R v Barker[2023] QCA 117

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  For the reasons given by Flanagan JA, I joined in the making of the Court’s orders on 5 May 2023.
2. [2]
   FLANAGAN JA:  On 29 November 2021, following a three day trial in the District Court at Ipswich, the appellant was convicted of three offences, namely one count of wilfully and unlawfully exposing a child under 16 years to an indecent act (Count 1) and two counts of unlawfully and indecently dealing with a child under 16 years (Counts 2 and 3).
3. [3]
   Each of the counts concerned the same complainant and were committed on the same day, namely 22 December 2018.  Count 1 was particularised as the appellant wilfully and unlawfully exposing all or part of his penis to the complainant.  Count 2 was particularised as the appellant grabbing at the complainant’s shirt and lifting it to expose her bare breasts.  Count 3 was particularised as the appellant squeezing the complainant’s right breast using his right hand.
4. [4]
   The appellant appeals against his convictions on the following sole ground:

“The learned trial judge erred in law in directing the Crown to read a portion of the witness’ statement in the presence of the jury.”

The witness referred to was the mother of a nine year old friend of the complainant.  I will refer to the friend as AK.  The mother of AK gave evidence of preliminary complaint.

5. [5]
   On 5 May 2023, the Court allowed the appeal against conviction and ordered a re-trial.  These are my reasons for joining in those orders.

The prosecution case

6. [6]
   At the time of the offending the complainant was 12 years of age.  The appellant was friends with the boyfriend of AK’s mother.  He was not related to the complainant and had only known her for a short period of time.
7. [7]
   On 22 December 2018 the appellant owned a two seater utility.  As the utility was only a two seater, it was used by the appellant to separately transport AK and then the complainant to a Night Owl convenience store.  Both the complainant and AK wished to purchase ice blocks and lollies and do some last minute Christmas shopping for the family.
8. [8]
   The offending occurred while the appellant was driving the complainant from the Night Owl back to her home.
9. [9]
   While walking towards the utility with the complainant, the appellant dropped money on the ground.  He asked the complainant to pick it up.  As she did so, he tore open a rip in his jeans and exposed his penis to the complainant (Count 1).
10. [10]
    After exposing his penis and while driving her home, the appellant told the complainant not to tell anyone she had seen his penis.  In addition, the appellant offered the complainant money and threatened to tell the complainant’s mother about her first kiss if she disclosed the offending.  This was in the context of the appellant having questioned the complainant about personal matters.
11. [11]
    While still in the utility, the appellant lifted the complainant’s shirt and exposed her breasts (Count 2).  He told the complainant that she had “good boobs” and enquired where she got them from.  The complainant replied, “I think my mum or my sister”.
12. [12]
    A short time later the appellant asked the complainant to show him her breasts again.  She declined.  The appellant lifted the complainant’s shirt and touched her right breast with his hand (Count 3).  As observed above, Count 3 was particularised as the appellant squeezing the complainant’s right breast using his right hand.  The particulars of Count 3 are consistent with the complainant’s recorded interview with police conducted on 23 December 2018 which was admitted into evidence pursuant to s 93A of the Evidence Act 1977 (Qld):

“Tell me everything about him touching your boob with his right hand.

… Um, he like, he was holding onto the steering, like where you steer. … And he like lifted my shirt up, and then he quickly took his hand off, touched it, and then squeezed it, and then I pushed it off, and he put his hand back onto the … [s]teering thing … he grabbed his hand, squeezed it for a couple of seconds.  And then just squeezed it and, like felt it kind of … And I pushed his hand away.” ^[1]

13. [13]
    The complainant recalled that the appellant squeezed her breast with his right hand.
14. [14]
    When the complainant returned to her home, she disclosed the offending to AK and subsequently disclosed the offending to her mother and two of her mother’s friends, one of whom was the mother of AK who subsequently provided a statement to police.  The ground of appeal concerns the learned trial judge directing the Crown prosecutor to read a portion of this statement to the jury.  In order to consider the ground of appeal, it is necessary to set out in detail the evidence of the mother of AK and the exchanges between the trial judge and defence counsel.

