SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and I agree with them.

[2] There is, however, one aspect of the reasoning therein which I would emphasise.  The jury, perhaps surprisingly, asked for the evidence of CT (the video of her interview with police in November 2004 and her video recorded cross-examination in August 2006) to be replayed after they had retired to consider their verdict.  Significantly CT's evidence did not specifically relate to any of counts 2 to 5 on the indictment; strictly it could only have been relevant to count 1, that of maintaining an unlawful sexual relationship.  That is why it is somewhat surprising that the jury requested that that evidence be replayed.  It would be more understandable if they had asked for evidence of the complainant to be replayed. 

[3] It may be that the jury, correctly, regarded the evidence of CT as relevant only to count 1 and wanted it replayed to assist them in determining whether or not the prosecution had proved its case on that count.  Ultimately, of course, a verdict of not guilty on count 1 was returned.

[4] But in replaying that evidence after the jury had retired to consider its verdict there was a danger that the evidence of CT could be used inappropriately to bolster the evidence of the complainant with respect to the charges being counts 2 to 5 on the indictment.  Because the evidence of CT was of limited relevance it was, in my view, incumbent on the trial judge again to direct the jury as to the use that could be made of it once it was agreed that it should be replayed. 

[5] Such a warning was arguably mandated by s102 of the Evidence Act 1977 (Qld) but, regardless of that, the circumstances in which the evidence of CT came to be replayed demanded that the jury be reminded of its limited relevance.

[6] The failure to direct the jury, either immediately before or after the replaying of the evidence of CT, as to the limited use that could be made of it in the context of the trial meant that the jury were not properly instructed with respect to evidence that the jury considered material to their deliberations, and in consequence there was a mistrial.

[7] I agree with the orders proposed by Jerrard JA.

[8]  JERRARD JA: On 1 February 2007 TQ was convicted by a jury of one count of unlawful and indecent dealing with AT, a child then under the age of 16 years of whom he was the guardian, (count 4) and one count of unlawful and indecent dealing with AT (count 5), without that circumstance of aggravation.  On 16 February 2007 he was sentenced to concurrent terms of two and a half years imprisonment for each of those offences, and the 16 days from 1 February to 16 February 2007 was declared time already served in custody.  The learned judge made no recommendation for parole eligibility, being of the view that that was a matter for the appropriate (parole) authority, in light of TQ’s criminal history.  TQ has appealed both convictions, and sought leave to appeal his sentence.

The convictions and acquittals

[9] The date charged for the commission of the offence in count 4 of which he was convicted alleged that it occurred on a date unknown between 31 January 2004 and 3 March 2004 at Tara in Queensland.  Count 5 was charged as having occurred on or about 2 March 2004 at Tara.  TQ was acquitted by the same jury of a count of having maintained an unlawful sexual relationship with AT between 1 January 1998 and 3 March 2004 at Tara (count 1), acquitted on a count alleging that on a date unknown between 1 January 1998 and 31 December 1998 at Tara he unlawfully and indecently dealt with AT, then a child under the age of 12 of whom he was the guardian (count 2), acquitted of a count of having raped AT on or about 25 May 2002 at Tara (count 3), and acquitted on a count of having raped AT on or about 2 March 2004 at Tara (count 5).  While the jury acquitted him of the count of rape in count 5, it convicted him of the alternative count of indecently dealing with AT, open on that indictment by reason of s 578(1) of the Criminal Code 1898 (Qld).  He was thus convicted only of two specific offences of indecently dealing alleged to have been committed in 2004, and acquitted of all other counts of specific offences alleged to have happened earlier, and of the offence of maintaining an unlawful relationship.

[10]  It was common ground that count 4 was an incident or dealing described by the respondent to investigating police officers, in an interview conducted on 9 March 2004.  That interview was videotaped, and its contents admitted under s 93A of the Evidence Act 1977 (Qld).  The complainant AT was due to turn 14 soon after that interview date, and she described generally having been scared of TQ (who was her stepfather and her mother’s partner), and whom she said had come into her bedroom and committed acts of abuse “heaps” of times.  The first time was when she was about eight or nine (charged as count 2), and the last one (charged as count 4) on an occasion in February 2004, “probably a couple of weeks ago”, on a Monday night.  She said that on that last time TQ had:

“Come into my room and he just touched me everywhere.”[1]

She told the police that she told TQ to stop and:

“..that the little kids were up and he had to stop.”

