evidence Act 1906 (WA) s 106I(1)(b).

[186]

(b)Evidence by electronic recording 177 There are many occasions when evidence is placed before a jury by the use of electrical recording of images and the human voice. The most obvious cases are where there has been a recorded interview of a suspected person by the police and the lawful recording of conversations by the use of a listening device or a telephone interception. But there are also videotaped re-enactments of the offence, video-taped identification parades and views of the scene of a crime often with the use of computer enhancements. These are common features of modern criminal trials. 178 In our experience the practice in this State is for the tape or computer disc containing the recording that is to be played to the jury to be received as an exhibit in the trial before it is played. Very often the original recording will have been edited as a result either of an agreement between the parties or a ruling made by the trial judge. Almost invariably where the recording is of the human voice, there will be a transcript of the recording available. It is the usual practice for the transcript to be placed before the jury either to aid them in discerning what is said on the tape recording or as an aide memoire to enable the jury to refer to the contents of the recording during their deliberations without the need to replay the tape: see Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; R v Dellapatrona (1993) 31 NSWLR 123. The jury are invariably directed that the evidence in the trial is what they hear on the tape and not what they read in the transcript where there is divergence between the two. 179 The recording is a "document" for the purposes of the Evidence Act : see the Dictionary to that Act. The transcript is admissible as proof of the contents of the document without any verification of it: s 48(1)(c) and R v Giovannone (2002) 140 A Crim R 1 at [61]. Section 15A of the Evidence (Children) Act empowers the court to order that a transcript be provided to the jury where it would "be likely to aid….the jury's comprehension of the evidence". That section would not preclude the judge providing the jury with a transcript of the videotape as an aide memoire under s 48(1)(c) or permitting the jury to retain it for that purpose. 180 Defence counsel appearing for the appellant at the trial has filed an affidavit suggesting that in his experience tape recordings played to the jury, although admitted as exhibits, are not generally made available to the jury during retirement and, therefore, he did not understand that in the present case the videotapes would be sent to the jury room with the other exhibits. We shall return to this affidavit and its relevance later. However, with respect, our experiences and understanding of the conduct of criminal trials, at least in courthouses in major population centres, are quite to the contrary to that of defence counsel in this trial. We believe it to be the almost invariable practice for the jury to receive the video/audiotape admitted as an exhibit in the jury room when they retire to consider their verdict. It is commonplace in our experience for the jury room to be installed with the means by which the jury are able to replay the tape or disc admitted into evidence during the course of their deliberations. The jury, therefore, has ready access to, for example, the recorded interview between the accused and police or the recordings of intercepted conversations. It also has during its deliberations the transcripts of those recordings. 181 This also appears to be the experience and understanding of Mr Haesler a very experienced practitioner in criminal trials in this State given the following statement appearing in his written submissions to this Court:

[191]

A judge or coroner may refuse to allow an exhibit at the trial or inquest being left with the jurors after they have retired if satisfied that the exhibit or the safety of the jurors would be put at risk. 186 On one view this section limits the power that a judge could have exercised at common law prior to the enactment of the section. It could be argued that Parliament, having entered into the field, has defined the extent of the jurisdiction to withhold an exhibit from the jury in a criminal trial or coronial proceedings. However, we doubt that Parliament could have intended to limit the power of a judge to withhold an exhibit from the jury where the interests of justice required otherwise. 187 There seems to us to be no reason in policy why the legislature would have intended to restrict the power to that specified in the section. Based upon our experience it was the case that prior to the enactment of s 55A a judge would withhold an exhibit from the jury room in cases where there was some danger to the jury or the exhibit from unsupervised access to it. This situation arose most usually in the case of weapons or drugs. We believe that s 55A was enacted simply to codify this practice without seeking to suggest that there was no other occasion when a judge could withhold an exhibit if it were really necessary to do so in order to ensure a fair trial. 188 We are confirmed in this view when consideration is given to the fact that the provision arose from Recommendation 52 of the NSW Law Reform Commission's Report 48 (1986) Criminal Procedure: The Jury in a Criminal Trial . The recommendation was in terms similar to the provision found in s 55A. However, the commentary to the recommendation recognised that a discretion may exist "to exclude 'exhibits of a highly inflammatory and prejudicial nature'". There is a footnote to the this passage referring to a statement in the judgment of Stephen J in Kozul v The Queen (1980-1981) 147 CLR 221 at 234 acknowledging the possibility of such a power. After referring to the undoubted power of the court to withhold exhibits which would present a danger to the jury or where the integrity of the exhibit might itself be put at risk, the commentary concludes with the following statement:

