SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: R v SCG [2014] QCA 118 PARTIES: R v SCG (appellant) FILE NO/S: CA No 37 of 2014 DC No 59 of 2013 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against Conviction District Court at Kingaroy DELIVERED ON: 27 May 2014 DELIVERED AT: Brisbane HEARING DATE: 15 May 2014 JUDGES: ORDERS: Gotterson and Morrison JJA and Jackson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. Allow the appeal. 2. Set aside the verdicts on counts 2, 3, 4 and Order a retrial on those counts. CATCHWORDS: CRIMINAL LAW APPEAL AND NEW TRIAL MISCARRIAGE OF JUSTICE PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE MISDIRECTION OR NON-DIRECTION NON-DIRECTION where the appellant was charged with five counts of indecent dealing with a child under 16 years where after a trial the jury were unable to agree on count 1, returned majority guilty verdicts on counts 2, 3 and 5 and returned a unanimous guilty verdict on count 4 where the complainant gave evidence by way of s 21AK and s 93A of the Evidence Act 1977 (Qld) where during deliberations the jury requested and was allowed by the learned primary judge to watch the entirety of the complainant s evidence again where the learned primary judge neither reminded the jury of the appellant s evidence nor warned the jury not to give undue weight to the complainant s evidence having watched it again whether there was a miscarriage of justice Criminal Code 1899 (Qld), s 668E(1)(A) Evidence Act 1977 (Qld), s 21AK, s 93A

2 2 Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, followed R v FAE [2014] QCA 69, followed R v GAO [2012] QCA 54, followed TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL: SOLICITORS: P J Callaghan QC, with B P Dighton, for the appellant D L Meredith for the respondent Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent [1] GOTTERSON JA: I agree with the orders proposed by Morrison JA and with the reasons given by his Honour. [2] MORRISON JA: The appellant pleaded not guilty to five counts of indecent treatment of a child under the age of 16. The offences were alleged to have occurred on a date unknown between 1 November 2012 and 1 May After a trial the jury were unable to agree on count 1, returned majority verdicts of guilty on counts 2, 3 and 5, and returned a unanimous verdict of guilty on count 4. [3] The single ground of the appeal 1 was that: 1. The learned trial judge erred when, after the jury were played recordings of the entirety of the complainant s evidence for a second time, he 1.1 failed to warn the jury to guard against the risk of giving that replayed evidence undue weight; and 1.2 failed to remind the jury of the relevant evidence given by the defendant. 2 Proceedings at the trial [4] The complainant and the appellant were cousins. The complainant lived with her father. The appellant lived in his own house with his partner and their three children. The complainant would frequently stay with her aunt (the appellant s mother) or the appellant, often for a week or more at a time. 3 [5] On 10 May 2013 the complainant gave a statement to police. This became evidence pursuant to s 93A of the Evidence Act 1977 (Qld). The reason ascribed by the complainant for speaking with the police was that she had been sleeping at her aunty s place and her cousin, the appellant, started touching me. 4 The interview extends for 32 pages, and gives details of the various episodes which were formulated into five separate counts in one indictment. Counts 1, 2 and 3 [6] The first three counts related to a single occasion when the complainant was staying in the house of the appellant s parents. Her father had gone to fix up some cars and As amended at the commencement of the hearing, without objection from the Crown. Amended Notice of Appeal, filed 14 May AB 106. AB 211.

