R v Storey[2021] QCA 265

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment given by McMurdo JA and orders by his Honour.
2. [2]
   McMURDO JA:  After a six day trial, the appellant was convicted by a jury of nine sexual offences, including five counts of rape, one offence of assault occasioning bodily harm and one offence of supplying a dangerous drug (cannabis) to a minor aged under 16 years.  The complainant on all counts was a boy who was aged 11 or 12 at the time of the alleged offences, and was in grade six or seven at school.  The appellant appeals against his convictions upon three grounds.
3. [3]
   The first ground is that there was a miscarriage of justice by the trial judge refusing to discharge the jury, in the course of their deliberations on the sixth and final day of the trial.  At the beginning of that day, the judge discharged one of the jurors upon that juror telling the judge that he believed that at the relevant time and in the same neighbourhood as that of the alleged offences, he had observed a child being dragged by an adult from a park.  The judge ordered that the trial proceed with the jury constituted by the remaining 11 jurors.
4. [4]
   The second ground of appeal complains of the absence of available evidence, which it is said, would have assisted the appellant’s response to certain evidence which was relied upon as post-offence conduct showing a consciousness of guilt.
5. [5]
   The third ground is another complaint about the course of the trial on its final day.  On that morning, in response to a request from the jury at the end of the previous day, most of the complainant’s evidence in chief, which was in a recording tendered under s 93A of the Evidence Act 1977 (Qld), was replayed to the jury.  As he had discussed with counsel, the judge had proposed that after all of the complainant’s evidence in chief had been replayed, he would give directions which reminded the jury of the criticisms of that evidence by defence counsel in his final address and of certain parts of the cross-examination.  By the luncheon adjournment, most of the evidence in chief had been replayed.  During the luncheon adjournment, defence counsel emailed to the judge’s associate a list of the passages of the cross-examination of which the jury should be reminded.  However shortly before the end of the luncheon adjournment, the jury sent a message that they had agreed on their verdicts.  When the hearing resumed, the judge gave a briefer redirection than that which he had proposed to give, and the jury was not reminded of the cross-examination, before the jury again retired.  Soon after, they returned with their verdicts.  The appellant contends that for this reason also, the trial miscarried.
6. [6]
   For the reasons that follow, I would allow the appeal upon that third ground and order a retrial on all counts.

