- Unreported Judgment
- Appeal Determined (QCA)
 QCA 179
SUPREME COURT OF QUEENSLAND
Court of Appeal
Appeal against Conviction
26 May 2006
13 April 2006
McPherson JA and Chesterman and Mullins JJ
Joint reasons of Chesterman and Mullins JJ, separate reasons of McPherson JA concurring as to the orders made
1. Appeal granted
2. Set aside conviction and order retrial
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – where appellant convicted of indecent treatment of a child under the age of 16 – where appellant sentenced to four months imprisonment wholly suspended for an operational period of 12 months – where evidence was pre-recorded under Pt 2 Div 4A Subdiv 3 of the Evidence Act 1977 (Qld) and played at trial – whether trial judge adequately directed jury under s 21AW(2) of the Evidence Act 1977 (Qld)
Evidence Act 1977 (Qld), s 21AW(2), s 93A
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, followed
R v DM  QCA 79; CA No 260 of 2005 (21 March 2006), considered
R v HAB  QCA 80; CA No 259 of 2005 (21 March 2006), considered
Tasker v Fullwood  1 NSWLR 20, followed
A J Rafter SC for the appellant
C W Heaton for the respondent
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
 McPHERSON JA: I agree with the reasons of Chesterman and Mullins JJ and with the orders they propose.
 CHESTERMAN and MULLINS JJ: On 18 November 2005 the appellant was convicted after a two day trial in the District Court at Ipswich of one count of the indecent treatment of a child under the age of 16 who, at the time, was under his care. He was sentenced to four months imprisonment wholly suspended for an operational period of 12 months.
 The complainant was 12 years old at the time of the offence which occurred between 1 July and 2 August 2004. The appellant was 44 years old and was the father of one of the complainant’s friends.
 The offence occurred on the occasion of the appellant’s son’s twelfth birthday party. A number of children, including the complainant, attended the function. The appellant celebrated the occasion with some alcoholic sustenance. As the children were leaving the appellant embraced the complainant and, according to her account, put his hand under her jumper and shirt and fondled her breasts. She freed herself from the appellant’s clasp when another child approached and asked the complainant to go home with her.
 The complainant mentioned the occurrence to a number of her friends soon after. Their statements, tendered to prove the making of a recent complaint, were admitted in evidence pursuant to s. 93A of the Evidence Act 1977 (“the Act”).
 The evidence of the complainant and that of the four friends whom she told about the appellant’s conduct was recorded on 19 October 2005 pursuant to subdiv 3 of Div 4A of Pt 2 of the Act. The purpose of that division and its effects was described by Jerrard J.A. in R. v. DM  QCA 79. His Honour said (at ):
“Division 4A was inserted in 2003, and its purposes included requiring that an affected child’s evidence (the evidence of a child who is a witness and not a defendant) be taken in an environment that limited to the greatest extent practicable the stress and trauma that might otherwise be experienced by a child when giving evidence. To achieve that purpose, for a criminal proceeding an affected child’s evidence is to be pre-recorded in the presence of a judicial officer, but in advance of the hearing of the criminal proceeding. For a committal proceeding, the child’s evidence in chief is to be given only by way of a statement and, ordinarily, the child is not to be called as a witness for cross-examination. Generally speaking, s 21AM within Division 4A has the effect that a video-taped pre-recording of an affected child’s evidence is as admissible as if it were given orally in the proceeding, and unless otherwise ordered, is admissible in any re-hearing or re-trial, or appeal from, the proceeding. Provision is made in s 21AN for orders that an affected child, who has been excused from further attendance, give further evidence (also to be pre-recorded) at another preliminary hearing, or else attend at the proceeding itself to give further evidence; orders of that sort must not be made unless the court is satisfied both that the child could be recalled to give further evidence if giving evidence before a court in the ordinary way, and also that it would be in the interest of justice to make the order for the child giving further evidence. Provision is also made in s 21AO for an order that a child’s evidence not be taken by video-taping under Division 4A; the courts may make such an order for good reason, having regards to the child’s wishes and the purposes of this Division. A statutory example provided in the legislation is if facilities for video-taping are not likely to be available within a reasonable time.”
 When the appellant’s trial commenced the prosecutor tendered the friends’ statements and the pre-recorded video tapes of the evidence of the complainant and her friends. The tapes were played in the presence of the jury. The only witnesses called were the complainant’s sister who also gave evidence of complaint, two police officers who took statements from the child witnesses and the complainant’s mother. The appellant did not give evidence. The only issue at the trial was whether the jury was satisfied beyond reasonable doubt that the complaint was true. Her credibility was put in issue. She had made statements contradicting her own account that the appellant had fondled her.
