Gately v The Queen [2007] HCATrans 317 (19 June 2007)

Last Updated: 22 June 2007

[2007] HCATrans 317

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B15 of 2007

B e t w e e n -

GRAHAME JAMES GATELY

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 19 JUNE 2007, AT 10.17 AM

(Continued from 18/6/07)

Copyright in the High Court of Australia

GLEESON CJ: Yes, Mr Smith.

MR SMITH: Your Honours, if I could just briefly deal with some matters that were raised yesterday, the first issue was the application of section 99 of the Evidence Act and whether that applies to these pre-recordings. Having considered the matter overnight, your Honours, I would submit that the section most likely does not apply to pre-recordings because it is expressed specifically to apply to a document “admitted in evidence under this part”. It would apply, for example, to a section 93A statement but arguably would not apply to a pre-recording.

There are some other discretions concerning pre-recorded evidence though. For example, section 21AX of the Evidence Act permits the court to make orders or give directions or rulings as appropriate. Your Honours may see that that section refers in subsection (2) to not limiting the Criminal Code, section 590AA. I did have a copy of that provision for your Honours’ consideration, if I can hand those to your Honours. I have one for the record as well if that is required.

Your Honours will see that section 590AA allows for an application for directions or rulings by a party after an indictment has been presented and your Honours will see at subsection (2)(l) the court may give a direction or ruling in relation to “the Evidence Act 1977, part 2, division 4A” – which is the relevant provision – “or 6”. So that would give a general discretion on the court to deal with directions concerning the use of pre-recorded evidence. Additionally, section 130 of the Evidence Act gives a general discretion on a court to exclude unfair evidence, so that applies to all of the Acts. So it is submitted with regard to this issue a court would resort to the general law if objection is made to the pre-recorded evidence going to the jury.

The second issue that was raised by Justice Heydon yesterday was what “maker” means in terms of section 93A. I was able to find an authority on that proposition. It is a Queensland decision of R v Griffin [1998] 1 Qd R 659. If I could hand your Honours a copy of that decision. Your Honours may see in that particular case the Queensland Court of Appeal was concerned with the admissibility of what a child told a police officer who wrote those statements in a police notebook and it was held – and the headnote refers to this:

handwriting in a police notebook was capable of constituting admissible evidence under s. 93A.

The Chief Justice and Justice Derrington, your Honours will see, agreed with the reasons of Justice Byrne who at page 663, line 42 notes what the relevant evidence was, that is what the boy told the officer in the presence of a social worker who made notes in his notebook. His Honour at page 664, line 50 noted that:

the section contains distinct indications of an intention that it comprehend another person’s contemporaneously written record of things said by a child. The highly restrictive interpretation suggested for the appellant cannot be reconciled with the legislative intent as it emerges from the words used in s. 93A.

Then his Honour discussed the definition of “document”. So it would seem, on that authority at least, that the statement given by the complainant in this case was made within the definition, so I would not seek to argue that for the appellant.

HAYNE J: Just staying with Griffin a moment – I am not sure of the particular facts in Griffin but it may serve as a useful example – let it be assumed that a child complainant makes a statement to police officers. Let it be further assumed that the child complainant gives evidence at the trial, whether by the mechanisms provided by section 21AK and like or orally. Could the prosecution tender as part of its case the statement the child made to the police officer?

MR SMITH: Yes.

HAYNE J: Is that not the difficulty? Why can a party calling a witness tender as part of that party’s case a prior consistent statement made by that witness out of court? Why can that party tender a prior inconsistent statement? Is this not the root of the difficulty that we are getting into in this area?

MR SMITH: It is, your Honour. When I made that concession just a minute ago, what I was really conceding was that it is admissible as evidence of the facts, and so says section 93A, but that does not get around the situation where there is this full oral evidence led in this case and then the prior consistent statement sought to be tendered. So one comes back to, at the least, a discretion in the trial judge to exclude such evidence.

HAYNE J: It is not, it seems to me, a question of discretion to exclude. It takes us slap bang up against what exactly 21AI and the alphabetical list that there follows is about, in particular whether the tape recording then stands as an item of evidence separate from what the jury see and hear when the tape is played. Although I see that AM speaks of something “as admissible as if the evidence were given orally”, at some point we have to grapple with what is meant in that context by “admissible”.

MR SMITH: That was the next point I was going to submit upon which was consequent upon argument yesterday, and that is does the Act permit the pre-recording to be tendered as an exhibit? My submission on that topic is that certainly Division 4A does not have any express provision which enables a pre-recording to go in as an exhibit. The heading of the division is “Evidence of affected children”. Section 21AA provides inter alia that the purpose of the division is:

(a) to preserve . . . the integrity of an affected child’s evidence –

Section 21AB refers to the giving of evidence for a relevant proceeding, the evidence is pre-recorded, and 21AM makes the evidence:

as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court –

My submission is the videotaping of the evidence is merely a different method by which to obtain the evidence. It is submitted that in this area the evidence should not become an exhibit but should be marked for identification only for appeal purposes or retrial purposes and the evidence should be heard like any other evidence in the trial viva voce given by a witness.

The real question arises as to whether it could be played back later, as distinct from a transcript being read to the jury. As Justice Hayne raised yesterday, Bulejcik is a case where the Court considered the appropriateness of the jury listening to the unsworn dock statement as recorded. Relevant to that was section 402 of the Crimes Act (NSW) because that became relevant to whether there was, as it were, a reopening in the case.

Can I hand to your Honours the equivalent provision of the Code concerning the trial. It is sections 618 to 620 of the Criminal Code (Qld). Your Honours will see that the procedure in a criminal trial is set down in those relevant sections. The sections relevantly, for example, section 618 provides that after the close of the evidence of the prosecution the accused person is asked whether he wishes to adduce evidence in the trial. Section 619 refers to the order of speeches by counsel. Interestingly enough, in Queensland if the accused gives evidence, then the accused’s counsel must address first; the Crown goes last, unlike some other States where the Crown always addresses last. Finally, in section 620 it is noted that after the evidence is concluded and after addresses:

it is the duty of the court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make.

By analogy these provisions equate to 402 of the Crimes Act (NSW) which was considered in Bulejcik’s Case. Their Honours Justices Toohey and Gaudron at 399 of that decision – it is No 9 of the respondent’s authorities – noted in the last paragraph:

There is no reason why a jury should not have access to an exhibit, including a tape, after retirement. The tape of the unsworn statement was not an exhibit. However, if the jury is entitled to have regard to the accused’s voice in making an unsworn statement, for the purposes of comparison, it is hard to see why they should not have access to a tape recording of that statement, there being no suggestion that what they were hearing was not the accused’s unsworn statement. It is one thing to say, as is said earlier in these reasons, that the trial judge should have given the jury comprehensive directions regarding their use of the tape recording and that counsel should have been permitted to address the jury on that aspect. It is another thing again to say that the tape recording, which was part of the Court’s own records and was to be used by the jury for the purpose of refreshing their recollection of the appellant’s voice when making his unsworn statement, had first to be formally admitted in evidence. We do not think that was necessary.

However, Justices McHugh and Gummow took a different approach to that at page 407 of the decision and under the heading “Playing a record of the accused’s statement or evidence” it was noted:

The unsworn statement of an accused person is part of the trial. The jury may take it into account although it is neither evidence nor testimony. The jury may take it into account in favour of, as well as against, the Crown.

KIRBY J: What page is this?

MR SMITH: Page 407 at about point 6, your Honour. In the last line:

If the jury ask for a tape of the accused’s evidence or unsworn statement to be replayed so as to refresh their recollection of the content or manner of what the accused said, the judge could properly authorise it without requiring the Crown to re-open its case.

But the line is drawn when the jury wish to use the record of the evidence or unsworn statement as a basis of comparison with other evidence. In such a case, the jury will not be refreshing its recollection of what it heard. It will be using the recording as “real evidence” of the sound of the accused’s voice when it is recorded. The judge can only permit that to happen when the “real evidence” has been admitted into evidence. The recording then becomes evidence upon which the Crown can rely. It will be in the same position as a tape of the accused’s voice that had been admitted into evidence as the basis for expert evidence that a disputed statement on another tape was made by the accused.

