No.
215
of
2001
CRIMINAL LAW - Conviction - Indecent act with a child under 16 and incest -
VATE tape made pursuant to s.37B Evidence Act 1958 admitted in evidence
- Fundamental procedural irregularity after jury retired by giving the jury the
VATE tape for replaying in the
jury room - Trial unfairness - Miscarriage of
justice.
- In this matter, I gratefully adopt the summary of evidence set
out in the judgment of O'Bryan, A.J.A. which I have had the advantage
of
reading in draft form. I agree with his Honour's conclusion as to the
appropriate outcome of this application; and, generally
speaking, for the
reasons which he gives. However, because of the impact which our decision
will have upon the procedure to be
followed in trials where evidence-in-chief
is given pursuant to s.37B of the Evidence Act 1958, I desire to add
some comments of my own.
- This application (from a jury verdict convicting the applicant
of one count of incest and one count of "indecent act") raises a
matter of
procedural fairness in the conduct of trials in which a child complainant's
evidence-in-chief is given by way of "V.A.T.E."
tape pursuant to s.37B of the
Evidence Act. Such material is pre-recorded (that is, prior to trial)
during the course of an interview between the complainant and a police
officer
who has been "prescribed" for the purpose. The procedure was introduced into
the legislation in this State by s.11 of the
Crimes (Sexual Offences) Act
1991 (Act. No. 8 of 1991). There appears to be legislation of similar
kind in Queensland (see s.93A Evidence Act 1977 (Qld.)); in New Zealand
(see s.23D Evidence Act 1908) and in England (see Criminal Justice
Act 1988, s.32A - introduced in 1991).
- The procedure provided by s.37B represents a significant
departure from criminal procedure as recognized by the common law, in the
sense
that the critical evidence led by the prosecution, and which stands as the
evidence-in-chief of the complainant, is pre-recorded
by police officers and
committed indelibly to video/audio tape[1].
The section, therefore, has certain safeguards. It gives to the trial judge a
discretion to rule the whole or any part of the
tape as inadmissible
(sub-s.(4)); and is admissible as if it were "the direct testimony of the
witness" only if a copy of the transcript
has been served on the defendant or
his or her legal practitioner at least 14 days before the hearing
(sub-s.(3)(a)); if the defendant
and his or her legal practitioner were given
a reasonable opportunity to listen to and/or view the recording (sub-s.(3)(b));
and
if the witness "at the proceeding" identifies himself or herself and
attests to the truthfulness of the contents of the recording
and "is available
for cross-examination and re-examination" (sub-s.(3)(c)).
- In this application, no issue was taken as to the fulfilment of
the pre-requisites to which I have referred in paragraph [2].
The recording
was played and shown to the jury, and was attested to as being true by the
complainant; and the complainant was subjected
to further examination-in-chief
and was cross-examined and re-examined. Appropriately to its status, as I
think, the V.A.T.E. tape
did not become an exhibit in the trial; it should
have been, but was not, marked for identification as part of the court's
record.
- The issue before this Court is a narrow one. It relates to
the use made of the V.A.T.E. tape after the jury had retired to consider
its
verdict. The jury requested that they be permitted to have access to the
video tape in the jury room in the course of their
deliberations. The judge
permitted them to have such access; and no objection appears to have been
taken either by prosecutor
or defence counsel. However, it is clear that
there was no agreement between counsel that such a course was required.
Indeed, his
Honour appears to have adopted the view that the jury were entitled
to have such access pursuant to s.19 of the Crimes (Criminal Trials)
Act. No warning was given by the judge as to the use which should be made
of the tape, and no direction given as to the caution they
should exercise when
viewing this select portion of the evidence. It appears from the transcript
that the jury had possession of
the tape for in excess of two hours. Shortly
before the jury were sent home for the evening, counsel for the applicant
became concerned
that the jury could be continuously playing the tape and
giving to it "substantially greater importance" than it would have if placed
in
context with cross-examination. The jury were then brought back into court,
and his Honour told them that his tip-staff would
take control of the V.A.T.E.
tape; and that if they wanted to see it again on the following day,
arrangements could be made. No
request was made by the jury to further review
the tape.
- Mr. Thomas, who appeared for the applicant, submitted that to
allow the jury to have unrestricted access to the V.A.T.E. tape during
the
course of their deliberations, in the circumstances which I have mentioned,
amounted to a procedural irregularity in the trial
productive of unfairness to
the applicant; and that this was so despite the fact that counsel, initially,
took no objection to the
procedure. His submission was that the procedure
permitted an imbalance to occur in the trial, adverse to the interests of the
applicant, because - by allowing the jury to have unrestrained access to a
significant portion of the complainant's evidence-in-chief
after the evidence
had closed - the procedure courted the danger of giving that evidence
disproportionate weight in relation to the
other evidence in the trial,
particularly the cross-examination of the complainant and the evidence of the
applicant. If the jury
wished to have that part of the evidence-in-chief of
the complainant brought to their recall, so Mr. Thomas submitted, it should
not
have been done by giving them the tape, as if it were an exhibit in the trial,
but by dealing with the matter in open court as
would be the case if the jury
wished to be reminded of any other part of the evidence. By allowing the jury
access to this part
of the evidence in the privacy of their deliberation room,
the parties - and particularly the accused - were kept in sublime ignorance
of
the reasons why the jury wished to be reminded of this part of the evidence,
and the judge deprived himself of the capacity to
give to the jury further
directions capable of correcting the imbalance of fairness which had
occurred.
- Mr. Thomas was able to call upon substantial authority, which
supported his submissions, from various parts of the common law world
which
have adopted, legislatively, similar procedures to those provided by s.37B of
the Evidence Act (Vic.) in the prosecution of sexual assaults against
minors. Those authorities, which emanate from England, New Zealand and
Queensland,
appear to speak with one voice, in the sense that they regard it as
a procedural irregularity of a material kind to allow video-audio
taped
evidence-in-chief of a child witness, of the type contemplated by s.37B, to be
given to the jury for their own unrestrained
use during the course of their
deliberations; and that this is so whether or not the legislation designates
the tape to be an exhibit
in the trial. The font of this stream of authority
appears to be the "Practice Note" of the English Court of Appeal in R. v.
Rawlings; R. v. Broadbent[2]. In
the trial of each of the cases before the Court of Appeal, evidence-in-chief of
the complainant had been given by playing to
the jury a video recording of an
interview which became admissible pursuant to s.32A of the Criminal Justice
Act 1988, as amended by s.54 of the Criminal Justice Act (Amendment)
Act of 1991. That section, like s.37B of the Evidence Act (Vic.),
permitted the evidence of the tape to stand as the evidence-in-chief of the
complainant provided (inter alia) that the complainant
was called. The court
referred to the section as a "new mode of adducing a child's evidence-in-chief
authorized by section 32A
of the Act ...". The issue raised in each of the
appeals was whether such a tape should be made available, at the request of the
jury, for viewing during the course of their deliberations. The court[3] noted that the point was "novel". It rejected
the notion that it was no different from the jury having with them
tape-recorded
records of interview between the accused and police because "the
replaying video evidence-in-chief after the summing up would give
it undue
prominence as against cross-examination of the complainant" and, in that
respect, "has no parallel when the recording of
a defendant's interview is
played at that stage". The court concluded that:
"... it is a matter for the judge's discretion as to whether the
jury's request for the video to be replayed should be granted or
refused."[4].