[194]

(1) If a person is convicted of a sexual offence and, on an appeal against the conviction, a new trial is ordered, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant. 192 However, we believe that it was likely to have been a matter of complete indifference to the legislature how the court would deal with the actual videotape once it had been played to the jury. We cannot see why it should not be assumed that Parliament would have left such a matter of detail to be dealt with by the provisions of the Evidence Act , if there were any applicable, or for the court simply to apply those procedures that it thought to be appropriate to the conduct of the trial in the particular case. It can safely be assumed that Parliament would understand that the court regularly had electronically recorded material played to a jury during the course of a criminal trial and had procedures in place for dealing with such a situation. 193 However that may be, it is unnecessary to resolve the issue of whether the legislature intended that the videotape once played would, or would not, become an exhibit in order to deal with the third and fourth grounds of appeal. Mr Haesler conceded during argument that he did not rely upon the fact that the tapes in the present case were admitted into evidence as having any bearing on the fairness and balance of the trial or the merits of these grounds of appeal. It is what happened after the tapes were admitted into evidence that he viewed as significant. If it is accepted that a judge does have power to withhold an exhibit from the jury to ensure a fair trial to the accused, then it does not matter strictly speaking whether the videotape becomes an exhibit or not. 194 We believe that there is no basis upon which the tape should become an exhibit because once it is played to the jury as the evidence in chief of the witness it becomes part of the court record just as does a recording of the viva voce evidence of any other witness. That this is so is apparent from the wording of ss 11(1) and 15(2): see [88] and [96] above, which emphasise that the evidence in chief of the witness is given "by a recording". It is in this regard that the videotaped evidence of a child witness differs from evidence of earlier events established by way of videotaping, such as recorded interviews with police or identification parades, see Davies at [26]. As was made clear in Bulecjik , a recording of the evidence given in court or the transcript of that evidence is not itself evidence, cannot be tendered by either party and cannot be made an exhibit: 386; 400. 195 We believe, with respect, that there is merit in the views expressed in the cases, to which we have referred, that the videotape should not, as a matter of course, be sent to the jury after it retires to consider its verdict. If the jury wish to have the tape replayed, the judge can determine how best to accommodate the jury's request depending upon the significance of the tape and the likelihood that unfairness or imbalance in the trial would result by giving the jury access to it. The judgments in Bulecjik make it clear that there can be no objection to refreshing the jury's recollection from the playing of a tape recording of a witnesses evidence: see 384, 400.

[195]