Asked where he was touching the complainant, AT said “everywhere”, and “he was feeling my tits”.  It was also common ground that count 4 depended on the allegation that TQ had been “feeling my tits.”[2]

[11]  In that interview conducted on 9 March 2004, AT had given a specific description of only the last occasion of the alleged abuse (count 4), the first occasion of alleged abuse (count 2), a more general allegation of being abused “heaps” of times in an apparently similar fashion, and of one occasion when TQ had “laid on top of me.”[3]  On that occasion she “kicked him and he left me alone.”  No charge was laid based on that allegation.  Those were the only descriptions then given of any abuse; count 2 was said to be constituted by TQ having touched AT’s chest (when she was eight or nine).

[12]  A second interview with investigating police officers was conducted nearly 18months later, on 29 August 2005, and the contents of that interview were also video recorded and admitted under s 93A.  In that second interview, she alleged that even on the first occasion when indecently dealt with, she was touched:

“...all over my chest and my stomach and my bum and everywhere...”[4],

and on her “vagina” on the “front hairy area.”  She complained that even on that first occasion there was digital penetration, which “really hurt”,[5] and that thereafter this happened at least twice a week.  She described his having had full sexual intercourse with her on her 12th birthday (charged as count 3), (on which there was an acquittal) which also “really hurt”[6], and she described what were “too many to count” occasions of rape thereafter.[7]  A medical examination in March 2004 revealed findings consistent with prior vaginal penetration by a penis, or fingers, or an object.

[13]  AT also said in the second interview that the last occasion on which anything had happened was when she had been to a friend’s birthday party in February 2004, and they had then gone to Wet‘n’Wild, and she had slept over at her friend’s house the night before.  She told her friend that night of being abused, and had returned to her home on the Monday afternoon after school.  The last occasion of abuse was in the early hours of the following morning.  Her description in the second interview was that TQ had:

“Put his hands inside my underpants and he started feeling me like fingering me...”.[8]

Subsequently the police became involved.  That alleged “fingering” was charged as count 5, an allegation of digital rape, and the jury acquitted.  But they convicted on an alternative count of indecent dealing, and both counsel for the prosecution and the defence urged the learned judge to sentence on the basis that the jury had convicted of an indecent dealing consisting of the touching of the vulva, but without penetration.  The learned judge accepted those submissions.

[14]  However, the learned judge sentenced on the basis that there were two different episodes in which the jury had been satisfied beyond reasonable doubt that indecent dealing had occurred, and the judge considered that that conduct had constituted a gross abuse of trust of the complainant child, when she had been at a very vulnerable age.  But the description by the complainant of both counts 4 and 5 occurring on a Monday night in February 2004 which was the last occasion of abuse makes it at least possible that the complainant was describing the same last occasion of abuse in both interviews; and described touching of her breasts in the first, and of her vulva, in the second.  If the jury accepted her evidence beyond reasonable doubt, they could convict of two separate offences, but TQ should not have been sentenced for having abused AT on two separate occasions.  The evidence did not unequivocally establish there were two occasions.

The grounds of appeal

[15]  TQ was given leave to substitute four separate grounds of appeal for the original ground.  The first new ground was that the learned trial judge had erred in permitting the trial to continue in the absence of TQ, during the replaying of the evidence of an affected child witnesses’ evidence-in-chief and pre-recorded cross-examination.  That witness was CT, AT’s sister, with whom investigating police conducted a videotaped interview on 8 November 2004.  That interview was put before the jury under s 93A of the Evidence Act.  CT was seven years old in November 2004, and as with her sister AT, a video recorded cross-examination of her was conducted under s 21 AQ of the Evidence Act before a District Court Judge (a different judge from the learned trial judge) on 9 August 2006.[9]  Both videos were played to the jury during the trial.  After the jurors had retired to consider their verdict, they asked to see again both the video of CT’s interview with the police in November 2004, and her video recorded cross-examination from August 2006. 

Legislation about evidence

[16]  It is relevant to this appeal generally to describe a little of the history and contents of the Queensland statutory provisions concerning the evidence of children such as AT and CT.  In 1962, Act No 9 of 1962 inserted s 42B and 42C into the Evidence and Discovery Act 1867-1962 (Qld).  Section 42B made admissible statements in documents in civil proceedings where the maker of the statement either had personal knowledge of the matters dealt with, or where the statement formed part of a continuous record and the maker was called as a witness.  That last condition did not apply if the maker was dead or unfit or could not reasonably be brought to the court, or if no party required the maker.  Section 42B and s 42C very largely reproduced the provisions of s 1 and s 2 of the Evidence Act 1938 (UK).  Section 42C relevantly provided that:

“(1)In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by s 42B of this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.”

