R v SDL[2022] QCA 207

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  For the reasons given by Dalton JA, I joined in the making of the orders on 4 October 2022.
2. [2]
   DALTON JA:  The appellant appeals against a conviction of maintaining an unlawful sexual relationship with his step-daughter for six years between May 2011 and May 2017, at which times she was aged nine to 15.  At the hearing of the appeal on 4 October 2022 the Court made orders that the appeal be allowed; the conviction set aside, and that there be a retrial.  These are my reasons for joining in the making of those orders.

The course of the trial

3. [3]
   The trial began on a Thursday morning.  The jury was empanelled, allowed a short break, and then heard the judge’s preliminary remarks and the Crown opening.  The prosecutor said that she would call four witnesses other than the complainant but, “I expect that the issue for you to determine, after hearing that evidence when it’s presented, is whether you accept [the complainant] was sexually abused as she says she was”.  There was a morning tea break.
4. [4]
   The court resumed at 11.20 am.  The prosecutor tendered a recording of the complainant’s statement to police made in November 2017.  The recording ran for 55 minutes.  There was a transcript of the recording which the jury had while they listened to it, then the transcripts were collected.  The jury then watched a 26 minute pre-recording of the complainant’s evidence.  There was a lunch break.
5. [5]
   In the afternoon the jury were played a second pre‑recording of the complainant’s evidence, which ran for 20 minutes.  The judge then gave the jury information about the pre‑recording process; explained that the probative value of the complainant’s evidence was not increased or decreased by the use of the process; nor could the jury draw any inference of guilt from the fact that the process had been used.
6. [6]
   Two recorded statements to police from friends of the complainant were played.  One was six minutes long, and the other seven.  These friends told police matters which, if accepted, would amount to preliminary complaints.  Pre‑recorded evidence of each of the friends was then played to the jury.  Standard form directions were given to the jury about the pre-recording process, and the jury was given a break at 3.15 pm.
7. [7]
   The trial resumed at 3.22 pm.  The prosecutor called the complainant’s mother by video‑link and her evidence concluded in just under one hour.  She explained that the complainant was two when she formed a relationship with the appellant.  That had lasted 11 or 12 years, during which time they had had another child.  The relationship ended in April 2016.  The appellant had treated the complainant as his own child.
8. [8]
   The complainant’s mother said that the appellant could be violent in disciplining the children, using objects to hit them, and that he would “fling them across the room”.
9. [9]
   The complainant’s mother said that the appellant sometimes slept with the complainant in the complainant’s bed (a double bed), in particular if she and the appellant had had a fight, or if he had come home drunk.  She said on occasions when he did this, the complainant would come into her bedroom and tell her that the appellant was annoying her, or she would call out and the mother would have to pull her out of bed because the appellant would pretend to be asleep with his arm over the complainant.
10. [10]
    The complainant’s mother said that the appellant would request back massages from her, “and if I didn’t want to do it, he would make [the complainant] do it”.  This would occur in the loungeroom.
11. [11]
    On one occasion when the complainant was about 10, the complainant’s mother walked into the bedroom she shared with the appellant and found the appellant and the complainant lying on the bed because the appellant was making the complainant have an afternoon sleep.  She saw the appellant’s right hand on the complainant’s left buttock and that her pants were pulled right up so that her buttock was exposed and the appellant was squeezing it.  She yelled at the appellant and he “said he was asleep, and that he didn’t realise it was her and that he thought it was me”.
12. [12]
    After she and the appellant separated, she shared the care of the children with the appellant, who had them with him every second weekend and during school holidays.  She said that the complainant stopped calling the appellant “Dad” and started calling him by his first name.  She stopped wanting to go to his house.  The mother would remonstrate with the complainant about this latter matter as she saw it as disrespectful to the appellant.  During an argument about this topic in October 2017 the complainant disclosed sexually abusive behaviour and her mother took her to the police.
13. [13]
    After the jury heard the complainant’s mother, court adjourned for the day.  It resumed on Friday morning at 9.45 am.  A lady who was the appellant’s girlfriend for about nine months from June 2016 was called by the Crown.  She gave evidence that during her relationship with the appellant there were times, particularly on school holidays, but at other times during the week, that the two children would be alone with him.  She did not observe any physical violence by the appellant towards the complainant or his son.  She observed the complainant giving the appellant massages and did not have any concern about that, nor did she have concern about any other interactions between the appellant and the complainant.
14. [14]
    The Crown closed its case and the appellant elected to give evidence.  His evidence began at 10.20 am on Friday morning and finished at 11.05 am.  He gave some history about his relationship with the complainant’s mother, and about the layout of the house in which they lived.  He agreed that he sometimes slept in the complainant’s bed with her, including when he was drunk.  He said that he received massages from his wife and the complainant in the loungeroom on a fairly regular basis.  He denied touching the complainant on the buttocks and having an argument with his wife about it.  He denied physically disciplining the children except by smacking them with his hands.
15. [15]
    He gave a great deal of evidence about his working hours and travel time to work, the effect of which was that he had limited opportunity to be alone with the complainant at times, particularly the afternoons, when she alleged abuse had frequently taken place over the years.
16. [16]
    He said that by October 2017 the complainant had new friends, the friends who gave evidence of preliminary complaint, and that she changed and became disobedient.  He had an argument with her late on the night of 21 October 2017 because she had not gone to the movies as allowed, but was “gallivanting uptown”.  The complainant disclosed abuse to her mother in the day or two after this.
17. [17]
    The appellant finished giving evidence and the defence case closed at 11.05 am.  Addresses took place that afternoon, that is, the Friday afternoon.  The summing up began at 9.18 am on Monday, 23 August 2021, and the jury retired to consider its verdict at 10.17 am.
18. [18]
    At 12.05 pm the court reconvened because the jury had sent a note asking if they could watch the complainant’s police interview again.  The judge said to counsel, “I would simply answer yes and that in the circumstance where they wish to be reminded of it, they need to be reminded of all the evidence and so we will play the interview, as well as the cross-examination”.  Counsel assented to this course.
19. [19]
    The jury returned to the courtroom at 12.10 pm and the judge said to them, “And so what has to occur in that situation is that all of the evidence is played, so it says ‘the interview’, but effectively, her statement as well as the cross-examination”.  The process of watching the recording began in court with the judge, counsel and the appellant present.
20. [20]
    The jury had lunch at about 1.10 pm and returned to the courtroom at 2.15 pm.  They watched the remainder of the recordings of the complainant’s evidence.  Then the trial judge again gave the standard direction about the pre-record process.
21. [21]
    At 3.30 pm the jury again retired to consider their verdict.  At 4.15 pm the court resumed because the jury had sent a note saying they could not come to agreement “in regards to the guilt or innocence of the defendant”.
22. [22]
    A Black direction was given and the jury retired again at 4.20 pm.  At 5.30 pm the judge let the jury go home for the day and at 1.15 pm on the following day, Tuesday, the jury returned with a verdict of guilty.
23. [23]
    The appeal is on the basis that a miscarriage of justice occurred because, after the complainant’s evidence was replayed, the trial judge failed to remind the jury of the details of the appellant’s evidence, and failed to warn the jury about the risk of giving disproportionate weight to the complainant’s evidence because it was played to them twice.

