With technological advancements over recent decades, it has become extremely useful to video record evidence, and later have this video played to the jury.
This evidence usually falls into one of two categories.
The first category is vulnerable witnesses (particularly children), in respect of whom a police interview is often played at that witness' evidence in chief.
The second category is persons whose evidence (including cross examination) is played in full to the jury. In some cases, children's evidence is pre-recorded pursuant to the "Child Sexual Offence Evidence Pilot". In other cases, evidence given in a trial is recorded against the possibility of the trial being reheard, whether due to an abandoned trial, or a successful appeal.
Generally speaking, the authorities warn against marking the recordings as exhibits, and in particular against allowing the jury unsupervised access to the recordings. If the jury wish to view the footage, this should occur in court in the presence of the parties. Moreover, care needs to be taken to ensure that the jury are not given an imbalanced perspective on the evidence.
Regina v NZ  NSWCCA 278
“We should by now have made clear our view that this Court should not lay down any rule of practice or procedure to be followed in every case where the evidence in chief of a witness has been given by the playing of a videotape. However, we can summarise our views as to the procedure to be followed generally…”
Gately v The Queen  HCA 55
“If a jury asks to be reminded of the evidence of an affected child that was pre‑recorded under subdiv 3 of Div 4A of the Evidence Act and played to the jury as the evidence of that child, that request should ordinarily be met by replaying the evidence in court in the presence of the trial judge, counsel, and the accused. Depending upon the particular circumstances of the case, it may be necessary to warn the jury of the need to consider the replayed evidence in the light of countervailing evidence or considerations relied upon by the accused. It may be desirable, in some cases necessary, to repeat the instructions required by s 21AW. Seldom, if ever, will it be appropriate to allow the jury unsupervised access to the record of that evidence.”
CF v R  NSWCCA 318
" In my view, in circumstances where all of the exhibits and transcripts had been provided to the jury, the issue of balance was expressly addressed by providing the jury with the whole of the complainant’s recorded evidence, including cross-examination at the first trial, the applicant’s recorded evidence in his ERISP and the warning given to the jury not to give disproportionate weight to the complainant’s recorded evidence.”
AB (a pseudonym) v R  NSWCCA 82
“As a result, the DVD should not, in this case, have been marked as an exhibit. The ordinary rule that exhibits are made available to the jury in the jury room during its deliberations, subject to the exercise of the court’s discretion to direct otherwise (see NZ at -), did not apply. Instead, it was for one or other of the parties to persuade the trial judge that there was a good reason why the DVD should be made available to the jury.”
Long (a pseudonym) v R  NSWCCA 212
“While ss 306X and 306ZI of the Criminal Procedure Act require the trial judge to warn the jury about the matters covered by the sections, Parliament has not specified when such warnings ought be given. This Court has said, in the passage extracted above, that it is preferable that such warnings be given before the summing up and indeed, before or immediately after the evidence is given.
However, the timing of the warnings and whether, and how often, they are to be repeated, remains within the discretion of the trial judge.”
Stevenson v R  NSWCCA 133
“I accept the Crown submission that the circumstances of this trial operate strongly against a conclusion that there was injustice to the Applicant, let alone a miscarriage of justice.”
Spigleman J (dissenting from the other members of the court)
1. 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.
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  1 WLR 178 esp at 182H and 183E; R v Welstead  1 Cr App R 59 at 68F-G; R v O  3 NZLR 295 at 298-299; R v H  2 Qd R 283 at  and -; R v BAH (2002) 5 VR 517 at ,  and ; R v Lewis (2002) 137 A Crim R 85 at  and cf ; R v Lyne (2003) 140 A Crim R 522 at - and ; R v MAG  VSCA 47 at ; R v Davies  VSCA 90 at . See also Elliott “Video Tape Evidence: The Risk of Over-Persuasion”  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.
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.
20. In my opinion, there was a miscarriage of justice. The appeal should be allowed and a new trial ordered.
Wood CJ at CL
21. 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. I agree with Howie and Johnson JJ.
Howie and Johnson J
23. 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.
Grounds of Appeal
37. There were four grounds of appeal filed and relied upon by the appellant. They can be dealt with, as they were argued, taking the grounds two at a time. The first and second grounds concern the different verdicts given by the jury in respect of the appellant and MSS. The third and fourth grounds arise from the use of videotapes as part of the evidence in chief of the complainant and each of the other juvenile witnesses who gave evidence in the Crown case.
Grounds 3 and 4 - The videotape evidence
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:
3. There was a miscarriage of justice as a result of the tender of videotapes containing only a portion of the Crown case against the appellant and there (sic) being allowed to be used by the jury during their deliberations.
4. His Honour erred in failing to warn the jury against the danger of giving disproportionate weight to the tendered videotapes during their deliberations.
(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.
(c) Not tendering the videotape
182. In the present case the videotapes of the witnesses were admitted into evidence and became exhibits without objection. As we have already indicated, this accords with our experience and understanding of how tape recordings are routinely dealt with in trials in this State. The videotapes were also sent to the jury room with the balance of the exhibits, again, a common, if not universal, practice. A question arises as to whether the judge had power to withhold the videotape from the jury even if he had been asked to do so.
183. There is a discussion in the judgment of McMurdo P in R v H about the power of a judge at common law to withhold an exhibit from the jury. Reference was made to decisions of the Full Court of the Court of Appeal of South Australia in R v Bradshaw (1978) 18 SASR 83, R v Stephenson (1978) 18 SASR 381, and R v Evans  SASRC 6798. In the first two of those decisions there were different views expressed by the members of each bench as to whether a judge could withhold an exhibit on the basis that it may be given too much weight during the course of deliberations. A majority of the judges believed that such a power existed. The Court in Evans , appears to have been unanimous in holding that such a power did exist. Perry J with whom the other members of the court agreed, stated (footnotes omitted):
The ordinary practice is that all exhibits go into the jury room subject to the limitations of size, security or convenience. No doubt there is a discretion to withhold an exhibit from the jury room if it is of such a nature as to be likely to be given disproportionate weight in their deliberations, although if the jury sends out a message asking to see the excluded exhibit, the judge will no doubt reconsider his decision.
184. The existence of a residual discretion to withhold an exhibit from the jury room where there is a risk that the exhibit will be given undue emphasis over viva voce evidence has been recognised in Canada: Pattenden Judicial Discretion and Criminal Litigation 2nd Ed, Clarendon Press, 1990 at 212; R v Pleich (1980) 55CCC (2d) 13 at 32-33; R v Toten (1993) 83 CCC (3d) 5 at 48; R v Patterson (2003) 174 CCC (3d) 193 at ; R v RWN (2004) 181 CCC (3d) 470 at  ff. It should be noted that this last authority in fact deals with a videotape used as evidence of a complainant in a trial for a sexual assault offence.
185. We would follow Perry J and the Canadian authorities and accept that at common law such a discretion existed. However, s 55A of the Jury Act provides:
Exhibits in jurors’ deliberation room
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.