 The appellant challenges his conviction on the sole ground that the trial judge failed adequately to instruct the jury in compliance with s. 21AW(2) of the Act.
 Section 21AW provides:
“(1)This section applies to a proceeding on indictment if any of the following measures is taken –
(a)an affected child’s evidence is taken in a way provided for under subdivision 3 or 4;
(b)a person is excluded under section 21AU while an affected child gives evidence;
(c)an affected child has a support person under section 21AV while the child gives evidence.
(2)The judicial officer presiding at the proceeding must instruct the jury that –
(a)the measure is a routine practice of the court and that they should not draw any inference as to the defendant’s guilt from it; and
(b)the probative value of the evidence is not increased or decreased because of the measure; and
(c)the evidence is not to be given any greater or lesser weight because of the measure.”
The section therefore applied to the evidence of the complainant and her four friends. As we mentioned it was pre-recorded and played in court as authorised by s. 21AK and s. 21AM.
 During her Honour’s preliminary instructions to the jury, before the Crown prosecutor opened, the trial judge said:
“He then calls the witnesses except for the children – and there’s a number of children involved in this case. There is a section under our Evidence Act which provides that children under 16 give their evidence by what we call ‘pre-recording’ which means that, at an earlier date, their evidence has been recorded and you’ll see that played in Court rather than actually see the children in Court. Now, that’s because it’s thought that it is easier for children to give evidence that way. It can be quite intimidating for young children to have to come into Court and speak in front of a whole group of adults.
So, when you see that evidence, just bear in mind that it has no special quality to it. It’s just a different way of giving evidence. It has no more or no less weight than evidence which is given by the person coming into the Court and giving their evidence.”
 The submission advanced on behalf of the appellant is that the only matter identified in s. 21AW(2) which was mentioned by the trial judge was that the pre-recorded evidence was not to be given any more or less weight than evidence given conventionally. The submission continues that the jury was not instructed that the probative value of the evidence was not affected by its having been pre-recorded and that her Honour’s exposition that it was “easier for children to give evidence” in advance of the trial and that giving evidence in court “can be quite intimidating” for them did not amount to an instruction that adducing evidence by way of a recording was a routine practice of the court. It is also pointed out that the judge’s instructions did not warn the jury that they should not draw any inference as to the appellant’s guilt from the manner in which the children gave evidence.
 The importance of s. 21AW(2) and the need to comply with it have been stressed in recent decisions of this court. In R. v. HAB  QCA 80 at  –  McMurdo J. (with whom Williams and Keane J.J.A. agreed) said:
“The trial judge did give the jury a direction that no adverse inference was to be drawn … ‘from the fact that this is the process which applies’. Whilst it is preferable for the direction to be given in the clear terms of the section, it may be accepted that this direction satisfied the requirement of paragraph (a) [of s 21AW(2)]. But otherwise no direction was given which satisfied the requirements of [the section]. … In this respect … there was a serious irregularity in the conduct of the trial which, subject to the operation of the proviso, would warrant the setting aside of these convictions.
Section 21AW(2) is in mandatory terms. In a particular case, where the directions which it requires are not given, an appellate court might be persuaded that there was no substantial miscarriage of justice. But an appellate court cannot gainsay the proposition that juries need the instructions which the statute prescribes.”
 In R. v. DM  QCA 79 Williams J.A. said (at  – ):
“Section 21AW … is in mandatory terms …
In R v TN (2005) 153 A Crim R 129, Keane JA (with the concurrence of Williams JA and Helman J) said … a ‘failure on the part of the … trial judge to comply with the terms of s 21AW(2) was an error of law.’
In certain cases there may be justification for a trial judge expanding upon what is said clearly and simply in s 21AW(2), but it is of critical importance that the mandatory directions be given. The words of the sub-section are clear and would be readily understood by any juror. There is no need, in the absence of some specific problem in a particular case, to do more than direct the jury in the terms of the section. The error of law resulting from the omission to give the mandatory directions will ordinarily result in a miscarriage of justice resulting in any convictions being set aside unless the proviso (s 668E(1A) of the Criminal Code … can be invoked.”
 In the same case Jerrard J.A. said (at ):
“… the convictions can only stand if this Court is satisfied that no substantial miscarriage of justice occurred because of the failure to direct in accordance with s 21AW. That direction is intended to assist jurors when evaluating pre-recorded evidence and to protect both the prosecution and defendants against unfair assumptions and possible prejudice. It is dangerous to assume that, in any individual case in the absence of the statutory reminder, there was no actual need for it.”