The evidence of the mother of AK

Evidence-in-chief

15. [15]
    The mother of AK gave the following evidence-in-chief:^[2]

“---in person.  Okay.  So when you spoke to [AK] on the phone, did you speak to [the complainant] at all? --- Yes.

Okay.  And what did [the complainant] tell you?---Well, excuse me.  It was both of them at the same time, it wasn’t like individual, it was on speaker when they phoned me, yes.

All right.  And during that phone that was on speaker, what did [the complainant] talk to you about?---[The complainant] spoke to me about the situation that happened.

Okay.  And what was that situation - - -

HER HONOUR: Sorry.  What did she say?

MR McINTYRE: Yes?---She said that Jason had inappropriately touched her.

Are those the precise words she used?---Jason had – “Jason touched me” is what she said to me.

Now, did she go into any more detail than that?---Not at that particular time, but when I got home, like, that’s when she spoke to me, like detailed.

Okay.  And where did that discussion take place?---At my house.

All right.  And when you say she spoke to you in detail, what were those details that she told you?---She just told me how she went up to my house when I was out to see the children, my kids.  And then, that Jason had offered to take them to the NightOwl; because he had a ute, they went one by one.  And then how Jason had touched her, her breasts, and then exposed himself also.  And that he offered them $20 to not say anything.”

16. [16]
    The evidence-in-chief of the mother of AK was not consistent with her statement previously given to police.  In that statement, her recollection of what the complainant said to her was as follows:^[3]

“He also tried to touch my boob, and I brushed it off.”

Cross-examination

17. [17]
    As there was an apparent inconsistency between the mother of AK’s evidence-in-chief and her police statement, defence counsel cross-examined in relation to this inconsistency.  As is revealed in the excerpt below, defence counsel first attempted to address this inconsistency without reference to the witness’ statement:^[4]

“But could it have been [AK] that said Jason had touched [the complainant]?---I’m pretty sure they somewhat said it at the same time, like – initially – I don’t know who, initially, said it to me within the conversation.  Like, they were both on the phone at the same time to myself.

All right.  When you were speaking with [the complainant] and when [the complainant] was speaking, I should say?---Yep.

Did she say to you words to the effect “He also tried to touch my boob, and I brushed it off”?---I’m not sure word for word what was exactly said, but, yes, it was something very similar.

HER HONOUR: That she – did she tell you that he didn’t touch her but he tried?---No.  No, she didn’t say he didn’t touch her.

MR MORGANS: Okay.  Do you accept that [the complainant] may have said, “He also tried to touch my boob, and I brushed it off”; do you remember that as being something that may have been said by [the complainant]?---Can you repeat that, sorry?

“He also tried to touch my boob, and I brushed it off”?---I’m not – I don’t know how to answer that, because it sounds like the same question you just asked.

I’m asking you whether or not you can recall [the complainant] saying that sentence or words to that effect, “He also tried to touch my boob, and I brushed it off”?---Yeah.  So she said something similar to those words, yes.

Okay.  Could it have been those words?---It could have been, yes.

HER HONOUR: So, Mr Morgans, are you suggesting that the girls did not say that he had touched her, and if you are saying that, then I think that you need to put it to the witness so that she can answer that, and there’s no confusion about the meaning of the answers.

MR MORGANS: I perhaps can’t put that, because the defendant - - -

HER HONOUR: Well, if you’re not suggesting that, then don’t put it, but I’m just – I just want to be clear at this point so that there is no difference of interpretation about the state of the evidence.

MR MORGANS: Thank you.  I’ll, perhaps, deal with it slightly differently.”