It is fundamental to the common law system of criminal justice that a person can only be convicted on admissible evidence given in open court. If a tape of the accused’s evidence or unsworn statement is to be relied on as a basis of comparison with other admissible evidence, the imperative of a fair trial requires that the accused be given an opportunity to deal with it.

GLEESON CJ: That was a case about voice identification, was it not?

MR SMITH: It was, your Honour. In this case though, by analogy, I would seek to argue that the pre-recording should not have been an exhibit. It was evidence. That was it. Certainly if the jury requested to be reminded of the evidence, a transcript of such evidence could have been read to the jury but it achieved a height greatly in excess of what it deserved when it was left to the jury to watch in the jury room without restriction. So by analogy I would argue that this principle applies in this case, although I concede it was used for a particular purpose in this case, ie, comparison with the exhibit of the other recording tendered. That really is my submission about that issue that was raised yesterday, your Honours.

If I could finally complete my submissions about the police statement and its use in this trial, which is the final part of my submission - - -

GLEESON CJ: Section 93A really finds itself in a context that begins with section 92, does it not?

MR SMITH: It does, your Honour.

GLEESON CJ: Section 92 is the kind of now fairly longstanding provision that covers, amongst other things, business records.

MR SMITH: Yes, it does. Certainly if the criteria in section – I know your Honour raised this point yesterday and I was not exactly sure of what your Honour meant by your Honour’s reference to section 92 in the context of 93A. I did look at some authorities on this - - -

GLEESON CJ: There is nothing unusual about a case, is there, in which a business record is admitted in evidence as evidence of a fact established or stated in the business record and you also have viva voce evidence of that fact?

MR SMITH: That is correct. In fact, on some occasions it could just be tendered without the witness being called, although 93A - - -

GLEESON CJ: But you can do both.

MR SMITH: Yes, certainly. Section 92 does have specific criteria which must be fulfilled before admissibility arises.

GLEESON CJ: The opening part of section 93A was obviously modelled on 92 with the difference that 92(1)(a) requires the maker of the statement to be called as a witness in the proceedings, whereas 93(1)(b) requires the maker of the statement to be available to give evidence in the proceedings.

MR SMITH: Yes, 93A, certainly, if the party requires the witness to be – no, the witness has to be available to give evidence in the proceeding, quite right. Your Honours, I was going to submit to the Court that the police statement in this particular case did become a point of focus for the jury. If I could take your Honours to the appeal book references relevant to that, the prosecutor in his opening at page 107, line 10 noted this to the jury:

Also under our law, any statement made by a child - for example, to a police officer – becomes the child’s evidence in a trial. So in this case you will have before you [the complainant’s] statement that she gave to police officers investigating this matter. That statement will be tendered to the Court and be read to you, and that will be her evidence in combination with the video cassette you see played.

At 118 of the appeal book, line 32 the statement was tendered as exhibit 1 and was read to the jury during the police officer’s evidence, then there was reference again to the statement in the summing-up by his Honour, firstly at page 218, line 20 where his Honour gave that direction I mentioned yesterday in accordance with 21AW about no greater or lesser weight is to be given to that evidence. Then his Honour at 219, line 10 told the jury that the court could be reconvened and the statement read back to the jury if they wished.

Then during the summing-up his Honour at times quoted what the complainant said in the statement in reference to the particularised acts. For example, at page 225 at about line 31 with respect to the count, which was I think count 12, the incest count, his Honour quoted from the statement as relevant to what the complainant’s version was. Aside from that, for example, at 231, line 22 he talked about count 2 and referred, for example, at line 30 to what was said in the statement.

Then the jury retired to consider their verdicts at 3.12 pm on the 11th, this is page 264. I have already mentioned yesterday the request about the two videos being seen again and what happened in that regard that day. Then the next day, page 270, the court reconvened at 11.00 am and the note from the jury, page 270, line 3, was the jury wished to review the complainant’s police statement in the jury room.

Now, apparently the trial judge had sent a message through to the bailiff that they could not have it but your Honours will see at 273, point 20 that there was a second message received from the jury that they did not require it read but asked for counts 10, 11 and 12 to be read again. The entire statement was read at 273, line 35. Then at page 274, line 20 the speaker was interested in the penetration side of things. That was read. At 11.46 am, page 275, line 35 the jury retired and 277, line 1 at 2.50 pm verdicts were returned of guilty on the relevant counts.

So my submission is that when one looks at all of that, the statements did achieve a fair degree of significance in the mind of the jury. There were no warnings given as to undue weight concerning the statement. Justice Atkinson in the Court of Appeal at page 308 of the appeal book dealt with this issue in paragraph [34], noting at line 50:

The fourth ground of appeal was a complaint that after the learned trial judge had Exhibit 1 re-read to the jury and at their request a further portion re-read, the learned trial judge failed to warn the jury of the need to be careful not to give undue weight to that evidence. The jurors after retiring had asked for a copy of the complainant’s statement to the police which the learned judge had quite properly refused to give them. They then asked if they could hear the police statement relating to the events referred to in counts 10, 11 and 12 and with the concurrence of counsel, the whole of Exhibit 1 was read to the jury. The speaker then asked for a repetition of the part that dealt with whether or not there was actual penetration or attempted penetration on the incest count. That was repeated to the jury. No objection was taken from either counsel on the manner in which His Honour dealt with that request from the jury. Given that they had available for their view the extensive cross-examination of the complainant on the two video tapes, it is unsurprising that anything further was required. This ground of appeal is also without merit.

With regard to her Honour’s observations, it is, in my submission, difficult to understand how the trial judge on the one hand quite properly refused to give the statement to the jury, yet on the other hand made no error in not directing as to the undue weight to be given to the statement. The fact is this statement was the last evidence the jury heard here before
returning verdicts of guilty. Further, the reasoning assumes the jury had regard to the cross-examination in the videotapes but, for the reasons I mentioned yesterday, we do not know that because the court was not reassembled to know exactly what the jury watched in that regard.

So in summary from the appellant’s point of view, this was a case where the jury heard the allegations by the complainant on at least six occasions: during the Crown opening the initial reading of the statement, the playing of the pre-recording, the summary of the Crown case and the summing-up, the playing of video evidence at least once and the rereading of the statement just before the verdicts were returned. It is submitted from the appellant’s point of view that the case became overwhelming wrongly by reason of the number of times the jury heard the complainant’s version.

The ultimate submission is that either one of the two errors I have referred to or a combination of both has led to the loss of a chance of acquittal in this case. They are my submissions, thank you, your Honours.

GLEESON CJ: Thank you, Mr Smith. Yes, Mr Campbell.

MR CAMPBELL: May it please the Court. Your Honours, perhaps if I could start with an issue that achieved some importance yesterday. That is in relation to section 99 of the Evidence Act which involves the discretion to withhold a document from jury deliberations. That is a document which has been tendered and is admissible in the trial. A document is defined very broadly in Schedule 3 of the Act, including written statements and video statements. It was similarly defined when section 93A was actually inserted into the Evidence Act in 1989.

Most importantly, the discretion in section 99 relates to a statement in a document. “Statement” is also defined as:

any representation of fact, whether made in words or otherwise –

again, that is in the schedule. Section 99 goes on:

Where in a proceeding there is a jury, and a statement in a document is admitted in evidence under this part, and it appears to the court that if the jury were to have the document with them during their deliberations they might give the statement undue weight, the court may direct that the document be withheld from the jury during their deliberations.

That is therefore subject to statements which are admitted under this part, which is Part 6, which includes sections 92, 93 and of course 93A as well as others. For example, prior inconsistent statements which have been proved in the course of the trial by virtue of section 101 become evidence of the truth of what is contained in the statement. So any of those types of statements could be withheld from the jury during their deliberations if there is a risk they would be given undue weight. That clearly envisages that the document is admissible and becomes evidence of the fact contained in the statement. So there is the distinction between a statement, that is the representation tending to establish the fact, and a document, which is the thing that contains the statement.