The case law

24. [24]
    In the case of R v H^[1] a verdict was set aside because the trial judge erroneously allowed the interview between the police and a complainant child into the jury room with the other exhibits once the jury retired.  The court discussed s 99 of the Evidence Act 1977 (Qld), which gives a court the discretion to direct that a jury not have a document with them during their deliberations where “they might give the statement undue weight”.  The court noted that the power in this section is in addition to an inherent power of the court to take that and similar action in order to ensure that a criminal trial is fair.^[2]  R v H referred to the case of R v Stephenson^[3] where Bray CJ discussed the dangers of a jury having a signed record of interview with them in the jury room as being, “… the jury having before them when they retire one part, but only one part, of the oral evidence or other oral material in documentary form.  For that part they can look at the document: for the rest they must rely on their memory of what was said.”
25. [25]
    In R v H McMurdo P discussed the English case of R v Rawlings & Broadbent.^[4]  That case concerned whether a judge ought to play a video‑recording of a child’s evidence a second time on request from the jury.  It was held it was within the judge’s discretion, but the judge had to be careful to “guard against unfairness deriving from the replay of only the evidence in chief of the complainant”.  It was suggested that if the jury simply wished to be reminded of what the witness said the judge could remind them from written material, and that it was only if the jury indicated that they wished to see “how the words were spoken”, that the judge might allow the video, or the relevant part of it, to be replayed.  The English Court of Appeal said:

“It would be prudent where the reason for the request is not stated or obvious for the judge to ask whether the jury wished to be reminded of something said which he [or she] may be able to give them from his [or her] note or whether they wished to be reminded of how the words were said.

If the judge does allow the video to be replayed, he [or she] should comply with the following three requirements:

1. (a)
   The replay should be in court with judge, counsel and defendant present.

2. (b)
   The judge should warn the jury that because they are hearing the evidence in chief of the complainant repeated a second time 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.

