SUPREME COURT OF QUEENSLAND

[1] FRASER JA: I agree with White JA.

[2] WHITE JA: The appellant was convicted on 25 November 2011 in the District Court at Cairns on two counts of indecent treatment of a child under the age of 16 years with the additional circumstance that she was aged under 12 years.  He was found not guilty of two further charges of indecent treatment of the same complainant.  The misconduct was alleged to have occurred on 28 May 2010.

[3] The appellant was sentenced on one count to imprisonment for nine months suspended after serving four months with an operational period of 12 months and to a lesser period of three months for the other count. 

[4] After hearing counsel’s submissions the Court determined to allow the appeal, making orders that the convictions be set aside and ordering a retrial with reasons to be delivered subsequently.  The following are my reasons for joining those orders.

Grounds of appeal

[5] At the appeal hearing the appellant was given leave to amend his Notice of Appeal by adding further grounds:

“1.That the learned judge erred in permitting and/or a miscarriage of justice was occasioned in permitting section 93A recordings to go into the jury room when the jury retired to deliberate.

2.The learned judge erred in failing to properly direct the jury about not attributing disproportionate weight to the evidence contained therein.”

The appellant abandoned the sole ground in his original Notice of Appeal that the verdicts were unsafe and unsatisfactory on the basis of inconsistent verdicts. 

Particulars of counts

[6] Count 1 was particularised as kissing the complainant; count 2 as the act of pushing the complainant’s head down to his genitals; count 3 as touching her breasts; and count 4 as touching her vagina.

Circumstances of offending

[7] The complainant was aged 11 years in May 2010 and lived with her mother and sisters in a Cairns suburb.  The appellant was then aged 20.  He was the complainant’s mother’s brother and was known to the complainant and lived with his family in Cairns. 

[8] On 28 May 2010 the complainant, her mother, younger sister and older sister were at the front of their home chatting at about 7.00 pm when the appellant arrived driving his father’s purple sedan motor vehicle.  He stopped, parked and joined them and, after some conversation, asked the sisters “[Y]ouse wanna come for a ride?”  He was heard to extend this invitation by the older sister aged about 23, the mother and the complainant and her younger sister although the appellant denied that he did so.  The younger sister did not wish to go but the complainant got in the front passenger seat and drove off with the appellant.  She was dropped off at home about 7.45 pm by which time her mother was concerned.  It was not until two days later that the complainant mentioned to a visiting female relative the conduct towards her by the appellant which founded the charges.  That relative instructed the complainant to tell her mother which she did immediately.  The mother contacted police who interviewed the complainant on 10 June 2010.  The recording of the interview was admitted into evidence pursuant to s 93A of the Evidence Act 1977. 

[9] The appellant gave evidence that he had been transporting family members in his father’s car to attend a ceremony at the nearby TAFE and to take a nephew to football training and was asked by his mother to drop off a bag belonging to another of the complainant’s sisters at the complainant’s home.  He denied offering the girls a ride in the car or that the complainant had entered his car that evening or that he had engaged in any of the charged acts of indecency against her.

[10] The complainant’s mother agreed in cross-examination that the appellant spoke to her about a bag in his car and told him he could return it to the daughter to whom it belonged at her new address.  Although she did not mention this conversation in her s 93A interview, in cross-examination the complainant remembered this part of the conversation between her mother and the appellant.  This evidence supported the appellant’s case that he went to his sister’s house for a legitimate purpose.

[11] In her s 93A interview the complainant said that as they were driving the appellant put his hand on her legs and she moved or tried to move it away.  The appellant then parked the car near a sports field and commenced kissing her “in the mouth”[1] (count 1).  She described the act as putting his tongue in her mouth.  He then started to push her head to “his private”[2], “he pushed my head to lick his private”[3] (count 2).  The complainant said later in the interview that she meant penis when she referred to the term “private”.[4]  The appellant told her “Don’t tell your mum”[5] and then asked her “Are you scared?” to which the complainant said, “Yeah… Can you take me back to home?”[6]  The complainant related that the appellant then started to drive her home.  She paused in the interview to say that she had forgotten to mention that she thought that the last thing the appellant did was to “put his hand and touched my private”[7] (count 4).  The complainant said that he did that at the same time as when he was kissing her.  He pulled her hand to touch “his private” and she pulled it back.

[12] The complainant related that the appellant dropped her at the side of the residence and asked her again, “Are you gonna tell your mum?”[8]  He drove away; she ran through the house and washed out her mouth and then had a bath.  She explained to the interviewing police officer that she did not tell her mother that day because she was scared but told her a couple of days later at a bus stop with her aunty. 

[13] The complainant recalled later in the interview that while the appellant was kissing her in the mouth he “was shaking his private … with his hand.”[9]  The complainant recalled that when the appellant pushed her head down to his private part she felt it soft against her cheek outside his pants.[10]  The complainant said that she could hear him shaking his private but did not see this happening because it was dark. 

[14] After some urging to recall, the complainant said the appellant put his hand under her shirt and bra and touched her breasts[11] (count 3).  She also mentioned that he put his hand through her shorts and underwear trying to touch her “privates” (count 4).  She moved his hand.

[15] The appellant’s record of interview with police was played to the jury.  His own evidence was consistent with that record of interview.

The summing up

[16] At the commencement of his summing up to the jury, after some preliminary matters, the primary judge said:

“The exhibits will be with you when you are in the jury room, and you will have facilities for playing electronically recorded material.  Just so that is clear, what you will have are the initial statements taken by the police from the complainant [name], the one taken by the police from her sister [name], the record of interview with the accused, they will all be with you in the jury room.”

He told them that the “cross-examination in Court in August” would not be provided “because that forms part of the trial”.  There was no application for re-direction or demur from the evident intention of the primary judge that the jury should have the s 93A interview tapes in the jury room with them.  There had been no earlier discussion with counsel about the proposed inclusion of the s 93A interviews in the exhibits to go into the jury room.

[17] When the s 93A statements were played to the jury the primary judge told them that this method of receiving a child’s evidence was usual; no adverse inference could be drawn because of that method of adducing the evidence; and it should not be given any greater or lesser weight than if it were received in the courtroom. 

Discussion

[18] Section 93A of the Evidence Act permits a statement by a child contained in a document which would be admissible as oral evidence to be admissible as evidence of the fact contained therein provided the child is available for cross-examination.  Section 99 empowers a court to order that a statement in a document admitted into evidence under Pt 6 (Admissibility of statements and representations) be withheld from the jury during their deliberations if “it appears to the court … they might give the statement undue weight”.

[19] Division 4A of the Evidence Act concerns the evidence of “affected” children.  When measures are taken as mentioned in s 21AW(1), including the pre-recording of a child’s evidence under subdivision 3, the judicial officer presiding at the trial must instruct the jury in the way in which the primary judge did for the s 93A statement.  The provision does not extend to such a statement but it is not suggested by the appellant that there was any error in doing so.

[20] In R v H[12] this court[13] 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.”[14]

[21] That approach was endorsed in R v DAJ.[15]  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.”

[22] 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 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 are view 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.

[23] 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.

[24] The orders which were made on 6 March 2012 were:

1. Leave granted to amend appellant’s outline.

2. Verdicts of guilty set aside.

3. Retrial is ordered on those counts.

[25] DAUBNEY J: For the reasons given by White JA, with whom I agree, I joined in the orders made by the Court on 6 March 2012.