(d) Withholding the videotape from the jury room 196 We have already indicated that in our view, to preserve the balance and the fairness of the trial, the videotape should not as a matter of course be sent to the jury room after the jury retires to consider its verdict for the reasons given in the decisions in other jurisdictions to which we have referred. We have already acknowledged that there is a difference between this type of evidence and that arising commonly from the use of videotapes. This is largely because the videotape played under s 9(1)(a) is the evidence in chief of a Crown witness and very often will be critical to the Crown case. As the jury will not have available to it a videotape of the cross-examination of the witness or the evidence of defence witnesses, there is a real risk of imbalance arising. 197 We acknowledge that this may seem an over-cautious approach but we believe that it is better to err in that way when there appears to us to be little significant impediment created to the jury's deliberations by withholding some part of the evidence from them where it is appropriate to do so. The practice we prefer may require reconsideration as more evidence becomes recorded by videotape and so the difference between the evidence in chief of a child witness called by the Crown and other evidence in the trial becomes less dramatic. 198 We also accept that in many cases the fact that the videotape evidence of a child witness has been made an exhibit or otherwise sent to the jury during their deliberations may have no impact at all upon the fairness or balance of the trial. As we have already noted, not all evidence contained in a videotape of a child witness will necessarily be such that the jury's unrestricted or unsupervised access to it could lead to a miscarriage of justice. 199 Hence we believe that there should be a discretion in the trial judge to determine what to do with the tape if the jury request to have it replayed. The judge might determine that the tape should be replayed in open court or that it might be sent to the jury for them to replay it as they wish. How the judge determines to deal with the jury's request will depend upon an assessment of the risk that the unsupervised replaying of the tape may give rise to unfairness and imbalance that cannot be overcome by a suitable warning or a reference to the other evidence in the case. 200 We appreciate that it can be argued that the playing of the tape to the jury as evidence in chief of the child witness should be dealt with in the same way as the evidence in chief of any other witness. As we have pointed out earlier, the purpose of the provision was to preserve the evidence and assist the witness in giving evidence rather than to disturb the balance of the trial by placing the evidence of the child witness in a special category. If the evidence were dealt with on a par with the evidence of every other witness, it would follow that, if the jury wished to be reminded of the evidence, they could simply be assisted by the judge reminding them of the evidence in chief of the witness, together with the cross-examination or they could be provided with a transcript of the whole of the witness's evidence. 201 However, it seems to us that such a course would deprive the jury of the best method available of reminding them of not only what was said by the witness in evidence in chief but also how it was said. In our experience it is not unusual for a judge, when supplying a jury with a transcript of the evidence of a witness, to direct them that they should try to recapture how the witness gave evidence rather than simply to rely upon the written text of the evidence set out in the transcript. We are also aware that, because a transcript is not available or because the jury ask for it, the evidence, or certain parts of the evidence, of a witness are often replayed to the jury from the audio recording of the proceedings made by the Court Reporting Service. There may be little difference between replaying the audiotape of the evidence in chief of a witness and replaying the videotape evidence of a child witness. 202 The means by which a jury has in the past been reminded of evidence has generally been regarded as a matter for the trial judge's discretion exercised after hearing counsel and with the interests of a fair trial for both the prosecution and the defence in mind: Bulejcik at 386. So, in our view, it should be a matter for the discretion of the judge how he or she accommodates the jury's wishes to be reminded of the evidence in chief of a witness given by the playing of a videotape. The judge will no doubt take into account the significance of the evidence and its capacity to create unfairness or imbalance in deciding what course to take.

[196]

(e) Provision of transcripts 203 We have already referred to s 15A of the Evidence (Children) Act that permits the judge to order a transcript of the videotape evidence be provided to the jury where it would be likely to aid the jury's comprehension of the tape. If the transcript is provided for that purpose, it would be expected that the jury would use the transcript when the tape is first being played. In such a case we believe that the transcript should then be withdrawn from the jury. If the jury wishes later to have the transcript of the tape as an aide memoire the judge should determine how best to satisfy the jury's request. 204 In the normal case of a witness giving all evidence viva voce and where a request is made by the jury to be reminded of the evidence in chief of the witness, the judge has two options. The judge can use his or her notes or the transcript to refresh the jury of the salient aspects of the evidence or the judge could provide the jury with the transcript. Often the judge might ask the jury if they wished to be reminded of the whole of the evidence or only part of it. We would expect that normally a judge would not comply with a request to be reminded of part of the evidence of a witness simply by furnishing the jury with the transcript of that part of the evidence of the witness without requiring that the jury should also have the transcript of the cross examination or at least reminding the jury of the cross-examination of the witness: R v Lowe (1997) 98 A Crim R 300 at 309. This would be done in order to maintain balance and fairness so that the jury should not pay regard to the evidence in chief without being reminded of the attack made upon the reliability of the evidence by the defence. What further the judge did to remind the jury of the defence case would be a matter for the judge's discretion. 205 However, we do not believe that the failure of a judge to furnish the jury with the transcript of the cross-examination or to remind them in any detail of the cross-examination would necessarily result in a miscarriage of justice: Lowe at 309-310. We respectfully agree with the view expressed by the Court in R v H that, while it is not necessary to take such a course in every case where the jury ask to be reminded of the evidence in chief of a witness, it might be wise to do so. But, as we have been at pains to point out, each case depends upon its own facts and the response of the judge is best left as a matter of discretion. 206 We believe that no different approach should be adopted in relation to the evidence in chief given by the playing of a videotape. If the jury wants to be reminded of the evidence the judge could, instead of replaying the tape, offer them assistance either by summarising the whole of the evidence including all or part of the cross-examination or by providing the jury with the whole or part of the transcript of the evidence of that witness. What is done depends upon the nature of the jury's request and how that might be addressed with balance and fairness. One would expect the same approach to be adopted if the request were made in respect of the evidence of a defence witness, including the accused. 207 Although s 55C of the Jury Act empowers the trial judge to supply a transcript of the evidence or part of the evidence where the jury requests it, the judge would be entitled to refuse the request unless the jury received the transcript of some other part of the evidence: Lowe , above. The judge would no doubt direct the jury that they should consider the whole of the transcript being supplied and not just that part in respect of which the request was made. The judge would act upon the basis that the jury would comply with that direction. We understand that this is how such requests are routinely dealt with in trials in this State.