Therefore, exhibit 1 in this case, the document containing the statements of the complainants is clearly within section 93A, and I understand my learned friend no longer disputes that. The document, whether it be the videotape or typewritten statement, is admissible in the trial and there is therefore a discretion in section 99 to withhold it from the jury during their deliberations. Now, the document will most usually be the document, whether it be video or typewritten, which is produced as a result of the investigative process.

It is equivalent in that sense – this is the 93A-type statement – of the VATE statement in Victoria or the statement which was envisaged in Rawlings Case. Perhaps if I could call those types of statements “out-of-court statements” or “an investigative document”. Those types of statements have been made by statute admissible as to the truth of the representations contained within them.

That is in contrast to the evidence which is captured or recorded pursuant to section 21AK. That evidence is, in essence, the viva voce evidence, seen and heard by a jury. Division 4, in which section 21AK appears, creates a method of giving the evidence for trial. It is a method of preserving that evidence. Now, that distinction between section 93A-type statements which are admissible and section 21AK situations where the evidence has been recorded and preserved, that distinction between the two is important.

GLEESON CJ: It seems to be common ground, does it not, in this case that section 99 would apply to the 93A statement?

MR CAMPBELL: Yes.

GLEESON CJ: It would not apply to the videorecording of the evidence?

MR CAMPBELL: Indeed, yes. I will turn to that in a moment, thank you, your Honour. Section 93A creates a statutory method of proof by admission of the document. Section 21AK creates a method of receiving evidence which by 21AM makes it the same as if given orally.

It should therefore be seen that the scheme in Division 4A is to facilitate the taking of evidence at an earlier time than the trial and the preservation of that evidence for use in further proceedings. That evidence is therefore what is seen and heard by the jury when it is played to them and if the jury are asked to be reminded of that evidence then the best method is, of course, to replay it, and that is the point I seek to make in my outline in relation to Bulejcik, particularly the passage at page 384 in the judgment of the Chief Justice:

When a jury asks to be reminded of certain evidence given at a trial and the evidence has been recorded by tape recording, the playing back to the jury of the relevant part of the tape may be a convenient and appropriate means of providing the reminder. Just as there is no objection to a judge reading to the jury the judge’s note of the evidence or the relevant part of a transcript, if a transcript has been produced, generally speaking there can be no objection in principle to the playing back of the relevant part of the tape. The accuracy of the tape recording marks it as the preferable mode of furnishing the reminder. At least, that is the situation where the playing back of the tape could reasonably be expected to have no significance I the trial other than reminding the jury of what had been said in evidence.

KIRBY J: That is a point of view but the other point of view is that which has been said in other reasons and pressed upon us that it effectively reinforces and further reinforces, and by its authenticity and by its detail and power unfairly reinforces one side of the case and is not balanced up.

MR CAMPBELL: That could be an issue if there is other evidence which is not in the same form. That simply was not the case in this trial. To say it gives undue influence or undue emphasis to that aspect of the evidence begs the question against what, and in this case there was no other evidence that this was undue importance in comparison to.

KIRBY J: That is because our system of criminal law, unlike the civil law system, is accusatorial and it is accusatorial and for 800 years has operated on the fact that the witness who gives the evidence for the prosecution gives it once, and does not give it twice, three times, repeatedly and whether this unbalances the accusatorial nature of the system.

MR CAMPBELL: Can I make two comments in relation to that. First, this was a jury request to see the evidence again. It is not as though the Crown - - -

KIRBY J: In life you can request, but you do not necessarily – we do not always get.

MR CAMPBELL: The second comment is that this was a case where the jury had been directed. They must scrutinise that evidence carefully. They were in fact, in my submission, performing their role of scrutinising the evidence which they were told to scrutinise carefully.

KIRBY J: The question is whether they scrutinised it in a way different from the assumption of the jury role in an accusatorial trial according to our system. It is something new, you see. Until they had videotapes you did not have this problem. Now they have got it and if there is evidence from the accused, how do you suggest that be balanced up, and here there was not, but we have to, as it were, fashion a rule which is appropriate to an accusatorial trial where the accused gives evidence and the jury just comes and says, “We do not want the accused’s evidence. We just want the complainant’s evidence”.

MR CAMPBELL: I will, in a little while, come to a general proposition which, in essence, is that these matters must be matters of discretion for the trial judge to assess in the variety of situations that can arise. That was not the situation here and, therefore, the risks which have been identified in cases like H, Rawlings, BAH and NZ simply did not arise.

GLEESON CJ: There is probably a matter to be borne in mind from the point of view of the jury. This was a trial that involved multiple counts, and, as what went on in relation to the section 93 statement at the end indicates, they wanted to check up on the detail of some aspects of the complainant’s evidence in order to apply their consideration to the detail of some of the counts. They were, for example, interested to know or be reminded of precisely what she had said to the police about whether or not something occurred on a particular occasion.

MR CAMPBELL: Yes, particularly the issue of penetration, and the version they wished to be reminded of is in some sense the most ambiguous of the versions that she gave, and I will turn to that a little - - -

KIRBY J: It is like a soccer match on television. You not only see the goal scored, you see it scored over and over again. You play and replay and replay the triumphs, and it is unbalancing the way the trial, at least until now, has proceeded, that the witness gives oral evidence once, and the fact that it is recorded until now we have not been presented with a problem that it can then be played again and again and again, and at least in this case potentially repeatedly played by the jury without the balancing that is said to be necessary.

MR CAMPBELL: Your Honours, could I make the submission that the ability to replay the tape is in fact strength rather than a problem because it does allow the jury to conduct the careful scrutiny which they are required to do, very often in these types of cases, by direction.

KIRBY J: It is strength, and if you are the prosecutor. If you are not the prosecutor, if you are for the accused, and the question is whether it is strengthened or whether it is damaged and the balance of the whole system is altered - - -

MR CAMPBELL: It may or may not be to the advantage of the prosecution. Very often these 21AK tapes will contain only the cross-examination. Very often the situation will be that the evidence of the allegations will be produced to the jury by the admission of the out-of-court statement and that the 21AK recording will in fact only be the cross-examination, as it was in this case on the second of the preliminary hearings on 9 November. That consisted entirely of cross-examination. The jury asked to see that again. It could hardly be said that that will strengthen the case for the Crown.

GLEESON CJ: We do not have a record of counsels’ final addresses to the jury, do we?

MR CAMPBELL: They are contained in the record book, yes, your Honour.

GLEESON CJ: What was the defence case?

MR CAMPBELL: That it did not happen and there was insufficient opportunity for it have occurred in this small house with the other persons within the house.

GLEESON CJ: That was what was put to her in cross-examination?

MR CAMPBELL: In essence, it was put to her that none of the events occurred.

GLEESON CJ: Was there a statement to the police by the accused?

MR CAMPBELL: Not tendered at trial.

GLEESON CJ: So the jury had before them no, as it were, account of the defence case from any source except such as they could infer from counsel’s cross-examination?

MR CAMPBELL: Yes.

GLEESON CJ: If the jury said to the judge, in considering these numerous counts, we want to be reminded of exactly what the complainant said happened on Tuesday morning at 11 o’clock in the backyard while somebody’s mother was coming, is it open to the judge to say, “I am not going to tell you”?

MR CAMPBELL: In my submission, no. The duty of the trial judge is to give the jury the assistance. Now, it would be unbalanced if the trial judge only read the evidence-in-chief without - - -

KIRBY J: Why?

MR CAMPBELL: - - - touching upon those issues which affect that evidence in cross-examination.

KIRBY J: You seem to be denying the accusatorial system of trial which is so fundamental to our – the accused does not have to give a version. You have to prove it, but the question is whether you should be able to re-prove and over-prove and repeatedly prove your goals. It is something entirely new that has not existed.