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  and  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 . 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.
(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.
(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.
208. We believe that the judge should give a warning to the jury as to the caution with which they are to approach the replaying of the videotape of the evidence in chief of a witness in the manner suggested by McMurdo P in R v H . The general warning is to the effect that:
because they are hearing the evidence in chief of the [witness] repeated for a second time and well after all the evidence, they should guard against giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case.
Of course it does not matter what words the judge uses to express that warning.
209. Again the failure to give such a warning may or may not result in a miscarriage of justice. Much may depend upon the significance of the evidence in the case and what other warnings have been given to the jury about the evidence of the witness whether there is other evidence corroborating the witness or otherwise proving the offence and when the request for the replaying of the tape is made. A relevant matter may be whether defence counsel made any request for such a warning.
(g) The preferred procedure
210. We should by now have made clear our view that this Court should not lay down any rule of practice or procedure to be followed in every case where the evidence in chief of a witness has been given by the playing of a videotape. However, we can summarise our views as to the procedure to be followed generally:
(a) The videotape evidence of a Crown witness should not become an exhibit and, therefore, should not be sent with the exhibits to the jury on retirement;
(b) Any transcript given to the jury under s 15A should be recovered from the jury after evidence of the witness has been completed;
(c) It is for the discretion of the trial judge how a jury request to be reminded of the evidence in chief of the witness should be addressed;
(d) It would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed.
(e) If the tape is to be replayed or the transcript of the tape provided to the jury, the judge should caution the jury about their approach to that evidence when the tape is being replayed to them or the transcript of the tape returned to them in terms to the effect 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”;
(f) The judge should consider whether the jury should be reminded of any other evidence, for example the cross-examination of the witness at the time that the tape is replayed or sent to the jury room, if that step is considered to be appropriate.
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.
(h) Was there a miscarriage of justice in the present case
213. As we have already noted the videotapes in the present case were admitted as exhibits without objection by the appellant’s trial counsel. No objection was made to the jury receiving and retaining the transcript of the videotapes. The tapes were sent to the jury room with the rest of the exhibits. No request was made by counsel for any direction from the trial judge about the use of the videotapes during their deliberations. The absence of objection to the course taken and the absence of any request for restrictions on the jury’s use of the tapes during their deliberations gives rise to an issue whether rule 4 should apply.
214. It is in that regard that the appellant placed before the Court an affidavit by trial counsel with regard to the failure to object to the tapes. That affidavit contains the following paragraph:
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.
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.
Gleeson J (would dismiss the appeal as there was no miscarriage of justice)
1. The facts of the case are set out in the reasons of Hayne J. The grounds of appeal are as follows:
"That a miscarriage of justice has occurred in this case:
(a) The Trial Judge erred in allowing the jury during its deliberations to play a pre-recorded video statement taken under s 21A[M] of the Evidence Act (Qld) 1977;
(b) That the Trial Judge erred in failing to direct the jury when the complainant's statement was re-read to them that they should not give undue weight to the evidence;
(c) The Trial Judge erred in permitting the prosecutor to tender written statements (in particular the statement of the complainant) taken pursuant to section 93A of the Evidence Act 1977 (Qld) in circumstances where the complainant and the preliminary complaint witness had already given full pre-recorded evidence."
2. Paragraph (a) refers to the oral evidence of the complainant, which was recorded before the empanelling of the jury. The video recording was then played to the jury at the trial. A transcript of the complainant's evidence consists of five pages of evidence in chief and 22 pages of cross-examination. Paragraph (c) refers to "police statements" (that is, statements made to the police at the investigation stage) which were tendered at the trial as exhibits. The only other evidence at the trial was some formal evidence from a police officer, and some brief evidence from a friend of the complainant and from the complainant's mother and grandmother. The appellant did not give evidence.
3. As to par (a), I agree with Hayne J that, technically, the video recording should have been marked for identification rather than treated as an exhibit and, more significantly, that, when the trial judge decided (as he was entitled to do) to comply with the jury's request to hear again the pre-recorded evidence of the complainant, that should have been done by replaying the recording of the evidence in open court, before the judge, the jury and counsel. I agree with Hayne J's analysis of the relevant statutory provisions. The course that was taken was irregular. The irregularity occurred in the following circumstances. After the jury expressed a desire to hear the complainant's evidence again, the trial judge asked counsel to consider whether they wanted the court to be reconvened while that occurred. He should not have given them the choice. The prosecutor said he did not see any need for the court to be reconvened if the jury watched the video in the courtroom in the presence of the bailiff. He said it would "facilitate their deliberations more openly if legal counsel and other people aren't present." Counsel for the appellant concurred. He said: "Yes, that seems a sensible and practical approach. If they want to play it they can play it while here in the presence of the Bailiff and not in the presence of other members of the Court." The procedure agreed to by counsel was adopted.
4. An irregularity having occurred, the issue raised by the grounds of appeal, and the statute pursuant to which the Court of Appeal was exercising its jurisdiction, is whether, in the circumstances of the case, there was a miscarriage of justice. I agree with Hayne J that the question should be answered in the negative. The jury had been told to scrutinise carefully the evidence of the complainant. Evidently, they thought listening to her evidence again would help them to do that. Their request was hardly surprising, although it raised a procedural question. This was not a case in which the problem of undue weighting of some evidence at the expense of other evidence was of substantial importance. The pre-recorded evidence included the whole of the cross-examination of the complainant. Apart from the "police statements", there was very little other evidence of significance in the case. There were numerous counts in the indictment, and the jury apparently considered them separately and in detail. Their desire to scrutinise the evidence of the complainant by having it played back to them again does not raise, in the circumstances, any apprehension of inappropriate concentration on part only of the evidence, or of other unfairness to the appellant.
Kirby J (would allow the appeal)
8. This appeal concerns the general principles governing the provision to juries of direct access to pre-recorded evidence of child complainants in criminal trials involving sexual offences.
Complaints about the use of pre-recorded evidence
11. The issues that remain are nonetheless of some importance. At their heart is a recording made in compliance with provisions of the Evidence Act dealing with the testimonial evidence of young persons (such as the complainant in this matter) in relation to alleged sexual offences.
12. Neither at trial nor on appeal did the appellant challenge the validity of the provisions of the Evidence Act as they operated in his case. Nor did he complain, as such, about the unfairness of their deployment. In particular, he did not contest the presentation of the complainant's evidence (and cross-examination) in the form of a video-recording, so far as it was viewed by the jury in his presence. Instead, the two respects in which, on this point, the appellant asserted that the verdicts of the jury should be set aside were:
1. That the trial judge erred in allowing the jury unsupervised and unrestricted access to the recording during their deliberations; and
2. That the trial judge erred in failing to warn the jury as to the use they might make of the recording and any considerations they should take into account in order to avoid affording it "undue weight".
