R v BEC[2023] QCA 154

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I reached a different conclusion to Livesey AJA and Callaghan J and would have dismissed the appeal against conviction.
2. [2]
   I rely on the summaries of the evidence and the submissions set out in Livesey AJA’s reasons without repeating the material in full in explaining my views.
3. [3]
   I will deal firstly with ground 2 and then with ground 1.

Ground 2 – failure to direct the jury not to accord disproportionate weight to the s 93A written statement that was exhibit 4

4. [4]
   The jury heard the evidence from the complainant by her s 93A video interview recorded on 19 September 2020 being played followed by the second s 93A video interview recorded on 5 October 2020.  The prosecutor then referred to an email the complainant sent to the police on 10 June 2021 that attached three pages in point form (and large type) of what the complainant said had occurred and which the complainant explained in her third s 93A video interview she had conveyed to her psychologist who faithfully recorded those points on the three pages that were attached to the email sent by the complainant as another s 93A statement to the police.  (The major portion of that statement is set out at [39] of Livesey AJA’s reasons.)  The prosecutor placed the statement on the visualiser as the prosecutor read it out to the jury.  The prosecutor then tendered the document.  The trial judge took it that the tender was by consent “that it’s being done this way” to which the appellant’s trial counsel responded in the affirmative and the statement was marked exhibit 4.  (Even though it did not become exhibit 4 until the trial, for ease of reference I will refer to the statement consistently as exhibit 4.)
5. [5]
   The police attended at the complainant’s home on 15 June 2021 to talk with her about exhibit 4 and that recording became the third s 93A video recording that was played for the jury after exhibit 4 had been read out.  The complainant explained in that interview that she had the psychologist write out the statement, as the complainant could not type it as she was “head-bashing the keyboard” and “trying to break my laptop”.  She explained further that the psychologist included the mistakes that the complainant made and it was “word for word exactly what I told her”.  Exhibit 4 was significant in that it dealt with the frequency and habitual nature of the sexual acts which the complainant alleged against the appellant and also it was clear that she alleged penile penetration of her vagina by the appellant when the complainant was on the appellant’s boat on 13 and 14 September 2020.  The content of exhibit 4 was, in effect, incorporated into, and overtaken by, the s 93A video recording and the complainant given an opportunity to expand on those three pages of notes.  The third s 93A recording took place between 11.42 am and 1.29 pm which was a significant amount of time spent on revisiting the notes in exhibit 4.  It was apparent from the transcript of the third s 93A video that the complainant was making many random comments in the interview and making statements such as “You’re a bitch. You’re a slut”, “Bad, bad, bad, bad” and “Lah-lah-lah”.  It was also apparent from the trial judge’s summing up that the complainant exhibited tics during the third s 93A video.
6. [6]
   Unusually for s 21AK pre-recorded evidence when the s 93A statements are primarily a complainant’s evidence in chief, the prosecutor spent a portion of the evidence in chief in showing exhibit 4 on the visualiser to the complainant page by page and having her clarify or correct some of those statements which had already been done to some extent in the third s 93A video.  At the end of the second page in dealing with 2018 and 2019, exhibit 4 recorded that the appellant touched the complainant “about 5 times a week”.  That statement had been modified by the complainant in the third s 93A video to say that the appellant touched her five times a week when he started staying significant amounts of time and, when she was eight years old, he would touch her about that much, but when he did not live with them, it happened only about two or three times a week and sometimes it would not even happen “on weeks”.  In her evidence in chief, the complainant identified that the statement that in 2018 and 2019 he touched her about five times a week was incorrect, as it was only once to twice a week, as he would not visit the family five times a week.  She explained that by touching, she was referring to touching her genitals.  Although exhibit 4 opened with “8 years old living in [regional town]”, the complainant clarified that the abuse started when the family moved in with the appellant in the regional town in 2017 when she was nine years old.  On the third page of the statement, she described that “Once a week he would stick his penis through my underwear.  Would stick the tip in, I would bleed” and stated that started in 2019.  She clarified that it would have been the end of 2019 or the start of 2020.
7. [7]
   As had occurred during the third s 93A video, the complainant made random comments during the pre-recorded evidence.  Exhibit 4 was helpful at the trial in understanding the third s 93A video and the complainant’s pre-recorded evidence in chief.  During the pre-recorded evidence in chief, the prosecutor asked the complainant about her whistling while she was giving evidence.  The complainant explained that at the end of 2020 she began suffering from a medical condition that was known as Tourette’s syndrome and that she anticipated being formally diagnosed in May 2022.  She explained that made her “say involuntarily noises and do involuntary actions such as hitting myself, hitting the table, whistling, making weird facial movements, winking … and just jaw stuff”.  It was also apparent from the trial judge’s summing up that the complainant exhibited tics during her pre-recorded evidence.
8. [8]
   Psychiatrist Dr Down was called as a witness at the trial to confirm that he had diagnosed the complainant in May 2022 as suffering with Tourette’s.  Dr Down explained that Tourette’s syndrome is a neuropsychiatric syndrome that requires the presence of a motor and a vocal tic that had been present for more than a year and it is a genetic disorder; and it is not triggered by a traumatic event but the underlying symptoms might be exacerbated by a traumatic event.  The trial judge explained to the jury during the summing up that Dr Down’s evidence was placed before them to provide an explanation for the complainant’s speech and behavioural tics that they witnessed in the third s 93A video and the pre-recorded evidence and that his evidence was of no relevance to the credibility of the complainant.  They were directed that they could not reason that the complainant developed the problem as a consequence of the stress or anxiety associated with being the victim of sexual abuse.
9. [9]
   The fact that the complainant’s presentation was affected by Tourette’s syndrome was a relevant consideration for the approach of the appellant’s experienced trial counsel to cross-examination of the complainant and the trial.  The strategy of the appellant’s trial counsel’s cross-examination of the complainant was to confine the cross-examination and to focus on specific factual matters where there was either contrary evidence to that given by the complainant or they were arguably inconsistent with the appellant sexually abusing the complainant at the same time.  Those matters included the mole which the complainant had stated in her second interview on 5 October 2020 that she had seen on the appellant’s upper thigh for the first time on 14 September 2020 and that the appellant had accompanied her mother and the complainant for the first appointment with the psychologist Mr Killan after a boy had behaved in a sexual way towards her at school.  The appellant’s trial counsel put the appellant’s case to the complainant that none of the various sexual acts and related conduct which the complainant had described had occurred.  Apart from the general cross-examination of that nature, the appellant’s trial counsel did not cross-examine on the specific contents of exhibit 4 or the third s 93A video.
10. [10]
    The appellant’s trial counsel’s address to the jury focussed on a few key pieces of evidence to urge a reasonable doubt about the complainant’s credibility and reliability.  They included:

    1. (a)
       the stark contrast between the allegations made by the complainant and the evidence adduced on behalf of the appellant to show the complainant was happy in his presence;
    2. (b)
       the Cellebrite printout of the internet sites accessed by the appellant’s iPad on 13 and 14 September 2020 (exhibit 9) showed that the Omegle website was accessed on 14 September 2020 only when the complainant had stated in her evidence that they accessed Omegle on both 13 and 14 September 2020;
    3. (c)
       the fact that the appellant contacted the police about the boy who did something to the complainant at school and the appellant accompanied the complainant and her mother to the first counselling session with Mr Killan and it was asserted that both contacting the police and taking a victim to an independent counsellor was not consistent with the appellant’s sexually abusing the complainant;
    4. (d)
       the complainant had identified that when she was in bed on 14 September 2020 with the appellant, she saw he had a mole on his upper thigh, but the appellant gave evidence that was removed in April 2020 (and that it had been removed was confirmed by exhibit 10) and that there had been occasions previously when the appellant was working as a swimming coach wearing speedos where there would have been opportunities for the complainant to observe the mole;
    5. (e)
       when the complainant had a conversation with her aunt in April 2021 when she told her aunt about things that had happened with the appellant when she was eight years old and he started getting in to her bed and touching her, in the same conversation the complainant said “that she knew it had … happened; she felt like the more she thought about everything that went on, it was like she was getting more and more confused about what did happen” and she said she had “mixed feelings”.
11. [11]
    Exhibit 4 was referred to in the address to the jury on behalf of the appellant when his trial counsel reminded the jury of the approach taken by the prosecutor during the pre-recorded evidence in chief:

“… then we see in the recording of her evidence in the District Court at the occasion where my learned friend was asking her questions that it is a plea as [clear] she’s revising her account of how often things happened, and so on, and revising in front of you.”