That was clearly enough of a direction to trial courts in civil proceedings as to relevant matters to which to have regard, when assessing the weight of statements admitted under s 42B as evidence of the truth of the assertions made in those statements.

[17]  The Evidence Act 1977, when enacted, largely reproduced s 42B of the Evidence and Discovery Act (1867-1962) in s 92 of the 1977 Act.  Section 93 of the 1977 Act provided for the admission in criminal proceedings of statements contained in documents that formed part of trade or business records, made in the course of that trade or business from information supplied by persons who might be reasonably supposed to have, or who had, personal knowledge of the matters dealt with; and provided that the maker of the statement was dead, or unable to be produced as a witness, or could not reasonably be supposed to now have any recollection of the matters dealt with.  Section 42C of the Evidence and Discovery Act (1867-62) was largely reproduced at 102 of the 1977 Act, and read:

“102.Weight to be attached to evidence.

It estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Part, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including –

(a) the question whether or not the statement was made, or the information recorded in it was supplied, contemporaneously with the occurrence or existence of the facts to which the statement or information relates; and

(b)the question whether or not the maker of the statement, or the supplier of the information recorded in it, had any incentive to conceal or misrepresent the facts.”

[18]  Section 42C, in the 1867 Act, had been applicable only to the civil proceedings in which 42B applied.  Section 102, although in similar terms, applied equally to the civil proceedings in which statements in documents were admitted under s 92, and the criminal proceedings in which statement and documents were admitted under s93.  Section 102 also performed the important function of identifying specific matters relevant to the weight to be given to statements admitted under s 101 of the 1977 Act, which by that section changed the law of evidence in Queensland, to make prior inconsistent statements by a witness admissible as evidence of the facts stated therein. 

[19]  Relevant to this appeal, the next step was the enactment of s 93A of the Evidence Act 1977, introduced by the Criminal Code, Evidence Act and Other Acts Amendment Act (Qld) No 17 of 1989.  That 1989 legislation made significant changes to the criminal law and laws of evidence in Queensland, and amongst other things introduced the offence of maintaining a sexual relationship with a child into the Criminal Code.  That 1989 Act followed an inquiry into sexual offending against children, and into evidence by victims, conducted under, or under the guidance of, Mr DG Sturgess QC, then Director of Public Prosecutions.  Section 93A of the Evidence Act 1977 was introduced in an effort to overcome the difficulty caused to the Crown when a child complainant, who had provided some considerable time before a trial, a relevantly comprehensive and detailed account of sexual abuse, and who was then either over-awed when called as a complainant or witness in a criminal trial, or simply unable to remember by then the details of the alleged abuse.  The effect of s 93A was that statements in documents were admissible where the maker was a child under the age of 12, who had personal knowledge of the matters dealt with, when the statement was made soon after the occurrence of the facts described, and when the child was available to give evidence.

[20]  The Evidence Act 1977 when enacted included s 99, which provided that where there was a proceeding before a jury and a statement in a document was admitted into evidence under that part of the Act, and it appeared to the court that if the jury were to have the document with them during their deliberations, they might give the statement undue weight, the court might direct that the documents be withheld from the jury during their deliberations.  That section provided a statutory basis for control of s 93A statements being taken into the jury room.  Section 102 became a provision authorising, in appropriate cases, directions to a jury on the circumstances relevant to the weight to be given to the statement.  Section 130 of the 1977 Act also recognised the continued power of a court in a criminal proceeding to exclude evidence if the court was satisfied it would be unfair to the person charged to admit it.

Warnings to juries

[21]  The definition of “document” then appearing in s 4, in the Evidence Act 1977, included videotapes and audio tapes.  As the practice of video and audio taping interviews with complainant children developed, so too did the practice of tendering those videotapes as the evidence-in-chief of the complainant child.  In R v H [1999] 2 Qd R 283 this Court considered whether the videotape containing a complainant’s evidence-in-chief – upon which evidence the complainant had been cross-examined in person at the trial – should be allowed to accompany the jury into the jury room.  McMurdo P considered a number of authorities, and in a passage subsequently cited with approval in the Victorian Court of Appeal in R v BAH (2002) 135 A Crim R 150 at 155 and in R v NZ [2005] NSW CCA 278 at [123], the learned President wrote:

“...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 requests 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.  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 the 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 videotape to remind the jury of the cross-examination and re-examination of the complainant from the judge’s notes or transcripts, 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 from 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.”