[207]

But other than expressing those views, we believe that the request by a jury for the replaying of the tape should be dealt with by the judge in the exercise of discretion bearing in mind the need for fairness and balance in addressing that request. 211 It is, therefore, strictly unnecessary to consider the consequences of any failure to comply with any particular procedure or to give any particular warning or to remind the jury of any particular part of the evidence as a response to the jury's request to have the tape replayed. We acknowledge that the view has been expressed in Victoria that, at least in relation to the evidence of a complainant, unrestricted access to the tape and an absence of a warning or a reminder of cross-examination would result in a procedural irregularity of such a nature that the proviso could not be applied. Perhaps the strongest statements to that effect are by O'Bryan JA in R v BAH , by Winneke P with whom Batt JA agreed in R v Lewis and Charles JA in R v Lyne . But that was not the universal view of all the judges of the Victorian Court of Appeal. It does not appear to be the view of the Queensland Court of Appeal in R v H , as was noted by Winneke P in R v BAH . 212 We favour the view that a more flexible approach should be adopted by considering the significance of the evidence in the circumstances of the trial as a whole. This is the approach that is normally adopted where material has found its way into the jury room either by accident or by an incorrect ruling by the trial judge. The most recent example is R v Madigan [2005] NSWCCA 170. In that case a surveillance logbook was wrongly admitted into evidence as an exhibit and went to the jury room on retirement of the jury. The Court applied the proviso notwithstanding the error or the fact that the jury by having the logbook available to them in the jury room might, contrary to the judge's direction, have looked through it and found material prejudicial to the accused. This is the general way that this Court considers an irregularity occurring in the trial by extraneous material finding its way into the jury room or otherwise coming to the attention of members of the jury: R v Domican (No 3) (1990) 46 A Crim R 428 at 448; R v Lansdell (NSWCCA, unreported, 22 May 1995, BC9504624); R v Skaf (2004) 60 NSWLR 86 at [234] ff.

[209]