12. [12]
    Under s 99 of the Evidence Act 1977 (Qld) (the Act), a statement in a document admitted into evidence under s 93A of the Act may be withheld from the jury during their deliberations, if it appears to the Court that if the jury were to have the document with them during their deliberations they might give the statement undue weight.  It was established as early as R v H [1999] 2 Qd R 283 that, as a general rule, a s 93A tape should not be permitted in the jury room because of the danger that it may be played many times leading to over emphasis on that evidence without considering countervailing evidence.  McMurdo P (with whom Jones J agreed) suggested at 291 that, if the jury requested to hear the s 93A evidence after deliberations commenced, the videotape should be viewed in open court and “The judge should also warn the jury that because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case”.  The focus of R v H is on s 93A video recorded interviews.  The particular vice to which R v H is directed did not apply to exhibit 4 which was a written statement and not a video statement.  Strictly speaking, the written statement attached to the complainant’s email on 10 June 2021 is not caught by the suggested approach in R v H to a s 93A statement that was video recorded.  It was open to the appellant at the trial to apply pursuant to s 99 of the Act for exhibit 4 to be excluded from the jury during their deliberations, if there were a relevant concern about disproportionate weight being placed on the written statement that was corrected, and expanded upon, by subsequent evidence from the complainant.
13. [13]
    Consistent with how the appellant’s trial counsel used exhibit 4 at the trial and the approach taken to focussing on specific factual matters to raise a doubt for the jury about the complainant’s reliability and credibility, there was no demur on behalf of the appellant from the two references made by the trial judge in the summing up that the jury would have exhibit 4 in the jury room.  Exhibit 4 comprised a small fraction of the total s 93A evidence admitted at the trial.  In the circumstances in which the use was made of exhibit 4 in this trial by both the prosecutor and the appellant’s counsel, there was a good forensic reason for the appellant’s counsel not to make an application under s 99 of the Act in relation to exhibit 4 and therefore not oppose exhibit 4 being given to the jury for their deliberations.
14. [14]
    In the circumstances of this trial, I am not persuaded that the trial judge was required by R v H to direct the jury that they should not accord disproportionate weight to exhibit 4.  There was therefore no miscarriage of justice by reason of no such direction being given to the jury.

Ground 1 – no directions about the appellant’s silence and conduct when the complainant’s mother drew his attention to the complainant’s underwear

15. [15]
    The complainant’s mother’s evidence about her observations of the complainant’s underwear on 16 September 2020 and the interaction that she then had with the appellant is summarised at [45]-[46] of Livesey AJA’s reasons.  The appellant’s evidence on the same incident is set out at [50]-[51] of Livesey AJA’s reasons.
16. [16]
    The appellant’s argument on the appeal in support of this ground proceeded on the basis that the prosecution at the trial relied on the appellant’s silence in response to the mother’s statement when she pointed out to the appellant the state of the complainant’s underwear covered “in white stuff” and said “If I didn’t know any better, I would swear [the complainant] was getting abused” as an implied admission to an allegation that the complainant was being abused by the appellant.  The terms of the statement that the mother said in evidence she directed to the appellant did not amount to an allegation that the complainant was being abused by the appellant which called for a response by the appellant: R v Salahattin [1983] 1 VR 521 at 527.  In fact, the appellant’s trial counsel in addressing the jury focussed on the opening words that the complainant’s mother used of “If I didn’t know better” in conjunction with other evidence of the good relationship of the complainant’s family with the appellant to argue that the complainant’s allegations were “something out of the blue”.
17. [17]
    The complainant’s underwear that she had worn on the boat was the subject of evidence given by the mother, the appellant and the complainant.  The prosecutor’s address to the jury concerning the interaction between the complainant’s mother and the appellant on 16 September 2020 was as follows:

“Now, it’s telling of the details of what occurred regarding that he would insert the tip of his penis into her vagina; the fact that she recalled the underwear was thrown by the cabin; that her mum found white stuff on her underwear when she went home after corroborates to an extent what she had said. You may recall that [the complainant’s mother] recalled seeing cum on her underwear and it had been thrown – and she had thrown it out, and she confronted [the appellant] but he walked away. [The complainant], in her evidence, talked about the underwear, that she went home with it after the boat and after that September incident.”