MR CAMPBELL: Your Honour, the only answer I can give to that is if the jury asks for the assistance, they are entitled to receive it.

HAYNE J: Be that so, and the judge could not say to the jury, no, what degree of control is the judge to exercise over the provision of that assistance. Is he or she to give the jury unrestricted access to the record of what has been said?

MR CAMPBELL: In this particular case, they were given unrestricted access with the agreement of defence counsel.

HAYNE J: I understand the force of that, but I am trying to look beyond this case. As I understand it, you are going to propound ultimately a proposition, “Well, it is all a matter of discretion”. Let it be assumed that one wanted to refine that proposition just a little more. Is the judge to give, in a case where there is only the complainant’s evidence, there is no case for the accused, no evidence called for an accused person, is the judge to give the record to the jury and say, “There you are”?

MR CAMPBELL: It is the judge’s duty to ensure balance and fairness, that is, to avoid risks of undue influence or undue importance being given to particular aspects of the evidence. If there is no perceptible risk that that could occur then there would seem to be no difficulty with giving them unrestricted access to the evidence.

HAYNE J: What connection, if any, do we draw between that kind of proposition and the general practice in at least some jurisdictions that jurors do not have access to a transcript of evidence? What are we to do with the fact which is now the fact that there are courtrooms in this country where the whole of the proceedings are routinely videotaped because it is cheaper to do it that way? What are we to do about this question of judicial control of those issues? Are we left to say, as I understand you will have it, it depends on the circumstances, no more precise rule can be articulated?

MR CAMPBELL: The precise rule is that balance and fairness need to be maintained. The particular application of that rule will depend upon the variety of situations that arise, and to say that no evidence, for example, should ever be given to the jury during their deliberations, or they should never be reminded of the evidence would certainly go against the - - -

HAYNE J: Is plainly untenable?

MR CAMPBELL: Yes.

HAYNE J: I understand that.

KIRBY J: Well, balance and fairness, they are lovely words, but where is the balance and fairness if the accused has said, “I put myself on the country, you have to prove it and you go ahead and prove it. I deny it.” Then you prove it by repeatedly presenting the evidence of the accuser, and there is nothing put in the balance and fairness on the part of the accused to balance and fairly present an accusatorial trial.

MR CAMPBELL: Your Honour, that is the situation whether the evidence is heard once or multiple times.

KIRBY J: I am not sure about that. It is many years since I studied psychology, but I would have thought that if you reinforce and then repeatedly reinforce one side of an argument – I mean, just imagine if we sent Mr Smith out of here and he just does not get an opportunity to have his say and you are there and you come back again on the next day and you repeatedly put your point of view, it is just possible that the decision-maker is affected by all this.

MR CAMPBELL: Your Honour, that of course, is not the situation here. The jury asked for particular aspects of the evidence to be replayed and the aspects that were replayed included not only the evidence-in-chief but the cross-examination. There is the balance, that the cross-examination has been presented in precisely the same way as the accusations. The accused in this matter has relied upon the cross-examination to place his case before the jury. That is the balancing issue against the accusations.

KIRBY J: Are you going to grapple with Justice Hayne’s question of the metaphysical?

MR CAMPBELL: Yes.

KIRBY J: Victorians are always interested in the metaphysical. I will look forward to what you have to say about that.

MR CAMPBELL: I will certainly try, and that was perhaps the point I was coming to, that the recording in section 21AK is therefore different in nature from the admissible document which is a section 93A videotape, for example. Indeed, section 99 is not applicable in relation to the 21AK, but there is undoubtedly a discretion as to how the trial is managed to ensure fairness and balance.

My learned friend referred to section 130 in relation to that. That does not really cover the situation either. Section 30 is the exclusionary rule, namely, is the evidence admissible or should it be before the jury at all, not whether having been before the jury as part of the trial, it is then to be replayed. The discretion in relation to that is the general one to ensure fairness.

If I can then say that that distinction between the 93A-type tape and the section 21AK-type situation is important, because the line of authority, starting with Rawlings, to which my learned friend addressed yesterday, has been solely concerned with the evidence of the first type, that is, the statutory equivalence to 93A, the out-of-court statements obtained during the investigation process.

My learned friend seeks to extend that to the second, that is, the statutory procedures for the viva voce evidence including evidence-in-chief and cross-examination. To answer the metaphysical question, if I can, it is perhaps important to actually examine the scheme which has been adopted in Queensland.

HAYNE J: Do you mean read the Act, a novel thought?

MR CAMPBELL: If I can take your Honours through it, and it perhaps starts with 93A which is the first in time. It was placed into Division 6 of the Act not accidentally. It was as a specific recommendation of Mr Sturgess in 1985 although it took the legislature some considerable time to in fact enact it, but it was placed into Division 6 which creates a series of statutory exceptions to the admissibility of statements. Section 93A creates a statutory basis to admit a - - -

GLEESON CJ: The admissibility of out-of-court statements.

MR CAMPBELL: Out-of-court statements contained in a document, and the document therefore becomes a method of proof. Now, that scheme has existed since 1989. In 2004, Division 4A was introduced. Section 21AA sets out the purposes for which the sections apply. They are twofold:

(a) to preserve . . . the integrity of an affected child’s evidence -

that is, to record as quickly as possible the viva voce evidence and in a method that can be reused, if I could call it that way.

GLEESON CJ: But it is dealing with in-court evidence, as distinct from out-of-court statements.

MR CAMPBELL: Precisely. The second purpose is to take the evidence in an environment that limits “distress and trauma”. Section 21AB then sets out how those purposes are to be achieved, firstly, to pre-record the evidence in advance of trial. So it becomes clear that this is the viva voce evidence which, up till then, had been given in person before the jury. Now, it is “pre-recorded in the presence of a judicial officer”, so, in essence, it is the oral evidence.

Section 21AB goes on that if it cannot be done in advance, then it is to be done either by audio visual or by the use of a screen. The third way the purposes are to be achieved is that at committal, the evidence-in-chief is to be a statement and “the child is not to be called as a witness”. So, in essence, at committal stage, it is the 93A tape which is to be used in lieu of any other evidence. That is how the Act sets out to achieve the purposes.

Section 21AC then sets out the definition. Of relevance here is “affected child”, and a child “in a relevant proceeding” is an “affected child”. A sexual offence is a relevant proceeding as are some violent offences but only if there is a “prescribed relationship”, for example, father and son.

Section 21AD then defines “child”, and for relevant purposes here it is “under 16”. The division then deals with the situation at “Committal proceeding”. That is particularly 21AE and following. Section 21AF mandates that the:

evidence-in-chief must be given as a statement without the child being called as a witness.

So it is the 93A statement, the out-of-court or investigatory statement, which is then used at committal. Now, “statement” is actually defined for the purposes of that section in paragraph (6) as:

(a) a written statement; or

(b) a statement contained in a document.

So again, echoing the terms of 93A and that was clearly what was envisaged, that the 93A statement would be the evidence for the purposes of committal.

GLEESON CJ: Which is referred to sometimes as a hand-up brief.

MR CAMPBELL: Yes. Now, of course, there could be cross-examination, but section 21AG generally prohibits cross-examination of the child at committal, that is, unless it is ordered that the party who is tendering the statement call the child – now that direction that the child be called can either be given at a directions hearing or at the committal if particular reasons arise, and paragraph 21AG(3) sets out the factors that are to be taken into account for allowing cross-examination. Paragraph (7) then says that if there is to be cross-examination then it must “be taken under subdivision 3”, which is the pre-recording of evidence aspect. So the child is at a remote location and the examination is done over video.

If the child is to be called for cross-examination then 21AH restricts what can be asked of the child in evidence-in-chief, and that is, in essence, to having the child identify – for the purposes of identifying the child and establishing that the child made the statement, which is the 93A statement, admissible at the committal under section 21AF. Subsection (2) restricts the cross-examination to those issues which were raised as the basis for allowing cross-examination.