However the court went on to say that the judge must bear in
mind the need to guard against unfairness deriving from the replay of
"only the
evidence-in-chief of the complainant". The Lord Chief Justice stipulated
certain "requirements" which the judge should
comply with, if he allows the
video to be replayed to the jury after retirement. They
were:
"(a) The replay should be in court with judge, counsel and
defendant present. (b) The judge should warn the jury that because
they are
hearing the evidence-in-chief of the complainant repeated a second time well
after all the other evidence, they should guard
against the risk of giving it
disproportionate weight simply for that reason and should bear well in mind the
other evidence in the
case. (c) To assist in maintaining a fair balance, he
should after the replay of the video, remind the jury of the cross-examination
and re-examination of the complainant from his notes, whether the jury asked
him to do so or not."
- Although the procedures identified by the Lord Chief Justice in
Rawlings (supra) were not meant to be read "as a statute" and were given
as intended rules of guidance in those cases in which the complainant's
evidence-in-chief had been pre-recorded on audio/visual tapes, they have been
generally accepted and applied in England; certainly
to the point of refusing
to the jury unrestricted access to the tape, or a transcript thereof, during
the course of their deliberations;
at least without the agreement of both
defence and prosecution[5]. In
Welstead[6], Evans, L.J. further
explained the reasons behind these rules in the following way:
"(1) The video-recording of the child's interview is not itself
evidence in the case. The evidence is given orally and by means
of the
video-recording so far as the evidence-in-chief is concerned. This is clear
from s.32A itself. [I interpolate that it
is also clear from s.37B of the
Evidence Act (Vic.).]
(2) The video-recording enables the jury to observe the child's demeanour as a
witness, just as it can do if the evidence
is given orally and in court. The
fact that it is a recording enables it to be replayed if the jury so requests
and, subject to
stringent safeguards, this procedure is allowed :
Rawlings. This facility cannot be made available to them when the
evidence is given in the normal way in court. It is an advantage, therefore,
derived from modern technology which is allowed to assist them in their
evaluation of the child's evidence.
(3) Whatever use may
be made of the video, after the evidence-in-chief has been
given, it is essential to remember that it contains only part of the evidence
of the witness in question. The stringent safeguards required by the judgment
in Rawlings are designed to maintain a `fair balance' when the jury does
see the video again.
(4) If a transcript of the video-recorded interview
is available, the jury
should not normally be permitted to take it with them when they retire, unless
the defence consents (Coshall). This is because there is no effective
safeguard in such circumstances against the jury giving that part of the
child's evidence
disproportionate weight.
..."
- Similar precautions against the over-use of pre-recorded video
taped evidence-in-chief of child witnesses have been observed in
New Zealand
where, pursuant to s.23D of the Evidence Act 1908, the evidence-in-chief
of the complainant is permitted to be given by showing the video-tape to the
jury. In R. v. O.[7], the New Zealand
Court of Appeal adopted the safeguards outlined by the Lord Chief Justice in
Rawlings (supra)[8].
- In Queensland, pre-recorded video taped interviews with child
complainants are also permitted to be played to the jury and stand
as the
evidence-in-chief of the complainant pursuant to s.93A of the Evidence
Act 1977 (Qld). It would seem that, in that State, the legislation
contemplates that the video-tape be an exhibit in the trial. In R. v.
H.[9], the Court of Appeal reviewed the
procedure adopted at the trial of an accused who had been convicted of a count
of indecent treatment
of a child under the age of 12. The complainant's
evidence-in-chief had been video-recorded in accordance with s.93A and played
to the jury. The judge, believing that he had no discretion to withhold the
exhibit from the jury, gave it to them when
they retired over the objection of
defence counsel. The Court of Appeal held that the judge did have the power
to withhold the
video recording, and that he should have done so, basically for
the reasons given by the English Court of Appeal in Rawlings and
Broadbent (supra). McMurdo, P. (at 290-1) noted that the trial judge
in that case (as in this one) had not been informed of the substantial
body of
"weighty judicial opinion" that the video-taped evidence-in-chief of a child
complainant should not go into the jury room
during deliberations; nor had he
been informed of the reasons why such a procedure should not be followed. The
learned President
continued (at 291):
"... the principles discussed in the authorities I have reviewed
suggest that as a general rule, at least in the absence of consent
of both
Crown and defence, video-taped evidence tendered under s.93A of the Act will
not be permitted to go into the jury room during
deliberations. If the judge
decides to allow the jury to view the video-tape, this should generally be done
after discussing the
proposed procedure with counsel in open court. The judge
should also warn the jury that, because they are hearing the evidence-in-chief
of the complainant repeated a second time and well after all the other
evidence, they should guard against the risk of giving it
disproportionate
weight simply for that reason and should bear well in mind the other evidence
in the case. It is not in our view
necessary in every case after replaying
the video-tape to remind the jury of the cross-examination and re-examination
of the complainant
from the judge's notes or transcript, where this is not
requested by the jury. In many cases this may be wise, but every case will
depend on its own facts. The overriding consideration for the trial judge
must be fairness and balance, something which can be
difficult to achieve in
emotive sexual cases which are particularly likely to arouse feelings of
prejudice in the jury." (footnotes
omitted.)
- The playing back to the jury, at their request, of a
video-recording which forms the evidence-in-chief of a complainant is a matter
under the discretionary control of the trial judge. It is part and parcel of
the practice and procedure which the trial judge is
bound to administer, as he
or she does whenever the jury asks to be reminded of the evidence[10]. Nevertheless, for the reasons adverted to in the
authorities to which I have referred, caution should be exercised by judges in
this State when faced with requests by juries to replay the video-taped
evidence-in-chief of child complainants admitted pursuant
to the provisions of
s.37B of the Evidence Act. Generally speaking, in my view, the
procedure outlined by the President of the Court of Appeal of Queensland in
R. v. H., to which I have referred in the preceding paragraph of this
judgment, should be followed in this State. That procedure was re-affirmed
by
the Queensland Court of Appeal in R. v. C.[11]. Compliance with the procedure means that, in the event
that the jury requests to be reminded of the complainant's evidence, or
to
review the video-tape, the judge should deal with the situation on the facts as
they arise, bearing in mind that the maintenance
of balance and fairness in the
trial is the overriding consideration. If, after discussing the jury's
request with counsel in open
court and being careful, if directing any
questions to the jury about their request, not to intrude on the
confidentiality of their
deliberations, the judge decides to allow the jury to
view the video-tape, it should be done in open court in the presence of the
accused and counsel, and should be attended, at least, by a general warning of
the type to which Mc Murdo, P. referred in R. v. H. (supra). Whether
fairness also requires the judge to remind the jury of the cross-examination
and re-examination of the complainant
will be a matter for the trial judge who
is in the best position to determine whether that is necessary[12].