3 3 she stayed the night. She was 12 years and eight months at the time. Five other children were there at the same time, all cousins of the complainant. When all the children went to bed they did so in one large bed, crammed together. 5 The bed consisted of a bunk bed style arrangement, with a double bed at the bottom and a single at the top. The complainant was sleeping on the edge of the bed, with all her cousins behind her or at the foot of the lower bed. 6 [7] The complainant stated that she woke up and noticed the appellant on the floor beside the bed, apparently hiding under a blanket. 7 She described him lying on the floor and he was acting like he was looking for something, he just looked at me and just looked under the bed again and kept moving his hand around, so he was acting like he was looking for something. 8 [8] At that point the appellant noticed that her jeans were undone, 9 describing them as being unbuckled and undone, the fly was undone. 10 She said that the jeans always come undone, so she thought they just come undone cause they were tight. 11 She zipped the jeans up, rolled over and went back to sleep. Sometime after that she woke again or was half awake, to find that the appellant kissed me three times on my neck. 12 This was the event constituting count 1. [9] The complainant then said that the appellant had placed his hand underneath her shirt, touching her on the breast. 13 She described the appellant putting his hand, which was shaking, in her shirt, then he felt around, moved it slightly and started squeezing her breast. She moved and the appellant took his hand out. 14 This event constituted count 2. [10] The complainant then said that the appellant started undoing her pants, at which point she realised that she had not dreamed the appellant s kisses on her neck, but it was real. 15 She could feel that his hand was shaking as he was undoing the pants. The appellant moved them down slowly and gently, and then started to touch her on her vagina, underneath her underwear. 16 This event constituted count 3. The appellant said she rolled over onto her side at which point the appellant walked slowly and quietly up the stairs. 17 Count 4 [11] The appellant described the events constituting this count, which occurred sometime between Christmas and New Year s Day, On this occasion the complainant was sleeping at the home of the appellant. She slept on a fold out bed which was in the lounge room, where the others watched TV. One of her cousins was sleeping AB 214. AB 218. AB 214. AB AB 214. AB 220. AB 220. AB , 220. AB AB 221. AB AB 222. AB 223. AB 26.

4 4 next to her, and the others were in a bedroom. 19 She said she woke up to find the appellant pulling down my blanket and undoing my pants again. 20 She could feel the appellant s hand on her, and could feel it shaking on her leg. 21 The appellant started undoing her pants, pulled them down a bit, lifted up her underwear and put his hand onto her vagina. 22 She said that when he put his hand down he was still shaking and everything. And then he started moving it around. 23 She rolled over onto her belly, at which point the appellant started to stroke her bottom on the outside of her clothing. 24 He kept doing it, and eventually the complainant rolled over again, onto her side, at which point the appellant left the room slowly and quietly. 25 Count 5 [12] The fifth count concerned events which occurred at the house of the appellant s parents, sometime in January At about 6.00 am the appellant came into the children s room, where the complainant was sleeping. The appellant was dressed in his work uniform 27 and had a blanket wrapped around him. Two of her cousins were sleeping in the same double bed, and one on the single bed above her, and she was sleeping on a bed that pulled out from underneath that single bed. 28 She said the appellant started to touch her, stroking her bottom again. 29 She responded by rolling over, moving, kicking her leg, squirming, coughing and sneezing. 30 She could feel the appellant starting to pull her pants down, so I rolled over cause I didn t want him to do it again. 31 She said the appellant was stroking her on her bottom, on the outside of her clothing. Eventually the appellant gave up and left the room. 32 The complainant s evidence [13] All of the above events were the subject of detailed evidence by the complainant in her s 93A statement. In addition to that she gave evidence for the trial in a pre-recorded form. That evidence was received pursuant to s 21AK of the Evidence Act. The complainant adhered to her version of events in the pre-recorded evidence and rejected any suggestion, under cross-examination, that the events did not occur. Other evidence [14] The prosecution called six witnesses to give evidence of preliminary complaint. All of them were friends or family of the complainant and the appellant. None of those witnesses had first hand knowledge of the events and gave evidence that the complainant had told them in various ways about one or more of the incidents the subject of the charges AB 225. AB 229. AB 230. AB 230. AB 230. AB 231. AB 231. AB 28. Which she identified as a Better Electrical uniform: AB 237. AB 236. AB 233, 237. AB 233, AB 238. AB 238.