28. Availability of evidence and warnings: Taking these basic considerations into account, I agree in substance with the conclusions of Hayne J concerning the proper approach to be taken in trials such as that the subject of this appeal:
1. Under the Evidence Act, a recording (whether electronic or printed) is not admissible as "evidence" as such. It is simply a record of the oral testimony it contains. It is not real evidence (as a gun or other weapon or like item might be), available, as such, to the jury;
2. A request by a jury for access to pre-recorded testimony is ordinarily to be dealt with in the same way as a request to be reminded of other testamentary evidence. It will seldom, if ever, be appropriate to give the jury unsupervised access to the recording so that they may play and replay the recording as they decide;
3. A request by a jury to be reminded of evidence should rarely be denied by a trial judge. However, if the request is made, the judge, after affording the parties the opportunity to make submissions on the matter, should consider whether the request can be fulfilled either by:
(a) Reading the transcript of the evidence requested (and any related evidence) to the jury in open court in the normal and traditional way; or
(b) If it is considered appropriate to accede to a specific request to view pre-recorded testimony again, permitting this to be done in open court. When this course is taken, the attention of the jury should ordinarily be drawn to the need to take account of any cross-examination or contrary evidence that may exist and the need to guard against selective reinforcement of particular oral evidence received for a second time and out of context; and
4. Because the repetition of pre-recorded oral evidence creates dangers of distortion, loss of balance and unfairness, the judge should consider whether there is a need, in the circumstances, to warn or direct the jury:
(a) To avoid giving undue weight to evidence that is recorded and thus available for repetition as against the rest of the evidence that is not; and
(b) To consider the recorded evidence in the context of other, countervailing evidence, whether recorded or not, and of any arguments of the accused relevant to that evidence.
Departures from the principles in the appellant's trial
29. The trial judge's errors: Identification of the foregoing principles (about which I am in substantial agreement with Hayne J) renders the appellant's complaint of a serious miscarriage of justice in his case much clearer. In the present case, the trial judge departed from the stated principles. He appears to have treated the video-recording (as distinct from the oral evidence it reproduced) as though it were part of the "evidence" itself. He marked and treated the physical recording as an exhibit in the trial. This constituted an error of law in relation to the interpretation of the Evidence Act.
30. When the jury requested access to copies of the complainant's "two statements" and also a statement by the complainant's friend, it was the trial judge (not the prosecutor and certainly not the appellant's trial counsel) who proffered the suggestion that the jury be given unrestricted access to the pre-recorded evidence. This was proposed by the judge so that "[the jurors] can have that played themselves during the course of their deliberations".
31. Correctly, this course was immediately objected to by the appellant's trial counsel, who alerted the trial judge to the risk that the jury might pay undue attention to the pre-recorded evidence. The trial judge then said: "That is a practice [sic], but of course they are entitled to have resort to them by coming into this room and having those passages played." For the reasons I have given, this represented an incorrect appreciation of the applicable principle. Moreover, it ran counter to earlier rulings of the Court of Appeal of Queensland, which by then had been followed, and endorsed, elsewhere in Australia. Those rulings were binding on the judge in the conduct of the trial. Yet they were not observed.
32. The prosecutor's error: Compounding the error of the trial judge, the prosecutor then submitted:
"I don't see that there's any need for [the court] to be reconvened if they're in here watching the video with the Bailiff … It will let them facilitate their deliberations more openly if legal counsel and other people aren't present."
This too evidenced a misunderstanding of the character of the testimony contained in the recording. It seriously discounted the risks of its repeated use. It cut across the principle that access to a video-recording in circumstances such as those of the present matter should be carefully considered, appropriately limited, only permitted in open court and then made subject to appropriate judicial warnings or directions. In so far as the prosecutor's comment envisaged that it would be permissible for the jurors to continue their deliberations whilst in the presence of the bailiff (but not legal counsel and other people), it also demonstrated a serious misunderstanding of the requirement that those deliberations be wholly private and confidential.
33. Ensuing course of the trial: Unfortunately, trial counsel for the appellant then endorsed the foregoing proposal of the prosecutor as a "sensible and practical approach". This too was a mistake, albeit one which was shared with both the judge and the prosecutor.
34. The judge then recalled the jury and told them, in effect, that they would be entitled to unlimited and unrestricted access to the video-recording in the courtroom during the course of their deliberations. Obviously, at the least, this presented the risk just mentioned that the bailiff (who would have to provide access to the courtroom and to the recording and the recording equipment) might overhear juror communications: potentially a significant breach of the secrecy and integrity of the jury's deliberations.
35. It was at this point in the trial that the appellant informed the court that he would not be giving, or calling, evidence in his own case. In fact, his case, as indicated in his counsel's address to the jury, relied substantially on the prosecution's obligation to prove the allegations against him beyond reasonable doubt.
36. Absence of warning to the jury: Whilst considering their verdict, the jury requested to view the recorded evidence again. The judge told them:
"[W]e'll make arrangements for you to … come into this Courtroom so at your leisure you can see the evidence alone and I think at this stage I won't take a verdict before 9.30 in the morning."
37. The trial judge gave no warning or direction to the jury, then or later, about the way they should approach such evidence. On the contrary, the jury were permitted unrestricted and unsupervised access to the recorded evidence, otherwise than in open court and after the close of the evidence. It may be inferred that they viewed the whole or parts of it at least once, and perhaps repeatedly. Effectively, it happened in secret. The judge, the accused and the public were unaware of the course that the jury took.
38. When, the following day, the jury also requested to see the complainant's written statement to the police, the entire statement was read to them in open court. Again, no direction or warning was given by the trial judge as to the weight to be accorded to the statement in light of its repetition. The jury requested that part of the statement be read yet a third time Once more, that request was complied with, but without any judicial warning or direction along the lines of the governing principles. Verdicts of guilty were subsequently returned by the jury, almost 24 hours after they had been charged to consider their verdicts. The conviction of the accused and his sentencing followed.
Conclusion: a miscarriage of justice is established
39. Absence of any miscarriage? In light of the principles that should have been observed and the actual course adopted in the trial, the appellant has demonstrated a miscarriage of justice.
Hayne J (would dismiss the appeal as there was no miscarriage of justice)
56. The principal issue in this appeal concerns the application of particular provisions of the Evidence Act 1977 (Q) ("the Evidence Act") governing the giving of evidence by a young person allegedly the victim of sexual offending. Pursuant to those provisions, the complainant's evidence‑in‑chief and cross‑examination were video‑recorded. (There was no re‑examination.) The recording was played to the jury at the appellant's trial in the District Court of Queensland.
57. In the course of debate between the trial judge and counsel about what material the jury should have available during their deliberations, trial counsel for the appellant agreed that it "seem[ed] a sensible and practical approach" for the jury, when considering their verdict, to be able to play the recording in the courtroom "in the presence of the Bailiff and not in the presence of other members of the Court". The appeal in this Court was conducted on the footing that, during their deliberations, the jury were able to and did play the recorded evidence of the complainant otherwise than in the presence of the trial judge and counsel for the parties.