18. [18]
    This extract shows that the witness twice accepted that the complainant had said to her that the appellant had tried to touch her breast but she had “brushed it off”.  Any inconsistency had therefore been clarified without the need to show the witness her statement.  In light of the subsequent exchange with the trial judge however, defence counsel proceeded to cross-examine by showing the witness her statement:^[5]

“… you gave a statement to police?---Yes, correct.

Was that in about September of 2019 or so?---I do believe so.

And I take it, in that statement, you tried to convey as accurately as you could the information that was told to you?---Yes.

And is it your evidence today that your recollection today is better than it was in September of 2019?---No.

If you had said something to the police in a written statement in September of 2019, is that something you would’ve said to them honestly?---Yes.

To the best of your recollection?---Most definitely.

Right.  Could I ask that the witness be shown her statement?

HER HONOUR: Yes.

WITNESS: Thank you.

MR MORGANS: …, could you look at that document that’s been placed before you and can you perhaps consider the end of each of the pages of the document?  Is that a copy of a statement that you’d previously given or an original of the statement you’d given?---Yes.

Could you turn to page 3?  Could you consider the last line in paragraph 16?

HER HONOUR: Well, perhaps it would be fairer if the witness read paragraph 15, 16 and 17.

MR MORGANS: Thank you, your Honour.

Having regard to those three paragraphs that her Honour’s pointed you to and particularly to the final sentence of paragraph 16, do you accept that (the complainant) may have said – or (the complainant) may have said to you:

“He also tried to touch my boob and I brushed it off”

?---I don’t understand. It – like, is that what you’re saying it says in here? I’m not too - - -

MR MORGANS: I’m asking you - - -?--- - - - sure what I’m meant to answer here, sorry.

HER HONOUR: There are a couple of propositions rolled up into that?---Okay.

First of all you’ve been referred to your statement?---Yes.

Your statement and those paragraphs, paragraphs 15, 16 and 17 - - -?---Yes.

- - - which seem to be referring to the conversation that you had with (the complainant)?---Yes.

What (the complainant) said to you.  And the first thing is whether what is in your statement – whether you can say what is in your statement is what you told the police at the time and then – and if it is, does that now – does that refresh your memory of the conversation itself 10 months before you made that statement?---It doesn’t really refresh my memory, but yes.  It’s somewhat – exactly what I had still remembered, apart from I said previously that they both told me on the phone, but in here I said that (AK) told, and I said, “What? My (the complainant) on the phone.”  So that says – none quite with what I said just before.  Yeah.

Yes, Mr Morgans.

MR MORGANS: Your Honour, I apologise if I repeat the same question.

(The mother of AK)?---Yeah.

Do you accept that (the complainant) may have said to you in that conversation - - -?---Yeah.

- - - “He also tried to touch my boob and I brushed it off”?---Yes.

Thank you, your Honour.  I’ve got no further questions - - -

WITNESS: Yes.

MR MORGANS: - - - for this witness.”

19. [19]
    A number of relevant considerations arise from this cross-examination.  First, the witness admitted she had made the statement to police.  Secondly, in making the statement she tried to convey the information accurately, honestly and to the best of her recollection.  Thirdly, the witness accepted that her recollection as to what the complainant said would have been better at the time of giving her statement than when giving evidence.  Fourthly, the witness’ attention, at the direction of the trial judge, was specifically drawn to paragraphs 15, 16 and 17 of her statement.  As will become apparent these were three of the four paragraphs which the Crown prosecutor subsequently read to the jury at the direction of the trial judge.  At paragraph 17 the witness stated that she could not remember exactly what the complainant told her because it was a very stressful situation.  The witness’ evidence however, even after having been referred to paragraph 17, remained that the complainant may have said to her “He also tried to touch my boob and I brushed it off”.
20. [20]
    The Crown Prosecutor did not seek to re-examine.  This is unsurprising as any inconsistency between the witness’ evidence-in-chief and her statement had been clarified in cross-examination.  The trial judge however, engaged in further exchanges with counsel in relation to the witness’ evidence.  The first was in the presence of the jury and the second in the absence of the jury.