5 5 [15] In addition three of those witnesses also gave evidence that they had confronted the appellant with what the complainant had told them, at which time he denied the events saying, No. Nup. Didn t happen. 33 The defendant s evidence [16] The defendant gave evidence himself, but called no other witnesses. His evidencein-chief was short, taking only about five minutes. 34 Cross-examination followed, taking a total of 16 minutes. 35 The examination-in-chief consisted, in essence, of his denying each of the events. For the most part the questions asked whether the particular alleged event had happened. In respect of counts 4 and 5 the question was a little broader, asking in respect of count 4, Did anything like that take place? 36 and in respect of count 5, Have you ever done anything like that to her? 37 He was then asked whether he had ever touched the complainant or dealt with her in any way that someone might consider indecent, or in a sexual way, in each case eliciting a negative response. 38 He was then asked a number of questions concerning the occasions that the complainant had stayed at his house, whether there were times they had both been staying at the house at the same time, and whether on occasions he had gone into a bedroom in which she was sleeping (both at his own house and at his parents house). 39 [17] Cross-examination was equally terse. It consisted, largely, of putting the sequence of each event, and eliciting negative responses. Some short cross-examination explored the sleeping arrangements in the various houses and establishing that when confronted with the allegations his response was not an extreme one. 40 Course of the trial post evidence [18] Counsel for each side addressed the jury at the end of day two. On day three the learned trial judge summed up for the jury. The jury retired at am on day three. By am 41 the jury sent a request asking for all photos, the transcript of the police interview and all exhibits. Discussion ensued between counsel and the trial judge in relation to the question of access to the complainant s evidence, both in terms of the s 93A statement and the pre-recorded evidence. 42 The discussion included whether the s 93A transcript had been given to the jury, or should be given to the jury. The appellant s instructions were to not oppose the jury having the transcript. 43 The trial judge noted that the jury had not asked for both transcripts, but only for the police interview. 44 The discussion ended with the trial judge indicating that he would accede to the jury s request to give them the s 93A transcript, but give them some directions about how to use it AB 117, 120, 134. AB AB AB 138. AB 139. AB 139. AB AB AB 167 records this as pm, an obvious typographical error. AB 167. AB 167. AB 168. AB 168.

6 6 [19] As it transpired the jury indicated that they wanted the transcripts so we can identify a passage in the video that we wish to re-see. 46 The jury spokesman explained that s the only reason a number of the jury want to see parts of the video again, and if we identified them on the transcript, it would make your life 47 a lot easier 48 The outcome was that the trial judge arranged for the jurors to each receive their copy of the s 93A transcript, on the basis that if they needed to view any passages from the DVD recording of that interview, they should indicate what they are and we will arrange to bring you back in here and together we will watch them. 49 [20] The jury retired again at pm on day three. [21] At pm the jury had identified three transcript pages, in respect of which they wished to view the video. 50 The jury were called back in and those parts were played to them. At 1.06 pm the jury retired again. [22] At 4.28 pm two notes were received from the jury. The first asked for advice on word against word evidence, because they could not agree. 51 The second note asked for a definition of reasonable doubt. [23] A discussion between the trial judge and counsel ensued, focussing on what the term word against word meant, and whether the question could be answered in terms of addressing who bore the onus of proof, and that the standard of proof was beyond a reasonable doubt. The jury returned at 4.36 pm. The learned trial judge then redirected the jury in respect of both notes. The redirections included these passages: But, at the end of the day, the prosecution case is solely limited to the evidence of the complainant girl There s no other evidence that you can look to as to the truth of the fundamental elements of the charge. It follows that you will have to, in respect of each charge, and I ve told you you need to consider each of them separately, but in respect of each charge you will need to be satisfied that the evidence of [the complainant], insofar as it relates to the essential elements of that charge, is honest and reliable, credible and reliable. If you weren t satisfied beyond reasonable doubt that she was credible and reliable when you look at a particular charge and the elements of that charge, in what she says about that, well, then you would be left with a reasonable doubt and you would have to acquit on that charge. 52 You should understand that in a criminal trial it s not a question of you making a choice between the evidence of, in this case, the complainant on the one hand and the evidence of the defendant on the other. As I said to you the defendant is not required to prove anything in our law. The prosecution has to prove its case and it has to prove it through the evidence of [the complainant] because she constitutes the evidence on the prosecution case on the important elements of the offence AB 170. Referring to the trial judge. AB 170. AB 171. AB 172. AB 174. AB 176.