3. (c)
   To assist in maintaining a fair balance, he [or she] should after the replay of the video, remind the jury of the cross-examination and re-examination of the complainant from his [or her] notes whether the jury asked him [or her] to do so or not.”^[5]

26. [26]
    In R v H McMurdo P discussed the New Zealand case of R v O.^[6]  In response to a jury request for the transcript of a police interview with a child, the judge instead read the transcript of the videotaped interview to the jury, but no part of the cross‑examination, or other evidence was provided to them.  The New Zealand Court of Appeal followed Rawlings & Broadbent (above), finding that the trial judge could have replayed the video interview, but to ensure balance, would have to have had read the whole of the cross-examination to the jury.  In the course of the judgment in R v O the New Zealand Court of Appeal said:

“To allow a jury to revisit the significant body of evidence-in-chief of a complainant in the form in which it was presented in Court without there being any practical way of balancing it with cross-examination of that witness or with the testimony of an accused who gave or called evidence (as here) must give rise to a serious apprehension of injustice.  We do not think it appropriate that videotaped evidence should be replayed in Court, at least in the absence of effective balancing of that evidence in its trial context, …  On such occasions as the jury may wish its memory to be refreshed concerning the evidence of a child complainant the Judge may have recourse to an accurate transcript in the same manner as trial Judges customarily refresh the jury’s memory of viva voce evidence by recourse to the Judge’s notes of evidence.” – p 298.

27. [27]
    The New Zealand Court of Appeal in R v O sounded, “a note of caution concerning the suggestion [in Rawlings & Broadbent] that the Judge should direct questions to the jury in response to their request.  If the Judge considers that this course is necessary, he or she must be careful to ensure that it is done in a way that does not intrude on the confidentiality of the jury’s deliberations.” – p 300.
28. [28]
    In R v H, after having reviewed the case law, McMurdo P concluded that if a jury requests to hear recorded evidence of a child a second time, the trial judge must deal with the situation as appropriate in that case.  It was not necessary in every case that the jury be reminded of cross-examination and re-examination where that was not requested by the jury.  She said, “The overriding consideration for the trial judge must be fairness and balance …” – p 291.
29. [29]
    In R v TQ^[7] this Court approved the dicta in R v H to the effect that when a judge decides that video‑recorded evidence should be replayed to a jury, the judge, defendant and counsel should all be present in court.
30. [30]
    In R v NZ^[8] the New South Wales Court of Criminal Appeal sat a bench of five to consider issues arising in relation to videotaped evidence of child witnesses.  The judgments contain a wide-ranging review of the matters relevant to the determination of this appeal, and related matters.  Spigelman CJ made observations which I think are very pertinent to the issues arising in this appeal.  He noted the authorities in England, New Zealand and Australia and said:

“It is, however, noticeable that a central theme emerges from the judgments as to the significant possibility of the jury decision-making process being distorted by the jury being able to replay as often as it wishes only part of the evidence in the trial. Secondly, there is also recognition that videotape evidence, which is admitted in substitution for evidence in chief, has a different quality to other videotape evidence that may be admitted as an exhibit. …

The authorities give particular emphasis to the possibility that the playing of the evidence in chief in videotape form carries with it the risk that the evidence will be given disproportionate weight. Two matters are emphasised. First, repetition, in a context where other balancing evidence is not or may not be repeated at all or as often. Secondly, the force attending evidence in an audio-visual form when compared with the force of evidence that may only be available in documentary or transcript form. …

The principle of a fair trial requires the court to adapt its procedures and/or to give directions to the jury wherever the circumstances of a particular trial give rise to a material risk that the jury may give disproportionate weight to particular evidence. This is a principle of general application of which the use of videotaped evidence under special statutory provisions for the giving of such evidence is one set of circumstances in which the issue has arisen.” – [9]-[11].