The evidence at the trial

7. [7]
   Although it is no longer argued that the verdicts were unreasonable, it is necessary to summarise the evidence at the trial.
8. [8]
   The offending occurred on four occasions.  On the first occasion, according to the complainant’s first tendered interview, he went to the appellant’s house saying that he was “looking for a mate” whom he thought was there.  Once inside, the complainant learnt that the friend was not there and, before long, he was alone in the house with the appellant.  In a second police interview, which was also tendered, the complainant said that the appellant provided him with cannabis and a bong from which to smoke it (count 1).  The appellant pulled down his pants and had the complainant masturbate him (count 2), and the appellant then anally raped him (count 3).  The complainant did not tell anyone about what had occurred.  At the time, the complainant as a truant child, and on the day in question, he had run away from home.
9. [9]
   The second occasion was also at the appellant’s house, and about a month later.  The complainant said that he had seen his younger brother’s ball near the doorstep, and went to retrieve it.  He said that the appellant then came out of his house, grabbed him and pulled him inside.  The appellant made him drink a liquid which made him sleepy.  Before the complainant passed out, the appellant had the complainant masturbate him (count 4).  He said that when he woke up, on a couch, his anus felt as if it had been penetrated (count 5).
10. [10]
    On the third occasion, the complainant was at the appellant’s house, having been taken there by the appellant’s wife, who had offered to drive the complainant to somewhere else, but had stopped there on the way.  The appellant’s wife soon disappeared and what happened, the complainant said, was “pretty much the same as the first”.  The complainant was made to masturbate the appellant (count 6) and he was then anally raped (count 7).
11. [11]
    On the fourth occasion, which occurred after the complainant had turned 12, the appellant approached the complainant in a nearby vacant lot or paddock.  He said the appellant forcibly moved him down the street, and he went with the appellant because he was scared (count 8).  When they reached the appellant’s house, the complainant tried to run away, and the appellant pulled him back and took him into his room.  The complainant said that when he tried to pull away he was whipped by the appellant with an object like a pole, which he described it as a “bendy … leather … whipping thing” (count 9).  This resulted in a scar on the complainant’s leg.  The appellant penetrated the complainant’s mouth with his penis (count 10) and anally penetrated the complainant (count 11).  The appellant threatened the complainant, saying that he would put needles into him if he told anyone what had occurred.
12. [12]
    These four occasions occurred within a period from 19 October 2017 to about 1 May 2018.  The complainant was interviewed by police on 14 and 22 March 2019, and the recordings of those interviews, tendered under s 93A, constituted most of his evidence in chief.  He said that he first went to the appellant’s house with his girlfriend’s mother and his girlfriend.  The girlfriend’s mother offered him a bong, which was the first time he had smoked marijuana.  He said that his previous statement, in his first s 93A interview, was incorrect in so far as he had said that he went into the house looking for his friend.  He said that he had said that to cover up the fact that he was going to the house to smoke marijuana.
13. [13]
    There was also some examination in chief in the complainant’s pre-recorded evidence, in which the complainant recognised “poles” from a photograph, and said that it was with one of them that he was hit.  He identified another group of photographs which showed an injury to his leg, and said that the injury was suffered when he was hit with the pole by the appellant.  In his second s 93A interview, the complainant told police that he had been to the appellant’s house about 20 times before the first occasion of the offending.
14. [14]
    His cross-examination occupied over 40 pages of transcript.  In essence, the defence case was that the complainant was lying, and that these things did not happen.
15. [15]
    There were two preliminary complaint witnesses.  One was the complainant’s mother, who was told that the appellant had raped him and that this had happened four times.  The complainant told her that on the second occasion, when he had gone to retrieve a ball, the appellant had dragged him inside.  He also described the occasion in which he had been dragged to the appellant’s house.  Over the next couple of days, the complainant gave her some more details of these incidents.  The other witness of a preliminary complaint was the complainant’s girlfriend, who recalled that the complainant told her that the appellant had touched him.
16. [16]
    The complainant’s mother also said that she had seen a fresh injury on the complainant’s leg in 2017, which she described as “fresh, as in red, sore, scabby.”  The complainant said that the injury was nothing “to worry about”.  The mother said that the wound did not need medical attention.
17. [17]
    There was further evidence from the complainant’s mother that at the time, the complainant was getting into physical fights with other boys in the neighbourhood, including a boy whom I will call T.  The complainant was also violent towards his mother, from as early as 2016 and by the beginning of 2017, the violence included punching her.  She said, however, that there was a noticeable improvement in the complainant’s behaviour at the beginning of 2018.
18. [18]
    The boy whom I have called T gave a statement to police which was tendered under s 93A.  T knew the appellant because he used to go to school with the appellant’s daughter.  T said that in November 2019, he was approached by the appellant, who asked if he could go to court to say that he (T) had bashed the complainant.  The appellant asked T to give his details to the appellant’s lawyer.  T did not contact the lawyer, and soon after he told police that he had never bashed the complainant and would have been lying if he said he had done so.  In cross-examination, T admitted that he and the complainant did have fist fights, but denied that there were weapons involved.  And he rejected a suggestion that he had told the appellant that he had fought with the complainant.  I will discuss further the evidence of T when considering the second ground of appeal.
19. [19]
    Another witness was a boy who was a friend of the complainant, who gave evidence of being with the complainant one time when they stopped in front of a house, and the complainant called out to someone inside and then spoke to that person for a few minutes.  When shown a photograph of the appellant’s house, he said that it was the house.
20. [20]
    There was evidence from another the complainant’s friends, whom I will call M.  He had seen the complainant smoking cannabis when the complainant was in grade six.  He said that the complainant would spend time at a house where there were lots of “druggos”, but he said that this was not the house shown in the photograph of the appellant’s house.  He said that the complainant would have serious fights, including with T.
21. [21]
    The girl who had been the complainant’s girlfriend at the time was interviewed by police.  She said that she had been to the appellant’s house, but had never been there with the complainant.  She said that the complainant would spend time with her mother when she was not there, and that the complainant told her in 2017 that he had been doing “weed” and “ice” with her mother.
22. [22]
    There were formal admissions at the trial, by which it was proved that, as at 1 January 2017, the appellant had a large tattoo on the front of his right thigh.  That was significant, because in cross-examination, the complainant said that he could not remember seeing any tattoos or anything like that on the appellant’s legs, although he described the appellant pulling his pants almost down to his knees during the alleged incidents of masturbation.  There was also a formal admission that the complainant had identified a particular pole as the weapon used to assault him, and other admissions seemingly proved that it was not at the appellant’s residence, at least before March 2019.
23. [23]
    The appellant did not give or call evidence.