7 7 The proper approach for you is to understand that the prosecution case depends upon you, the jury, accepting that the evidence of the complainant was true and accurate beyond reasonable doubt. The prosecution case depends upon you accepting that [the complainant s] evidence was true and accurate beyond reasonable doubt, despite the sworn evidence of the defendant. So you don t have to believe the defendant is telling the truth before he is entitled to be found guilty or not guilty. In other words even if, having heard his evidence, you weren t comfortable with it or you were left in some doubt as to whether he was telling the truth or even if you thought he was not telling you the truth, that doesn t resolve the matter for you. You have to then put his evidence aside and ask yourself whether the prosecution, through the complainant s evidence, has satisfied you beyond reasonable doubt in relation to the elements of the offence. 53 [24] The learned trial judge finished the redirection on this issue with the following statement: So I think they re the fundamental issues here. Don t get tied up in this concept of word against word; put that aside because I don t think it s really very helpful, and bear firmly in mind the onus and standard of proof. Bear in mind that if you accept the complainant as truthful and reliable on all the essential elements of each offence, and you have to be satisfied that on her evidence and her evidence alone, beyond reasonable doubt, that the defendant did touch her on the occasion she said it occurred and touched her in a sexual way that would be considered indecent by the community, then if you re satisfied upon her evidence beyond a reasonable doubt, well, then you may convict upon her evidence. However, if you re left with a reasonable doubt in respect of her reliability and credibility, well, then you would be in a situation where you would need to acquit. 54 [25] The jury retired again at 4.50 pm on day three. At 4.58 pm the jury sent another note to the learned trial judge. This concerned whether they needed to be unanimous in their decision. In discussing what to say to the jury about that, the learned trial judge calculated that the jury had been deliberation for some four and a half hours to that point. 55 Having given a redirection about endeavouring to reach a unanimous verdict, the jury were released for the evening. [26] On the morning of day four the jury had sent a further note to the learned trial judge. This note said that the video shown the previous day was, in the opinion of some jurors, very unclear in its audio. It continued, Is it possible to hear both the police interview and the court evidence from [the complainant] again? 56 [27] The learned trial judge took the view that the jury could hear all of it if they wish 57 and he noted that it would take something over one and a half hours to play all of it. A question to be clarified was whether parts only of the evidence would be replayed, or all of it. The jury returned at 9.54 am AB 177. AB 177. AB 180. AB 184. AB 185.

8 8 [28] It then became clear that the jury wished to have the entirety of both DVDs. 58 The first was played, finishing at about am. The second was played between am and am. 59 [29] By 3.55 pm on day four the learned trial judge was informed that the jury had reached a unanimous verdict on count 4 but was deadlocked on the remaining counts. 60 The jury indicated that they believed the position on the remaining counts would not change. As a consequence directions were given that they could reach a majority verdict. At about 4.17 pm the jury indicated that they had reached a majority decision on counts 2, 3 and 5, but remained deadlocked on count 1. Discussion [30] The appellant argued that a miscarriage of justice arose, at the time that the DVDs consisting of the s 93A statement and the pre-recorded evidence were played to them, because: the learned trial judge did not give the jury any direction that they should not give the replayed evidence of the complainant undue weight by virtue of its repetition; 61 and the learned trial judge did not repeat or summarise to the jury any of the evidence given by the appellant. The appellant accepted, as was the case, that the defence counsel 62 had not asked for such a direction. However, it was contended, that was not significant because there was no conceivable forensic advantage that could have been achieved by that omission. [31] Counsel for the respondent acknowledged that it would have been preferable had such a direction been given, but that any difficulty was overcome by the terms of the direction which was given on day three, as set out in paragraph [23] above. Further, the respondent contended that the evidence given by the appellant in his defence case was quite short and would not have been forgotten by the jury. The respondent did not suggest that there was any apparent forensic advantage in the failure to ask the learned trial judge for such a direction. [32] The respondent accepted that if this Court came to the view that the absence of the warning constituted an error, it was not a case for reliance upon the proviso in s 668E(1)(A) of the Criminal Code. That section provides that: the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. [33] In my view there was no conceivable forensic advantage on the appellant s part, in refraining from asking the jury to be reminded of the appellant s evidence, and warned against the risk of unfairness that might arise upon replaying the complainant s evidence, because that replaying might cause the jury to give undue weight to the complainant s evidence. Therefore defence counsel s failure to ask for such a warning, or a repetition of the appellant s evidence, should not stand in the way of concluding that there has been a miscarriage of justice Referring to the s 93A statement as well as the pre-recorded evidence. AB 188. AB 192. This replaying should be distinguished from the replaying of the three specific parts of the complainant s police interview, mentioned above at paragraph [21], which the appellant is not concerned with. Who was not either of the counsel on appeal. R v FAE [2014] QCA 69, at [21]; TKWJ v The Queen (2002) 212 CLR 124, at [16]-[17], [25]-28], [81]-[85], [101] and [106]-[108].