- In this case the judge considered that the provisions of
s.19(1) of the Crimes (Criminal Trials) Act 1999 conferred upon him a
discretion to allow the jury to take with them into their room the video-tape.
For this purpose he made
arrangements for the provision of facilities to play
the tape. It should not be thought that I am critical in any way of the judge
for doing what he did. It is tolerably clear from the transcript that no one
considered the propriety of the procedure. The judge
was not referred to the
considerable body of authority to which I have hitherto referred. It is not
necessary to determine whether
s.19 of the Act gave to the judge the discretion
which he thought he had, although - as at present advised - I do not think that
it did. If his Honour did have such a discretion, it was erroneously
exercised because, by allowing the jury to have unrestricted
access to the
video-tape, the fairness of the trial was prejudiced. The jury had the
video-tape with them for at least two hours.
No one knows what use they made
of it, although it is clear that they could have played it - or portions of it
- several times.
When it was taken back into the court's
custody, no warnings or cautions were given to the
jury.
- In this Court, counsel for the respondent submitted that,
although it was inappropriate to permit the jury to have the tape in the
course
of their deliberations, no substantial miscarriage of justice had actually
occurred. The case against the applicant, it
was contended, was an
overwhelming one, and conviction was inevitable. The submission raises the
question whether the proviso to
s.568(1) of the Crimes Act has any
application, in the sense that the procedural irregularity, which occurred at
the trial, was such a departure from the essential
requirements of the law that
it went to the root of the proceedings[13].
In England the view seems to have been taken that the sort of irregularity
which occurred here, is a procedural irregularity of
"a material kind" which
inevitably renders the conviction unsafe. In Queensland, the view appears to
be that it is a procedural
irregularity that, in an appropriate case, might be
saved by the proviso. Once again, I need not resolve that issue because it
is
clear, in my opinion, that this verdict cannot be saved by the application of
the proviso. This was a case of "word against
word". The provision to the
jury of the complainant's evidence-in-chief was calculated to give undue
prominence to a portion of
the evidence adverse to the applicant. No
direction was given to the jury to counter-balance the unfairness which had
arisen in
the trial. I am quite unable to conclude that the jury, who
deliberated for a substantial time, would have inevitably convicted
the
applicant if they had not been allowed access to the video-tape. The
convictions must be quashed and a new trial had.
CALLAWAY, J.A.:
- I agree with the other members of the Court that the
convictions sustained by the applicant in the court below should be quashed
and
a new trial directed.
- To my mind this is a clear case: the jury were allowed
unrestricted and unsupervised access to the VATE tape in the jury room for
approximately two hours and the learned judge did not give them any
directions or warning about the need to
remember the cross-examination or the danger of the tape's
assuming undue prominence and this was a case where the evidence that
stood to be eclipsed by the jury's concentration on the tape included not only
the cross-examination
but the applicant's own evidence.
- Even if s.19(1) of the Crimes (Criminal Trials) Act
1999 gave the judge a discretion to allow the jury to play the tape in the jury
room (which need not be decided), it would be a rare
case where that was a
proper exercise of the discretion and an even rarer case where it would be
appropriate to do so without any
safeguards.[14] It is also unnecessary to decide whether the proviso is
inapplicable because there was a fundamental irregularity or because the
applicant was deprived of a chance of acquittal that was fairly open to him.[15]
- I agree with the guidance given to trial judges by the learned
President in [11] of his Honour's reasons for judgment. Different
consideration apply to exhibits, including video-taped records of interview and
evidence of surveillance.
O'BRYAN, A.J.A.:
- On 23 July 2001 the applicant was arraigned on a presentment
containing two counts. Count 1 alleged that at Healesville, between
1 May 1998
and 2 May 1999, the applicant wilfully committed an indecent act with R, his
daughter, a child under the age of 16. Count
2 alleged that, at the same place
and between the same dates, the applicant took part in an act of sexual
penetration with R in that
he introduced his penis into the mouth of R. To
these counts the applicant pleaded not guilty. The trial was quite short. The
principal witnesses were R and the applicant. On 26 July the jury found the
applicant guilty on each count. The applicant admitted
a number of prior
convictions and, following a plea, was sentenced to serve a term of
imprisonment.
- The applicant gave notice of appeal against conviction in
which four grounds were specified. When the appeal hearing commenced
Mr
Thomas, counsel for the applicant, announced that he proposed to argue grounds
1 and 3 and would abandon grounds 2 and 4. Ground
1 asserted that the verdict
of the jury is unsafe and unsatisfactory and provided particulars of the
ground. Ground 3 asserted that
the trial judge erred in allowing the jury to
take the VATE interview into the jury room during its deliberations. The
evidence-in-chief
of R had been recorded in the form of an audio and visual
recording of R answering questions put to her by a person prescribed for
the
purposes of s.37B.
- Mr Thomas argued ground 3 first and, in the light of the
discussion that followed, did not argue ground 1. It is fair to say that
the
Court indicated to Mr Thomas that, because the Crown case depended upon
the evidence of R, it was essentially a jury question
whether the jury was
satisfied beyond reasonable doubt by her evidence. It could hardly be found
that the verdict of the jury was
unsafe and unsatisfactory had the trial been
properly conducted and the test stated in M v. The Queen been applied by
the Court.[16]
The offending
- The circumstances of the offending may be briefly stated
because the evidence was quite short. R was born on 19 December 1987 and
was
about 11 years old when the events leading to the charges laid occurred. The
applicant is her father. Together with her siblings,
R resided with her mother
and father at all material times.
- The applicant regularly took his family fishing in a river at
Healesville. On a date which is uncertain, but possibly late in 1998,
the
family were fishing for some hours at their customary location. The
applicant's wife and her three youngest children became
tired and returned to
the family car parked a short distance away from the fishing place. The
applicant and R continued to fish.
It is not altogether clear whether it was
daylight or dusk when the incident which led to the charges took place. R said
that the
applicant called her over to where he was seated on a rock. He then
touched her clothing around the area of her vagina. R said
that the applicant
then took his penis out of his shorts and asked her to hold it, which she did.
Then the applicant requested her
to move her hand up and down his penis, which
she did. This conduct constituted count 1. R said that the applicant then
pushed
her head down towards his penis and made her suck his penis, which she
did for about five minutes (count 2). The applicant next
told R not to tell
her mother. R said that she told her mother about the incident when she
returned to the car ahead of the applicant.
- The police received notification of R's complaint regarding
her father, not from her mother, but from R's school following an investigation
by the school authorities into the applicant's behaviour towards his son and
two of his daughters. As a result, Senior Constable
Lisa Prendergast,
stationed at the Knox Sexual Offences and Child Abuse Unit and a person
prescribed for the purposes of s.37B of
the Evidence Act 1958, conducted
an interview with R in relation to the allegation of sexual misconduct
I have described. The formal interview was conducted
on 3 May 1999,
commencing at 12.13 p.m. An audio video recording was made of the interview
both for the purposes of the investigation
and s.37B of the Evidence Act
1958, should a specified legal proceeding commence and R be required to give
evidence. I shall refer hereafter to the audio video recording
as the VATE
interview. R's mother declined to be interviewed by the police.