18. [18]
    It is apparent from the prosecutor’s address that the submission that was made by the prosecutor about the supportive aspect of the complainant’s mother’s evidence was in respect of what she noticed about the underwear.
19. [19]
    Livesey AJA has set out that part of the trial judge’s summing up dealing with the complainant’s underwear at [58] of his Honour’s reasons.  I accept that, on one view, the trial judge’s summary of the prosecutor’s contention about the complainant’s mother’s evidence finding the underwear with “white stuff on it” appears to roll up that observation with the complainant’s mother’s evidence she confronted the appellant about it and his reaction was to walk away as all being supportive of the complainant’s testimony.
20. [20]
    In view of the jury’s having heard the prosecutor’s argument on this point, the jury could have only understood that the focus of the prosecutor’s submission was on what was observed on the complainant’s underwear, as the prosecutor’s argument linked the mother’s observation with the complainant’s evidence about the underwear “that she went home with it after the boat and after that September incident”.  Even though the prosecutor characterised the interaction between the complainant’s mother and the appellant as the complainant’s mother confronting the appellant, that was an overstatement of the mother’s evidence and appropriately there was no assertion by the prosecutor in her address to the jury whatsoever that the prosecution relied on the evidence of the appellant’s walking away after the complainant’s mother made a comment about what she saw on the underwear as an implied admission to the statement that the mother said she made about the underwear.  No such assertion could have been made by the prosecutor in the absence of evidence of a statement from the mother to the appellant that unequivocally challenged the appellant that it was he who was sexually abusing the complainant.
21. [21]
    After the jury commenced deliberations, they had a question for the judge to the effect that, if multiple witnesses confirmed the existence of an object, could the jury assume it exists, because it has been mentioned by multiple witnesses?  The trial judge explained that was a question of fact for them to determine by assessing the evidence.  The object that was the subject of that question must have been the complainant’s underwear, as that was the subject of the evidence of the complainant, her mother and the appellant and therefore was an object that was confirmed by multiple witnesses.  The jury question suggests that the attention at the trial was on the underwear and not the differing evidence about the conversation that was found respectively in the evidence of the mother and the appellant.
22. [22]
    There was no risk that the jury would have engaged in an improper process of reasoning based on conduct of the appellant in response to the mother’s statement, as a result of the evidence given by the complainant’s mother and the appellant about their interaction when the complainant’s mother found the underwear “covered in white stuff” when there was no issue identified for the jury at the trial that this may have constituted an implied admission.  There was therefore no miscarriage of justice by virtue of no directions being given of the nature urged on behalf of the appellant in relation to ground 1.
23. [23]
    LIVESEY AJA:  The appellant appeals his convictions after being found guilty by a jury of maintaining a sexual relationship with a child (count 1), together with six other counts of sexual offending which included three counts of rape (counts 3, 7 and 10).  All of the offending concerned the same child, a girl aged between seven and 12 years at the time of the maintaining offending.

24. [24]
    The appellant and the complainant’s mother were formerly in an intimate relationship.
25. [25]
    Pursuant to leave, which was not opposed, senior counsel for the appellant pressed two new grounds of appeal and abandoned all other grounds.  The two grounds upon which the appellant relied are:^[1]

1. A miscarriage of justice occurred because the jury was given no directions about the appellant’s silence and conduct when the complainant’s mother put her suspicion to him.

2. A miscarriage of justice was occasioned by the failure to direct the jury not to accord disproportionate weight to a statement admitted under s 93A of the Evidence Act 1977 (Qld) (the Evidence Act), which went into the jury room when the jury retired to deliberate.

26. [26]
    The written s 93A statement which went into the jury room was an email from the complainant to police dated 10 June 2021, marked as Exhibit 4, which was prepared with the assistance of the complainant’s psychologist.
27. [27]
    Counsel for the Crown submitted that when one had regard to the way in which the trial was conducted before the jury, the appellant’s silence in response to the complainant’s mother could not have been used by the jury as evidence of an implied admission of guilt.  Moreover, whilst counsel conceded that it was an irregularity to allow the complainant’s written s 93A statement to go into the jury room, there was no miscarriage because a direction in accordance with R v H was given concerning the s 93A video recordings of the complainant’s evidence and it was unlikely that the jury would have attributed the same weight to the written evidence.^[2]
28. [28]
    Although counsel for the Crown contended that there was no miscarriage of justice on either of the new grounds pleaded, he accepted that if this Court found otherwise, this was not an appropriate case for the application of the proviso.^[3]
29. [29]
    For the reasons that follow, the Crown’s contentions should be rejected and the appeal should be allowed.
30. [30]
    It was necessary to direct the jury about the proper use to be made of the appellant’s silence and conduct when he was effectively accused of sexual assault by the complainant’s mother on 16 September 2020.
31. [31]
    In addition, it was necessary to consider whether the email dated 10 June 2021 should not go into the jury room, but if it did, to direct the jury not to accord disproportionate weight to it in circumstances where it set out in stark and simple terms the complainant’s very serious allegations of sexual wrongdoing against the appellant.
32. [32]
    Given the importance of the jury’s assessment of the reliability and credibility of the complainant and the appellant, respectively, this is not an appropriate case for the application of the proviso.^[4]