The course of trial and the appeal to the Court of Appeal
68. After a prosecutor had presented the indictment against the appellant (a step that had to occur before evidence could be taken under subdiv 3 of Div 4A) the complainant's evidence (both evidence‑in‑chief and cross‑examination) was taken and video‑taped. A little over a month later, the appellant was arraigned on the indictment, and a jury was empanelled.
69. The prosecutor opened the case to the jury. Evidence was adduced, in the ordinary way, from the investigating police officer. The prosecutor then, without objection, provided the members of the jury, and the trial judge, with a transcript of the recorded evidence of the complainant. The prosecutor did not tender the tape as an exhibit but the trial judge, of his own motion, marked it as an exhibit. He directed the jury that the transcript was "merely an aid for you" and that "the evidence in the proceedings is what is contained on the tape itself, the sounds, what you hear and, indeed, what you see". The recording of the complainant's evidence was then played to the jury. (The transcripts provided for the use of the jury were recovered before the jury commenced their deliberations.)
70. As the trial came towards an end, there was some discussion between counsel for the parties and the trial judge, about what directions should be given to the jury, and about what material the jury should have access to in the jury room. Trial counsel for the appellant indicated that he would be "asking that the statements – and I mean not only the written statements, but the pre‑recorded evidence of the complainant ... not be taken into the jury room". The prosecutor said that he supported that request.
71. Next morning, the jury sent a message to the trial judge saying, among other things, that "our deliberations would be assisted by having copies of [the complainant's] two statements". In the ensuing discussion about the response that was to be made to this message, the trial judge expressed doubts about what the jury meant by the reference to the complainant's "two statements". But without resolving those doubts, counsel for the parties and the trial judge discussed what material should be made available to the jury. During that discussion, the trial judge suggested that, in the course of their deliberations, the jury could themselves play the pre‑recorded evidence of the complainant (as well as a record of some evidence given by another child witness). Trial counsel for the appellant submitted that the pre‑recorded evidence should not go into the jury room. The trial judge said that the jury "are entitled to have resort to [the recordings] by coming into [the courtroom] and having those passages played". He asked counsel for both parties to consider whether the Court should be reconvened for that to be done. The prosecutor responded at once, and suggested that there was no need to reconvene the Court if the jury were in the courtroom, watching the video with the Bailiff. And trial counsel for the appellant agreed that this seemed "a sensible and practical approach".
72. When the jury came back into court, the trial judge dealt with the message that had been sent. The jury's speaker said that what the jury wanted was the transcript of the recordings that had been played in court. The trial judge told the jury that the transcripts had been no more than an aid to understanding but that the jury could have access to the recordings "by simply asking the Bailiff, and during the course of your deliberations you can listen to those videotapes again". That was to be done in the courtroom; the tapes "won't go with you into the jury room". The use that might be made of the pre‑recorded evidence of the complainant was not the subject of any further submission during the trial.
77. Trial counsel for the appellant consented to the jury having the access they did to the pre‑recorded evidence of the complainant. Great weight must be attached to that consent in considering whether there was a miscarriage of justice. So much follows inevitably from the adversarial nature of a criminal trial. As was said in R v Birks, "[a]s a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted". It is for the parties, by their counsel, to decide how and on what bases the proceeding will be fought. Consent by counsel for a party to a course of conduct is usually an important indication that that party suffers no miscarriage of justice by pursuit of the intended course. But, as the cases concerning allegations of incompetent representation illustrate, the miscarriage of justice ground may yet be established despite the course that is taken by an accused person's counsel at trial. In the present case there was no allegation of incompetent representation. The circumstances surrounding trial counsel consenting to the course that was followed require the conclusion that there was no miscarriage of justice.
95. Replaying the evidence given by one witness, after all the evidence has been given, carries risks. First, there is the risk inherent in the form in which it is presented. As was said in Butera, there is the risk that undue weight will be given to evidence of which there is a verbatim record when it must be compared with evidence that has been given orally. Secondly, there is the risk that undue weight will be given to evidence that has been repeated and repeated recently. Other risks may arise from the circumstances of the particular trial.
96. The purpose of reading or replaying for a jury considering its verdict some part of the evidence that has been given at the trial is only to remind the jury of what was said. The jury is required to consider the whole of the evidence. Of course the jury as a whole, or individual jurors, may attach determinative significance to only some of the evidence that has been given. And if that is the case, the jury, or those jurors, will focus upon that evidence in their deliberations. While a jury's request to be reminded of evidence that has been given in the trial should very seldom be refused, the overriding consideration is fairness of the trial. If a jury asks to be reminded of the evidence of an affected child that was pre‑recorded under subdiv 3 of Div 4A of the Evidence Act and played to the jury as the evidence of that child, that request should ordinarily be met by replaying the evidence in court in the presence of the trial judge, counsel, and the accused. Depending upon the particular circumstances of the case, it may be necessary to warn the jury of the need to consider the replayed evidence in the light of countervailing evidence or considerations relied upon by the accused. It may be desirable, in some cases necessary, to repeat the instructions required by s 21AW. Seldom, if ever, will it be appropriate to allow the jury unsupervised access to the record of that evidence.
Heydon J (would dismiss the appeal as there was no miscarriage of justice)
108. I agree with Hayne J that the appeal should be dismissed.
111. Was there any irregularity? For the reasons given by Hayne J, this question must be answered "Yes".
112. Was there a miscarriage of justice? In the special circumstances of this case, for the reasons given by Hayne J, the question must be answered "No".
Crennan J (would dismiss the appeal as there was no miscarriage of justice)
126. I agree, for the reasons given by Hayne J and the additional reasons given by Heydon J, that the appeal in this matter should be dismissed. I have nothing to add.
1. The applicant was charged with four sexual assault offences. The first count alleged an offence of sexual intercourse with a child over 10 years and under 14 years. The other three counts alleged offences of aggravated indecent assault of a child under the age of 16 years. All of the charges related to the same complainant who was aged 12 years at the time of the two incidents giving rise to the charges. The applicant entered pleas of not guilty to each of the four counts. He was tried by jury before Garling DCJ in March 2015; however the jury were discharged after they were unable to return a verdict (the first trial). The applicant was subsequently tried by jury before Berman SC DCJ at Newcastle. On 6 May 2016, the jury returned a verdict of guilty on each count.
5. The sole ground of appeal against conviction, as confined on the hearing of the appeal, is that providing the jury access in the jury room to the complainant’s recorded evidence was an irregularity in the trial which caused a miscarriage of justice. That evidence comprised audio-visual recordings of (a) the complainant’s interview with the Joint Investigation Response Team (JIRT) in March 2013, and (b) the complainant’s evidence-in-chief and cross-examination in the first trial in 2015 (a small part of which was an audio recording only). (JIRT is a unit within the NSW Police Force comprising police officers and social workers from the Department of Youth and Community Services specialising in child sexual abuse investigation.)