[22]  The matter agitated by the appellant’s counsel in that case, and by counsel in other jurisdictions in like matters, had been the possibility of the jury placing too much weight upon the complainant’s evidence-in-chief, (or evidence in toto) by reason of their having the opportunity to hear it more than once, and during their deliberations.  Those observations by the President as to the usually appropriate procedure would equally apply to the videotaped s 93A evidence of a witness as well as that of a complainant; and also to the videotaped cross-examination of the child complainant or witness, that being the manner in which cross-examination of a child’s evidence is customarily presented to a jury in criminal courts in Queensland.

[23]  That development followed from the enactment of Division 4A of Part 2 of the Evidence Act 1977 in 2004, and the provision of appropriate equipment in court rooms.  Division 4A was introduced by Act No 55 of 2003, the Evidence (Protection of Children) Queensland Act 2003 (Qld).  It has the effect that in committal proceedings a relevant child’s evidence-in-chief must be given as a statement without the child being called as a witness (the statement will be taken pursuant to s 93A, in practice); a child’s evidence at a trial is required to be videotaped before the trial.  In practice, that has been the cross-examination of the child; the evidence-in-chief is presented, often enough, in the videotaped s 93A interview.  The result is that child complainants and witnesses no longer have to give evidence, as children had to do not so very long ago, before a jury of 12adults, in a court room with a judge and counsel in robes, and with the defendant sitting quite close to the complainant child, in a proceeding happening perhaps two years after the occasion when the alleged abuse was first disclosed.

[24]  Section 21AW of the 1977 Act requires a judge presiding at a trial conducted in accordance with the provisions of Division 4A to instruct a jury that presenting a child’s evidence by pre-recorded video examination in chief and/or cross-examination, and the presence of a person to support the child when cross-examined, and the exclusion (from the court room or the room where the child is) of various other persons when the child gives evidence, are now routine practices of the court, and should not be the subject of any inference adverse to a defendant.  A trial judge must likewise tell a jury that the probative value of the evidence is neither increased or decreased because of any such measure, and the evidence should be given no greater or lesser weight because of any such measures.  Those mandatory directions are required only in respect of evidence given under Division 4A.

[25]  One other relevant piece of legislation is the provision in s 4A of the Criminal Law (Sexual Offences Act) 1978, also introduced by Act No 55 of 2003, which provides that what is defined as a “preliminary complaint” is admissible in evidence regardless of when it was made (subject to the power of a court to exclude evidence if unfair), and which section prevents a judge from warning or suggesting to a jury that the law regards a complainant’s evidence as more reliable or less reliable only because of the length of time before the complainant made a preliminary or other complaint.  The definition of “preliminary complaint” in that section excludes a complainant’s first formal witness statements to a police officer given in, or in anticipation of, a criminal proceeding in relation to an alleged offence, but includes all other complaints or disclosures.  It should be appreciated that the judgments of this Court require that trial judges explain to juries that preliminary complaints are not admitted as evidence of the truth of their contents, and are admitted only to the extent that they assist in enabling the jury to draw either unfavourable or favourable views about the general consistency of a complainant’s evidence, when comparing the (video recorded) evidence-in-chief and cross-examination with any other accounts given in preliminary complaints.  The directions that judges are forbidden to make about reliability are not, therefore, in respect of the truth of the contents of those statements.  The truth of those contents is a matter to which s 102 of the Evidence Act 1977 is directed.

CT’s evidence

[26]  Returning to the narrative in the matter, CT’s evidence, as the appellant’s counsel submitted in his written argument on the appeal, did not unequivocally describe any of counts 2-5, and was most likely relevant only to count 1, that of maintaining an unlawful sexual relationship.  It described how on an occasion not identified as to the date, CT had seen TQ go into AT’s bedroom and shut the door; on another occasion CT had heard AT crying (apparently at night) and heard AT say:

“I thought you weren’t going to do this any more”,

to which TQ (identified by necessary implication) replied:

“Shh, I don’t want your mother to wake up”

On a third occasion CT had seen TQ at the end of AT’s bed doing something to AT which involved lifting her nightie, and on perhaps a fourth occasion she had seen him (at night) at AT’s bed with his hand over AT’s mouth.  On what may have been another occasion she saw TQ climb through a window into the bedroom which she shared with AT, and sit on the end of AT’s bed.  It is a very bare possibility, but a possibility, that one (or more) of those descriptions, if true, was of the last occasion of abuse, and of either or both of the events in counts 4 and 5, and (thus) possible that the jury so used that evidence.