Subdivision 3 then commences, that is, 21AI, which deals with the method of taking the child’s evidence. It is the form in which the traditional viva voce evidence is received and applies for summary trials, for “trial on indictment” or a committal where cross-examination has been allowed. Section 21AJ then says that if is a trial “the indictment must be presented”, and again, I will come back to that in a moment, but that is important because by the time the indictment has been presented the issues have then been focused on the particular charges.

Then section 21AK mandates the taking of evidence, that is, the video recording of the “preliminary hearing” which is “presided over by a judicial officer”. In that sense, it is seen that it is the viva voce evidence of the child which, in the traditional sense, would be given in person before the jury. Now, particularly “evidence” is defined in paragraph (9) as including the “evidence-in-chief”, “cross-examination or re-examination”, and again, that reflects the traditional court evidence.

Section 21AL then deals with practicalities of taking the evidence, and particularly at paragraph (4)(a) there are restrictions on where the defendant can be at the time the evidence is taken and in (4)(b) it is clear that that relates to “evidence-in-chief”, cross-examination and re-examination. In essence, what has occurred is that the evidence is recorded for trial so that it can be introduced at trial in lieu of the child actually coming before the jury in person.

Section 21AM then facilitates that because the recording:

is as admissible as if the evidence were given orally –

“admissible” in that context must be the equivalent of introduced before the jury. It should therefore be said - - -

HAYNE J: As real evidence, that is, does the tape become an exhibit?

MR CAMPBELL: No. It should therefore be seen that it creates a method of taking and preserving the viva voce evidence and then presenting it to the triers of fact. Section 21AM(b) contemplates the reuse for appeal or retrial, for example, if there is a hung jury or for some reason an aborted trial, so that the child does not have to give evidence again.

Section 21AN recognises the situation where there may be a need for further evidence, either in-chief or cross-examination, and that can occur if the child has already given evidence under this section, as was the case in this matter, and that is in fact what happened in this matter because the complainant gave further evidence pursuant to section 21AM, and was further cross-examined.

Section 21AO is then the residual case where there are no facilities to allow this to happen and then subdivision 4 goes on to some other situations where the facilities for pre-recording cannot be used. There is then a series of general provisions starting at 21AS, which includes that the court must be advised “that an affected child” witness is to be called, and there is an exclusion of the public provision, there is allowing for a support person to be present, but most importantly, section 21AW mandates that certain instructions must be given to the jury.

KIRBY J: Where is this long and fascinating study leading us to?

MR CAMPBELL: To this proposition, your Honour. Division 4A creates a scheme for taking the traditional concept of viva voce evidence at a time earlier than the trial – so before the jury – and preserving that evidence, the evidence-in-chief, cross-examination and re-examination for the trial or subsequent proceedings which then becomes the evidence as if it were given orally. It therefore represents no great departure from the traditional process. It merely facilitates the taking and preserving of the evidence at an earlier time.

HAYNE J: That being so, can I go to what seems to me to be the bottom line. The hypothesis of the oral trial is a singular, in the sense of, an unrepeated process – and that is sometimes falsified – focused upon what occurs in the courtroom. When a jury asks for reminder or repetition of evidence, a reminder or repetition that is to be given to them must be set off against any countervailing consideration. Do you accept that?

MR CAMPBELL: Yes.

HAYNE J: The countervailing considerations usually will constitute evidence from the opposing party?

MR CAMPBELL: Or cross-examination.

HAYNE J: Just so. They may include, however, considerations such as warnings given by the judge and instructions for the jury about the care or approach to be taken with respect to the witness. True?

MR CAMPBELL: Which were given in this matter.

HAYNE J: In this case where the defence case fastened particularly upon inconsistencies or asserted inconsistencies in the complainant’s evidence, it would be necessary, would it not, to consider the evidence given by the complainant as a whole?

MR CAMPBELL: Yes.

HAYNE J: Does it not follow from those propositions that to allow the jury unrestricted access to the tape, leave aside the very considerable hurdle in the way of this particular appellant constituted by the course of events at trial, but in the ordinary case, to allow the jury unrestricted access to the tape would permit, for all the Court knows, a juror or jurors who misused the tape by fastening upon parts to the exclusion of others and is not that the vice which means you do not do it in the jury room, you do not do it without supervision, you do it under judicial supervision where the whole is played?

MR CAMPBELL: The difficulty with that proposition, your Honour, is that there is no guarantee that in any jury deliberation particular jurors may not focus or fasten - - -

HAYNE J: Of course that is so, but all you can do is attempt to deal with it as best you may by keeping it under a measure of control. Is not that the bottom line?

MR CAMPBELL: Until it becomes necessary for a trial judge to sit in the jury room and make sure that every counterbalancing argument is presented whenever an argument in favour of conviction is proposed then there is always the – perhaps not a risk but there is – the process of jury deliberation is traditionally one that is done in secret. They may or may not give full weight to all of the evidence. A particular juror may have taken notes and they may refer to only part of the notes.

All of those issues are not changed by the reminding of the evidence. In this case it is, in essence, all of the evidence and that is why in this particular case there was no risk that needed to be addressed by particular warnings or particular supervisory role of having it played in court because, in essence, they were given everything to replay.

KIRBY J: They were not really given any help by the judge of the danger of taking particular recording or part of it out of context. They were not really told that a danger of - the very authenticity of a part of it is that it will blind the jury to the whole.

MR CAMPBELL: Firstly, they were not asked to be – the trial judge was not asked to give such a direction, but secondly - - -

KIRBY J: Yes, but that cannot really excuse - the judge has the duty to tell the jury what matters are relevant to the jury’s deliberations on - especially because they have asked for it.

MR CAMPBELL: In fact such a warning in this case may have undermined aspects of the cross-examination because the second of the pre-recorded aspects of the evidence was only cross-examination. To say that should not be given undue importance may in fact undermine the cross-examination.

GLEESON CJ: In jurisdictions where jury trials are televised, is the solution to these problems to sequester the jury? If a jury trial were televised what would be to stop a juror going home at night and using to his or her heart’s content the fast-forward or the playback?

MR CAMPBELL: Indeed, or perhaps reading the newspaper account of the evidence.

GLEESON CJ: Then, is that what they do. Do they sequest a jury?

MR CAMPBELL: I do not know, your Honour.

GLEESON CJ: I think they do in the United States.

MR CAMPBELL: Yes. Certainly in some very high profile cases I am aware that they have, but I do not know if that is routinely done.

KIRBY J: Yes, but judges do warn jurors that this might be on the television and not to pay any regard to that and specifically, now, warn them not to look at the Internet because the Googling on the Internet, in specific cases, has led to identification of previous offences of the accused.

MR CAMPBELL: Yes.

KIRBY J: There are checks on this. There are controls. This is not new territory. It is just a matter of applying it to this particular technological advance and if you provide the check against the risks of the Internet I do not really see why one would not apply a similar approach of warning in respect of the dangers of misusing this technology.

MR CAMPBELL: The risk in relation to the Internet is that they make it only part of the story or inaccurate accounts of the story.

KIRBY J: And you can say they get out-of-court material that has never been in the trial, whereas at least in this case, this is something that has been in the trial.

MR CAMPBELL: Yes, and it is the entirety of the evidence. It is not as though it is only part and that is why in this particular case there was no risk of undue importance being placed upon this aspect of the evidence because it was the entirety of the evidence.

GLEESON CJ: When these cases go on appeal to a Court of Criminal Appeal does the Court of Criminal Appeal get to see the evidence of the child on video?

MR CAMPBELL: It is available to the Court of Appeal to play, yes.

KIRBY J: It is part of the record and I have in fact inspected evidence of this kind in the course of cases in this Court, but that is for the particular job of an appellate court, it is not necessarily the same function of the jury.

MR CAMPBELL: I should perhaps at that point point out that the complaint by my learned friend that the 93A tape was tendered as well as the 21AK was not a point which was taken in the Court of Appeal. The point there taken about the 93A was that it was not admissible in relation to the change of age and that was the only point taken. This point was not taken in the lower court.