6. Senior Counsel for the applicant withdrew ground 1 insofar as it relied upon the provision to the jury of transcripts of the complainant’s recorded evidence.
7. The applicant accepted that r 4 of the Criminal Appeal Rules applies given that the complainant’s recorded evidence was admitted without objection, was available to the jury in the jury room, again without objection, and no complaint was made at trial concerning the trial judge’s direction to the jury with respect to the use of that evidence. The applicant must satisfy the Court that it is appropriate to grant leave under r 4 to rely on this ground of appeal. For the reasons that follow, I would grant leave to rely upon ground 1 pursuant to Criminal Appeal Rules, r 4, but dismiss the appeal against conviction.
The defence case
16. The applicant gave evidence at the trial in which he denied each of the charges. The applicant recalled the occasion in August 2012, when the red wine had been spilt. He said that he had massaged the complainant’s foot and leg over her clothing whilst they were on the couch watching a tennis match. He said that when he moved his hand towards the complainant’s knee, he accidentally bumped the complainant’s groin area. He said that he apologised and continued to massage the complainant’s leg for some time. In cross-examination, the applicant admitted that his wife had spoken to him about touching the complainant on the thigh. He said that his wife had told him that it was inappropriate to massage the complainant on the thigh.
17. The applicant’s wife gave evidence about both incidents. As to the events of 23 December 2011, she said that nothing unusual stuck out in her mind about that night. As to the night in early August 2012, she said that she recalled the night that the red wine was spilt on the carpet, that she saw the applicant massaging the complainant’s feet and legs while they were watching the tennis, and that she did not see the applicant put his hand up the complainant’s top or down the complainant’s pants. In cross-examination, the applicant’s wife agreed that she had told the applicant that he was massaging the complainant inappropriately.
18. A number of witnesses gave evidence of the applicant’s good character, including his son, daughter and son-in-law, relatives of the applicant’s wife and a friend.
Issue in the conviction appeal
19. The second trial commenced before the jury on 26 April 2016. The evidence adduced by the Crown from the complainant was given by playing the video recording of the complainant’s JIRT interview (approximately 1 hour 15 minutes); and the video recording of the complainant’s further evidence-in-chief, cross-examination and re-examination at the first trial (in part, an audio recording only) (approximately 3 hours 20 minutes), during which the complainant was not present in the courtroom at the first trial, but gave the balance of her evidence by video-link between the courtroom and a remote location. (The procedure for the giving of the complainant’s evidence at the first trial was governed by the Criminal Procedure Act (NSW) 1986, as the complainant was a “vulnerable person” as defined in s 306M(1), being a child being under the age of 16 years: see s 306P(1)).
20. A transcript of each of the recordings was provided to the jury when the recording was played in court. No objection was taken to that course.
23. The recordings of the complainant’s JIRT interview and the complainant’s evidence at the first trial were not tendered as exhibits at the second trial. Nor were the transcripts of such recordings tendered as exhibits. No objection was taken to this course. The transcript of the second trial did not include a transcript of the recordings played in court at the second trial.
24. The jury retired to consider its verdicts at 12.20pm on 5 May 2016.
25. It is common ground that the jury were provided with and allowed to take to the jury room all of the relevant trial transcript, all of the exhibits, and all of the complainant’s recorded evidence which included:
Was there an irregularity at trial?
79. Criminal Appeal Act 1912 (NSW), s 6(1) provides:
6 Determination of appeals in ordinary cases
(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
80. In this case, the applicant did not assert that what occurred at trial involved any error of law. That is consistent with the view expressed by Spigelman CJ in NZ (at ) (albeit in dissent in the result), that allowing the jury unsupervised access to the complainant’s recorded evidence, in circumstances where there had been no objection by the accused at trial, was not an error of law, referring to Papakosmas v R (1999) 196 CLR 297 at 319, and R v Button at  –  among other cases. Rather, the applicant asserted that what occurred was an irregularity, which occasioned a miscarriage of justice.
81. The procedure followed in this case is to be contrasted with what senior counsel for the applicant submitted should have been followed in response to the jury’s request for access to the complainant’s recorded evidence. Senior counsel accepted that the jury could have asked to be reminded of the complainant’s recorded evidence and that could have been done by replaying the video recordings, with the benefit of the transcript, in the same way that a jury is reminded of any other witness’s evidence. That may be taken to be a reference to playing the complainant’s recorded evidence in court before the jury with judge and counsel present.
82. As indicated, the majority in NZ emphasised that this Court "should not lay down any rule of practice or procedure to be followed in every case where the evidence in chief of a witness has been given by the playing of a videotape": at . The procedural flexibility inherent in those observations was accepted and applied by Basten JA and R A Hulme J in Jarrett.
83. In Gately, NZ was referred to in the course of argument (at 210) but otherwise not referred to or considered in the majority judgments. While Gately suggests a more proscriptive approach than NZ to allowing the jury access to a complainant’s recorded evidence, I do not read Gately as imposing a complete proscription on that occurring: see the remarks of Hayne J at . Nonetheless, Gately read with NZ may be taken as emphasising the general undesirability of allowing the jury unsupervised access to the complainant’s recorded evidence.
Was there a miscarriage of justice?
87. Accepting, favourably to the applicant, that there was an irregularity in this case in allowing the jury access in the jury room to the complainant’s recorded evidence, the question which arises is whether that irregularity was so fundamental, as the applicant contended, that it occasioned a miscarriage of justice: Criminal Appeal Act, s 6(1).
88. That the applicant advanced a defence case by giving and calling evidence, is a relevant matter to be taken into account in considering the applicant’s complaint that the trial was unbalanced in allowing the jury access to the complainant’s recorded evidence. However, contrary to the applicant’s submissions, this is not necessarily decisive on the question of whether a miscarriage of justice occurred: NZ at .
89. Against this, it is relevant that experienced trial counsel for the defence did not object to the jury being provided with the complainant’s recorded evidence. The explanation given in an affidavit by trial counsel for the defence, which was read without objection in this Court, was that counsel “did not think it would make a difference one way or the other”. That is consistent with an acceptance by trial counsel for the defence that allowing the jury access to the complainant’s recorded evidence would not give rise to an imbalance of evidence.
90. Further and importantly, the absence of a request for a redirection following the warning given to the jury not to give disproportionate weight to the complainant’s recorded evidence, is also consistent with trial counsel for the defence accepting that there was no unfairness in the procedure followed.
91. It is to be recalled that the complainant’s recorded evidence had been played in court before the jury on the first and second days of the trial (26 and 27 April 2016). The transcript of those recordings were provided to the jury when those recordings were played and then taken back. At the time of the jury’s request for the complainant’s recorded evidence, shortly after retiring to consider their verdicts on 5 May 2016, the jury already had access to the audio-visual recording and transcript of the applicant’s account given in his ERISP, which was consistent with his account given at trial. That trial counsel for the defence did not object to the jury having access to the complainant’s recorded evidence is not surprising. Plainly, the credibility and plausibility of the complainant’s evidence was critical to the jury’s deliberations, taking into account all of the evidence before the jury, which included the recording of the applicant’s account in his ERISP.