[27]  The learned judge’s comments to the jury repeated TQ’s counsel’s submission that CT was somewhat like a “jack in the box” as recorded on videotape, and that the jury should reach their own conclusions as to her credibility and reliability.  Those were the only comments on CT’s evidence by the judge, and nothing else was asked for at the trial.  The appellant’s complaint about the jury replaying the video of her interview with the police and her cross-examination is not primarily a complaint that the jury had accepted CT’s evidence (TQ was acquitted on count 1, to which the evidence was most directly relevant), but a complaint that that evidence was replayed in the court room in the presence of the Bailiff and in the absence of the learned trial judge, both counsel, and the defendant.  Mr East of counsel submitted that that constituted a breach of s 617(1) of the Criminal Code, which provides that:

“Subject to this section the trial must take place in the presence of the accused person.”

None of the excepting provisions in the section apply, and Mr East submitted that replaying those tapes would have taken approximately one hour and 20 minutes, and was part of the trial.  Accordingly, there was a fundamental breach of s 617(1), such as to produce a mis-trial.  The learned trial judge, he argued, had left the conduct of the trial to the Bailiff.

Replaying CT’s evidence

[28]  In defence of the learned trial judge, it should be recorded that the judge had directed the jurors during the summing up that the exhibits which were video or audiotapes would remain in the courtroom during the jury’s deliberation, and that:

“They’re here, and you can play them.  You can request me for access to do that, whether for a particular part or all of a tape, or you can ask me to clarify the particular evidence on a point.  If, for example, there is disagreement among you as to what a particular witness said on a particular topic you should, of course, not speculate but ask for me to clarify it.  I can either do that from my transcripts, or you can play the tape.  That’s a matter for you.”[10]

Those directions were given without objection, and followed what the President had suggested for s 93A statements in R v H.  When the jurors asked, after retiring, to see again the two videotapes of CT the learned judge sought submissions and assistance from counsel as to the appropriate course.  The judge suggested that if:

“It is simply playing the video from beginning to end that it could be done by the Bailiff in our absence.  If it’s something other than that, particularly a portion or something, then perhaps we’ll have a different attitude.”

[29]  There was no opposition from either counsel to that suggestion, and the learned judge had the jurors brought in to clarify the nature of the request.  In the presence of the appellant and both counsel, the judge clarified that what the jury wanted was for both videotapes to be played (again) through from beginning to end, and the judge then arranged for the jurors to remain in the courtroom, and for the Bailiff to play each of those videos right through.  The judge informed the jurors that the judge did not intend to remain, and again obtained an assurance that what the jurors wanted was a mechanical exercise of their simply seeing the videos right though from beginning to end.  The judge stressed that if the jurors wanted to stop a tape and replay part of it, or wanted a particular issue clarified, things would need to be done differently.[11]  After that both counsel intimated that each intended to leave the court during the replaying of that evidence, and with leave from the learned judge, TQ was excused from remaining physically in the court.  Neither counsel had directed the judge’s attention to the statements in R v H. 

[30]  In that regard this matter differs from the circumstances currently under consideration in the High Court, and considered by this Court in R v GT [2005] QCA 478.  An appeal in the High Court in that matter was argued on 18 and 19 June 2007, and the decision is reserved ([2007] HCA Trans 315 and 316).  That appellant contends that evidence-in-chief, and not simply cross-examination, was given by a complainant under s 21A of the Evidence Act in his trial and purportedly replayed by a jury in the absence of the defendant, either counsel, or the learned judge. In R v GT the facts were different in another important respect from those in this matter, as the judgment of Atkinson J in that case reveals.  The jurors in R v GT had watched the video recorded evidence in the courtroom on their own, and there was no evidence that there was anyone else present, including no evidence of the Bailiff being present.  The argument before this Court in that case focused on the proposition that the courtroom was being used as a de facto jury room, and that there was a risk of some other person, such as a Bailiff being present; a risk dismissed by this Court in that appeal as a purely speculative one. 

[31]  In the appeal in the High Court in R v GT, that appellant contended that the learned judge in that matter should not have allowed the jurors unrestricted access to that pre-recorded material, and submitted that the jurors, for example, may simply have replayed the evidence-in-chief a number of times, and none of the cross-examination.  That issue did not really arise here, because the learned judge established with clarity that the jurors wanted to hear both videotapes in full, and that that was all.  Another issue raised in that appeal and not this one was whether it was appropriate for the Crown to lead what was submitted to be full evidence-in-chief from the complainant, and to tender as well a statement obtained from that complainant in that matter under s 93A of the Evidence Act.  