 McMurdo J. pointed out (at ) that the failure to give the required directions was a “serious irregularity” as a result of which “[t]he jury had to assess the evidence of the complainants without the benefit of directions which the law prescribes as necessary for that exercise”.
 Despite the terms in which this Court has emphatically and recently expressed its opinion we would prefer to approach an examination of the consequences of non-compliance with s. 21AW(2), not by reference to whether the subsection is “mandatory” but to whether the provision, within the context of Div 4A of the Act, is an expression of legislative intention that the evidence to which the subsection applies, without the specified instructions as to its evaluation will not support a conviction.
 This approach is, we think, supported by the decision of the (New South Wales) Court of Appeal in Tasker v. Fullwood  1 N.S.W.L.R. 20 at 23-24:
“The problem arises whenever a judicial … act … is subjected by statute to the prior performance of conditions. … The problem is to be solved in the process of construing the relevant statute. … The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance … The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute … The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement … It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations.”
 The judgment received the approval of the High Court in Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 C.L.R. 355. McHugh, Gummow, Kirby and Hayne JJ. said at 390 – 391:
“… the Court of Appeal … was correct in Tasker … in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ … They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory … A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.”
 Section 21AW is found in subdiv 5 of Div 4A. The section applies not only where an affected child’s evidence is taken, as in this case, under subdiv 3 but also where it is taken under subdiv 4, and where all but essential persons (as defined) are excluded from the court in which an affected child gives evidence pursuant to s.21AU, and also in those cases where an affected child has “near … him or her a person who may provide the child with support” pursuant to s.21AV. Under subdiv 4 a child may give evidence by audio visual link from a room within the court precincts but outside the courtroom, or the accused may be excluded from the courtroom while the child gives evidence but can observe the evidence by means of audio visual link to a room in the court precinct.
 In all of the cases mentioned in the preceding paragraph the trial judge “must” give the jury the instructions set out in s. 21AW(2).
 The manner in which an affected child’s evidence is to be given pursuant to s 21AU and s.21AM and, to lesser extent, s.21AV, is a marked departure from the conventional manner in which evidence is presented before a tribunal of fact for its evaluation. Convention may be a slender foundation for the justification or continuation of a practice or procedure, but experience has shown that evidence is best tested, and a true verdict reached, when the evidence in support or defence of a case is put before a court, judge or jury, and is explored for signs of inconsistency or insincerity in the presence of the tribunal of fact. The process is assisted by the solemn requirement that a witness’ testimony be given on oath or affirmation and be open to public scrutiny.
 Division 4A has provided, for reasons which Parliament deems sufficient, that a different procedure should be followed in cases involving a certain class of witness. The difference is such as is likely to surprise jurors who have some knowledge, whether first or second hand, of ordinary court proceedings. Without the benefit of the instructions required by s.21AW(2) that surprise may well turn into conjecture adverse to an accused. The subsection is intended to dispel the surprise and to prevent the conjecture. That that occurs is clearly of the utmost importance to a fair trial. Parliament cannot have intended that the new procedures should prejudice the fair trial of an accused. It has enacted that, to ensure a fair trial, the jury must be instructed how to evaluate evidence led in this way.
 To exclude an accused from the complainant child’s presence, or to protect the child from the accused’s presence is likely to give rise to speculation by a jury that the measure has been undertaken because of some particular characteristic of the accused which is likely to be associated with his guilt. It is essential that that speculation be quashed and directions specified in s.21AW(2) are designed for that purpose.
 Section 21AW applies to these circumstances, in which a trial would very probably proceed in a manner prejudicial to an accused if the directions were not given, as well as to others where the departure from the orthodox presentation of evidence is not so great. There is no warrant for distinguishing between the circumstances in which s.21AW applies. If the instructions must be given for the evidence to be valid in one of the circumstances specified in s.21AW(1) the requirement must be complied with for all.
 Reinforcement for the opinion is to be found in the contrasting provision of s.21AS also found in subdiv 5. That section provides that the prosecutor must, in a trial on indictment, inform the court when the indictment is presented that an affected child may give evidence. Subsection (3) provides that a failure to comply with the section “does not prevent an affected child’s evidence being taken or video-taped under this division or affect the admissibility of the evidence”.
There is no such saving provision in s.21AW.