92. In my view, in circumstances where all of the exhibits and transcripts had been provided to the jury, the issue of balance was expressly addressed by providing the jury with the whole of the complainant’s recorded evidence, including cross-examination at the first trial, the applicant’s recorded evidence in his ERISP and the warning given to the jury not to give disproportionate weight to the complainant’s recorded evidence.
93. In the circumstances, where the procedure had been accepted by trial counsel for the defence and no redirection had been sought, I do not consider that the irregularity which occurred occasioned a miscarriage of justice.
110. I agree with Gleeson JA.
111. I agree with Gleeson JA.
1. On 22 June 2017 the applicant was convicted after a trial in the District Court on one count of an aggravated sexual assault (contrary to s 61J(1) of the Crimes Act 1900 (NSW)) and two counts of an aggravated act of indecency (contrary to s 61O(1) of the Crimes Act). The trial before the District Court was a retrial following a successful conviction appeal to this Court against the convictions of the applicant at an earlier trial.
2. The complainant’s recorded evidence-in-chief and cross-examination from the first trial were relied on by the Crown as evidence at the retrial (pursuant to s 306B(1) of the Criminal Procedure Act 1986 (NSW)). Following a request made by the jury at the retrial after it had retired to consider its verdicts, the trial judge directed that it be given unrestricted access to the DVD containing the recordings. The DVD had been earlier marked as an exhibit.
3. The applicant seeks leave to appeal under s 6(1) of the Criminal Appeal Act 1912 (NSW) on the following grounds:
1. that the trial judge erred in allowing the jury unsupervised and unrestricted access to the recording during its deliberations; and
2. that the trial judge erred in failing to warn the jury as to the use it might make of the recording and any considerations it should take into account in order to avoid affording it “undue weight”.
4. For the reasons given below, I have concluded that the applicant should be granted leave to appeal but his appeal should be dismissed.
The DVD recording of the complainant’s evidence
17. The DVD containing the complainant’s recorded evidence was tendered by the Crown at the outset of the Crown case and marked as exhibit A. At that time, the trial judge gave the jury a warning in accordance with s 306X of the Criminal Procedure Act:
“You should not give the evidence any greater or lesser weight simply because it is given in this way. You should assess the evidence in the same way as you assess the evidence of any other witness and you must not draw any adverse inference against the accused because the evidence is give in this way. As I say, it is standard procedure.”
18. The DVD was partly played but, after problems with its sound quality, the trial was adjourned early for the day so that copies of the transcript of the recorded evidence could be provided to the jury as an aide-mémoire. On the next day the transcript was retrieved from the jury after the DVD was played in full.
19. During her summing-up, the trial judge gave the jury another s 306X warning.
20. After the jury was sent home for the day, and before it commenced its deliberations on the following day, the applicant’s counsel submitted that the trial judge should exercise her discretion to withhold exhibit A from the jury because of a risk that, if the jury had it, undue emphasis would be given to the complainant’s evidence. He referred to the decision of this Court in R v NZ (2005) 63 NSWLR 628;  NSWCCA 278 but the trial judge said that that decision was distinguishable because the recording in question there was only of the complainant’s evidence-in-chief and not of her cross-examination.
21. At the commencement of proceedings on the following day, the trial judge indicated that a note had been received from the jury asking whether it could watch the DVD of the complainant’s evidence again (as well as receive the transcripts of the other witnesses’ evidence). Her Honour commented:
“Since [the jury members] will have the entirety of the evidence [of the complainant], which allows total balance and consideration of the truthfulness of [the complainant’s] evidence, I’m of the view that they can be given unrestricted access to the disc and they can get all the trial [transcript].”
22. The applicant’s counsel relied upon the objection that he had taken the previous day and requested in the alternative that the trial judge impose a limit on the time that the jury could have the DVD. Her Honour declined to do this.
23. The jury was provided with the items requested and retired at 10.10am to consider its verdicts. It returned at 2.47pm with verdicts of guilty on each count.
40. At the outset, I note that the giving of evidence by way of playing a DVD or sound recording does not constitute the DVD or sound recording itself as evidence in the proceedings (NZ at ; Gately at ). That position under the general law is not affected by s 306B(1) of the Criminal Procedure Act which is in the following terms:
306B Admission of evidence of complainant or special witness in new trial proceedings
(1) If a person is convicted of a prescribed 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 or a special witness.
“The context in which the words ‘tender as evidence’ are used in s 306I(1), like s 306B(1), is the ‘admission’ or receipt of such evidence in a subsequent trial or a retrial (as the case may be), not to prescribe the course to be adopted upon admission of such evidence.”
42. As a result, the DVD should not, in this case, have been marked as an exhibit. The ordinary rule that exhibits are made available to the jury in the jury room during its deliberations, subject to the exercise of the court’s discretion to direct otherwise (see NZ at -), did not apply. Instead, it was for one or other of the parties to persuade the trial judge that there was a good reason why the DVD should be made available to the jury.
43. The trial judge’s exercise of discretion to permit the jury to have access to the DVD in the jury room during its deliberations miscarried because her Honour, without the benefit of the subsequent decision in CF, admitted the DVD as an exhibit and therefore approached her decision upon the basis that, absent good reason to the contrary, the DVD should be provided to the jury along with the other exhibits. In fact, the DVD should not have been treated as an exhibit and her Honour should have approached the issue on the basis that it will “seldom, if ever”, be appropriate to allow a jury access to such a recording in the jury room (see  above). There was therefore an irregularity in the DVD being provided to the jury for playing in the jury room.
50. In these circumstances, I do not consider that the irregularity to which I have referred resulted in a miscarriage of justice. In particular there was no risk of any unbalanced consideration of evidence of the nature referred to in Gately (see  above).
57. I agree with Macfarlan JA.
58. I agree with Macfarlan JA.
1. The applicant in this matter seeks leave to appeal from his convictions and aggregate sentence for seven sexual offences committed between 2 September 2012 and 10 October 2016. Having been born in December 1997, he was a child for the purposes of the Children (Criminal Proceedings) Act 1987 (NSW) until December 2015, and thus when many of the offences occurred. Because there is a prohibition on the publication or broadcasting of his name or any information which might identify him, or lead to his identification, he has been given a pseudonym for the purposes of this judgment. Similar protection is given to the victims of the offending who are identified as “Kate” and “Nettie” for the purposes of this judgment.
Challenges to convictions
3. The offences involved eight counts, four with respect to each victim. The applicant was convicted on seven counts and acquitted of one, being the only charge of sexual intercourse involving Kate. He was convicted of three counts of indecently assaulting Kate, one indecent assault on Nettie, and three charges of sexual intercourse with Nettie, commencing when she was 7 years of age.