[32]  In this matter the Bailiff, by the direction of the learned judge, apparently remained in the courtroom.  That court room did not thereby become a de facto jury room, not only because the Bailiff – by direction of the judge – presumably remained, but also because either or both counsel could have remained, and so too could have the appellant, in accordance with the directions of the judge.  That difference in the facts supports the submission by Mr East that the trial continued when the jurors had the video recorded evidence of the witness replayed to them, just as much as the trial continued when that evidence was first played to the jury. The jurors were in the courtroom, not the jury room, when the two videotapes were played, with the Bailiff present.  The courtroom was not simply a jury room in which the jury were then deliberating.  The fact that everybody but the jury and the Bailiff left the courtroom while the evidence from CT was repeated to the jury did not make that event – the repetition of CT’s evidence – any less an event which occurred during the trial of TQ.  Accordingly, Mr East is correct in his submission that that part of the trial did not take place in TQ’s presence, in breach of the stipulation in s 617.  I add that this point was not available to be taken before this Court, or in the High Court, in R v GT [2005] QCA 478, and nor was the learned trial judge in this matter reminded of the decision in R v H, or s 617(1), or the different facts in R v GT.  The course the learned judge did take here was supported by both counsel at the trial.

[33]  That course did not involve the jurors having unrestricted access to the videotapes, because the judge had clarified what was wanted.  There is no suggestion that the presence of either the learned trial judge, or counsel, or the defendant, could have made any difference at all to the jury rehearing that evidence.  It is very unlikely that a miscarriage of justice occurred because of the breach of s 617(1), because TQ was acquitted on count 1, and there is little to suggest that any of CT’s evidence related to the occasion or occasions on which counts 4 and 5 were committed; but it is possible.  Nevertheless, TQ’s absence from the court, by his own choice and with his counsel’s consent and the judge’s approval, during that part of his trial, was a significant irregularity.

[34]  Before video recorded evidence became commonplace in the criminal courts, the evidence of nearly all witnesses was given by them in person to the court, and if a jury wished to be reminded of that evidence, it was customary to read it to the jury, in the presence of the defendant and counsel.  The court resumed with the judge present for the purpose of reminding the jurors of the evidence actually given.  There is no logical basis for distinguishing that process from what happened in this case, when the jurors were reminded of the video recorded evidence actually given earlier.  It follows that it is appropriate to go further than was suggested in R v H, and that when a trial judge decides that video recorded evidence should be replayed to a jury that usually the judge, the defendant, and counsel should all be present when that video recorded evidence is replayed, in the court.  That accords with the view of the Victorian and New South Wales appellate courts, in R v BAH (at 135 Crim R at 156 and 162), and R v NZ, at [153].  These statements are, of course, subject to what may be held by the High Court in the appeal in R v GT.

[35]  The error which occurred, of part of the trial being conducted in the absence of the defendant, the judge, and counsel, probably had no effect on the verdicts.  It was in breach of a fundamental requirement for the process of conducting a criminal trial.  It was as much a breach as if a trial judge had, on various occasions of different lengths, simply left a court during a trial, for periods in which – as it happened – nothing occurred which required the intervention of the judge for any reason.  The fact that the trial proceeded smoothly in the absence of the judge on a number of occasions would not make it any less irregular.

[36]  Mr East referred this Court to the remarks of McPherson JA (with whom the other judges agreed) in R v K; ex parte A-G (Qld) [2002] QCA 260 at [32], that:

“...the principles laid down in s 617 and 620 of the Code are so fundamental as to produce a mis-trial and to require that the conviction and verdicts in this case be set aside.  It is a defect that cannot be cured by the acquiescence of counsel or by the application on appeal of the proviso to s 668E of the Code.”

Those remarks reflect the view taken by the President in R v DAJ [2005] QCA 40, where Her Honour wrote at [6] that:

“Section 617 reflects the common law: it is an essential principle of the criminal law that the trial for an indictable offence (at least in cases other than a misdemeanour) ordinarily be conducted in the presence of the accused, even if legally represented; the rule is mandatory unless the violent conduct of the accused has made it impossible to continue the trial in the accused’s present...  The unlawful exclusion of the appellant from the court room strikes at his constitutional democratic right to be present at his trial on these serious offences of a sexual nature.  This error of law was so fundamental to the criminal trial process that it invalidated the whole trial and in itself required that the appeal be allowed, the conviction set aside and a re-trial ordered.”

Mackenzie J expressed qualified support for that view at [51] and [52].  Those decisions and that reasoning demonstrate that Mr East had strong grounds in seeking to set aside the convictions simply on the ground of contravention of s 617(1), even without the absence of other directions which were relevant, and which ought to have been asked for and given.