- Section 37B provides an option whereby a video or
audio-recording of an interview of a person with impaired functioning or is
under
the age of 18 may be admitted in evidence in a specified legal
proceeding. Section 37B provides:
"(1) This section applies to a legal proceeding, other than a
committal proceeding, that relates (wholly or partly) to a charge for
-
(a) a sexual offence; or
(b) an indictable offence which involves an assault on, or injury or a threat
of injury to, a person.
(2) The evidence-in-chief of a witness for the prosecution may be given
(wholly or partly) in the form of an audio or video recording
of the witness
answering questions put to him or her by a person prescribed for the purposes
of this section if the witness is a
person with impaired mental functioning or
is under the age of 18.
(3) Subject to sub-section (4), the recording is admissible in
evidence in the
proceeding as if its contents were the direct testimony of the witness if -
(a) it is proved that a transcript of
it was served personally on the defendant
or by post on his or her legal practitioner at least 14 is days before the
commencement
of the hearing of the proceeding; and
(b) it is proved that the defendant and his or her legal practitioner were, in
accordance with
the regulations, given a reasonable opportunity to listen to
and, in the case of a video recording, view the recording; and
(c) at
the proceeding the witness -
(i) identifies himself or herself and attests to the truthfulness of the
contents of the recording;
and
(ii) available for cross-examination and re-examination.
(4) The court may rule as inadmissible the whole or any part of the
contents
of a recording."
The grant of power conferred by s.37B is a departure from the
common law rule that a witness called in a criminal trial should give
evidence
viva voce in the presence of the jury and the defendant. But the grant of
power is subject to the limitations identified
in the authorities
Rawlings[17], Welstead[18] and R. v. C.[19] which will be discussed later.
The trial
- When the trial began, the prosecutor informed the trial judge
that the VATE interview with R had been edited and that the Crown
proposed to
have the evidence-in-chief of R given in the form of the edited VATE interview.
This procedure was not opposed by counsel
for the applicant. At the same time,
the prosecutor applied pursuant to s.37C of the Act for a direction that
alternative arrangements
be made for the giving of evidence by R from a place
other than the courtroom by means of closed-circuit television that would
enable
communication between that place and the courtroom. The court made an
order which allowed the jury to hear and see in the court
the edited VATE
interview as the evidence-in-chief of R and gave a direction to allow
cross-examination to be conducted from a place
other than the courtroom. The
judge gave the jury the warning required by s.37C(4) not to draw any inference
adverse to the defendant
or give the evidence any greater or lesser weight
because of the making of those arrangements.
- The playing time of the edited VATE interview was 41 minutes.
After the VATE interview was seen and heard by the jury, it was not
marked as
an exhibit, but was in the custody of a court officer throughout the trial, at
least, until a late stage of the jury's
deliberations when the jury requested
to view the VATE interview in the jury room. The judge provided the jury with
the VATE interview
and it then remained in the jury room for a little over two
hours.
- The VATE interview constituted the evidence-in-chief of R.
She was not sworn as a witness. She said that what she told Senior Constable
Prendergast in the VATE interview was the truth and there were no mistakes that
she needed to correct. The prosecutor asked R a
few questions and then she was
cross-examined by counsel for the applicant for between two or three hours over
two days. The cross-examination
was conducted fairly and elicited some
inconsistent answers about the incident, particularly as to the state of the
light and the
positions of R and the applicant at the time when the incident
concerning count 2 occurred.
- R was the principal prosecution witness. The applicant had
denied in a record of interview with the police that he had offended
in the
manner alleged. The applicant gave evidence on oath in his own defence and was
cross-examined. He denied the charges and
made no relevant admissions of
guilt. The case for the prosecution depended upon R's evidence which was not
corroborated by other
evidence.
- The jury was informed by the police informant that R's mother
would not be called by the Crown because she declined to be interviewed.
Nor
was she called by the defence. R's evidence that she made a fresh complaint to
her mother, although properly admitted in evidence[20], was neither supported nor denied by her mother. Nothing
turns on the failure to corroborate the evidence of a fresh complaint by
R.
- The judge charged the jury and then corrected or clarified
some matters of fact. The charge concluded at 2.25 p.m. In my view,
the
charge, as a whole, was favourable to the applicant and no request was made by
counsel for the applicant for a re-direction on
the law or the facts. At 4.02
p.m. the jury asked to view the VATE interview and in court expressed a
preference to do so in the
jury room. The judge acceded to the request, there
being no objection raised by either counsel. No further direction was given
to
the jury about the use it could make of the VATE interview nor was the jury
reminded of the cross-examination of R and the evidence
of the applicant as
counter-balancing matters.
- At about 6.20 p.m. the judge brought the jury back into court
and told them that he proposed to adjourn the hearing until the following
day.
Following a request from counsel for the applicant, the VATE interview was
returned to the custody of a court officer overnight.
Next day the jury
resumed its deliberations and no further request was made to view the tape. At
about midday the jury returned
a guilty verdict on both counts.
The appeal
- I turn now to ground 3. The transcript of the trial makes it
quite clear that the judge was of the opinion that the jury was entitled
to the
VATE interview subject to his judicial discretion when the jury made its
request to view the VATE interview and that the basis
for his opinion was s.19
of the Crimes (Criminal Trials) Act 1999.
- It is perfectly clear that s.37B of the Evidence Act
does not expressly empower a trial judge to provide a VATE interview to the
jury and s.37C is only concerned with alternative arrangements
for giving
evidence in certain proceedings by means of closed-circuit
television.
- It is necessary to set out in full s.19 of the Crimes
(Criminal Trials) Act 1999:
"(1) For the purpose of helping the jury to understand the issues,
the trial judge may order on the application of a party or of his
or her own
motion that copies of any of the following shall be given to the jury in any
form that the trial judge considers appropriate
-
(a) the presentment;
(b) the summary of the prosecution opening and the notice of pre-trial
admissions of the prosecution;
(c)
the defence response to the summary of the prosecution opening and the
defence response to the notice of pre-trial admissions;
(d)
any document admitted as evidence;
(e) any statement of facts;
(f) the opening and closing speeches of the prosecution and the defence;
(g) any address of the trial judge to the jury under section 14;
(h) any schedules, chronologies, charts, diagrams, summaries or
other
explanatory material;
(i) transcripts of evidence;
(j) transcripts of any audio or audio visual recordings;
(k) the trial judge's
summing up;
(l) any other document that the trial judge thinks fit.
(2) The trial judge may specify in an order under sub-section
(1) when any
material is to be given to the jury."
- In 1993 Parliament enacted the Crimes (Criminal Trials)
Act. The 1993 Act was repealed by the 1999 Crimes (Criminal Trials)
Act. The purpose of the 1993 Act is stated in s.1: to facilitate the
efficient conduct of criminal trials. The purpose of the 1999
Act is stated in
s.1: to increase the capacity for judicial management of criminal trials and
make other changes for the purpose
of improving the efficiency of criminal
trials.