The prosecution case

33. [33]
    The counts concerning rape included allegations that on or about Sunday 13, and Monday 14 September 2020, the appellant engaged in penile penetration of the complainant’s vagina in a cabin of the appellant’s boat when moored at Scarborough.
34. [34]
    There was no dispute that on those evenings the complainant was alone with the appellant on his boat.
35. [35]
    During her recorded interview with police on 19 September 2020, only a few days later, the complainant said only that the appellant touched her under her underwear, under her shirt and massaged her breasts and vagina.  She said that the appellant lay near her without his shorts on and their private parts touched.  The complainant said that the appellant showed her pornographic images on an iPad and attempted to get her to expose her breasts to others online.
36. [36]
    In a subsequent police interview on 5 October 2020, the complainant said that after the appellant had removed her shirt and bra so as to expose her to the camera, they lay down and she felt his penis through her underwear.  She said that her underwear was wet, both inside and out, and that liquid had gone through.  The complainant said that the appellant and she lay on their sides, facing each other and he kept moaning and he pulled her waist towards him.  At that point the complainant’s underwear was around her legs.  The complainant said that this occurred on the second of the two nights on the boat.
37. [37]
    The complainant described the substance on her underwear as neither urine nor blood, but something which she later noticed was dry and crusty.
38. [38]
    The complainant was asked to provide further detail as to what occurred on each of the Sunday and Monday evenings.  The complainant described the appellant trying to expose her body on an online “chat website” called Omegle on Sunday and, after that, they lay side-by-side before the appellant rolled her over so that her back faced his penis.  Her underwear was down around her legs and the appellant fondled her breasts and pulled her towards him.  She felt his “stuff on my stuff” but it was not trying to go into her.  On the Monday night, the complainant said that her breasts were fondled, her shirt and bra were removed and the appellant started ejaculating in her pants.  She described the top of the appellant’s finger going into her vagina and that it finished with the appellant “trying to like rub his stuff on mine”.
39. [39]
    The complainant gave another statement on 10 June 2021.  This was the email sent to police which became Exhibit 4 and, ultimately, the written s 93A statement the subject of appeal ground 2.  The email was prepared by the complainant’s psychologist as the complainant related events during their consultation.  The email was read back to the complainant, and she corrected portions of it before it was sent by the psychologist to police.  Relevantly, the email contained the following statements:

“8 years-old living in [regional town]

… Whispered in my ear, ‘I wonder what a virgin feels like’

… [The appellant] would touch me, and masturbate me.  Telling me to do stuff to myself (my vagina) in the shower.  I did not do it, I thought it was weird.

When in swim wear ‘you have a very nice body’ ‘I would be attracted to you if you were my age’.  ‘You are starting to develop’.  ‘You will get bigger hips and breasts as you get older’

When I would sit on his lap, he would touch my vagina (prefer to call genital area) and move his body under me, bounce and shake me, as well as grind.  I would feel his genital area touch me.  He would not wear underwear.

Would tell me its ‘our secret’ ‘don’t tell mum we play games, otherwise he won’t play me’.  He told me he liked spending time with me.

Make moaning noises in my ears when playing games.

…

He would get angry at me if I said no and beat me,

Touch me about 5 times a week

Once a week he would stick his penis through my underwear.

…

2020

Stayed on the boat with [the appellant] on Sunday night, Monday night and Tuesday morning.  Brought me lingerie and wanted me to wear it.  I told him no for 10 minutes but He became physical with me, I had bruises on stomach so I put it on.  He made me watched porn.  He took my clothes off, and threw my underwear at the wall of cabin.  Held my head down while he made me lay on the bed, and then inserted his penis into my vagina.  He had protection on.  He repeated this throughout the night, and over the night.  He would give me a 5 minute break.  He went on omgle website and exposed my naked body while [the appellant] touched my genitals.  I remember seeing old men watching and laughing.  He ‘cummed’ in my underwear during this time on the boat.”