The exchange in the presence of the jury

21. [21]
    The following exchange took place in the presence of the jury:^[6]

“HER HONOUR: Well, unless there any objection, I think out of fairness, the paragraphs 15, 16, and 17 ought to be read back to the witness because - - -

MR McINTYRE: Yes.

HER HONOUR: - - - otherwise there’s the – well, it seems to me, unless you want to argue otherwise, Mr Morgans, that that is – there is a risk that it be taken out of context, given that you have the witness say that - - -

MR MORGANS: Could I - - -

HER HONOUR: - - - this was her more accurate memory and you’ve taken one part of that section.  I’m sure you didn’t mean to be - - -

MR MORGANS: Could I perhaps - - -

HER HONOUR: - - - unfair, but - - -

MR MORGANS: No.

HER HONOUR: - - - that could be the effect of it.

MR MORGANS: Your Honour, could I perhaps address that reply in the absence of the jury?

HER HONOUR: All right.  [The mother of AK], if you would just go outside and, members of the jury, if you’ll go back to the jury room, please.  Just for a few minutes.”

22. [22]
    In this exchange the trial judge, in the presence of the jury, suggested that defence counsel, in having the witness accept the accuracy of what she said in her statement as to what the complainant told her, may have acted unfairly and elicited evidence out of context.

The exchange in the absence of the jury

23. [23]
    The following exchange then took place in the absence of the jury:^[7]

“MR MORGANS: I apologise for the delay, but I don’t wish to ventilate matters in front of the jury unnecessarily.

HER HONOUR: If you can just tell me what your point is - - -

MR MORGANS: The issue is whether or not, having asked the witness if she recalls [the complainant] also saying to her, “He also tried to touch my boob and I brushed it off,” whether or not I’ve been unfair in that context - - -

HER HONOUR: No, no.  It’s just that you just wanted – want to emphasise that part, but in the very next line, she says:

I can’t remember exactly what she told me because it was a very stressful situation.

MR MORGANS: Absolutely.

HER HONOUR: And you went to the trouble of having the witness confirm that her memory was likely to be more accurate at that time than it is now, but you referred her to that part - - -

MR MORGANS: Yes.

HER HONOUR: - - - to contrast with her memory of being told that she’s been touched.

MR MORGANS: Yes.

HER HONOUR: But you – it would be open to the prosecutor to re-examine by referring her to those paragraphs and - - -

MR MORGANS: Yes.

HER HONOUR: - - - having them read back to her to ask her if that’s what she had said.

MR MORGANS: Yes.

HER HONOUR: In the absence of him doing so, but at – the court also has a duty to ensure that a witness is treated fairly.

MR MORGANS: Yes.

HER HONOUR: And that’s why I flagged, whether – with you both - - -

MR MORGANS: Yes.

HER HONOUR: - - - that those three paragraphs be put to the witness.

MR MORGANS: Your Honour, the – I’m somewhat uncomfortable with the jury being told today of what was contained in a statement in 2019 based only on that part – those parts of the statement that are read to her.  The question is where do we stop?  Do we include paragraph 14, for example? Is there being anything unfair in terms of how I’ve put that question to the witness?  In my submission, there hasn’t been, and it hasn’t been out of context.

HER HONOUR: Well, it is open – as a matter of balance.

MR MORGANS: Yes.

HER HONOUR: What the witness said about that conversation, it can be put to her again, can’t it?

MR MORGANS: Your Honour, the – my friend could, if he wishes to, seek to ask in re-examination or confirm what’s in paragraph 17.  That - - -

HER HONOUR: Well, he could read all of paragraphs 15, 16 and 17 to her, and say, “Is this what your statement says, and do you accept that that is as accurate as you can be now?” can’t he?

MR MORGANS: He could, and in fairness, I’d ask that has to be done, that paragraph 14 be included.