- Section 19 in the 1999 Act replaced s.16 in the 1993 Act.
Section 19 has a heading: Jury Documents. However, in the construction
of the section, the heading does not form part of the Act because the heading
was not inserted into
the Act by an Act passed on or after 1 January 2001[21]. Document is used in sub-clauses (d)
and (l). There is no definition of 'document' in the Crimes (Criminal
Trials) Act, but in the Interpretation of Legislation Act 'document'
is defined in s.38 and the definition applies in all Acts and subordinate
instruments, unless the contrary intention appears:
"Document includes, in addition to a document in writing" -
[paragraphs (a), (b), (c) and (f) are not relevant]
"(d) any disc, tape, sound track or other device in which sounds or
other data (not being visual images) are embodied so as to be
capable (with or
without the aid of some other equipment) of being reproduced therefrom.
(e) any film (including microfilm), negative
tape or other device in which one
or more visual images are embodied so as to be capable (with or without the aid
of some other equipment)
of being reproduced therefrom;"
- The definition of 'document' in sub-clause (e) could apply to
the VATE interview and, thus, an extended meaning given to 'document'
in
s.19(l). There are difficulties, however, in the circumstances of the present
case in the judge providing the VATE interview to the jury
pursuant to s.19(l).
The foreman of the jury did not inform the court why the jury wanted to view
the tape and sub-s.(1) of s.19 provides as a pre-condition for giving to the
jury any of the prescribed documents: for the purpose of helping the jury to
understand
the issues. It is impossible to know the purpose of the jury when
it requested to view again the VATE interview. The fundamental
issues in the
trial were whether the evidence of R was more credible than the evidence of the
applicant and satisfied the jury beyond
reasonable doubt of the elements of
each charge. The evidence of R included, of course, not only her
evidence-in-chief, but also
her cross-examination. It was potentially unfair
to have the one without the other for the cross-examination contained material
inconsistencies. At the same time the whole of the evidence of the applicant
was also important for it contradicted R's evidence
in critical respects and
answered her allegations. If the jury was having difficulty in determining the
fundamental issues in the
jury room, the judge should have inquired of the jury
judiciously the nature of their difficulty and the purpose of the request and
dealt with the matter accordingly. Another matter of less importance is that
the jury was provided the original VATE interview and
not a copy, as specified
in sub-s.(1).
- I entertain considerable doubt whether any paragraph in s.19
empowered the judge to provide the jury with the VATE interview in the
circumstances I have described. At common law the judge should
have refused
the request and advised the jury that the VATE interview had to be seen in open
court in the presence of counsel, the
accused and the public, as had been done
earlier in the trial. Further, as I shall indicate soon, a further viewing of
the VATE
interview in court should have been accompanied by an appropriate
judicial direction and reminder about the cross-examination of
R and the
evidence of the applicant. The failure to do so gave undue weight and
prominence to the evidence-in-chief of the principal
prosecution witness to the
detriment of the inconsistencies brought out during the cross-examination of R
and the defence case founded
on the applicant's sworn evidence.
- The court was informed by counsel for the parties that the
practice in relation to a VATE interview is not uniform in the County
Court.
In some trials a VATE interview has been admitted in evidence and marked as an
exhibit. Some judges have allowed the jury
to have a VATE interview, whether
or not it became an exhibit to be used in the jury room, along with all the
exhibits. In other
trials a more strict approach has been taken and the VATE
interview has not been given to the jury for viewing in the jury
room.
- There is a considerable body of judicial opinion in Australia
and overseas to which I shall refer shortly, which demonstrates that
judicial
practice in Victoria is not in harmony with the practice in other
jurisdictions. Further, that the practice of giving the
jury a VATE interview
to view in the jury room is a fundamental procedural irregularity in a trial.
Mr Thomas for the applicant submitted
that a serious procedural irregularity
occurred in the present case and it caused a miscarriage of justice which
cannot be saved
by the proviso to s.568(1) of the Crimes Act
1958.
English authority
- In England, Parliament inserted s.32A in the Criminal
Justice Act 1988 in 1991, permitting in certain proceedings which include
sexual offences, a video recording of an interview conducted between
an adult
and a child which relates to an issue in the proceeding to be given in
evidence. Sub-section (3) permits the video recording
to be tendered in
evidence, subject to the power of the court to exclude evidence, unless the
court is of the opinion having regard
to all the circumstances of the case that
in the interests of justice the recording ought not to be
admitted.
- The equivalent section in Victoria is s.37B of the Evidence
Act 1958. It was inserted in the Act in 1991. Unlike the English section,
s.37B does not expressly permit the video recording to be tendered
in evidence.
- When the Crimes (Sexual Offences) Bill was introduced into the
Legislative Assembly on 13 March 1991, the Attorney-General in the
Second
Reading speech said of what was to become s.37B of the Evidence
Act:
"The second measure is to provide an option whereby a video or
audio-recording of an interview of a child complainant may be admitted
as
evidence. The recording would serve as the child's evidence-in-chief, saving
him or her from having to recount the allegations
in detail and presenting the
court with the freshest possible account of the alleged events."
- Notwithstanding that the section does not expressly permit the
video recording to be tendered in evidence, circumstances may arise
during a
trial which would justify the tender in evidence as an exhibit the VATE
interview. Counsel for the accused may agree to
the tender or may be required
to tender it on account of the line taken during
cross-examination.
- The English Court of Appeal, in R. v. Rawlings and
Broadbent[22] considered an appeal where a
complainant's evidence-in-chief had been given by means of a video recording
pursuant to s.32A of the
Criminal Justice Act 1988. After the jury
retired to consider its verdict the jury asked the judge for the video
recording because it wished to be reminded
of the complainant's
evidence-in-chief. The judge acceded to the request and the video recording
went into the jury room without
any warning against unfairness deriving from
its replay or offer to remind the jury of the cross-examination of the
complainant and
the evidence-in-chief of the accused. Lord Taylor of Gosforth,
C.J. read the judgment of the court.[23] His
Lordship noted that s.32A of the Act allowed the video tape to be made an
exhibit before it is played and observed[24]:
"But whether it is made an exhibit or not cannot be conclusive as
to whether the jury can have it replayed. Even an exhibit, as already
pointed
out, is not always automatically and in its complete form to be made available
to the jury on request. Conversely, even
if the video is not an exhibit, the
jury must be entitled to be reminded of its contents. The question at issue is
simply how that
should be done."
- The ratio decidendi of the decision is contained in the
following passage which, with insignificant variations, has been applied
since
in decisions in Queensland and New Zealand.
- In the following passage, the Court in Rawlings gave
guidelines to a trial court faced with a jury's request for the video to be
replayed to ensure fairness in the trial.