9 9 [34] In FAE this Court recently considered the contention advanced by the appellant in this case. At [22] the Court referred to the decision in R v GAO 64 in terms which bear repeating here: 65 [20] The respondent frankly acknowledged that the failure by the trial judge to warn the jury against giving the evidence of the complainant undue weight was unfortunate. The respondent accepted that there was an available implication from the reasoning in Gately v The Queen 66 that in a case where the defendant gave evidence a jury should be warned against giving undue weight to evidence of the complainant which was replayed to the jury after their deliberations had commenced. The respondent also accepted that there was no apparent forensic advantage to the appellant in not asking the trial judge to give such a warning. In the event that the Court considered that the failure to give the directions contended for by the appellant was an error, the respondent disclaimed any reliance upon the proviso in s 668E(1)(A) of the Criminal Code that the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The respondent argued, however, that the evidence in the defence case was in such short compass that it would not have been forgotten by the jury and, because the trial judge had repeatedly directed the jury that the case depended entirely upon the evidence of the complainant which should be carefully assessed by the jury, it was not necessary for the trial judge to warn the jury not to give her evidence undue weight when it was replayed. [21] Upon an objective analysis, there was no forensic advantage for the appellant to refrain from asking the trial judge to remind the jury of the evidence given and called by the appellant and to warn the jury to guard against the risk of unfairness to the appellant that the replaying of the complainant s evidence at the time when it was replayed might itself cause the jury to give her evidence more weight than the evidence given and called by the appellant. It should therefore be accepted that in the circumstances of this case defence counsel s failure to ask the trial judge to take that course does not militate against a conclusion that there has been a miscarriage of justice. 67 [22] In R v GAO 68 the Court set aside verdicts of guilty and ordered a re-trial in circumstances in which a trial judge had R v GAO [2012] QCA 54. GAO at [20]-[24]. (2007) 232 CLR 208. See TKWJ v The Queen (2002) 212 CLR 124 at [16] [17] (Gleeson CJ), [25] [28] (Gaudron J), [81] [85] (McHugh J), [101] (Gummow J agreeing with Gaudron and Hayne JJ), [106] [108] (Hayne J). [2012] QCA 54.

10 10 allowed a complainant s police interview to be taken into the jury room. White JA, with whose reasons I and Daubney J agreed, made the following observations (I have added the emphasis): In R v H this court discussed the approach to exhibits being taken into the jury room when a jury adjourns to deliberate about their verdict and particularly a statement admitted pursuant to s 93A of the Evidence Act. After an analysis of authorities from other jurisdictions the President said: [T]he authorities I have reviewed suggest that as a general rule, at least in the absence of the consent of both Crown and defence, videotaped evidence tendered under s. 93A 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. 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. 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. That approach was endorsed in R v DAJ. Jerrard JA said: The learned trial judge specifically exercised the discretion given by s 99 of the Evidence Act, to supply the jury with the videos. However, the judge did not comply with the requirement in the judgment of the President and Jones J in R v H, namely that the judge warn the jury that because they were 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 that evidence disproportionate weight simply for that reason. Nor did the judge specifically remind the jurors of what emerged in the examination and re-examination of the complainant. It could not be argued, and the respondent did not seek to do so, that the primary judge purported to exercise his discretion under s 99 when he told the jury that they would have the