[37]  Ground 2 complains of a failure to remind the jurors that they ought not to give any extra weight to the evidence of CT, by reason of their having heard it a second time.  Counsel submitted that warning was required, citing in particular R v H (1999) 2 Qd R 283 per McMurdo P at p 291, in the passage cited with approval in R v BAH (2002) 135 A Crim 150 by the Victorian Court of Appeal.  The authorities Mr East relies on (R v H, R v BAH, and R v NZ [2005] NSW CCA 278) support Mr East’s submission that a warning in those terms should have been given.  Had the trial been conducted in full in the presence of TQ, it is more likely that would have happened, simply because the necessity for it would have been more obviously felt by the counsel and the learned judge, who had reheard the evidence with the jury.  The acquittal on count 1 suggests that TQ most likely suffered no miscarriage of justice by reason of that omission to give a warning which ought to have been given, but the possibility exists that he did.  I add that the learned judge was not asked to, and did not, give any direction to the jury on how they could, or could not, use the evidence of CT.  That said, the directions the judge gave seems to have assumed that the evidence of CT was part of the litany of uncharged acts described by AT, relevant to proof of the real nature of the relevant relationship between AT and TQ, and thus predominantly to count 1.  AT contended that, at his choosing, it was a sexual one.

[38]  Ground 3 complains of the learned judge failing to direct the jury regarding AT's second s 93A interview, by reference to s 102 of the Evidence Act.  Mr East submitted that the second interview, which was nearly one and a half years after the first, made a number of new and more serious allegations; and that submission is correct.  He pointed to the concessions made by AT in cross-examination, that that second interview was based on:

“Flashbacks that you’d been having? - -  Yes.  Memories and stuff, Yes.”[12];

and the concession that in or about April 2004 she had realised that there was a possibility there might not have been enough evidence (to convict TQ).  AT admitted she had envisaged the possibility her mother would take TQ back into the family, and that that was the last thing that AT wanted.  She had not wanted:

“Him hurting my family again.”

and had wanted to save the lives of her little sisters.  Mr East also submitted that the history of the proceeding revealed that there had been a first committal hearing on 1 March 2005, followed by the second interview with the police on 29 August 2005, and a further committal hearing held on 28 February 2006. 

[39]  In those circumstances, he submitted, the learned judge ought to have directed the jury, at least regarding the second 93A statement, by reference to s 102 of the Evidence Act 1977.  (No such directions were sought at the trial).  He submitted that the evidence that the complainant realised in April 2004 that her allegations to date may have been insufficient to obtain a conviction, that she wanted to ensure TQ was prevented from reuniting with her mother and to protect her sisters from that eventuality, and of the fact that her second statement was made after the first committal hearing, was sufficient to raise the question whether she had an incentive to misrepresent the facts.  Accordingly, the learned judge ought to have given directions under s 102.  He submitted, correctly, that the directions the jurors were given under s 21AW(2)(c) were different from that which would have been a sufficient direction under s 102.  The direction given under s 21AW(2)(c) was that pre-recorded evidence was a routine practice of the court, and that the jurors should not draw any inference as to the defendant’s guilt from the use of those procedures.  The judge also directed the jury that they should understand that the probative value of the evidence was neither increased nor decreased because pre-recorded, and was not to be given any greater or lesser weight because of that.[13]  Those directions did accord with the statutory requirements imposed by s 21AW, and were sufficiently broadly expressed to include the statements videorecorded under s 93A. 

[40]  In fact the directions required by s 21AW were only mandated for the videorecorded cross-examination which took place on 9 August 2006, but no injustice was done to TQ by general directions about not giving greater or lesser weight to video recorded evidence, where those directions were sufficiently broadly expressed to include as well the video recording made by the police.  Where TQ was disadvantaged was that directions given in accordance with s102(b) would have gone further, and I consider sufficient grounds were established to justify and require directions on the matters in s 102.  These, after all, are no more than a statutory expression of the sort of matters relevant to the reliability and accuracy of a complainant’s account, and requiring a warning to a jury, as referred to in Robinson v R (1999) 197 CLR 162.  What matters is not a reference in terms to s 102, but directions to a jury to matters relevant to judgments by a jury on the reliability of a critical witness.