"In our judgment it is a matter for the judge's discretion as to
whether the jury's request for the video to be replayed should be
granted or
refused. He must have in mind the need to guard against unfairness deriving
from the replay of only the evidence-in-chief
of the complainant. Usually, if
the jury simply wish to be reminded of what the witness said, it would
be sufficient and most expeditious to remind them from his own note. If,
however, the circumstances suggest
or the jury indicate how the words
were spoken is of importance to them, the judge may in his discretion allow the
video or the relevant part of it to be
replayed. It would be prudent where the
reason for the request is not stated or obvious for the judge to ask whether
the jury wish
to be reminded of something said which he may be able to give
them from his note or whether they wish to be reminded of how the words
were
said.
If the judge does allow the video to be replayed, he should comply with the
following three requirements. (a) The replay
should be in court with judge,
counsel and defendant present. (b) The judge should warn the jury that
because they are hearing
the evidence-in-chief of the complainant repeated a
second time well after all the other evidence, they should guard against the
risk of giving it disproportionate weight simply for that reason and should
bear well in mind the other evidence in the case. (c)
To assist in
maintaining a fair balance, he should after the replay of the video, remind the
jury of the cross-examination and re-examination
of the complainant from his
notes whether the jury asked him to do so or not.
For completeness, we should refer to our judgment
in Reg. v. Atkinson
(unreported), 1 August 1994, C.A. In that case, we rejected submissions that
the judge was wrong to allow the jury at their request
to see again in
retirement the video of interviews with the complainant which had been put to
her in cross-examination as inconsistent
statements. There, no point arose as
to evidence-in-chief being given greater prominence than cross-examination or
other evidence-in-chief
since the video of the interviews was not
evidence-in-chief at all and the judge made that abundantly clear to the jury
on a number
of occasions."[25]
- Since the decision in Rawlings was delivered, similar
problems have arisen and been dealt with in England, applying
Rawlings.[26] If the
evidence-in-chief of a witness is admitted in the form permitted by s.32A of
the English Act and if it has to be replayed,
the precautions suggested in the
passage in the case of Rawlings cited above are used. This is the
uniform practice in English courts.
- Before departing from the English authorities, I should refer
in more detail to two of the authorities cited.
- In Welstead, the court was concerned with transcripts
of the s.32A video recording being made available to the jury in the course of
the trial
but were withdrawn when they retired to consider their verdicts. The
court held that the trial judge was entitled to allow the jury
to have copies
of the transcript of the video recordings whilst those recordings were being
played, provided (1) that the transcripts
would in fact be likely to assist
them in following the evidence of the witness in question; (2) that the judge
made clear to the
jury that the transcripts were made available to them only
for that limited purpose, and that they should concentrate primarily on
the
oral evidence; and (3) that the judge gave the jury such directions, both at
the time and in the summing up, as would be likely
to be effective safeguards
against the risk of disproportionate weight being given to the transcripts.
The Court of Appeal (Lord Justice Evans and Garland and
Connell, JJ.) drew the following conclusions from Rawlings, Coshall and
Sekhon[27]:
"(1) The video-recording of the child's interview is not itself
evidence in the case. The evidence is given orally and by means of
the
video-recording so far as the evidence-in-chief is concerned. This is clear
from section 32A itself.
(2) The video recording
enables the jury to observe the child's demeanour as a
witness, just as it can do if the evidence is given orally and in court.
The
fact that it is a recording enables it to be replayed if the jury so requests,
and subject to stringent safeguards this procedure
is allowed:
Rawlings. This facility cannot be made available to them when the
evidence is given in the normal way in court. It is an advantage, therefore,
derived from modern technology which is allowed to assist them in their
evaluation of the child's evidence.
(3) Whatever use may
be made of the video, after the evidence-in-chief has been
given, it is essential to remember that it contains only part of the evidence
of the witness in question. The stringent safeguards required by the judgment
in Rawlings are designed to maintain a `fair balance' when the jury does
see the video again.
(4) If a transcript of the video-recorded interview
is available, the jury
should not normally be permitted to take it with them when they retire, unless
the defence consents: Coshall. This is because there is no effective
safeguard in such circumstances against the jury giving that part of the
child's evidence
disproportionate weight.
(5) The value to the jury of `tools' which may assist them in following and
understanding a witness' evidence
has been recognised and approved by this
court in Sekhon (observation logs). A transcript of the video-recording
was given to the jury in Coshall for use during the child's evidence,
and this was not the subject of complaint in this court, as distinct from
allowing the jury
to keep it when they retired.
(6) It was submitted in Rawlings that the reason for refusing to let a
jury have transcripts of a witness's testimony is that `one part of the total
corpus of evidence
should not be given disproportionate weight and importance'
(at p.225 and p.181E). We would add that there is equally no question
of
providing the jury with a transcript of the whole of the evidence, because of
the burden which this would place upon them and
the limited value of any such
exercise."[28]
The Court referred to Butera v. DPP (Vic.)[29] with approval.[30]
- In Boakes, because the audio video recording was of
rather poor quality and was not easy to follow, a transcript of the video
recording was
provided to the jury in court and they took it with them into the
jury room when they retired. The jury did not ask for a copy of
the transcript
and the judge did not give the jury the warnings or precautions suggested in
Rawlings. The court considered there was a serious risk of
disproportionate weight being attached to one part of the evidence, the
complainant's
evidence-in-chief as against the rest of the evidence, including
the cross-examination of the complainant and the evidence of the
defendant:
"The necessary fair balance was not maintained. That amounted to a material
irregularity and the convictions must be
quashed."[31]
- No transcript issue arose in the present case, but it may be
helpful if something is said about the matter.
- The course taken by the trial judge in Welstead and
approved by the Court of Appeal occasions no difficulty. The problem
that arose in Boakes has arisen and been considered by courts in
Victoria, not in relation to s.37B of the Evidence Act as far as I am
aware, but in relation to the admissibility of transcripts of recordings of
police records of interview with the accused
and covert surveillance of the
accused per telephone intercepts or otherwise. In R. v. Narula[32] the Full Court held that a transcript of
tape-recorded conversations, proved or admitted to be correct, is admissible if
the tape
recording itself would, if tendered, be admissible. Narula
concerned covert recordings of conversations in a foreign language.
Transcripts of translations of the tapes, together with the tapes
themselves
were admitted and tendered in evidence. In Butera the High Court
approved a transcript of a translation of a tape-recorded conversation between
co-conspirators in a foreign language
admitted in evidence to be given to the
jury when it retired.
- In my experience as a trial judge, I know that sometimes the
sound from an audio or an audio video tape is difficult to understand
and a
jury will need to be provided with a transcript. The customary warning must be
given to the jury to the effect that the best
evidence is the tape or video,
and the transcript is only an aid to its understanding. If the tape or video
has been tendered in
evidence and the jury wishes to hear it in the privacy of
the jury room, it will usually be permitted to do so, and if the jury asks
for
a transcript it will generally be allowed to have a transcript accompanied by a
careful warning that the transcript is not the
best evidence and may only be
used to assist in understanding the audio sounds.