HER HONOUR: All right.

MR MORGANS: But I – that’s not my first submission, of course.  In my submission, the prosecutor, having not sought to re-examinate – to re-examine, and I accept that the court has an overriding duty of fairness - - -

HER HONOUR: Yes.

MR MORGANS: And can seek to and it can, in fact, ask questions of the witness, but say, if the evidence wasn’t left in an unfair, confusing manner, it’s simply – I was seeking to confirming if it is possible that those words had been said and the witness agreed.

HER HONOUR: I understand that’s all you want to say - - -

MR MORGANS: Yes.

HER HONOUR: - - - but I’m just saying to you that it is – it is misleading to leave it in that way.  And that is why we’re here.

MR MORGANS: Yes.  Your Honour, I - - -

HER HONOUR: That’s why we’ve reached this point.

MR MORGANS: And – and I’ll have to - - -

HER HONOUR: I’ve heard your point.

MR MORGANS: - - - of course, accept - - -

HER HONOUR: And if you prefer for Mr McIntyre to do it, rather than me, I’ll ask him whether he’s prepared to do it.

MR McINTYRE: Yes.  I – I would speak to those - - -

HER HONOUR: All right.  Well, then we can have the jury back in.  And you want from paragraph 14 read?

MR MORGANS: Your Honour, I think if 15, 16, 17 - - -

HER HONOUR: All right.

MR MORGANS: - - - have to read, I ask that 14 be read.”

Re-examination

24. [24]
    At the invitation of the trial judge the Crown prosecutor read paragraphs 14 to 17 of the statement to the witness:^[8]

“MR McINTYRE: Yes.  So before the witness is dismissed, just out of fairness, I’ll read the paragraphs of her statement that have been put to her – on the record.

HER HONOUR: Well, this is to be a question to the witness.

MR McINTYRE: Yes.

HER HONOUR: So [the mother of AK], the prosecutor’s going to read some things to you, from your statement from September 2019 and then ask you whether that was your statement – that was included in your statement at that time?---Okay.

And whether you agree with it.  Yes.

MR McINTYRE: So:

I received a call from (AK) at about 8 pm and she told me Jason touched (the complainant). I said, “What. Put (the complainant) on the phone so I can talk to her.” I then spoke with (the complainant) and she told me something to the effect of, “We went to the NightOwl with Jason and he could only take us one at a time home. He took (AK) and then took me last. When we got there I saw that Jason was trying to get something out of his pocket. It ripped and then lots of money fell out of his pocket. He then revealed himself to me. On the way back, Jason said, ‘They’re nice boobs. Who’d you get those from?’ I said my mum, I think. He also tried to touch my boob and I brushed it off.

And at paragraph 17:

I can’t remember exactly what she told me because it was a very stressful situation.

Is – is that the contents of your statement?---Yes.  That’s correct.

HER HONOUR: Well, paragraphs 14 to 17.

MR McINTYRE: Yes.  Paragraphs 14 to - - -

HER HONOUR: It’s not the entire statement, is it?---Yeah.  Yeah.”

25. [25]
    The Crown prosecutor prefaced his re-examination by informing the jury that the paragraphs were being read to the witness “just out of fairness”.  Further, the paragraphs were read in circumstances where the witness has already admitted she made the statement.

Addresses and the Summing Up

26. [26]
    The Crown prosecutor commenced his closing address to the jury by submitting that after hearing the evidence in the trial, they would find that the complainant was an honest and reliable witness.  He further submitted that the complainant’s accounts of the offending “had no variation of any real significance”.
27. [27]
    The Crown prosecutor continued:^[9]

“The two ladies [including the mother of AK] who gave evidence may have struck you as having difficulty precisely remembering things, and that’s understandable years later, and you would, I suggest, find that they were doing their honest best.