The discharge of jurors

24. [24]
    On the third day of the trial, the judge was informed that a juror (juror number seven) was “quite upset by everything she’s seen and heard”.  In the absence of the jury, the judge suggested to counsel that he should ask the juror whether she could be impartial, and counsel agreed.  At that stage two reserve jurors were available.  Juror number seven then came into the Court, in the absence of the other jurors.  The judge observed that the juror was “clearly affected physically and emotionally”, and the juror confirmed that she did not feel that she could be impartial.  She was discharged.  The balance of the jury, including the two reserve jurors, then returned.  The judge told them that juror number seven had been discharged because “by reason of her condition … she was unable to continue as a juror” and to remain impartial.  The judge also said, in complimenting juror number seven, “it’s one thing to know [that a trial will be about child sexual abuse], but it’s quite another thing to have sat through the evidence and to have endured it for as long as she did”.  One of the reserve jurors then took her place.  There was no objection by either counsel to this course, or to what the judge then said to the jury.
25. [25]
    During the playing of the recording of the cross-examination of the complainant, one juror was heard to say that what was being put by counsel was “fucking bullshit”.  In absence of the jury, the judge observed that the comment seemed to have the approval of other jurors.  In this Court, counsel for the appellant (who was not his counsel at the trial) went so far as to suggest that the jury ought to have been discharged at that point, although that submission had not been made in her outline and it is not the subject of a ground of appeal.  Alternatively, counsel argued, that outburst by a juror, together with the discharge of juror number seven, were circumstances which exacerbated the risk of a miscarriage of the trial when the partiality of another juror was revealed on the final day of the trial.
26. [26]
    In particular, criticism was made of the comment by the judge, when discharging juror number seven, that she had “sat through the evidence and … endured it …”.  It is suggested that this could have been understood by the jurors as a comment that there was a truth to the allegations, because a juror would not find it difficult to endure something which was seen as a false tale.  That submission cannot be accepted.  This comment was made by the judge in the course of discharging a juror for a risk that she would not be impartial, and was followed by the judge again stressing the importance of the remaining jurors being impartial.  They could not have interpreted the comment as an implication that the complainant was telling the truth.
27. [27]
    The final day of the trial commenced in the absence of the jury, apart from juror number four who, on that morning, had informed the bailiff that he had a memory of something which might be related to the evidence in the case.  The juror confirmed that memory to the judge and said that his recollection was relevant to the evidence of the “dragging from the so-called park”.  The juror related his recollection of seeing a man holding a child above the elbow, with the child protesting saying that he wanted to be let go.  The adult was saying “we’re going home” or something to that effect.  The juror’s recollection of the incident could be related to the complainant’s evidence of being taken from what had been described as a paddock, against his will, to the appellant’s house on what I have described as the fourth occasion.  The judge correctly observed that had this been realised earlier, the juror’s recollection would have made him a potential witness.  The judge asked the juror whether he had discussed these recollections with any other juror.  He said that he had said something to “one of the female jurors” to the effect that he had “some revealing evidence”, but that he had not said what was that evidence.  He told the judge that the female juror had said “better off don’t tell me, go see the bailiff”.
28. [28]
    Juror number four then left the courtroom, but not to rejoin the other jurors.  Counsel agreed that juror number four had to be discharged, and defence counsel said that she wanted to take instructions on whether there should be some further consequence from this disclosure.  The prosecutor suggested that the female juror, to whom juror number four had spoken, should be asked for her version of the conversation.  Juror number four returned, and identified the juror to whom he spoke as juror number two, before he was discharged.
29. [29]
    Juror number two was asked by the judge for her version of what she was told.  She said that she could not remember his words, but juror number four said that he had “this recollection last night”, remembering something that would be useful for the jury.  She said that she told him that he could not talk to her or the jury about it, before advising the bailiff to tell the judge about it.  She was clear that he had given no indication as to what that information was.  Juror number two was allowed to rejoin the panel, with the instruction that she was not to tell anyone why she had been asked to come into court, until the judge explained that matter to them.  The court then adjourned for about 30 minutes.
30. [30]
    When the trial resumed, again in the absence of the jury, defence counsel applied for the discharge of juror number two and for a mistrial.  By this stage, the remaining reserve juror had been released, the jury having commenced their deliberations on the previous afternoon.
31. [31]
    Defence counsel pointed out that most of the evidence was pre-recorded, so that there would not be a need for that evidence to be given again at a re-trial.  She acknowledged that the Jury Act 1995 (Qld)^[1] permitted the trial to continue with ten jurors, but argued that the interests of justice required that the whole jury should be discharged, because the remaining jurors could speculate about what information was known to juror number four.  The prosecutor submitted that the trial should continue with the 11 jurors (including juror number two), and that the risk of speculation could be removed by an instruction from the judge.
32. [32]
    The judge reasoned that he should act upon the basis that the power to continue with a jury of less than 12 members should not be exercised lightly, and that he should give “anxious consideration to the matters that have been raised which suggest that the jury should be discharged.”  He observed that the trial had reached an advanced stage and said that he was not “at this stage” prepared to discharge the jury.  But he added that he intended to ask the other jurors whether juror number two had spoken to any of them about what she had been told by juror number four.  On the assumption that they had not learnt anything from juror two, the judge said that he would direct the jury that they were not to speculate about what juror number four knew or thought that he knew.
33. [33]
    The jury then returned to the courtroom, and the judge said that:

“Ladies and gentlemen, it will be apparent to you that juror number 4 is no longer with us. What happened was that overnight something occurred to him which led him to think that he knew something which was relevant to the circumstances of this trial. You will have understood from all of the directions I have given you so far, that that made it inappropriate for him to continue as a juror and so he has been discharged.

Now, he told me that he had spoken to juror number 2, who has confirmed that he spoke to her and said that something to that effect, that he thought he knew something relevant to the circumstances of this trial and as I say, juror number 2 has confirmed that. Can I ask you though, whether he spoke to anyone else on the panel at all about anything this morning? All right. Well, I think we agree there is a firm indication, no, from everybody there. Thank you for that. Now, I have already, as you know, given you a direction about speculation and this falls under the same direction. You must not speculate about what you thought or what number 4 thought he knew or how it might have been relevant, whether it was in favour of the defence or in favour of the Crown, we do not know, we do not care, we do not speculate, and you are directed not to speculate at all.

It leaves me to re-emphasise the absolute importance of deciding a case only on the evidence and that is why, of course, juror number 4 could not continue because he thought he knew something that you did not know, that we did not know, and it is just not fair to have anyone on the jury in that position. Can I just say though, in terms of the way everything was reported and handled by all involved, the situation has been dealt with entirely properly. These things happen. It is open for me to order that we continue as a jury of 11 and that is what I have decided we are going to do.”

34. [34]
    In this Court, it is submitted for the appellant that there remained a risk that juror number four might already have participated in the deliberations and expressed a view towards findings of guilt.  And although the other jurors, including juror number two, were unaware of the content of his recent recollection, they were aware that he believed that he knew of evidence which was such that he should no longer participate in their deliberations.
35. [35]
    For the respondent, it is emphasised that the trial judge repeatedly directed the jury that they were decide the case only on the evidence that was tendered in court.  That was emphasised in the passage which I have set out.  The respondent accepts that, in general, it is recognised that on a trial of serious charges, as in this case, the power to proceed with a jury of fewer than 12 should not be exercised where, without a great deal of inconvenience, steps could be taken to procure a trial by a jury of 12.^[2]
36. [36]
    It is true, as was said in Hutchings, that a case should be decided by 12 jurors where that can be done without “a great deal of inconvenience”, or as that might be put, without unwarranted delay in the disposition of the case and other cases waiting to be tried, or undue hardship to the accused or witnesses.^[3]  But the critical question here is whether, notwithstanding the judge’s clear and forceful directions for the jury to consider only the evidence tendered at the trial, a participation by juror four in the deliberations to that point may have influenced another juror or jurors.
37. [37]
    In giving that instruction to the jury, the judge said that something had occurred to juror number four “overnight”, which led the juror to think that he knew something which was relevant to the case.  Juror number four explained to the judge why he had not recalled this “revealing evidence” at first, as the trial proceeded.  Juror number two told the judge that juror number four had said to her that he had had “this recollection last night”.  He told the judge that he had said to juror number two that his recollection came from “my last three nights of processing the information”.  He explained that when the complainant’s evidence was being played at the trial, the reference to what I have described as the fourth occasion did not “ring a bell” because the location had been described as a “park” and not as a “paddock”.
38. [38]
    It is sufficiently clear that it was only after the jury had deliberated on the penultimate day of the trial, that juror number four recalled the incident and linked it to this case.  By 9.15 am on the following day, juror number four had been isolated from the jury.  In those circumstances, any risk that the jury would be influenced by this juror was slight, and with the benefit of the judge’s clear directions on this issue, that risk was removed.  The trial did not miscarry for this reason.