 Although expressed in different terms, the judgments of the Court in HAB and DM plainly express the opinion that a failure to comply with s.21AW(2) is an error of law, and a serious irregularity, which will vitiate the trial, subject to the application of the proviso.
 Section 21AM makes a video tape recording of an affected child’s evidence “as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court”. The section must be read conformably with s.21AW. The tape recording of the evidence may be admissible, but the trial judge must direct the jury in compliance with the later section. The trial will be vitiated (subject to the operation of the proviso in an appropriate case) unless the jury is instructed in accordance with s.21AW(2).
 An analysis of s.21AW(2) shows that a trial judge must give four instructions:
(i)That (in this case) the pre-recording of evidence and its presentation to the jury by way of video tape is a routine practice of the court.
(ii)The jury should not draw any inference as to the defendant’s guilt because of that manner of giving evidence.
(iii)The probative value of the evidence is not increased or decreased because of the manner in which it was given.
(iv)The evidence has not greater or lesser weight because of the manner in which it was given.
There is considerable overlap between the content of instructions (iii) and (iv).
 Despite the appellant’s submissions we are not persuaded that the trial judge did not give a sufficient direction in relation to the first, third and fourth instructions.
 Her Honour said that there was a section in the Act “which provides that children under 16 give their evidence by … pre-recording’ which her Honour then explained, and went on, that that process was ‘because it’s thought that it is easier for children to give evidence that way”, and again explained why.
 To say that children under 16 give evidence in the manner described, and to give the reason for the adoption of that procedure is, in our opinion, to say that the evidence of children is ordinarily pre-recorded and replayed in the court. To say that that is the ordinary manner in which such evidence is given is to say that that method of giving evidence is routine. Her Honour’s remarks were, in our opinion, a sufficient discharge of the obligation set out in para  (i) above.
 The trial judge did not say that the probative value of the evidence was not increased or decreased by having been pre-recorded. Her Honour did, however, say that the evidence had “no special quality to it. It’s just a different way of giving evidence.”
 “Probative” means “affording proof or evidence”. To say that the probative value of evidence is not increased or decreased because it is pre-recorded and played to the jury is to say that it is not better evidence, or worse evidence, or does not amount to better proof or worse proof of the matters to which it goes. The effect of the instruction required by s.21AW(2)(b) is, we think, an instruction that it is not better evidence or worse evidence than evidence given by a witness in the presence of the jury. The essence of this meaning was captured by what the judge said.
 Her Honour expressly instructed the jury in terms of s.21AW(2)(c).
 When one compares the terms of s.21AW(2) with the trial judge’s instructions to the jury it is at once apparent that the jury was not told that they should not draw any inference as to the appellant’s guilt from the fact that the complainant and her friends had given evidence prior to the trial and that the jury would see only a video tape of their testimony.
 This is an express requirement of the subsection. The trial judge “must” instruct the jury to that effect. Although the evidence be credible if the warning is not given, a conviction will not have been lawfully entered, subject to the operation of the proviso.
 It is apparent from what we have said that we do not regard s.21AW(2) as requiring that a trial judge instruct the jury in the very words of the subsection. No doubt a verbatim declamation of the provision would be a sufficient compliance with it, but is not the only means by which the mandated instructions may be imparted to the jury. A judge in discharging the obligation imposed by the subsection should use the phrases found in it, in particular that the manner of giving evidence is “a routine practice of the court”, and must tell the jury that they can not draw any inference as to the defendant’s guilt because of the adoption of the routine. Some elaboration, if it be clear and not obscure, of these essential points may be helpful and will not invalidate the reception of the evidence. We are not sure that a jury would readily understand what is meant by “probative value”, and some exegesis such as that given by the trial judge would probably be more useful to the jury than merely informing it in the terms of s.21AW(2)(b). As long as the essential point is conveyed that the evidence is not better or worse, or more or less valuable, by reason of being given in a particular way, that part of the statute will have been satisfied.
 The appellant’s conviction must be quashed. There should be a re-trial. This is not an appropriate case for the application of the proviso. The one issue in the case, whether the complainant should be believed or whether a reasonable doubt attends her testimony should be determined by a jury properly instructed. It is quintessentially a jury question and should not be determined by an appellate court, even in circumstances where all the relevant evidence is available on video tape and the accused did not testify.
- Published Case Name:
R v Hellwig
- Shortened Case Name:
R v Hellwig
- Reported Citation:
 QCA 179
McPherson JA, Chesterman J, Mullins J
26 May 2006
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|Appeal Determined|| 1 Qd R 17||26 May 2006||-|