… Now, I expect defence will suggest inconsistencies there are things like whether or not [the complainant] had told them it happened in the car or at the shops, or whether she told them she was touched on the breast or brushed it off.  Consider whether this would – could just be a problem with the reliability of the preliminary complaint witness, and her Honour will tell you some inconsistency in preliminary complaint is to be expected.”

The Crown prosecutor specifically raised for the jury’s consideration the reliability of the preliminary complaint evidence.  The strength of this submission may arguably have been enhanced by the reading to the jury of paragraphs from the witness’ statement.

28. [28]
    Defence counsel referred to the preliminary complaint evidence of the mother of AK as follows:^[10]

“We heard from [the mother of AK] that [the complainant] may have described to her an attempted touch to her breast.  Does that sit comfortably with her account given to police that he actually touched her breast?  Because an actual touch:  you might ask yourself why was that not told to [the mother of AK], or if it was told to [the mother of AK], why would such a concerning fact be forgotten or be misinterpreted if it was an actual touch?”

29. [29]
    The trial judge correctly directed the jury that the preliminary complaint evidence could only be used in assessing the complainant’s credibility.  Her Honour continued:^[11]

“It is not a test, however, of word-for-word exactness or repetition.  It does not hinge on exactly the same recall every time words are spoken.

… Unless you found the witness’ memory of what [the complainant] told them to be reliable their evidence of a largely consistent or inconsistent account would not help in relation to [the complainant’s] credit.  If the witness’ memory is reliable about what – if you find that the witness’ memory – of what was said – is reliable, the next question is is it consistent or inconsistent with what [the complainant] has said on the tapes?  If there is an inconsistency?  Is there a true inconsistency or is it a matter of expression, a difference of expression?”

Consideration

30. [30]
    In Hofer v The Queen [2021] HCA 36 at [41] Kiefel CJ, Keane and Gleeson JJ, in considering what constitutes a miscarriage of justice, observed:

“A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused.  This accords with the long tradition of criminal law that a person is entitled to a trial where rules of procedure and evidence are strictly followed.”

31. [31]
    In the present case the rules of procedure and evidence were not strictly followed.  It was not permissible for the Crown prosecutor, at the invitation of the trial judge, to re-examine the witness by reading to her paragraphs of her statement.  The adoption of such a procedure was impermissible for a number of reasons.
32. [32]
    First, the reading of the paragraphs of the statement was not permitted by the application of any relevant provision of the Evidence Act 1977 (Qld).  The application of ss 18, 19, 101 and 102 of the Evidence Act was considered by this Court in R v Collins [2017] QCA 113.  Burns J (with whom Gotterson and Morrison JJA agreed) considered the operation of s 18 of the Evidence Act.  Section 18 provides:

“18 Proof of previous inconsistent statement of witness

1. (1)
   If a witness upon cross-examination as to a former statement made by the witness relative to the subject matter of the proceeding and inconsistent with the present testimony of the witness does not distinctly admit that the witness has made such statement, proof may be given that the witness did in fact make it.
2. (2)
   However, before such proof can be given, the circumstances of the supposed statements sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement.”

33. [33]
    Burns J observed at [43]:

“It follows that, where the making of the previous inconsistent statement is admitted by the witness – and regardless of whether the witness goes further to admit that it’s contents are true – the statement cannot be proved under s 18.  Indeed, to the point of this appeal, it will only be where the prior statement was in writing or reduced to writing and it is intended to contradict the witness by that writing pursuant to s 19(1A) that it can be proved and then received into evidence.  But, s 19(1A) aside, where the witness distinctly admits the making of the statement, it will not be admissible under s 18 or, indeed, at common law unless the witness is a party, in which event the statement may amount to an admission.”