The second ground of appeal

39. [39]
    I have described the evidence of the boy T earlier at [18].  The prosecutor argued to the jury that if they accepted this evidence, it revealed that the appellant approached T because the appellant was conscious that he had injured the complainant’s thigh and he was looking for T to give false evidence to the contrary.  The judge gave appropriate directions as to the use which they might make of that evidence, if they accepted it, as post-offence conduct which was probative of guilt of the offence of assault occasioning bodily harm.
40. [40]
    There was and is no complaint about those directions.  The appellant’s complaint is that excised from the police interview of the witness whom I have called M, was a statement of about M’s conversation with the complainant’s mother in April 2019.  The effect of what M then said to police was that the complainant’s mother said to him that “something really bad happened to [the complainant]”, that he had been raped and supplied with drugs, and that relevantly for the present point, “[the complainant] said he had got into a fight with [T].  But he wasn’t, … he got whipped by … [the appellant]”.
41. [41]
    It is argued that this evidence was important in the characterisation of the appellant’s approach to T.  It is said that if the complainant had previously identified T as the assailant, the appellant’s conduct was explicable as an innocent approach to a potential witness who may have been able to assist his case by being truthful.  It is argued that the omission of this evidence thereby resulted in a miscarriage of justice.
42. [42]
    Defence counsel did not put to M that he was told this by the complainant’s mother.  Instead, the issue was met by defence counsel in another way.  Defence counsel, cross examining T, suggested that in about late 2017, T told the appellant that T had beaten up the complainant and stabbed him.  This was rejected by T, and the cross examination continued as follows:

“MS BAIN: When [the appellant] asked you to tell his lawyers about an incident, what he was asking you to tell his lawyers about was the time that you bashed [the complainant]?---Yeah.

And he explained to you that that was because you bashing [the complainant] would help his case?---No.

But he asked you to talk to his lawyers about you bashing [the complainant]?---Yeah. He asked me to talk to his lawyers.

About you bashing [the complainant]?---No, to come with – to come to court with him for me supposedly stabbing [the complainant].

For you supposedly – what?---For me supposedly stabbing [the complainant].

So you’re saying that that’s what [the appellant] asked you about?---Yes.

So you’re saying [the appellant] said, “Can you come to court for me because – and tell me lawyers that you beat up [the complainant] and stabbed him”?---Yes. He asked me to come to court and – to come and speak to his lawyers because his daughter … asked for my details and said that [the appellant’s] lawyer will call me at a later date to get a statement.

All right. So the only thing that you say was wrong about that was about the stabbing?---Yes.

But you accept that [the appellant] asked you to tell the lawyers about you beating up [the complainant]?---Yes.”

43. [43]
    It must be inferred that this cross-examination accorded with the appellant’s instructions.  There is no suggestion now to the contrary.  The appellant’s case at the trial on this point was that it was because of what he was told by T himself, in 2017, that he approached T to give evidence to assist his case.  It would have been inconsistent with that case for defence counsel to argue that it was by learning of the content of the police interview of M (which occurred in April 2019) that he approached T to ask for his assistance.
44. [44]
    The second ground fails.

