Turner v The King [2025] NTCCA 7

Respondent: Office of the Director of Public Prosecutions

Turner v The King [2025] NTCCA 7

• [1] This is an appeal against the appellant's conviction by jury, in August 2023, on three counts of gross indecency with a person under the age of 14 and one count of sexual intercourse with a person under the age of 14. The sole ground of the appeal invokes the third limb of s 411(1) of the Criminal Code 1983 (NT) ("Criminal Code"), namely that there was a miscarriage of justice, which is argued to have resulted from the failure of the trial Judge to give the jury a warning required under s 21A(3) of the Evidence Act 1939 (NT) ("Evidence Act"). The appeal involves a question of law alone and is brought by right pursuant to s 410(a) of the Criminal Code.

• [2] Section 21A(3) of the Evidence Act provides:

Where a vulnerable witness is to give evidence using an arrangement under subsection (2) or (2AB), the judge must issue a warning to the jury (if any) to the effect that:

(a) the procedure is a routine practice of the court; and

(b) no adverse inference is to be drawn against the accused as a result of the use of the arrangement; and

(c) the evidence of the witness is not to be given any greater or lesser weight because of the use of the arrangement.

• [3] It is well-established that compliance with this section is mandatory and failure to issue the prescribed warning is an error of law.

• [4] There is no dispute that the trial Judge did not issue any such warning in relation to the evidence of the two complainants who were vulnerable witnesses within the meaning of s 21AB(c) of the Evidence Act (alleged victims of a sexual offence to which the proceedings relate) and who gave evidence in the case via audio-visual link from a place outside the courtroom pursuant to s 21A(2) of the Evidence Act.

• [5] The third limb of s 411(1) of the Criminal Code encompasses errors or irregularities affecting an appellant's trial which are either fundamental, in which case there will be a substantial miscarriage of justice, and other errors or irregularities.[1] The appellant did not raise any fundamental error or irregularity in the appeal.
• [6] For other errors or irregularities to constitute a miscarriage of justice, they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred, where 'could' means 'having the capacity to' and 'realistically' distinguishes assessment of the possibility of a different outcome from a possibility that is fanciful or improbable.[2] This threshold of materiality is for the appellant to establish, but the burden is not onerous, and it does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.[3] This assessment is qualitatively different from the assessment to be made in applying the proviso, namely whether the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.[4]

• [7] By the hearing of the appeal, the issues had been refined during the course of the exchange of written submissions. In particular:

(a) The parties were agreed that the failure to issue the warning required by s 21A(3) of the Evidence Act was a procedural irregularity.

(b) The appellant did not contend that the error was of such a category to constitute a fundamental error such that a substantial miscarriage of justice will necessarily be established and there is no need to separately consider the materiality of the error. The parties were agreed that, consequently, the appellant must establish that the error was material in order to constitute a miscarriage of justice.

(c) The respondent accepted that if the Court finds that there has been a miscarriage of justice, the proviso in s 411(2) of the Criminal Code should not be applied given the natural limitations of an appeal court seeking to determine whether the appellant was guilty beyond reasonable doubt where the verdicts depend on acceptance of the contested credibility of the complainants.

(d) The only issue between the parties was whether the appellant had established that the procedural irregularity was material so as to constitute a miscarriage of justice.

• [8] So the issue for this Court to determine is whether the appellant has established that the failure of the trial Judge to issue the warning in s 21A(3) could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred, that is to say whether the appellant has shown that the error had the capacity to affect the reasoning of the jury in such a way that the possibility of a different outcome was a realistic, as distinct from a fanciful or improbable one.

• [9] The appellant argued that in the absence of such a warning from the trial Judge there was a risk that the jury might infer that the complainants were giving their evidence via audio-visual link from a place outside the courtroom because they were afraid of the appellant and, moreover, that they needed protecting from him. It was argued that in a case such as the present, which depended heavily on the jury's assessment of the credibility of the complainants, this may have affected the jury's assessment of their credit in a manner prejudicial to the appellant.
• [10] For the reasons that follow, there was no realistic possibility that the failure to issue the prescribed warning was material in the relevant sense, and there was no realistic possibility that the giving of such a warning by the trial Judge could have resulted in a different verdict on any of the four counts.
• [11] The offending had allegedly occurred when the complainants were eight or nine years old. At the time of giving evidence, the complainants were 33 and 34 years of age and had had little or no contact with the appellant in the intervening years. Given the historical nature of the allegations, with the complainants well into their adulthood at the time of giving their evidence, the jury were unlikely to have the impression that the complainants were giving their evidence by audio-visual link because they needed to be protected from the appellant.
• [12] Nothing was said by the prosecutor, defence counsel, or the trial Judge that could have given the impression to the jury that the medium by which the complainants gave their evidence was anything other than regular. Indeed, submissions were made by the prosecutor, and instructions were given by the trial Judge which must have conveyed the impression to the jury that the giving of evidence by way of audio-visual link was entirely orthodox.
• [13] In his opening address, when telling the jury about the evidence that would be put before them in the trial, the prosecutor said:

In this case, you will see some diagrams, and you will hear some oral evidence. And when I say oral evidence, you will see some people come in person to give evidence in that witness box. And you will also see some people up on the screen by what's called AVL or audio-visual link. This is simply a matter of convenience, and it is a standard method of giving evidence in a criminal trial.