- Cases may arise where the jury will request or a party may
apply that a transcript of a VATE interview be provided because the jury
is
having difficulty hearing and understanding the words. The judge in his
discretion may accede to the request by providing the
transcript for use in the
court with a warning that the transcript is not the best evidence and is only
an aid. Although s.19 of
the Crimes (Criminal Trials) Act 1991 allows a
trial judge to give to the jury a copy of "transcripts of evidence" (para (i))
and "transcripts of any audio or audio
visual recordings" (para (j)), I
consider that the judge should decline to allow the jury to have a transcript
of a VATE interview
in the jury room to guard against unfairness in the trial
of the kind identified by Lord Taylor in Rawlings. The discretion must
be exercised so as to safeguard against the risk of disproportionate weight
being given to the transcript.
The procedure in Welstead should be
followed. The decisions in Narula and Butera should not be
extended to a VATE interview, in my opinion. The procedure in Rawlings
should apply accompanied, if the need arises, by the provision of a transcript
in the courtroom.
New Zealand authority
- I turn next to a new Zealand authority. In R. v. O[33], s.23D of the Evidence Act 1908
allows the complainant's evidence-in-chief in a sexual violation case to be
given by showing a video-taped interview prior
to trial. During the jury's
deliberation the jury informed the judge that it required a transcript of the
interview. When the videotape
was played to the jury in court the jury did not
have a transcript, but a transcript had been provided in evidence and produced
as
an exhibit. The judge brought the jury into court and read the entire
transcript of the complainant's video-taped interview to the
jury. No part of
the complainant's evidence given in court, either in chief or in
cross-examination, was read to the jury, nor did
the judge make any reference
to it. The New Zealand Court of Appeal in allowing the appeal
said:
"In our view, this was one of those cases where replaying the
videotape, this time making sure that the jury could hear what the complainant
was saying, was appropriate. This would have enabled the jury to appreciate
not only what she was saying, but also how she said
it. To ensure balance, the
judge should then have read to the jury possibly the rest of the complainant's
evidence-in-chief and
in the circumstances, probably the whole of the
cross-examination. If, on replaying the videotape, the jury indicated they
still
cold not hear what the complainant was saying, the alternative course of
permitting the jury to have the transcript while the videotape
was being
played, would have been appropriate."
- The court referred to Rawlings and applied R. v.
Thomas[34], a case decided on similar
facts. The first part of the headnote to R. v. O.[35] reads: "A jury, in the course of their
deliberations, should not be provided with videotapes and equipment for
replaying them to
enable the jury to replay the tapes to themselves in the jury
room" must be understood as applying to a videotaped interview pursuant
to
s.23D of the Evidence Act 1908 (N.Z.). Videotaped evidence and taped
evidence of the kind I referred to in paragraphs [54] and [55] and transcripts
admitted
in evidence in accordance with the Butera principle may be used
in the jury room with appropriate directions.
Queensland authority
- Next, I turn to Queensland authority. Section 93A of the
Evidence Act 1977 is equivalent to s.37B of the Evidence Act
(Vic). In R. v. H[36], a decision
of the Queensland Court of Appeal (McMurdo, P., Shepherdson and Jones, JJ.,)
the error alleged was in the trial judge
allowing a video cassette of the
complainant child's evidence-in-chief to be taken into the jury room by the
jury while considering
their verdict. The facts were on all fours with the
present case. In Queensland, s.99 of the Evidence Act 1977 empowers a
court to direct that a statement in a document admitted in evidence may be
withheld from the jury during their deliberations
if the court considers they
might give the statement undue weight.
- Section 99 confers upon a trial judge a discretion to exclude
from the jury a videotaped statement by a child under the age of 12 years made
by way of s.93A and tendered as an exhibit and any exhibit admitted in
evidence. There is no equivalent to s.99 in Victoria.
- In R. v. H., McMurdo, P.[37] said:
"[T]he learned trial judge was not informed of the discretion he
had pursuant to s99 of the Act, nor was he informed of the substantial
body of
weighty judicial opinion that the videotaped evidence of a child under the
equivalent of s93A of the Act should not go into
the jury room during
deliberations. There is a real danger that in replaying a videotape, possibly
many times, the jury may overemphasise
that evidence, as against other evidence
in the case, particularly cross-examination. ... as a general rule, at least in
the absence
of the consent of both Crown and defence, videotaped evidence
tendered under s93A of the Act will not be permitted to go into the
jury room
during deliberations. If the jury request to hear the evidence of the
complainant child a trial judge must deal with each
situation on the facts as
they arise. As Shepherdson J notes in his judgment, a trial judge must be
careful that any questioning
does not intrude on the confidentiality of the
jury's deliberations.[38] If the judge
decides to allow the jury to view the videotape, this should generally be done
after discussing the proposed procedure
with counsel in open court. The judge
should also warn the jury that because they are hearing the evidence-in-chief
of the complainant
repeated a second time and well after all the other
evidence, they should guard against the risk of giving it disproportionate
weight
simply for that reason and should bear well in mind the other evidence
in the case.[39] It is not in our view
necessary in every case after replaying the videotape to remind the jury of the
cross-examination and re-examination
of the complainant from the judge's notes
or transcript, where this is not requested by the jury.[40] In many cases this may be wise but every case will
depend on its own facts. The overriding consideration for the trial judge must
be fairness and balance, something which can be difficult to achieve in emotive
sexual cases which are particularly likely to arouse
feelings of prejudice in
the jury.[41] As Shepherdson J points out in
his judgment, such an approach is consistent with the comments of Brennan CJ in
Bulejcik v The Queen.[42]"
- In a more recent decision the Court of Appeal, Queensland,
revisited s.93A of the Evidence Act 1977. In R. v. C.[43], the court, constituted by McMurdo, P.,
McPherson, J.A. and Atkinson, J., was concerned with a ground of appeal which
alleged error
by the trial judge inadequately referring to the jury to the
cross-examination of the complainant and the evidence of witnesses inconsistent
with the complainant's evidence. After the jury heard and saw the
complainant's taped evidence replayed at their request, the judge
declined to
read the cross-examination of the complainant, but gave the jury a direction
which in terms warned them that the evidence-in-chief
should not be given undue
weight and should be considered with the cross-examination which the jury might
think disclosed a number
of inconsistencies in her evidence.
- McMurdo, P. referred to R. v. H.[44] and said:
"H. does not give clear guidance to trial judges as to the
procedure to be followed when a jury request to listen to or view a
complainant's
tape tendered by way of s93A Evidence Act 1977. The divergence in
the views expressed by Shepherdson J and me was not resolved by Jones J who
agreed with both. Unsurprisingly,
I prefer the view I expressed in H. at
para17. The trial judge has the conduct of the trial, understands its nuances
and is best
placed to ensure fairness and balance. It is desirable that the
trial judge has a discretion in each case to determine the most appropriate
course. Here, the trial judge declined to read the cross-examination of the
complainant and the evidence of other witnesses which
was inconsistent with
that of the complainant. He reminded the jury of that evidence, however, in a
general way. The evidence at
trial was not complex and was in short compass
commencing at 2 pm on 11 January 1999 and concluding at 11.01 am on 12 January
1999.
His Honour's redirection to the jury on this issue was fair and balanced
and highlighted the internal inconsistencies in the complainant's
evidence and
the inconsistencies between her evidence and the version she gave to her mother
and her teacher more effectively than
the reading of many pages of transcript.