4. The proposed appeal with respect to the convictions contained seven grounds. The first two were in identical terms and challenged the adequacy of the warnings given by the trial judge with respect to the evidence given by the victims by way of audio visual recording of police interviews, and from a remote location by audio visual link for the purposes of further examination and cross-examination.
5. Pursuant to s 306X of the Criminal Procedure Act 1986 (NSW), where evidence in chief is given by way of a recording of a police interview, the judge is required to warn the jury “not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way.” Further, with respect to the evidence given at trial by closed circuit television, a further warning is required in similar terms, but also a statement that “it is standard procedure for the evidence of vulnerable persons in such cases to be given by those means”: s 306ZI.
6. There is no dispute that appropriate warnings were given prior to the evidence being heard by the jury. The challenge turned on the fact that the warning was not given immediately prior to them hearing that evidence.
7. The statute does not state when the specified warning and information should be given; such matters are left to the discretion of the trial judge. It is true that in DBG v R, Howie J expressed the view that it is “highly preferable that a trial judge give such information and warnings … either immediately before or immediately after the giving of that evidence rather than to wait to fulfill that obligation during the course of the summing up.” As he further observed, it might be necessary to repeat such statements, “[b]ut whether such a course is necessary in order to ensure a fair trial and one according to law will depend upon all the circumstances of the particular case”. Where a convicted offender seeks to appeal against his or her conviction, and there has been compliance with the express requirements of the law, the question for this Court is whether there has nevertheless been a miscarriage of justice.  That is a matter to be assessed in the circumstances of each case. So much was recognised by Howie and Johnson JJ in R v NZand accepted in Jarrett v R.Various factors may affect whether a warning or information is given in a manner which is effective, having regard to the purpose for which it is given. There is no rule that it be given “either immediately before or immediately after” the giving of the evidence. Nor is there any rule that it should be given more than once. On occasion that may be desirable, on other occasions not. Repetition of a warning that the jury should not draw any inference “adverse to the accused person” based on the form in which the evidence is given, if overemphasised, may invite speculation as to what could give rise to such an adverse inference, thus undermining the purpose of the warning.
8. No further warning was sought in the present case, and in fact much of the warning was repeated when the jury were allowed to view the audio visual evidence a second time. I agree with Adamson J that there is no basis to grant leave to appeal on these grounds.
30. The applicant seeks leave to appeal against his convictions for child sex offences following a trial by jury conducted by Judge Beckett in the District Court. He also seeks leave to appeal against the aggregate sentence imposed on him for those offences by Judge Beckett of 8 years and 6 months’ imprisonment, commencing on 5 March 2020 and expiring on 4 September 2028, with a non-parole period of 4 years and 6 months to commence on 5 March 2020 and expire on 4 September 2024.
The evidence in the trial
Warnings given regarding pre-recorded evidence and evidence given remotely
42. It was common ground that each of the children was a “vulnerable person” within the meaning of s 306M(1) of the Criminal Procedure Act 1986 (NSW). LS, a school friend of Nettie, was also a child, and therefore a vulnerable person. Each gave evidence in chief by way of a pre-recorded interview and was cross-examined by audio-visual link. On 4 February 2020, in opening remarks to the jury, the trial judge said:
“In some circumstances, such as the trial that you are about to see the evidence may include audio and visual recordings. This trial involves allegations of sexual assault and indecent assault, and the law allows for certain procedures to be put in place for this type of evidence. One such procedure is that the evidence-in-chief is adduced by way of a pre-recorded interview by the police with the complainant, in this case there are two complainants, and that is the way that the evidence will be given in this trial.
None of these procedures are unusual in trials of this type and so you must not draw any inference adverse to the accused simply because those procedures are put in place. These are not unusual procedures in cases such as this kind of case, involving these sorts of allegations. It is important that I warn you that simply because the evidence of the complainant is taken by way of an audio visual link, i.e. not in the Court itself but by way of the screens which are in front of you, you must not give this evidence any more or lesser weight than you would give evidence in any other case. It is the same as hearing evidence from a witness within the Court. But be aware that it is evidence that you will only see once, and I’ll give you some warnings in relation to that in a moment.”
43. This warning is relevant to grounds 1 and 2, as is the warning in the summing up referred to below.
44. On 5 February 2020, the day after the warning was given, Kate was called to give evidence. Before the first recorded interview of Kate, conducted on 25 July 2017, was played to the jury, the Crown provided a transcript of the interview to the jury. At the time it was provided, her Honour said:
“So you’ll be provided with a copy of the interview, ladies and gentlemen, in writing as well as being able to listen to it. The actual evidence is in fact the recording. If you discern there’s any difference between what you hear and what you see on the page, then it’s whatever you think you hear, rather than what is written. Those documents - because that’s not an exhibit, it’s an MFI; the exhibit is the recording, then you don’t retain those documents. However, if there’s a particular part of it that you think is important, you may wish to mark it. You can put your initials on the top of the document and later on, if needs be, that document, you might be able to access it to see if there’s any marking on it. So that becomes MFI 4.”
45. After the interview was played, the members of the jury were asked to return their copies of the transcript of the interview. This practice was consistently adopted for each of the witnesses who gave evidence in this way (each of the children and LS). This direction is relevant to ground 4.
71. Ms Kluss accepted that the warnings that were given in the opening remarks conformed to the substance of these provisions and that the warnings were, at least in part, repeated in the summing up. However, she submitted that her Honour was in error in failing to give the warnings at the time, and every time, evidence was given which attracted the warning. She relied on R v DBG  NSWCCA 328; (2002) 133 A Crim R 227, where Howie J (Meagher JA and Simpson J agreeing) said at :
“For my part, I believe it is highly preferable that a trial judge gives such information and warnings as are required in respect of a particular part of the evidence that is to be given in a trial before a jury either immediately before or immediately after the giving of that evidence rather than to wait to fulfil that obligation during the course of the summing up. Generally speaking, it would be expected that any information or warning that a jury is required to consider in their assessment of a particular piece of evidence would have considerably more impact upon the jury if given at a time proximate to the evidence. This does not mean that it would not be advisable, or even necessary in some cases, to convey that information or warning again during the course of the summing up. But whether such a course is necessary in order to ensure a fair trial and one according to law will depend upon all the circumstances of the particular case and the nature of the information or warning that must be given.”
73. While ss 306X and 306ZI of the Criminal Procedure Act require the trial judge to warn the jury about the matters covered by the sections, Parliament has not specified when such warnings ought be given. This Court has said, in the passage extracted above, that it is preferable that such warnings be given before the summing up and indeed, before or immediately after the evidence is given.