40. [40]
    As can be seen from these extracts, they represented a concise statement of the complainant’s allegations about the appellant’s habitual sexual offending over a number of years, particularly over the two nights spent on the boat in September 2020.  In a number of respects these statements represented a much clearer statement of the complainant’s allegations of serious offending by the appellant when compared with the video evidence which was played to the jury.  For example, the allegation of penile intercourse on the boat was made very clearly in Exhibit 4.
41. [41]
    In her last interview with police on 15 June 2021, the complainant was asked about the email which became Exhibit 4.  She said that she told the psychologist what to say and that the psychologist wrote “word for word what I said”.  The email was then read out in its entirety by the police officer.  The complainant adopted its contents, line by line, albeit at times with additions and qualifications.^[5]  It was in the course of this evidence that the complainant said that the appellant stuck his genital area in her genital area on the nights of 13 and 14 September.  The complainant described the appellant putting on a blue condom and, when he finished, she noticed liquid in one end of it.  She said this went on between 9.00 pm and 3.00 am.
42. [42]
    In the course of her evidence recorded on video pursuant to s 21AK for the purposes of the trial on 21 February 2022, the complainant was extensively examined about the email which became Exhibit 4.  Although the complainant generally adopted the contents of Exhibit 4, she made further qualifications to the record of her account.^[6]  For example she said that the offending occurred one or two times a week and not five times a week at the end of 2019, the start of 2020, as was suggested in the email.^[7]
43. [43]
    Although the complainant was cross-examined about the first two of the statements she provided to police, she was not specifically cross-examined about the 10 June 2021 email (Exhibit 4), nor about her 15 June 2021 statement.  No suggestion was made to the complainant that the email did not represent the complainant’s own account, or that its content was in any way influenced by the psychologist.  The cross-examination of the complainant highlighted inconsistencies between her evidence and objective evidence, such as the very short time that it was proved that the appellant had used Omegle whilst on his boat.  It was contended that this short time period was not consistent with the complainant’s account.
44. [44]
    Exhibit 4 was, by consent, shown to the jury on a “visualiser” on 2 August 2022 and read out by the prosecutor in open court.^[8]
45. [45]
    The evidence called from the complainant’s mother was that on Wednesday, 16 September 2020, she picked up the clothes that the complainant had brought back from the boat.  She saw that some of the underwear was covered in “white stuff”.  She instantly became angry and walked up some steps and spoke to the appellant.  She said, “If I didn’t know any better, I would swear [the complainant] was getting abused”.
46. [46]
    Without objection from the defence, the complainant’s mother then said that the appellant “just looked at me oddly and walked out of the house”.  The appellant’s mother said that the white stuff looked like “come”.  She threw the underwear in the bin.^[9]
47. [47]
    The complainant’s mother was not cross-examined about her evidence concerning the underwear or what she had said to the appellant.  It was never put to her, for example, that the underwear was simply soiled or that the conversation was other than as she related it.  In particular, important differences reflected in the appellant’s evidence about this conversation, set out below, were never put to the complainant’s mother.  For example, it was never put to her that her suspicion concerned the complainant having sex rather than being sexually abused.
48. [48]
    It was not suggested on appeal that the failure by defence counsel to cross-examine the complainant’s mother on these matters had any rational forensic justification.^[10]

The defence case

49. [49]
    The appellant gave evidence in his own defence, denying the allegations made against him.  He denied that he had ejaculated on or near the complainant during their two-night stay on his boat.
50. [50]
    The appellant said that on Wednesday 16 September 2020, after the stay on his boat, at around lunchtime, he heard the complainant’s mother shout something down near the washhouse.  She came up and said to him, “Look at this festy underwear”.  When cross-examined, the appellant admitted that he heard the complainant’s mother say something about, “if I didn’t know better, [the complainant was] having sex”.  At that stage he was wrestling with their son and, presumably, distracted.  The appellant said that the complainant’s mother said, “have a look at this” and she showed him some underwear.
51. [51]
    Again, without objection, it was put to the appellant in cross-examination that he then looked at the complainant’s mother “oddly”:

“Q:  And she walked up the stairs to speak to you, and she said, ‘If I don’t know any better, I should – I would swear [the complainant] was getting abused’?

A:  I heard a bit of that.  I heard something about, ‘If I didn’t know better, [the complainant] was having sex’, or something, from my recollection.  I was actually wrestling [our son] on the lounge room floor at the time, but I did get the gist of what she was saying, and I – I just looked at her, and she said, ‘Have a look at this’, and I – she showed me the underwear.