The third ground of appeal

45. [45]
    The jury retired to consider their verdicts at 2.13 pm on the penultimate day of the trial.  The jury was still deliberating on that evening when it sent a note with questions about the meaning of “reasonable doubt” and “supply”, and which asked to have replayed the entirety of the recorded police interviews of the complainant.  At about 8 pm, after those requested redirections were addressed, the jury was allowed to separate for the day.
46. [46]
    As I have discussed, the final day commenced, in the absence of the jury, with the judge resolving the problem which had arisen with juror number four.  After the judge had done so, again in the absence of the jury, he discussed with counsel the replaying of the recordings.  The judge expressed his concern, in a trial of this nature when the prosecution case was effectively the evidence in chief of the complainant, that the “whole balance of the concept of the criminal trial” could be distorted by replaying that evidence, after the jury had heard the final address by defence counsel.  The judge said that his concern was affected also by the circumstance in this case that the complainant was a young boy whose “life … considered separately from any of the events alleged, … evokes a sympathetic response.”  For those reasons, he said to counsel, he should warn the jury not to give undue weight to the evidence because of the stage at which they were hearing it again, that he should remind the jury that they had previously heard the cross-examination of the complainant as well as other evidence and the closing address of defence counsel.  He said that he would instruct the jury that the evidence to be replayed, isolated in that fashion, created a real danger that the evidence might be given undue weight, and that the jury must avoid that.
47. [47]
    Defence counsel said that she was not requesting that all of the remainder of the complainant’s evidence to be replayed, but that there were certain passages of the cross-examination about which the jury should be reminded.  In response, the judge invited her to identify that evidence and said that he would incorporate that into his summary of her closing address.  The judge said that “we can discuss that at the next adjournment”, before saying that “we are ready to start the 93As”.  Defence counsel asked whether the judge was first going to “make the remarks to them”.  There was then a discussion with the prosecution as to how long it would take for the recordings to be replayed.  He was told that the first recording would take about one hour 27 minutes.  The time was then a little before 11 am.  The judge said “well, we’ll play this one … we will take a break at the end of it and you can let me know about those directions that I proposed to give at the end of the second one.”
48. [48]
    The jury then returned at 10.53 am, and they were given the direction about juror number four.  The first of the interviews was then played to them.
49. [49]
    After that had occurred, one of the jurors asked for a break.  The judge said that instead, the luncheon adjournment would be taken at that point, and the jury retired at 12.27 pm.  Before the judge adjourned, he told counsel that the directions which he had foreshadowed would be given as soon the second recording had been played, and he asked that any suggestions for those directions, and any specific references to be made to the cross-examination, be communicated to him, through his associate, by email.  The court adjourned until 1.30 pm.
50. [50]
    The court resumed at 1.29 pm, with the judge having been told that the jury had reached a verdict on all charges and no longer wished to review the recording of the complainant’s second interview.  In the absence of the jury, the judge said that “as you know, I had proposed to give them a further direction, [and that] for future purposes … I’ll register that that should be given before the replaying of such material but I don’t know that I’ve got – I don’t know that I can tell them to set aside a verdict that they’ve reached.”
51. [51]
    The prosecutor responded by saying that there was no harm in the jury being given the direction which the judge had proposed to give, and being asked to retire again to consider their verdicts.  Defence counsel said that she was concerned, but that if the judge was inclined to take the verdicts, she could not say that that was not “the right view”.
52. [52]
    After some further discussions, the jury returned at 1.44 pm.  The judge then gave these directions:

“Thank you. Ladies and gentlemen, I have received your note which reads that the jury has further deliberated and reached a verdict for all charges. The jury no longer wishes to review [the complainant’s] second interview. Thank you for that. You tell me you have reached verdicts and, clearly, I do not know what they are. They are, as you know, entirely a matter for you and nothing I am about to say should be interpreted as any attempt to affect your verdicts in any way at all.

But I had intended, at the conclusion of the replaying of [the complainant’s] second interview with police, to give a direction that was applicable to the viewing of both of them, a direction that I’m required to give in these circumstances. And I intend to give it to you, and to ask that you retire to reflect upon it before I actually take your verdict. Depending upon your position, depending upon the decisions that you’ve made, that may only take a moment or it may take any amount of time. But I do propose to direct you as I was going to at the conclusion of the second interview and say that, in viewing those recordings – that recording that you watched, you did no more than accept my offer that you may do so and it’s still the case that if you require any further assistance, you only need to ask. But I do remind you that what you just listened to was in effect, at least, the first part of the prosecution case. When you heard it on the first run through, it was contextualised by a cross-examination of [the complainant], by evidence from another witnesses and by some of the cross-examination of those witnesses, which was used by the defence to draw contrasts with [the complainant’s] evidence. It was also contextualised or framed, if you like, by the closing addresses of counsel.

It is vitally important, because of the nature of that evidence and because of the time at which you just heard it again, that you not give undue weight to it. In particular, having just seen [the complainant] on the screen, you must remember my direction to you to the effect that, for reasons that have nothing to do with [the appellant], there might be some temptation to feel sympathy for [the complainant], and you must ignore that. Your decision must be based on his evidence and your assessment of his evidence, and not on anything else that might have happened in his life. And the important thing is that, because it was played to you when it was, that it not receive a disproportionate amount of weight, or that you give it any undue weight.