74. However, the timing of the warnings and whether, and how often, they are to be repeated, remains within the discretion of the trial judge. While one can understand why giving the warning only in the summing up could be thought to be too late, since the jury may already have given the evidence greater or lesser weight, having not been directed to the contrary, the same concern does not arise when it is given in the opening remarks. In the present case, although evidence of non-vulnerable witnesses was given between the opening remarks (where the warnings were given) and the calling of Kate, the time between the warnings and the adducing of Kate’s evidence was relatively short. To repeat a warning every time a vulnerable witness is called runs the risk of insulting the collective intelligence of the jury and, perhaps even more importantly, of giving the jurors the impression that they need not listen carefully to what the trial judge is saying because any important direction will be repeated ad nauseum. Further, there is a risk that if a trial judge keeps reminding the jury that they are not to regard pre-recorded interview evidence differently from oral evidence given in the witness box, it will only serve to highlight the difference in form, when the purpose of the warning is to the contrary. In any event, the substance of the warning was repeated immediately prior to replaying the recorded evidence. The statement that no inference adverse to the accused should be drawn from the nature of the procedure was not repeated. However, to make too much of that warning is apt to invite the jury to consider why they would think the procedure implied something adverse to the accused.
75. In my view, the trial judge not only complied with the statutory provisions referred to above, but did so in a way which highlighted their import. I am not persuaded that leave under r 4.15 ought be granted in respect of grounds 1 and 2.
145. I have had the considerable advantage of reading and considering the judgment of Adamson J in draft. I agree with the orders proposed by her Honour for the reasons she expresses. I agree too with the judgment of Basten JA which I have also considered in draft.
Grounds of Appeal
5. The Applicant relies upon the following grounds of appeal:
Ground 1 (conviction appeal) – that there occurred a significant imbalance in the trial resulting in a fundamental irregularity and consequent miscarriage of justice because the trial Judge, although reminding the jury not to give the complainant’s (James) evidence-in-chief greater weight because they were to see and hear it twice, did not additionally remind and identify for the jury the inconsistencies in the complainant’s (James) evidence following the replaying of the complainant’s (James) Joint Investigation Response Team (“JIRT”) interview.
Ground 2 (sentence appeal) – that the aggregate sentence was manifestly excessive by reason of the manifest excessiveness of the indicative sentences.
The Course of the Trial
“HIS HONOUR: Ladies and gentlemen, I just got you in to deal with this note you have sent me. I will read out the note so you all know what we are talking about. ‘We all request the discs 1 and 2 of [James] please.’ I am not going to explain why this is but just accept from me that it is: I cannot do that. If you want to see the recording of the interview, the only way that can happen is if you are in court and we are all here and we play you that recording in its entirety and the same goes for the recording of [James’] evidence that you saw on Monday. If you want to see it, the only way that can happen again is if we are all in court and we play that in its entirety.
I do not say that to discourage you. If you want to do that then we will organise it but I cannot do what you have asked me, which is to give you the discs to play in the jury room. So have a chat amongst yourself at some convenient time and we will do whatever you want. If you still want to have them replayed in that manner we will do it. It will not finish today, of course, but we will do it tomorrow. If you do not want to you do not have to. If you do not want to watch them being replayed you do not have to, okay? We will wait for you to tell us if you want to see them and we will organise it. Thank you.
JURY RETIRED TO FURTHER CONSIDER ITS VERDICTS AT 3.18PM
HIS HONOUR: Right, if I don’t hear anything else from the jury I’ll see you all at 5 to 4.”
“HIS HONOUR: The jury have indicated they want to see the discs so we will do that first thing tomorrow.
MFI #12 JURY NOTE DATED 23/09/20 NOTE FROM JURY IN RELATION TO WISHING TO HAVE DISCS 1 AND 2 PLAYED OF THE COMPLAINANT'S INTERVIEW AND PRE-RECORDED EVIDENCE
HIS HONOUR: Could we bring the jury in please?
JURY RETURNED TO COURT AT 4.00PM
HIS HONOUR: All right, members of the jury, you have indicated you want to see the discs. We will see them first thing tomorrow. Do you want to come in earlier and start earlier? We could start at 9.30 if you want. Has anyone got a problem with that?
HIS HONOUR: 9.30 it is, okay, so we will start playing the discs to you then. When we do play the discs I want you to bear something in mind. Usually when people give evidence the jurors only see that once. You are not going to see [the Applicant] give evidence again because it is not video recorded, and so I want you to guard against placing over-emphasis on the prosecution case because you are seeing the most important witness in the prosecution case twice. So just bear that in mind. Do not be subconsciously influenced by that evidence. Do not give it greater weight than you should because you are seeing it twice. Do you see what I am saying?
As I say, you are not going to see [the Applicant’s] evidence again but you are going to see the most important witness for the prosecution again. So please guard against giving it over-emphasis because of that reason. Just remember that ordinarily you only see a witness give evidence once. Right, you have said you want to go home now so I will allow that to happen.”
“HIS HONOUR: Right, members of the jury, these videos together take two hours and seven minutes. The first one goes for 55 minutes so we might have a five minute break after that and then we will bring you back in for the second one, okay? Just remember what I said to you yesterday, please.
Ordinarily when witnesses come into the witness box and they give their evidence the jury only have the opportunity to see them once. [The Applicant’s] evidence was not recorded so you will not be seeing his evidence again. So just bear that in mind. Do not give too much weight to the evidence of [James] because you are seeing it twice.
MFI 2 PLAYED TO COURT
I wondered, members of the jury, while the video was being played whether maybe you want a bit longer than five minutes if you want to talk about it for a while, so we will do it this way. You go to the jury room. We will come back in five minutes unless you say to the officer, ‘No, we’d like a bit longer,’ okay? You are in charge, but if we do not hear from you we will see you in five minutes’ time, okay?
JURY RETIRED TO FURTHER CONSIDER ITS VERDICTS AT 10.33PM
HIS HONOUR: I’ll adjourn for five minutes unless we hear something else.
HIS HONOUR: We’ll have the jury, please. They have decided not to see the second disc. Right, just let them know that’s fine and we’ll wait to hear from them.
MFI #13 JURY NOTE DATED 24/09/20 NOTE FROM JURY IN RELATION TO NO LONGER WISHING TO VIEW COMPLAINANT'S PRE-RECORDED EVIDENCE
Decision on First Ground of Appeal
“210 We should by now have made clear our view that this Court should not lay down any rule of practice or procedure to be followed in every case where the evidence in chief of a witness has been given by the playing of a videotape. However, we can summarise our views as to the procedure to be followed generally:
(a) The videotape evidence of a Crown witness should not become an exhibit and, therefore, should not be sent with the exhibits to the jury on retirement;
(b) Any transcript given to the jury under s 15A should be recovered from the jury after evidence of the witness has been completed;
(c) It is for the discretion of the trial judge how a jury request to be reminded of the evidence in chief of the witness should be addressed;
(d) It would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed.
(e) If the tape is to be replayed or the transcript of the tape provided to the jury, the judge should caution the jury about their approach to that evidence when the tape is being replayed to them or the transcript of the tape returned to them in terms to the effect 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’;
(f) The judge should consider whether the jury should be reminded of any other evidence, for example the cross-examination of the witness at the time that the tape is replayed or sent to the jury room, if that step is considered to be appropriate.
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.”
137. I agree with Johnson J
138. I agree with Johnson J.