Q:  And now, you made a face before that when she spoke to you, after she told you these things.  I suggest that you looked at her quite oddly?

A:  Yes.

Q:  Was there any reason why you looked at her odd?

A:  Yes.

Q:  Is the reason why you looked at her odd was because you felt that you were caught out?

A:  No. I was actually wondering – I had seen my other daughter have underwear like that in her teen years, and I also knew that [the complainant’s mother] knew of [the complainant’s] hygiene issues.  So when she showed me dirty underwear, I was like, ‘Well, what’s abnormal about that?’  And that was pretty much it.  I just crinkled up my nose.”

52. [52]
    The cross-examiner then formally put the various allegations of sexual offending to the complainant, and he denied them all.  As can be seen from the appellant’s evidence-in-chief and cross-examination, he did not accept the entirety of the account by the complainant’s mother as to what occurred on 16 September 2020.  Effectively, he said that he understood the conversation differently and he did not accept that there was dried semen on the complainant’s underwear.  Indeed, his evidence was that the complainant’s underwear was dirty or soiled before she came onto the boat.^[11]

Final addresses and summing-up

53. [53]
    Counsel for the appellant at trial did not address the evidence of the complainant’s mother about events on 16 September 2020, nor Exhibit 4 in final address.  The closest counsel came to addressing Exhibit 4 was to point out to the jury that in the video recording of the complainant’s evidence, it was clear that she was “revising her account of how things happened, and so on, and revising in front of you”.^[12]  Particular emphasis was given by the defence in final address to the appellant’s conduct in making contact with police in order to assist the complainant in dealing with alleged misconduct by a boy towards the complainant at her school.  The contention was that the appellant would not have made contact with police if he had anything to fear.  It was suggested that the jury ought not discount the possibility that the complainant had, for whatever reason, made up her allegations.
54. [54]
    The conversation between the complainant’s mother and the appellant on 16 December 2020 had not been opened on by the prosecution.  However, in closing address the prosecutor said to the jury:^[13]

“You may recall that [the complainant’s mother] recalled seeing cum on [the complainant’s] underwear and it had been thrown – and she had thrown it out, and she confronted [the appellant] but he walked away. [The complainant], in her evidence, talked about the underwear, that she went home with it after the boat and after that September incident. Now, if you look at count 7 and 10 [the rape counts], ladies and gentlemen, it relates to the defendant inserting his penis on the 13^th and 14^th of September into the complainant’s vagina, and based on the way that she described those events, you’d be satisfied beyond a reasonable doubt that [the appellant] is guilty of those two offences.”

55. [55]
    During the course of his careful summing-up, the trial judge directed the jury as follows:^[14]

“Now, the evidence is what witnesses said, either through recorded evidence, either in pre-recorded evidence, or in police interviews that was recorded. Also an email statement [Exhibit 4] that the complainant sent to the police, that forms part of her evidence. As well as any evidence that was given by witnesses from the witness box, or via audio or visual link. Any exhibits that were tendered and marked as exhibits, other than for the recorded material. Also – well, I will say that again. Any exhibits that were tendered also forms part of the evidence. You will have the exhibits with you in the jury room, other than for the recorded material. If you wish to view any of the recorded material, you need to send a note out through the Bailiff and that would have to occur in open court.”

56. [56]
    The practice referred to by the trial judge regarding the reviewing of the complainant’s s 93A video evidence in open court is that which had been recommended by McMurdo P and Shepherdson J in R v H.^[15]
57. [57]
    A little later in the summing-up the trial judge referred to the email (Exhibit 4) that the complainant had sent to police on 10 June 2021.  His Honour said:^[16]

“You will have a copy – you will have that with you when you retire to consider your verdict. That made it clear that the behaviour in question was habitual and regular. The complainant agreed that after moving to [coastal town] there was a period of time when she did not see him. But that he would then start to appear on the scene more regularly. And it was submitted to you that it is not surprising that the complainant was not clear as to how often things occurred, given the frequency of inappropriate conduct and the nature of the conduct in and of itself.”

58. [58]
    When the trial judge addressed the prosecution contentions concerning counts 7 and 10, the rape allegations on the boat, he said this:^[17]

“You were also taken by counsel to the complainant’s mother’s evidence about finding a pair of the complainant’s underwear after that weekend at the boat. That it had white stuff on it, and that when she confronted the defendant, his reaction was to simply walk away. And that that, in part, supports the complainant’s testimony.”