GLEESON CJ: What do you mean by “this point”?

MR CAMPBELL: In relation to the use of the 93A statement as well as the 21AK evidence.

GLEESON CJ: Yes. I thought you said the 93A tape. There was no 93A tape in this case, was there?

MR CAMPBELL: No.

GLEESON CJ: There could be cases in which the statement made to the police is recorded on video, but in this case it was in writing and signed by the complainant.

MR CAMPBELL: That is the typical case where it would be videoed. What occurred in this trial was in reality as a result of the statutory changes to the way the evidence of children is received. At the time the complainant provided the complaint to police and gave the statement, the only way her evidence could be received in court was the traditional method providing viva voce evidence in person before the court. For that reason a typewritten statement was taken. However, following that that there were two important changes which were introduced. The first increased the operative age for 93A from 12 to 16 and therefore her statement contained in the document became admissible at trial as evidence of the fact that the statement tended to establish.

The second is the one I have just taken your Honours through, namely, Division 4A which allowed for her evidence. That is the traditional concept of evidence-in-chief, cross-examination and re-examination to be recorded, preserved and then played for the jury. As I have indicated, 21AM makes that – when it is introduced to the jury - as if she had given it before them. The procedures in Division 4A, Subdivision 3 – that is the pre-recording of the evidence – should therefore be seen as facilitating a more timely and perhaps less traumatic method of obtaining the traditional concepts of oral evidence-in-chief, cross-examination and re-examination.

Your Honours, it is important to note that the recording must occur after presentation of the indictment. That is 21AJ. At that time the specific charges have been settled and the issues focused and that is perhaps in contrast to the out-of-court or investigative statement which is really part of the process of eliciting what, if any, charges are appropriate. Queensland, like many jurisdictions, has moved to permit the use of those out-of-court statements as evidence. However, the way the Queensland legislature has adopted to do that does not either expressly or implicitly replace the traditional method.

Now, originally, that 93A method of producing evidence for the jury at trial – under 93A – that was introduced in 1989. Neither then nor subsequently has the legislature attempted to restrict the traditional method of evidence for trial. Instead, when the 2004 amendments were introduced, in addition to 93A, it introduced a method of facilitating the evidence which is obviously in addition to the 93A.

Now, in practice, very often the recorded investigative interview will be tendered and in large part form the basis of the evidence to prove the charge with perhaps limited evidence-in-chief as necessary to address the issues which have been focused for the trial. That is why it is important that this occurs after the presentation of the indictment. But that is really – the prosecution rely upon that tape - a matter of convenience not dictated by statute.

That is in contrast to the statutory mechanism which has been adopted in some other jurisdictions, for example, in the United Kingdom. The legislation discussed in Rawlings and Broadbent which was introduced in 1988 - - -

KIRBY J: Just pausing there, I notice the parties have referred in their submissions to the United Kingdom and New Zealand and there is an article by D.W. Elliott with the title, Video Tape evidence: The risk of over-persuasion which is in the Criminal Law Review which is the English publication. Have you read that? Is there anything you wish to say about that because I will be reading that article.

MR CAMPBELL: Your Honour, I have not canvassed that one, but I believe the point which is noted in the decisions is that there must be some care that this type of evidence may be more persuasive than the transient type of evidence which the jury may have heard in court, for example, of the accused.

KIRBY J: Which is what juries have been doing for 800 years, 600 years. That is why we are here today. Have you looked at any Canadian or United States authority on this issue because it is a universal issue?

MR CAMPBELL: Yes, certainly. I will come to a Canadian decision of the Supreme Court in Canada in a moment. The US position is complicated particularly by the Sixth Amendment to their Constitution and the debate seems to have concentrated largely on the question about the right to confront the accuser and, therefore, the debate has largely been not relevant to this particular topic.

KIRBY J: That is in Federal Courts.

MR CAMPBELL: In Federal Courts, although some of those matters are canvassed, in particularly the Canadian case of F, which I will come to in a moment.

KIRBY J: They might be carried into the State courts by the Fourteenth Amendment, I am not sure.

MR CAMPBELL: I really cannot speak to that. The point I was making was that the legislation is quite different in the United Kingdom which actually prevents evidence-in-chief which has already been covered by the out-of-court statement. The Queensland Parliament chose not to adopt that model but rather to use the already familiar expressions in section 92 to create an exception for the admission of a document at trial.
‘
In New South Wales and Victoria evidence-in-chief can be wholly or in part by the recording. That is particularly seen in the matter of NZ at paragraph 85 which refers to sections 9 and 11 of the Evidence (Children) Act (NSW).

KIRBY J: I am conflicted over a belief that one should – if you have the video why not allow the jury to see the video as the best possible authentic evidence if you are going to read the document, but on the other hand, if you are thinking about the danger of over-persuasion, it may be that the dispassionate, calm reading of the actual evidence in the courtroom is an antidote to the danger of over-persuasion by the authentic repeated presentation of the accusation.

MR CAMPBELL: My answer to that is that this jury was directed they must scrutinise their evidence very carefully.

KIRBY J: That does not say very much, though. That is not focused on the very problem which is before us now. Of course they must scrutinise it with great care.

MR CAMPBELL: And the best method of scrutiny is to actually see how she said it and that is in cross-examination as well.

KIRBY J: I am sure that in – I am not suggesting it is the same at all, but in Stalin’s Russia I am sure that the repeat accusation would be a technique of prosecutors to ensure that the jury come - or a decision – they came to the right decision and did not stray from under-persuasion.

MR CAMPBELL: I can only repeat that it is not the prosecution who were attempting to replay the evidence multiple times, it was the jury who asked for assistance and it would be perhaps a surprising result if that was denied to them.

KIRBY J: The jury might ask, “Can we have a look at the Internet? I think I recall that there was a case involving this accused. Can I have a look?” They may be told, “No, you cannot”.

MR CAMPBELL: The reason for that is because it would either be something that was not said in court, incorrect or only part of what was said in court, whereas they were being given the best way to be reminded of the evidence and to scrutinise the evidence. Your Honours, I was making the point that there are differences in the various schemes which have been adopted to introduce the out-of-court statements and particularly in New South Wales and Victoria where the references to that can be the evidence-in-chief wholly or in part.

The situation in Queensland, however, is clearly that evidence-in-chief is permissible in addition to the admissible section 93A statement and that is seen from the structure of Division 4A, particularly in 21AK which is to take and record the evidence at the preliminary hearing and that is defined to include evidence-in-chief. Section 21AL(4)(b) specifically refers to evidence-in-chief.

This is in the context that the 93AB statement has been contemplated as the one that is used at committal and is admissible at the trial. That is in contrast to the restriction which is placed on evidence-in-chief at a committal and particularly in 21AB and 21AF. So it is clearly envisaged that at committal the evidence-in-chief is only the – the evidence is only the 93A but at trial it will be the 93A plus evidence-in-chief. The evidence-in-chief and 93A are not alternatives and that is also seen in the particular drafting mechanism which was adopted when 93A was inserted. That particular method, using the same introductory words as section 92 has not been changed.

In relation to 92 that particular section is based upon section 1 of the Evidence Act 1938 in the United Kingdom. It was originally inserted into the Evidence and Discovery Act (Qld) - - -

HEYDON J: I do not think that is correct, is it? Is it not based on various sections, the numbers of which are 14, and they have numerous capital letters after them, introduced into the Evidence Act (NSW) in 1974 – business records?

MR CAMPBELL: It also followed the British Act of 1938.

HEYDON J: But that Act had nothing to do with business records – records relating to any undertaking and made in the course of that undertaking from information supplied by other people?

MR CAMPBELL: Yes, that is the second part of 92. There are two parts of 92. The first is a “statement contained in a document” which tends to prove the facts and that the person is available to give evidence or is called. The second part of 92 deals with the business records, where the person is not available to give evidence, for example, because they could not be expected to remember the details. That is the strictly business record type exception. It is 92(1), which is the different exception and that is the one that is based on the 1938 British Act, particularly section 1.