And in addition to those documents and diagrams that I referred to. You will also see a recorded statutory declaration of [SC] played. So, she is one of the two complainants. She gave part of her evidence by way of an interview with the police. And again, this is a very normal thing in a criminal tria1.

Now in this trial, the direct evidence about the sexual offending comes from [TC] and [SC] themselves. As I said, [SC] has given part of her evidence in that police video statement. And she will give evidence via audio-visual link in a remote witness room. Again, it's an ordinary method of giving evidence. And [TC] hasn't participated in an interview, so all of her evidence will be given via AVL. And of course, both complainants will be cross-examined as well.[5]

• [14] The appellant contended that opening remarks by the prosecutor are no substitute for a warning given with the imprimatur of the trial Judge. So much may be accepted. That is why the failure to give the warning by the trial Judge constituted a procedural irregularity. Even so, the submissions of the parties to the jury are relevant to an assessment of the likely impression made upon the jury of the complainants giving their evidence in the manner that they did.
• [15] Three other civilian witnesses also gave evidence by way of audio-visual link. Consequently, the jury was highly unlikely to infer that the complainants gave their evidence by audio-visual link because they needed to be protected from the appellant. This was entirely consistent with the prosecutor's comments that giving evidence in that manner is an "ordinary method of giving evidence" and a "very normal thing in a criminal trial".
• [16] At the time of giving their evidence, the complainants lived together in Tennant Creek, some 500 kilometres from Alice Springs where the trial was conducted, and this was made known to the jury. Again, this would have reinforced the natural inference, following the prosecutor's opening remarks, that the complainants were giving their evidence via audio-visual link due to their remoteness, just like the other civilian witnesses who gave evidence by that means.
• [17] After those three witnesses gave evidence and there were some technical difficulties, the trial Judge said to the jury:

Thank you, members of the jury, for your patience today. Sometimes the technology can be irritating, but just bear in mind that by having audio-visual links, we save thousands of dollars in airfares and accommodation and so on. So in spite of the technical difficulties from time to time. It's still very, very useful for court proceedings. so try and understand that things don't always go as one would hope.[6]

• [18] Shortly before the jury were played the recorded statutory declaration of one of the complainants, the trial Judge directed the jury as follows (emphasis added):

... You should still take the time to observe the witness' behaviour or demeanour, her body language, her reactions, the time taken to respond to questions, and, indeed, even the tone and volume of her voice - all of the same things that you would take notice of if the witness were actually sitting in at court. ...[7]

• [19] These specific remarks to the jury by the trial Judge effectively mitigated any risk that the jury would treat the evidence given by the complainants any differently because it was given by audio-visual link.
• [20] The failure of Defence counsel to raise the absence of the warning with the trial Judge at any stage tends against a finding that there was a perceptible risk of the miscarriage of justice. As the Court observed in De Silva v The Queen:[8]

... The failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice. The absence of an application for a direction may, however, tend against finding that that risk was present.