11 11 s 93A statements in the jury room during their deliberations. The respondent conceded that, notwithstanding the lack of objection by defence counsel below, that allowing the jury to have the s 93A exhibits when they retired was an irregularity. Mr Cash for the respondent argued that even so a substantial miscarriage of justice had not occurred. This was because when addressing the jury, defence counsel had placed particular emphasis on the complainant s interview with police. He had invited the jury to consider the complainant s body language on the video and reminded them of particular parts of the interview submitting that the complainant had changed her story. He did not emphasise any aspect of her cross-examination in the pre-recording of her evidence. Mr Cash conceded that on a review of the transcript it was unlikely that it was a forensic decision by defence counsel not to seek to have the s 93A statements excluded. There was a material irregularity in permitting the s 93A statements to go into the jury deliberations. Having done so, the failure to give a direction to the jury to guard against the risk of giving the evidence in the s 93A statements disproportionate weight was an error of law. There is no place for a consideration of the proviso. 69 [23] The circumstances of this case tend to emphasise the need for such directions in order to guard against the risk of a miscarriage of justice. An appreciable period of time had elapsed after the completion of the evidence in the defence case and after the conclusion of the summing up before the jury asked for the evidence of the complainant to be replayed. The replaying of the complainant s evidence occupied a substantial period of time and was of such a character as might arouse strong emotions. In the absence of any reminder to the jury of the appellant s sworn denials of the complainant s evidence or of the other exculpatory evidence in the defence case there was an appreciable risk that the jury might give the complainant s evidence greater weight than the evidence in the defence case merely because the jury saw and heard the complainant s evidence for a second time in those circumstances. [24] In Gately v The Queen 70 the High Court held that, in circumstances in which defence counsel had consented to the trial judge permitting the complainant s video taped evidence to be replayed in the absence of judge and counsel and her statement to be re-read to the jury in the presence of the judge and counsel, no miscarriage of justice had been occasioned by the trial judge s failure to warn the jury about the need to avoid giving undue weight to that evidence. However, the High Court emphasised that this was the only evidence of significance given in the trial so that there was [2012] QCA 54 at [20] [24] (citations omitted). (2007) 232 CLR 208.

12 12 no possibility of undue weight being given to some evidence at the expense of other evidence. 71 The decision in Gately does not govern this case. As Hayne J pointed out, although a jury s request to be reminded of evidence given in the trial should very seldom be refused, the overriding consideration is fairness of the trial and it may be necessary to warn the jury that the replayed evidence should be considered in the light of countervailing evidence or considerations upon which the accused relied; that might be necessary to avoid the risk that undue weight would be given to evidence that had been repeated. 72 [35] Gately, GAO and FAE do not lay down immutable standards. Each case depends upon its facts. In each case, the overriding consideration must be fairness and balance, giving rise to the need to guard against the risk that undue weight might be given to a complainant s evidence where it is played a second time without a warning, or where no reminder is given to the jury about the competing evidence. In making a judgment about that question various factors will be relevant, including: the time that has elapsed after completion of the defence evidence; the time that has elapsed since the conclusion of the summing up; the character of the complainant s evidence, including the manner in which it is given; the course of the trial, in particular the stage of deliberations that the jury has reached; and the length of time that the relevant evidence occupies. In terms of the need to remind the jury of the defence evidence, one factor might be the manner in which that evidence was given; where that is relevant it is likely to have been a matter referred to by the Crown in their address. No doubt there are other matters that may arise. [36] However, these are all merely points for consideration in assessing the overall question which is whether fairness and balance requires that the warning be given and/or a reminder given to bear in mind and appropriately weigh the defence evidence. In circumstances where those warnings will be necessary because all or part of a complainant s evidence will be replayed a second time, the need to remind the jury of the competing defence evidence may well require, depending upon the circumstances, repetition or summarising of relevant parts of that evidence, and possibly comment upon the manner in which the evidence was given. [37] When one turns to the circumstances of the current case there are factors which compel the conclusion that appropriate directions were needed to guard against the risk of a miscarriage of justice, by the risk of the jury giving disproportionate weight to the complainant s evidence because it was replayed for a second time in its entirety. They are: (a) some time had elapsed between when the evidence had been completed in the defence case (the end of day two), and after the conclusion of the summing up (11.35 am on day three), before the jury asked for the complainant s evidence to be replayed to them; whilst three short passages concerning three particular pages of the transcript had been played on day three, 73 the request to hear the entirety of the complainant s DVD evidence did not come until the morning of day four; (2007) 232 CLR 208 at [4] [5] (Gleeson CJ), [80] [82] (Hayne J), [112] (Heydon J), [126] (Crennan J). (2007) 232 CLR 208 at [95] [96]. AB 173.