31. [31]
    Otherwise the judgments of Howie and Johnson JJ contain the reasoning of the Court in R v NZ.  The judgment is generally quite consonant with the principles already outlined from R v H.^[9]  A trial judge has a discretion to determine what to do if the jury request to have a video-recording replayed.  The judge must consider how to give the jury the information it needs whilst still maintaining a fair and balanced trial.  What is necessary in any case must be determined on the facts of that particular case.
32. [32]
    In R v NZ the court endorses the idea that, “Often the judge might ask the jury if they wished to be reminded of the whole of the evidence or only part of it” – [204], but cautions that, “It would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed” – [210](d).
33. [33]
    The judgment in R v NZ canvasses options available to the judge, including, where a jury “wished to be reminded of the evidence, they could simply be assisted by the judge reminding them of the evidence in chief of the witness, together with the cross‑examination or they could be provided with a transcript of the whole of the witness’s evidence” – [200].  A further alternative might be that the evidence can be replayed from the audio recording of the proceedings made by the court reporting service – [201].  The use of such methods means that the jury’s request is treated “on a par with the evidence of every other witness” – [200].  However, the judgment also cautions that to adopt a course short of replaying the video evidence deprives the jury of the “best method available of reminding them of not only what was said by the witness in evidence in chief but also how it was said” – [201].
34. [34]
    If it is necessary to remind the jury of the evidence of the complainant in any substantial way, including by replaying recorded evidence, the judge needs to consider how to ensure fairness to the defendant.  This is best discussed with counsel.  It may be that the jury will need to be reminded of, or watch again, relevant cross‑examination.  It also may be that the jury is read parts of defence witnesses’ evidence, or indeed parts of the evidence of Crown witnesses which bear upon the complainant’s case.  Another option is to listen to this through the court transcription recording service, if available.  The main judgment in R v NZ goes on to say, “What further the judge [should do in such circumstances] to remind the jury of the defence case would be a matter for the judge’s discretion” – [204].
35. [35]
    The factual circumstances in Gately v The Queen^[10] were that apart from the recorded police statement and pre-recorded evidence containing cross-examination, there was almost no other evidence in the trial.  In those circumstances, no warning was given about undue weight and the High Court took the view that none was necessary.  It may be that in another case, even though the defendant does not give oral evidence, there is still a need to remind the jury of other Crown evidence if it was relevant to the point, or the defence case, as it was put in submissions.
36. [36]
    The case of R v Storey^[11] provides a cautionary note to judges who embark on a lengthy process in consequence of a jury request for recorded evidence to be replayed.  There the judge replayed the complainant’s recorded evidence.  The process was interrupted by a lunchbreak.  Defence counsel promised to use the lunchbreak to prepare a list of parts of the cross-examination he wished the judge to remind the jury of.  Unfortunately the jury agreed on a verdict during the lunchbreak.  It is as well to explain to the jury at the beginning of the process of revisiting evidence how long the process will take, and to tell them that no verdict will be accepted before the process has reached its end.

This case

37. [37]
    The Crown case largely depended upon whether or not the jury accepted the evidence of the complainant.  When the jury requested to hear the police interview again, no enquiry was made as to whether, say, the jury wished to be reminded only of evidence as to a particular topic.  If the jury request had been limited, less imbalance would have been caused because the judge would only have replayed to the jury, or otherwise reminded the jury of, that part of the evidence, together with any necessary parts of the cross-examination, the appellant’s evidence, and/or the defence case.
38. [38]
    If enquiries had been made of the jury which necessitated, in the judge’s view, that the whole, or a large part of the evidence of the complainant be replayed to the jury, it was incumbent on the trial judge to remind the jury in some detail of the appellant’s evidence, and what his counsel made of that evidence in address in order to achieve a fair balance.
39. [39]
    As it was, the trial was distorted or unbalanced because nearly all the Crown case was replayed to the jury without any reminder of the defence case.  I accept the submission on behalf of the appellant that the fact that the appellant’s evidence had been given on Friday, and that a weekend intervened before the complainant’s evidence was replayed to the jury, exaggerated the effect of this.  However, my view would have been the same even if the weekend had not intervened.  I also accept that the jury’s return to the courtroom to indicate they could not agree, soon after seeing the complainant’s evidence replayed, is an indication that efforts to balance the trial after the complainant’s evidence was replayed might well have made a difference to the verdict; that is, matters were finely balanced.  Again however, my conclusion would be the same even had there not been this added factor.
40. [40]
    Lastly, I record that at times the prosecution came close to submitting that, although the appellant gave evidence, he did little more than deny the occurrence of the indecent assaults alleged, so that a failure to remind the jury of this did not occasion a miscarriage of justice.  I would reject such a position on the facts here.  In support of the charge of maintaining, the complainant alleged more than 50 acts, of a similar type, and at similar times, over the course of six years.  There was little to no evidence of particular occasions of abuse.  The nature of the appellant’s evidence has to be seen in that context.  However, the appellant did give evidence for around 45 minutes about relevant matters, discussed above.  If the judge decided to replay the entirety of the complainant’s evidence, the judge ought to have reminded the jury that the appellant gave evidence; that they had a chance to see, hear and assess him in the box, and ought to have reminded the jury of the matters which were the subject of the appellant’s evidence.  That is, the judge needed to remind the jury, in a real way, about the defence case.
41. [41]
    BODDICE J:  I have had the considerable advantage of reading the reasons of Dalton JA.  Those reasons accord with my reasons for joining in the making of the orders on 4 October 2022.