It never occurred to me at the time that the jury might have been in a position to play the videos, so the "tender" I thought was harmless. My experience has always been that juries in the past have had to request equipment to play the things and that if that was the case they would have been played in court if permission was granted. Had that happened, I think I would have resisted such replay, requesting that the transcript of trial including the cross-examination be reread - a somewhat unnecessary process given they had transcripts of the evidence in chief. With the benefit of hindsight the "automatic" provision of transcripts, again following usual practice in regard to E.R.I.S.P.'s, was in error. In fact the main reason these were produced was to alert me to the editing of irrelevant material. 215 As we have already indicated, counsel's experience differs markedly from our experiences and understanding of the availability of a device in the jury room to replay tapes tendered in evidence. As we have noted earlier, counsel who appeared before us apparently assumed, as we have done, that jury rooms, particularly at a major court complex such as at Parramatta where the trial took place, would be equipped with the means whereby the jury could replay the tape and that the tapes and transcripts would be sent to the jury room as a matter of course. This makes trial counsel's understanding of the situation even more curious. 216 However that may be, as counsel noted the jury were provided with the transcripts of the videotape by consent and retained them during their deliberations also by consent. The fact that they had available to them throughout the hearing the transcripts of the videotapes raises the question of whether there is a real chance that the jury would have replayed the tapes, as it was unnecessary for them to do so in order to be reminded of the evidence in chief of the witnesses. We would not assume that they did. If there was any divergence between the transcript and the videotapes the jury would have presumably noted those when they first heard the tapes played. It seems to us that the case is not so very different from those where a jury has asked for, and been provided with, a transcript of the evidence in chief of the complainant. 217 We have ourselves viewed the videotape and it contains a quite unremarkable account of the complainant's allegations. It is about 29 minutes in length. There is a fixed camera positioned perhaps 5 metres from where the complainant is sitting. She remains seated on a lounge through out the interview generally with her arms folded. The police officer asking the questions sits between the complainant and the camera. The complainant is unemotional throughout and gives her account in, what might be described as, a matter of fact manner. Even when giving explicit and intimate details of the alleged assaults upon her, she does so with no apparent change in tone or emotion and certainly without any facial or other gestures that might in any way impact upon a person watching the videotape. We cannot see how the replaying of that tape, even more than once could itself have had the slightest impact upon the jury's deliberations. 218 Because the jury had the transcript of the videotape and because the image on the videotape lacks any obvious power to influence the jury in whether they accepted the complainant or not, we do not believe that the irregularity in providing to the jury the videotape of the complainant's evidence, if there was an irregularity, could have brought about a miscarriage of justice in the circumstances of this particular case. It should be recalled that there was no defence case, in that the appellant did not give, or call, evidence. This will not necessarily be decisive on the question of whether a miscarriage of justice occurred by the procedure adopted with the videotape but it is a relevant matter to be taken into account. 219 Perhaps most importantly in this case the jury themselves requested that they be provided with a transcript of the cross-examination of the complainant during the course of their deliberations. This suggests to us that, rather than there being a risk that the jury would place too much weight upon the evidence of the complainant because they had been provided with the videotape and the transcript, the jury were considering that material in the light of the attack made upon it by defence counsel and wanted the means to remind themselves of the content of that attack. They were doing precisely what they would have been directed to do had trial counsel thought it appropriate to ask for such a direction. Defence counsel knew they had the transcript of the complainant's evidence in chief and yet never asked that they be provided with a transcript of the cross-examination or asked for a warning that, in considering the transcript during their deliberations, they should take into account the cross-examination. 220 Nor did counsel ask the judge to warn the jury not to place too much weight upon the evidence of the complainant simply because they had a copy of it in written form. Whatever counsel thought about the position so far as the videotapes were concerned, it does not excuse his failure to ask for a warning that is commonly given when jurors have statements or depositions with them in the jury room if he really thought that the jury's access to the transcript might give rise to imbalance or unfairness. 221 Although rule 4 strictly applies in the present case, we are prepared to deal with the grounds of appeal on the basis that we should set aside the verdicts unless we are persuaded that no miscarriage of justice has occurred by the presence in the jury room of the videotape of the complainant's interview with police. We are so satisfied. It is impossible in our opinion to conclude that the trial was unbalanced by the presence of that material in the jury room when the jury themselves corrected whatever imbalance there might have been by asking for, and being supplied with, the transcript of the cross-examination of the complainant. As there was no defence case, there could be no imbalance in favour of the Crown case. We take into account in coming to this view that the trial judge gave the appropriate warnings and directions as to the way the jury were to approach the evidence of the complainant in a fair and balanced way that was not, and could not have been, the subject of any complaint. 222 We are satisfied that in the circumstances of the present case, even if they had not been given unrestricted access to the videotapes, particularly that of the complainant's evidence, the jury acting reasonably would have inevitably convicted the appellant. We take into account in reaching that opinion that the jury had some difficulty reaching a verdict and were given the benefit of a Black direction. But we do not believe that any difficulty they may have had in finding the offence proved beyond reasonable doubt based upon the complainant's evidence was overcome by the presence of the videotapes in the jury room or the absence of any warning or direction about the approach they were to take to the tapes during the course of their deliberations. 223 We would reject the third and fourth grounds of appeal. We would, therefore, dismiss the appeal. **********

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