He told them that any passage of the transcript in which they were interested
could be read
to them. His Honour's redirections sufficiently balanced the
possibility of over-emphasis upon the replay of the complainant child's
taped
evidence as against other evidence in the case. There can be no justifiable
complaint about his Honour's mode of dealing with
the jury's request to replay
the complainant's evidence by way of video and audio tapes tendered under s93A
Evidence Act 1977."
Conclusions
- In Victoria, the problem raised in the present case by
allowing the jury to have the VATE interview in the jury room during their
deliberations has not been considered previously in the Court of Appeal. VATE
interviews were considered in R. v. NRC[45] and R. v. MTP[46], but in another context.
- When the jury requested to view the VATE interview in the jury
room, no submissions were made by counsel and no reference was made
to
Rawlings[47] and the authorities to
which I have referred.
- I am of the opinion that a serious procedural irregularity
occurred when the judge provided the VATE interview to the jury. I have
no
doubt that the jury was entitled to be reminded of the evidence-in-chief of R,
but replaying the VATE interview should have been
done in court. Before
acceding to the jury's request, I consider the judge first should have enquired
of the jury in open court
by appropriate means why the jury wished to have the
VATE interview replayed. Upon being satisfied that the jury needed to be
reminded
of the evidence-in-chief, the judge should have warned the jury in
appropriate terms of the imbalance which may follow replaying
the video and
offered to remind the jury of the cross-examination and re-examination of R's
evidence and the evidence of the accused.
This would have achieved a fair
balance in the evidence.
- In the future, in order to maintain a fair balance, a trial
judge ought to follow the procedure adopted in Rawlings[48] and R. v. C[49],
with such modifications as are required to accommodate the circumstances of the
case.
- A miscarriage of justice occurred, in my opinion, for the
applicant did not have, as he was entitled to have, a fair trial according
to
law. The proviso to s.568(1) of the Crimes Act 1958 cannot be applied
because the procedural irregularity was fundamental and the applicant lost a
chance of acquittal which was fairly
open.[50]
The prosecution case depended upon the evidence of the victim. When undue
weight was given to the evidence-in-chief of the victim
correspondingly, due
weight would not be given to the evidence of the applicant.
- The appeal should be allowed, in my opinion, and a new trial
ordered.
---
[1] Cf. R. v. NRC [1999] VSCA 184; [1999]
3 V.R. 537 at 540.
[2] [1995] 1 W.L.R. 178.
[3] The judgment of the court was delivered by
Lord Taylor of Gosforth, C.J.
[4] [1985] 1 W.L.R. at 183.
[5] R. v. Coshall, Court of Appeal,
unreported, 17 February 1995 (Transcript); R. v. Boakes, Court of
Appeal, unreported, 14 May 1996; R. v. Welstead (1996) 1 Cr.App.R. 59;
R. v. John M. [1996] 2 Cr.App.R. 56; R. v. Roberts, Court of
Appeal, unreported, 24 March 1998; R. v. McQuiston (1998) 1 Cr.App.R.
139; R. v. Smith, Court of Appeal, unreported, 17 February 1998.
[6] Supra at 68-9.
[7] [1996] 3 N.Z.LR. 295 at 299-300.
[8] See also R. v. Thomas (1992) 9
C.R.N.Z. 113 at 114, per Anderson, J.
[9] [1998] 2 Qd.R. 283.
[10] Cf. Bulejcik v. R. (1996) 185
C.L.R. 375 at 386, per Brennan, C.J. (who dissented as to the outcome).
[11] [2000] Qd.R. 54 at 56.
[12] Cf. R. v. Saunders [1995] 2
Cr.App.R. 313 at 317-8.
[13] Wilde v. R. [1988] HCA 6; (1988) 164 C.L.R. 365
at 373, per Brennan, Dawson and Toohey, JJ.
[14] Section 19(1) is concerned with the
provision of copies but the word "copies" is ambiguous. It does not always
mean a reproduction: a person may
say, for example, that he or she owns "two
copies" of a particular textbook. The discretion to provide copies of
transcripts of
evidence (para (i)) makes me hesitate to say that s.19(1) is
incapable of applying to a VATE tape, but in practice the question will not
arise. It will almost always be preferable to play
the tape in open court
accompanied by appropriate directions.
[15] The answer to that question might be
affected by whether his Honour exercised a discretion that was not available or
simply fell
into error in the exercise of a discretion that was conferred on
him by s.19(1).
[16] M v. The Queen [1994] HCA 63; (1994) 181 C.L.R.
487.
[17] R. v. Rawlings and Broadbent
[1995] 1 W.L.R. 178.
[18] R. v. Welstead [1996] 1 Cr.App.R.
59.
[19] R. v. C. [1999] QCA 246; [2000] 2 Qd.R. 54.
[20] R. v. J (No. 2) [1998] 3 V.R.
602.
[21] See Interpretation of Legislation Act
1984, s.36(2A) inserted by Act No. 60 of 2000.
[22] [1995] 1 W.L.R. 178.
[23] R. v. Rawlings and Broadbent, the
Court of Appeal comprised Lord Taylor of Gosforth, C.J., Curtis and Gage,
JJ.
[24] At 183.
[25] Lord Taylor at 183.
[26] R. v. Coshall [1996] 1 Cr.App.R.
Part IC Sweet & Maxwell; [1995] (17 February) T.L.R. 93; R. v. John M
[1996] 2 Cr.App.R. 56; R. v. Welstead [1996] 1 Cr.App.R. 59; R.
v. Boakes [1996] EWCA Crim. 439; R. v. Boberts [1998] EWCA Crim.
1054; R. v. Smith [1998] EWCA Crim.578.
[27] R. v. Sekhon (1987) 85 Cr.App.R.
19.
[28] R. v. Welstead at 68-69.
[29] [1987] HCA 58; (1988) 76 A.L.R. 45.
[30] At pp.71-72.
[31] R. v. Boakes (supra) at p.4.
[32] [1987] VicRp 55; [1987] V.R. 661.
[33] [1996] 3 NZLR 295.
[34] (1992) 9 CRNZ 113 (CA).
[35] Tompkins, J. at 301. The Court of
Appeal comprised Eichelbaum, C.J., Gault and Tompkins, JJ.
[36] [1999] 2 Qd.R. 283.
[37] At 291.
[38] Shepherdson at 293-294.
[39] Rawlings at 228.
[40] Rawlings at 228.
[41] See De Jesus v. The Queen [1986] HCA 65; (1986
61 A.L.J.R. 1 per Gibbs, C.J. at 3.
[42] (1996) 185 C.L.R. 376 AT 386.
[43] [1999] QCA 246; [2000] 2 Qd.R. 54.
[44] Supra at 56.
[45] [1999] VSCA 184; [1999] 3 V.R. 537.
[46] [2002] VSCA 81
[47] R. v. Rawling & Broadbent
(supra).
[48] Supra.
[49] Supra.
[50] R. v. Glennon [1994] HCA 7; (1993-1994) 179
C.L.R. 1.
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