So I’m going to ask you to retire again and to reassure us that you are still, having heard that direction, in a position to deliver your verdict. As I say, whether you want to let us know that immediately or at some later time is entirely a matter for you and you’ll obviously be guided by the decision that you’ve already made. So, with that in mind, can I ask you again, please, to retire and just let us know – just inform the Bailiff if and when you are ready to deliver a verdict. Thank you.”

53. [53]
    The jury the retired at 1:48pm before returning with the verdicts at 2.07 pm.
54. [54]
    In R v H,^[4] McMurdo P discussed the warning which should be given by a trial judge to a jury which is allowed to view videotaped evidence in the course of their deliberations:

“If the judge decides to allow the jury to view the tape, this should generally be done after discussing the proposed procedure with counsel in open court.  The judge should also warn the jury that because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it a disproportionate weight simply for that reason and should bear well in mind the other evidence in the case … [t]he 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,^[5] R v GAO^[6] and R v FAE.^[7]  Referring to those cases, as well as to the decision in the High Court in Gately v The Queen,^[8] in R v SCG^[9] Morrison JA said:

“[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.”

55. [55]
    In the present case, the trial judge thought it necessary to give such warnings and directions in interests of fairness and balance.  His Honour was correct to do so.  There were weaknesses in the complainant’s s 93A evidence of which the jury needed to be reminded, lest they were overlooked in their final deliberations.  Moreover, as the judge recognised, there was a risk of the kind, described in R v H, that the footage of the complainant being interviewed, and the known circumstances of the boy’s unhappy life irrespective of the matters in issue, were likely to arouse feelings of prejudice in the jury.
56. [56]
    As is submitted for the appellant, there were matters which were adverse to the complainant’s credibility which were revealed in the testimony of other witnesses and the complainant’s evidence was inconsistent with facts which were the subject of formal admissions.  The complainant’s failure to have noticed a prominent tattoo on the appellant’s leg was difficult to explain.  The complainant’s testimony that he was “whipped” by a certain object was contradicted by admissions to the effect that the object was not then at the appellant’s house.  Some of the complainant’s evidence in his first recorded interview was contradicted by his evidence in the second interview, and the jury reached its verdicts having watched a replay only of the first interview.
57. [57]
    It is argued for the respondent that no miscarriage of justice is established, because it is likely that the jury, or some of the jury, wanted to have the evidence replayed only for the purpose of some particular passage from it.  It is said that this is indicated by the fact that the jury reached its decision on the charges after seeing only the first recording.  That submission cannot be accepted, for a number of reasons.  The first is that in this case, unlike many others, the jury did not ask to have only a certain part of the evidence replayed to them.  They asked for the entirety of the complainant’s s 93A evidence, which constituted almost all the complainant’s evidence in chief.  Secondly, if the jury was troubled about a certain factual issue, that issue may have been one for which the jury should have been reminded of other evidence which affected it, and of the arguments about that issue.  Thirdly, whilst the jury may have been interested only in a certain issue, it does not follow that they could not have been influenced by seeing the whole of the recording replayed.
58. [58]
    To the judge’s credit, his Honour sought to remedy the situation by giving a warning and asking the jury to reconsider their conclusions.  However, as appears from the shortness of the period which followed before they returned with their verdicts, by that stage the warning was unlikely to have had any effect.  In practical terms, the jury had made up their minds before the warning was given.  Moreover, at no stage had the jury been reminded of the passages from the cross-examination of the complainant, which defence counsel had identified for inclusion in the judge’s proposed redirections.
59. [59]
    For these reasons, in my conclusion, the third ground of appeal is established.  The trial miscarried, because by the jury seeing and hearing again most of the complainant’s evidence in chief, without reference to the cross-examination, the conflicting evidence and the defence arguments, the complainant’s evidence may have been given undue weight.
60. [60]
    There is no submission in this case that the proviso should be applied.

Orders

61. [61]
    I would order as follows:

3. (1)
   Appeal allowed.

3. (2)
   Set aside the conviction on each count.

3. (3)
   The appellant be retried on each count.

62. [62]
    MULLINS JA:  I agree with McMurdo JA.