The history of that is seen in a case called Lenehan, which is not included in my material but I can hand up copies to your Honours. I should say that the pre-runner of section 92 was introduced into Queensland in 1962 as section 42B of the Act.

GLEESON CJ: What is the reference to Lenehan?

MR CAMPBELL: Lenehan [1965] Qd R 559.

GLEESON CJ: Thank you.

MR CAMPBELL: The particular discussion in relation to section 92 starts at page 565 where his Honour Justice Hart discussed the introduction of the Act which, as it was introduced, incorporated some recommendations from a British committee which reviewed the 1938 Act and it was said in that case that the provision should be given a broad and liberal interpretation.

KIRBY J: A broad interpretation might be inconsistent with a liberal interpretation.

MR CAMPBELL: His Honour recognised that it was a provision which could have considerable benefit and therefore did not try to read it down. The case does not discuss any point which is relevant to this proceeding except that that is the history as to how it arrived in the Queensland Act. That provision, section 1 of the 1938 Act in Britain and section 92 have both been considered in various textbooks and said to modify the rule against hearsay and the rule against prior consistent statements. Particularly, that is referred to in Cross at paragraph [17320]. This is in reference to section 92:

If the maker of the statement is not called as a witness, it is received under an exception to the rule against hearsay, but, when the maker is called, the statutes must be treated as having constituted an exception also to the general prohibition on proof of a witness’s previous consistent statements.

That is also the indication from the Queensland focused text of Forbes, particularly at paragraph [92.26] where discussing 92 it says:

Generally a witness may not be accredited by evidence that he or she has told the same story before, but s 92 enables a witness who has personal knowledge of facts in a document and who is available to give oral evidence to bypass that rule. So one result of s 92 (possibly unintended) is to create an exception not only to the hearsay rule but also to the rule against self-accreditation.

That was the situation existing and that was the state of the learning when section 93A was originally introduced in 1989. Both of those texts refer to a number of decisions which have applied section 92 and I have referred to Harvey v Smith-Wood [1963] 2 All ER 127 where Lawton J referred to Cross and discussed that such statements were admissible even when the person is called to give evidence. That was somewhat reluctantly but, nevertheless, he thought that was the clear interpretation and purpose of section 1 of the 1938 Act.

It was followed in Hilton v Lancashire Dynamo Nevelin case which is also referred in my submission. Hilton was a case where a consistent statement was tendered. Harvey v Smith-Wood was a case where an inconsistent statement was tendered but without then going through the process of declaring the person adverse and a similar situation arose in Nominal Defendant v Owens, which I also refer to in my outline.

Without going into detail of those cases, they establish that the statement is admissible as well as evidence-in-chief from those witnesses. It is in that context that the insertion of 93A into the Evidence Act where it is inserted must be interpreted. Whilst it is on very different legislation, a similar approach has been adopted in Canada and that is the matter of F which is included in my bundle of material.

The Canadian provision is section 715.1 of their Criminal Code and in essence a videotape of the complainant describing the acts complained of is admissible if while testifying the complainant adopts the contents. The terms of that section are included in F at paragraph 8. This is the judgment of Justice Cory, speaking for the court and it is at page 11889 of the judgment - in the left-hand column is the English interpretation.

If I can then take your Honours to paragraph 17 where it is indicated that that section “is a statutory exception to the rule” against hearsay and paragraph 37 where it is explained that it is also an exception to the “prior consistent” statement rule. Then at paragraphs 41 and 43 the court goes through the benefits of having a version which is recorded earlier in time and that that earlier version, along with the viva voce evidence, comprises the whole evidence-in-chief and that is particularly seen at paragraph 43:

The admission of the videotaped statements made shortly after the events in issue may be of great assistance in augmenting a child’s testimony at trial by the account of events given in the statement when the incidents were fresh in the child’s mind. In Toten, at p. 28, it was wisely observed that “[t]he prior statement, combined with the complainant’s in-court evidence, may well afford a more complete version of the complainant’s evidence.”

Your Honours, that was the way the evidence was treated here, that the two bodies of evidence merely formed part of the evidence together which the jury must look at and particularly the jury when directed in relation to that at page 217 from about line 16:

I want to say something about the section 93A statement and the pre-recorded evidence. You may think – and addresses have been to this effect - that much of the evidence is replicated in the pre-recorded evidence from the section 93A statement. In other words, the statement which is Exhibit 1 and which is taken on 9 June 2003.

Just because you have before you two different bodies of evidence that to some extent at least – and you will appreciate the submissions made by Mr Mumford –

and that is a reference to some discrepancies between the two –

but to some extent at least the statement and the pre-recorded evidence deal with many of the same issues. You must not think that because you have two different bodies of evidence before you about similar issues, or issues which you may think are the same, that that gives any greater weight to the evidence. It is simply all evidence in the trial and you consider all of the evidence with the other evidence in the assessment that you make.

GLEESON CJ: Now this is an argument you are directing to paragraph (c) of the grounds of appeal appearing on page 312.

MR CAMPBELL: Precisely, your Honours.

GLEESON CJ: And that is a ground that was not taken in the Court of Appeal?

MR CAMPBELL: Yes.

GLEESON CJ: Or at trial?

MR CAMPBELL: Or at trial. My submission therefore is that the two bodies of evidence are not in conflict and are both permissible under the statute and the direction which was given there was precisely the one which was appropriate and is in accordance with the Canadian position. If the prosecution had relied on the section 93A statement only, the jury would have been deprived of the opportunity to assess that witness by seeing and hearing her describe the alleged events but that oral evidence, given 16 months later, after the statement was taken, so the two bodies of evidence together formed the evidence along with the cross-examination that the jury were to consider.

In this particular matter, in fact, the complainant had adopted the typewritten statement during her first preliminary hearing – that is seen at page 12 of the record book, line 43, when virtually the first questions asked of her at the first preliminary hearing:

You spoke to the police and provided a statement to the police in June of 2003. Do you recall doing that?-- Yes, I do.

And are the contents of your statement to police true and correct?-- Yes, they are.

HEYDON J: Is that the examination-in-chief?

MR CAMPBELL: That was examination-in-chief. It was always envisaged, therefore, that she was adopting the 93A statement.

GLEESON CJ: Well, she was putting her oath to it or her affirmation.

MR CAMPBELL: Yes, and she was cross-examined upon that statement, for example, at page 32 from lines 35 to 53. Again, that was at the first preliminary hearing. So it was obviously in mind that she had given evidence that what was contained in the statement was the truth. I should also point out that 93A and Division 4A, of course, are not only available to the prosecution, they are also available to the defence in an appropriate case.

If I can take up your Honour’s point that this was not a matter which was raised at trial or at the Court of Appeal level, that places the criticism that my learned friend makes at page 12 of his outline into context because they simply were not being asked to consider this particular ground of appeal. The ground of objection at trial was that there was a lack of opportunity to cross-examine in relation to some matters which were contained in the statement, but that of course was remedied by allowing the further cross-examination and thereafter the objection was abandoned. There was no objection in terms of section 98 to exclude the evidence and, in my submission, there sensibly could not have been any such objection.

If I can then turn to grounds 1 and 2 which can sensibly be dealt with together and concern not the 93A tape, not the out-of-court investigative tape - statement - - -

GLEESON CJ: It was not a tape. There may be some cases where the 93A statement is videorecorded, but not this case.

MR CAMPBELL: Yes, I apologise, your Honour, force of habit – the vast majority of cases like this involve a tape, not the 93A statement as such. The first two grounds involve the 21AK and 21AN mechanism which recorded the evidence at the preliminary hearing. The basic assumption in my learned friend’s argument is that somehow references to the evidence will favour the prosecution but the issue in question here only arises because the jury had asked for assistance. Precisely why they may have asked is a matter known only to them, but it does not necessarily work in favour of the Crown.