[41]  There were acquittals on all counts alleging any penetration or in regard to all conduct other than on the very last occasion, and so it is unlikely any miscarriage of justice resulted from the jury placing any impermissible weight on AT’s allegations in her second interview, of more serious abuse than she disclosed in her first.  But the possibility still exists that the jury did have regard to that evidence, when convicting on counts 4 and 5.  The jury should have been given the warnings identified by the President in R v H, and should have been supervised in the replaying of the evidence given by CT, if it was to be replayed.  The jury should have been given directions limiting the use of CT’s evidence, as well as on not giving it too great a weight; and with regard to AT, to s 102 or the matters relevant to accuracy; which would include those in s 102(a).  It should be said again that counsel for the appellant at the trial made no objection to any of what Mr East now complains about, but the errors were such that I would allow the appeal and order a re-trial on counts 4 and 5.  It would be a matter for the Director of Public Prosecutions whether to bring those charges again.

[42]  Ground 4 was abandoned.

[43]  TQ has sought leave to appeal against his sentence, and in my opinion that application should be allowed, if the appeal against the convictions was dismissed.  He was sentenced on the assumption that the evidence disclosed two separate occasions on which he had entered AT’s room to abuse her, it is not clear that he did.  Accordingly, this Court should re-exercise the sentencing discretion.  TQ was convicted of two offences, committed on the one occasion, and without any penetration.  He was in a position of trust which he abused, but the sentence of two and a half years is manifestly excessive for those offences.  I would sentence him instead to 15 months imprisonment, if the convictions stood.

[44]  MULLINS J:  I agree with the orders proposed by Jerrard JA that the appeal be allowed and that a retrial on count 4 and count 5 (indecent treatment of a child under 16, as a guardian) be ordered.  These orders follow from the failure of the learned trial judge to give to the jury on the replaying of the evidence of the complainant’s sister the warnings that should have been given that are identified in Jerrard JA’s reasons for judgment and the failure of the trial judge to direct the jury in accordance with s 102 of the Evidence Act 1977 (the Act) regarding the complainant’s statements recorded pursuant to s 93A of the Act, particularly in relation to the s 93A videotape recorded on 29 August 2005. 

[45]  I also agree with the conclusion of Jerrard JA that, on the current state of the authorities and in the circumstances in which it arose, the replaying of the complainant’s sister’s s 93A videotape and the videotape of her cross-examination under s 21AQ of the Act should have been in open court in the presence of the judge, the prosecutor, counsel for the defendant and the defendant.  If that had been the only error, however, I may not have concluded in the circumstances that the appeal should succeed. 

[46]  It must follow that after the summing up, where the jury were not in the jury room deliberating and had returned to the courtroom for the replaying of the complainant’s sister’s s 93A and s 21AQ videotapes in the presence of another, namely the bailiff, the trial was continuing during the replaying of those videotapes.

[47]  Counsel did not demur when the trial judge suggested (at AR273) that playing the videotapes from the beginning to the end could be done for the jury by the bailiff in the absence of the judge and counsel.  The following exchange took place in a courtroom between the trial judge and the jury (at AR275-276):

“HER HONOUR:  Members of the jury, through your speaker were you planning for these videotapes to be played through from beginning to end in respect of her evidence?  Is that what you’re after?

SPEAKER:  Okay, yes.

HER HONOUR:  All right.  Well, what I shall do then is this:  you’ll stay where you are and the Bailiff will play each of those two videos for you.  We don’t need to be in formal, open Court or, put it this way, I don’t need to be, perhaps the Court Reporter needs to be and the barristers can choose.  But it’s a mechanical exercise of your simply wanting to see the videos; is that right?

SPEAKER:  Yes.

HER HONOUR:  All right.  Do you appreciate that you can’t stop them and re-play or anything like that?  I mean, if you want a particular issue clarified, then we’ll have to do it a different way.  Was it just the playing through that you wanted?

SPEAKER:  Yes.

HER HONOUR:  So you appreciate what I’m saying?

JURORS:  Yes.

HER HONOUR:  So, Mr Bailiff, if anything other than simply straight-through playing is to occur, then obviously I need to be alerted and need to come in.  I’m not saying you can’t do it.  I’m just saying-----

SPEAKER:  We’ve just got-----

HER HONOUR:  -----if there’s anything other than straight playing I will need to be present... .”  

[48]  There is nothing in the transcript to suggest that the bailiff did not carry out the strict instructions given by the trial judge. 

[49]  The breach of ss 617 and 620 of the Criminal Code in R v K; ex parte A-G (Qld) [2002] QCA 260 was much more egregious than the breach of s 617 in the current appeal.  I would therefore have considered the application of the proviso, if there had been no other errors.  As it turns out, it is not necessary to do so.