• [21] Various decisions of the intermediate courts of appeal in other jurisdictions have concluded that the failure to give a similar direction prescribed and mandated by statute constitutes an error of law and a miscarriage of justice.[9] Correctly, in our view, the appellant did not press reliance upon those decisions, essentially because all of those decisions were delivered prior to the decision of the High Court in Brawn and they did not expressly address the test of materiality laid down by the High Court in that case. Of itself, that is a basis upon which to distinguish them. Nor, in our view, did the decisions implicitly consider whether the failure was material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred.[10] In effect, those decisions held that the error of law in not giving a mandated direction was, ipso facto, a miscarriage of justice. Consequently, the decisions provide no assistance in the determination of the only issue in this appeal.
• [22] The substance of the mandatory warning under s 21A(3) of the Evidence Act is that: (a) the procedure of a witness giving evidence from a location outside of the courtroom via audio-visual link is a routine practice of the court; (b) no adverse inference should be drawn against the accused as a result of the use of that arrangement; and (c) the evidence of the witness is not to be given any greater or lesser weight because of its use.
• [23] Because other witnesses gave evidence by audio-visual link as the complainants had done, the complainants were adults and the alleged offending occurred many years previously, and because of what was said by the Crown prosecutor and the trial Judge during the trial (as set out above), there is no realistic possibility that the jury could have: (a) considered that the way the complainants' evidence was given was anything other than a routine practice of the Court; (b) drawn an adverse inference against the appellant as a result of the complainants' evidence being given by this means; or (c) given the complainants' evidence any greater or lesser weight because of the use of the arrangement.
• [24] The appellant argued that the remarks by the trial Judge about the purpose of using audio-visual technology to take evidence would have suggested to the jury only that one reason for the complainants to give evidence by that means may have been to save cost and inconvenience. The appellant identified the complainants' evidence as central to the issues in the trial, as compared with the other witnesses whose evidence was more peripheral. The appellant argued that the jury would have an expectation that the complainants would give their evidence in person, and would thereby assume that there was some reason other than that identified by the trial Judge as the purpose for such evidence.
• [25] The complainants were supported by a witness assistance officer when giving evidence, as is permitted by s 21A(2D)(a) of the Evidence Act. The other witnesses who gave evidence by audio-visual link did not have support of that nature. The appellant argued that that distinction between the complainants and those other witnesses would have suggested to the jury that there was something different about the relationship between the appellant and the complainants and would have given rise to the risk of prejudicial reasoning.
• [26] The presence of a support person for the complainants' evidence does not alter our assessment. In essence, the appellant argued that the presence of a support person sitting next to each complainant as they gave their evidence served to distinguish the manner in which the complainants gave their evidence from the manner in which the other witnesses gave evidence by audio-visual link. The difficulty with the submission is that the presence of the support person had nothing to do with the complainants giving their evidence via audio-visual link rather than in the court room directly. If they had done so, they would have been entitled to have a support person present. As the respondent submitted, the presence of a support person as the complainants gave their evidence is entirely neutral in the present context.
• [27] In The Queen v Hellwig,[11] Chesterman and Mullins JJ (McPherson JA agreeing) referred to the other decisions cited above and held (at [21]-[22]) that the playing of pre-recorded evidence or giving evidence via audio-visual link was a 'marked departure' from the conventional manner in which evidence is given before a jury and the difference 'is likely to surprise jurors' who have some knowledge of ordinary court proceedings. Without the benefit of the directions, that surprise 'may well turn into conjecture adverse to an accused' and the directions are intended to dispel the surprise and to prevent the conjecture. Furthermore, (at [23]) excluding an accused from the complainant child's presence is likely to give rise to speculation that the measure has been undertaken because of some particular characteristic of the accused which is likely to be associated with his guilt. Their Honours held (at [23]) that it is essential that that speculation be quashed.
• [28] It is noteworthy that this case focused on the change to the practice of receiving evidence and the surprise to which that may give rise, with the direction being necessary to dispel that surprise and the conjecture which would flow from it. That case was heard almost 20 years ago when the manner of giving evidence was new and unusual. Today, particularly after the period of the Covid-19 pandemic, electronic audio-visual communications are a day-to-day feature of the lives of ordinary people and, consistently with that, it is far more common and usual for witnesses to give evidence via audio-visual link to the Court. We do not consider there to be any realistic possibility that any member of a jury would be, to any significant extent, surprised by the fact that any witness, including a complainant, gave evidence by way of an audio-visual link.
• [29] There is no realistic possibility that the explanation of the trial Judge for the use of the technology would not have been accepted by the jury as the explanation for doing so which excluded all other reasons for doing so, rather than an explanation which left open that there were other reasons for doing so, particularly, a reason which would permit them to draw an adverse inference against the appellant. Given that the complainants were adults and the alleged offending occurred many years previously with no suggestion of contact since that time, and there was evidence that the complainants lived in Tennant Creek, a long way from Alice Springs where the trial was conducted,[12] there was nothing to suggest to the jury that the explanation given by the trial Judge was not the reason why they gave their evidence in the way that they did. There was nothing said during the trial to suggest that the complainants gave their evidence in the way they did because they were vulnerable or had some justified fear of the appellant.[13]
• [30] The above conclusions are not borne of an assumption that there was no need for the direction in this particular case.[14] They are founded on what actually occurred in the trial considered as a whole.

[1] See Kerridge v The King [2025] NTCCA 6 ('Kerridge') at [30]-[31] per Southwood, Brownhill JJ and Riley AJ, citing Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 ('Brawn') at [9]-[10].

[5] Transcript of proceedings dated 21 August 2023 at p 13-15 (AB 36-38).

[6] Transcript of proceedings dated 23 August 2023 p 190 (AB 213)

[7] Transcript of proceedings dated 22 August 2023 p 105 (AB 128)

[8] [2019] HCA 48; (2019) 268 CLR 57 at 70 [35]

[9] See The Queen v TN (2005) 153 A Crim R 129; Galvin v The Queen [2006] NSWCCA 66; (2006) 161 A Crim R 449; The Queen v DM [2006] QCA 79; The Queen v HAB [2006] QCA 80; The Queen v Hellwig [2006] QCA 179; (2006) 161 A Crim R 489; The Queen v Michael [2008] QCA 33; (2008) 181 A Crim R 490; Bisht v The Queen (2013) 234 A Crim R 309; The Queen v Horvath [2013] QCA 196 and The Queen v RAQ [2014] QCA 261; The Queen v Coss [2015] QCA 33; Thompson v The Queen [2016] ACTCA 12.

[11] [2006] QCA 179; (2006) 161 A Crim R 489.

[12] See Appeal Book p54, 57 and 124.

[13] See The Queen v Michael [2008] QCA 33 at [37]) per Keane J (Holmes JA and Mullins J agreeing).

[14] Cf The Queen v DM [2006] QCA 79 at [26] per Jerrard JA.