Asking to be reminded of evidence can just as easily be to look for aspects that may cause doubt to confirm, and that has been recognised in a number of the matters including in Rawlings where that was noted. The fundamental role for the trial judge is to give the assistance the jury require and to ensure that imbalance is not caused by the way that assistance is provided. There are some statutory safeguards built in, namely, that the warnings that are required in section 21AW, and those warnings were given, and that is particularly again at page 217 of appeal book.

The line of authority which my learned friend referred to yesterday starting at Rawlings and perhaps ending, or at least progressing to NZ, deals only with the different situation of the out-of-court statement. I am not aware of any authority which refers to this procedure which is the recording of the evidence at a preliminary hearing. Nevertheless, the same rule or general rule applies, namely, that the judge must ensure fairness and balance.

KIRBY J: You say that, but every time somebody suggests to you a way in which fairness and balance may need to be injected like, do not allow the thing to be seen but have the cold transcript read or require the judge to give warnings about the dangers of taking things out of context and to keep in mind the accused’s case on the point whilst they are considering it, you resist it.

MR CAMPBELL: I do not resist it, your Honour.

KIRBY J: You are all for fairness and balance, but as long as it is fairness and balance that favours the prosecution.

MR CAMPBELL: In particular cases there will be a need for those sorts of directions. This was not that case. I place the rule at such general level because there is such a large variety of situations which may arise. The rule that I am proposing is of course the one that is reflected in NZ, particularly at paragraph 199.

KIRBY J: This is the majority view in NZ as distinct from Chief Justice Spigelman’s view, who was more close to the English authority I think in Rawlings.

MR CAMPBELL: Even in the English cases, it is only a procedure which is in relation to the out-of-court statement and it is to ensure that fairness and balance because of the risk of undue emphasis being given to only one part of the evidence, but even then it is - - -

KIRBY J: That is because of the metaphysical problem that in court it is supposed to only happen once.

MR CAMPBELL: Your Honour, can I say about that that in every trial there are aspects of the evidence which will be repeated a number of times. There is the opening, there is the evidence. It may well be trawled over at great detail in cross-examination. There will be the summing-up. There will be the addresses by each counsel. The evidence is therefore brought to the attention of the jury in every trial multiple times.

KIRBY J: Usually by officials reading it as a dispassionate, disembodied basis of material on which the jury has to act, not the actual, authentic voice of the accuser.

MR CAMPBELL: Which, in my submission, is the best.

KIRBY J: We have been through this. It is the best and therefore, in a sense, the most dangerous for the fairness and balance of which you constantly speak.

MR CAMPBELL: But, of course, very often what will be contained upon the section 21AK tape is in fact the cross-examination.

GLEESON CJ: I think you have made that point.

MR CAMPBELL: If I can take your Honours to paragraph 199 of NZ:

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.

That really is the basis for, what I submit, should be the general rule that there is such a large variety of cases or situations that each one must be assessed in light of the risk of unfairness or imbalance. For example, defence counsel may perceive that it is to their advantage to adopt particular procedures and if I could particularly refer to Rawlings at page 583g.

It certainly is the case that it may be appropriate in some cases to limit access to particular exhibits or particular aspects of the evidence and the most obvious is where the allegations of the complainant are in a permanent form, videotape or a statement, but the cross-examination or the evidence of the accused or the record of interview of the accused is not in the same form so the presence of the tangible may tend to distract attention from the transient but, again, that simply was not the case here.

Again, it may well be seen as to the advantage of the defence to in fact allow that in particular cases so hard and fast rules cannot apply in all cases because the defence may well see it as to their advantage to have the jury look at demeanour as well as what is said. That is a very common submission by counsel that they must remember not only what was said but how it was said and, in this particular case, defence counsel considered that the approach which was adopted was sensible and practical.

My learned friend proposes a rule which is much stricter – that is seen at page 15 – that the tape should not be replayed. That would, in my submission, represent a very considerable extension of the practice which has developed in relation to out-of-court statements, videotapes. Those statements, of course, only include the allegations and not the cross-examination and it is in that context that the limitation or the preferred practice has developed.

That was first seen in Rawlings [1995] 1 All ER 580 – but it was to guard against a very particular risk of imbalance that it was only the evidence-in-chief which was in the permanent form and that is seen at page 585. That has been echoed, particularly in a Queensland case of H, and the risk identified in H is that seen at page 290 at line 43, which is the risk that it is only part of the evidence which was contained as the section 93A statement:

There is a real danger that in replaying a videotape, possibly many times, the jury may overemphasise that evidence, as against other evidence in the case, particularly cross-examination.

That, again, simply was not the case or the situation in this particular case. That has similarly been identified in BAH at pages 523 and 529, particularly at paragraphs 37, and in NZ in the Chief Justice’s dissenting judgment at page 631, paragraph 9 and at page 674 in the majority judgment at paragraph 196.

That was considered as perhaps an “overly-cautious approach” and, even within that case, their Honours considered that further reconsideration may be required as more evidence is recorded and therefore loses its transient nature. It is, therefore, my submission there is no cause to extend the preferred procedure which is outlined at paragraph 210 to situations where that risk does not appear. In this case the material the jury had access to was both evidence-in-chief and cross-examination and, in essence, the entire evidence at the trial.

Further, as the available technology improves and court facilities are upgraded, there will be greater opportunities to preserve and therefore review all of the evidence in a trial and, therefore, a general rule should not deny the jury the best opportunity of assessing that evidence. If I can refer to NZ at paragraph 201 where their Honours said:

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.

And, therefore, as was said in NZ at 205:

each case depends upon its own facts and the response of the judge is best left as a matter of discretion

The risks which are now perceived in relation to some aspects of electronically recorded evidence may be balanced by those improvements in technology and facilities and that was recognised by Justice Eames in R v Lyne, which I referred to in my outline, particularly at page 531 where reference was made to the practice of recording all the evidence and in the Queensland case of Tichowitsch which recognised the ability to provide a transcript of evidence to jurors, as has been done by statute in New South Wales and Victoria. At paragraph [16] of the judgment, his Honour, Justice Williams said:

One further observation should be made. There are a number of decisions of this Court dealing with the question whether or not a statement by a child admitted pursuant to s 93A . . . should be allowed to be taken by the jury into the jury room during their deliberations –

and he referred to particularly H –

The general trend has been to say that the jury ought not have such a statement in the jury room; but if a transcript of all evidence was provided to the jury then the reasoning in those cases may need to be revisited. As already noted the overriding requirement is that what is done be fair and balanced so that the trial of the accused person is in no way prejudiced while affording the jury the best opportunity of arriving at a true verdict.

In this case there simply were not the risks which that line of authority from Rawlings sought to guard against. The jury was given the evidence-in-chief and cross-examination, there was therefore no risk of imbalance. No other evidence against which that evidence could be given undue weight was present and therefore there were no additional warnings that needed to be given to avoid any risk and indeed no warnings were asked for.

There would have been no practical utility in any of the Rawlings-type warnings in this case because in essence they were looking at all of the evidence. It is in that situation that, in my submission, in this case the general rule that the trial judge must ensure fairness and balance did not require any further warnings or any other precautions than those that were adopted. In other cases, particular procedures may well be needed but that was not the case here and the rules in Rawlings, H, NZ should be seen as a particular application of the general rule to maintain balance and fairness. Unless I can be of further assistance.

GLEESON CJ: Thank you, Mr Campbell. Yes, Mr Smith.

MR SMITH: Just one matter, your Honours. It is true on appeal the issue about the tendering of the prior consistent statement was not taken by counsel. That ground was entered by leave on the special leave application. That appears at page 311 of the appeal book, your Honour, although defence counsel did object to the tendering of the statement early on because it had not been tendered at the first pre-recording, so the point was taken below but not on appeal. Thank you, your Honours.

GLEESON CJ: Thank you, Mr Smith. We will reserve our decision in this matter and we will adjourn for a couple of minutes to reconstitute.

AT 12.07 PM THE MATTER WAS ADJOURNED