13 13 (b) (c) (d) (e) the first DVD took about one hour to play, and the second something over 40 minutes; that, by itself, occupied a far greater length of time than the entirety of the appellant s evidence; during that time the effect was that the prosecution had their main witness give evidence twice; I say that because what was replayed to the jury was the entirety of the complainant s evidence, and because the evidence was recorded, the evidence was given again in precisely the same form; that is quite a different thing from having passages of evidence read to a jury; also because of the form of the recording, all of the emotions that might be generated by listening to a 13 year old complainant in an indecent dealing case are likely to be stirred again; moreover, upon viewing the two DVD recordings myself, the complainant would hardly have been described as hesitant, tentative or diffident in the manner in which she responded to the questions; and the jury had been grappling with the question of word against word evidence; that suggests that they were, as the respondent contended, weighing both versions of evidence in the trial; and in this context, the following day, one side s evidence was reprised in perfect form, and no reference was made whatever to the opposing evidence. [38] In the absence of reminding the jury of the appellant s sworn denials, there was an appreciable risk that the jury might give the complainant s evidence greater weight than any opposing evidence, merely because they had seen and heard the complainant for a second time. That risk is all the greater in this particular case because of the way in which the complainant gave her evidence. [39] The need to give a warning to the jury, or to remind the jury of the competing evidence, arises out of considerations of fairness. As the Court said in FAE: [24] In Gately v The Queen 74 Hayne J pointed out, although a jury s request to be reminded of evidence given in the trial should very seldom be refused, the overriding consideration is fairness of the trial and it may be necessary to warn the jury that the replayed evidence should be considered in the light of countervailing evidence or considerations upon which the accused relied; that might be necessary to avoid the risk that undue weight would be given to evidence that had been repeated. 75 [40] I do not accept the respondent s contention that the learned trial judge s directions set out in paragraph [23] above were sufficient to overcome the risk of unfairness. First, those directions were given late on day three. True it is that the directions emphasised that the prosecution case depended entirely on the complainant s evidence, and that the complainant s evidence had to be carefully assessed by the jury, and that the jury had to be satisfied, beyond reasonable doubt, of all the elements of the offence on the basis of the complainant s evidence and her evidence alone. It is also (2007) 232 CLR 208. (2007) 232 CLR 208 at [95] [96].

14 14 true that those directions were given in response to the jury s request for advice on word against word evidence. However, they preceded the jury s request to hear all of the complainant s evidence again, which was not made until the following day. [41] Secondly, I am unpersuaded that the directions, given by the learned trial judge at the end of day three, dealing with onus of proof, and directed to reminding the jury that the case depended entirely upon the evidence of the complainant, can be seen as being directed to the risk that unfair weight might be given in the process of replaying the complainant s evidence. That is the risk identified in Gately, GAO and FAE. Repeated directions of the same kind were urged in FAE as meeting the questions of fairness and balance posed by the risk that the jury might give undue weight when hearing the complainant s evidence a second time. Just as that argument did not succeed in FAE, it does not succeed here. [42] In my view the trial miscarried because the learned trial judge did not warn the jury that they should not give the replayed evidence of the complainant undue weight merely by virtue of its repetition, and there was no repetition or summarising to the jury of any of the evidence given by the appellant. Orders [43] I would allow the appeal, set aside the verdicts on counts 2, 3, 4 and 5, and order a retrial on those counts. Whether there is a retrial on count 1 is a matter for the prosecution. [44] JACKSON J: I agree with the reasons for judgment of Morrison JA and the orders proposed by his Honour.