(original emphasis)

34. [34]
    In her evidence-in-chief the mother of AK gave evidence that the complainant told her the appellant had touched her breast.  This evidence was inconsistent with her witness statement.  As observed above, prior to being shown her statement, the mother of AK accepted that the complainant may have said that the appellant tried to touch her breast.  The witness’ evidence remained consistent in this respect after she had been shown her statement.  Importantly, the witness admitted that in making her statement she sought to convey the information accurately, honestly and to the best of her recollection.  In such circumstances, there was no permissible procedure under the provisions of the Evidence Act which permitted the Crown prosecutor to read paragraphs of the witness’ statement in re-examination.
35. [35]
    Secondly, this Court has recently considered the circumstances entitling a trial judge to intervene in the questioning of a witness.^[12]  Here, the intervention was not the actual questioning by the trial judge of the witness in re-examination but rather the implicit direction for the Crown prosecutor to read paragraphs from the witness’ statement in re-examination.  This intervention occurred in circumstances where the Crown prosecutor had not sought to re-examine.  As observed above, there were good forensic reasons why the Crown prosecutor would not re-examine in circumstances where the cross-examination had clarified any inconsistency between the witness’ evidence-in-chief and her statement.  Further, the procedure adopted was objected to by defence counsel.
36. [36]
    In R v Clancy [2022] QCA 162, this Court (McMurdo and Flanagan JJA and Beech AJA) identified that a trial judge is entitled to intervene in the questioning of a witness where the form of the questioning is such that it involves unfairness to the witness.^[13]  In Clancy, the Court referred to the decision of the Supreme Court of Victoria in Cook v The Queen (2016) A Crim R 454 at 463 [31], which cited with approval the following observations of Purchas LJ in R v Matthews:^[14]

“To summarise these authorities the following propositions appear to emerge: (1) Whilst a large number of interruptions must put this Court on notice of the possibility of a denial of justice, mere statistics are not of themselves decisive; (2) The critical aspect of the investigation is the quality of the interventions as they relate to the attitude of the judge as might be observed by the jury and the effect that the interventions have either on the orderly, proper and lucid deployment of the case for the defendant by his advocate or upon the efficacy of the attack to be made on the defendant’s behalf upon vital prosecution witnesses by cross-examination administered by his advocate on his behalf; (3) In analysing the overall effect of the interventions, quantity and quality cannot be considered in isolation, but will react the one upon the other; but the question which is proposed ultimately for this court is ‘Might the case for the defendant as presented to the jury over the trial as a whole, including the adducing and testing of evidence, the submissions of counsel and the summing-up of the judge, be such that the jury’s verdict might be unsafe?’”

37. [37]
    The trial judge’s intervention in the exchange in the presence of the jury set out at [21] above suggested that the evidence of the witness given in cross-examination may have been elicited in circumstances that were not only unfair to the witness but were also “taken out of context”.  There was however, nothing unfair about the questions asked of the witness by defence counsel.  Prior to being shown her statement, the witness accepted that the complainant may have said to her that the appellant tried to touch her breast and she brushed it off.  Even after the witness was shown her statement, including paragraph 17, her evidence remained consistent as to what the complainant may have told her.
38. [38]
    Thirdly, the interventions by the trial judge in the presence of the jury, which suggested that the questioning was unfair to the witness and her evidence was being taken out of context, would have impacted on the efficacy of defence counsel’s forensic use of the inconsistency.  The only witness to the offending was the complainant.  Her credibility was the central issue at trial.  The jury were entitled to use any inconsistency between the complainant’s version to police and what she told the mother of AK for the purposes of assessing the complainant’s credibility or reliability.  The intervention by the trial judge in the presence of the jury, which resulted in the paragraphs of the statement being read to the witness in re-examination, had the real potential of lessening any forensic advantage arising from the inconsistency.
39. [39]
    In circumstances where the reading of the paragraphs in the witness statement may have affected the jury’s assessment of the credibility and reliability of the complainant’s account of the offending, it must be accepted that there has been a miscarriage of justice.^[15]
40. [40]
    BODDICE JA:  I have had the advantage of reading the reasons of Flanagan JA.  Those reasons accord with my reasons for joining in the making of the orders on 5 May 2023.