59. [59]
    No direction was given by the trial judge regarding the way in which the jury should address the evidence of the complainant’s mother, or about the appellant’s reaction, on 16 September 2020.  However, on 5 August 2022 after they retired to consider their verdict, the jury asked the following question, which appears to refer to the complainant’s underwear as “an object”:^[18]

“So if multiple witnesses confirm the existence of an object, that would be considered … evidence that had been presented to the jury, however, it itself is absent, can we the jury assume it exists because … it has been mentioned by multiple witnesses?

HIS HONOUR:  Well, I can’t answer that question.  That’s a question of fact for you to determine.  You need to assess the evidence on whatever the point might be, consider the evidence that was given, and make a determination as to what evidence you will accept and what evidence you do not accept.  But as I have said to you from the very start, you are the sole judges of the facts, not me.  So I am not able to assist you in relation to your assessment of the evidence determining what evidence you rely upon as fact and what evidence you might reject.  That is entirely a question for yourselves, and you need to discuss that and work that out amongst yourselves.”

60. [60]
    The jury also requested an opportunity to view Exhibit 2, one of the video statements obtained from the complainant pursuant to s 93A.  After it was played to the jury in open court, the trial judge gave the following further direction:

“All right.  Well, that is the recording, ladies and gentlemen.  Just be careful not to place undue weight on that recorded evidence simply because you have heard it and seen it a second time.

You should consider it, of course, but consider it as well as all of the – of the other evidence that you have heard in the trial, including the evidence presented by the defendant.  That is his evidence – particularly his denial of wrongdoing – and the evidence [the witnesses] as to their observations … and you should also bear in mind the matters relied upon by both the Prosecutor and Defence counsel in support of their respective arguments and their submissions to you.”

61. [61]
    No criticism is made of this direction.
62. [62]
    No direction was given along these lines regarding the email dated 10 June 2021 (Exhibit 4).

Appeal Ground 1

63. [63]
    Trial judges in criminal proceedings give juries directions and warnings to assist them when undertaking their responsibility to determine and analyse the facts.  As importantly, some directions and warnings are given because of the risk that juries may be ignorant about the dangers associated with certain kinds of evidence which are liable to be misused or given inappropriate weight.^[19]
64. [64]
    In this way, juries are given the benefit of the long experience of the criminal courts in undertaking fact-finding and in dealing with certain kinds of evidence.  Examples of cases where assistance is usually required include cases involving identification evidence, evidence about lies told by an accused, and cases involving evidence which is capable of being regarded as a form of express or implied admission of guilt by an accused.  In this last-mentioned kind of case the evidence may take many forms.  In some cases it may be evidence led by the prosecution of flight from, or lies told after, alleged offending, whilst in others it may take the form of the failure by the accused to deny an accusation made to or in the presence of the accused.
65. [65]
    In R v Grills Isaacs J explained the broad scope for an accused to make an express or implied acknowledgment of guilt, including in those cases where “if innocence existed, an unequivocal or a qualified denial would … be expected”:^[20]

“It is an elementary rule of law, going to the very foundation of justice, that no man shall be adjudged to be guilty of a crime upon evidence of another person’s previous assertions.  It matters not whether the assertion was made in the absence or the presence of the accused, as a mere assertion it cannot be regarded as any proof of the culpability of the accused or any confirmation of his accusers.  But it is evident that upon such an assertion being made, and equally whether in the accused’s absence or presence, he may admit its truth, and if he does, then it becomes evidence against him of his guilt, not because another has said it, but because of the admission.  It is then equivalent to his own statement, and is receivable in that character.  And it is further manifest that the acknowledgment of its correctness may be made in an infinite variety of ways.  There may be express and unqualified admission, or there may be a guarded admission, or there may be no direct but merely an implied acknowledgement or there may be conduct, active or passive, positive or negative, from which, having regard to the ordinary workings of human nature, a total denial may be considered by reasonable men to be precluded, because, if innocence existed, an unequivocal or a qualified denial would in such a situation be expected.”

66. [66]
    In Barca v The Queen the High Court emphasised the desirability of a trial judge explaining to the jury the circumstances in which statements made in the presence of the accused can be used against the accused:^[21]

“In any case, where evidence is admitted of statements made in the presence of an accused it is in general desirable that the judge should explain to the jury that they can only use the statements as evidence of the truth of what was stated if they are satisfied that the accused has by his speech, silence or conduct admitted their truth.”

67. [67]
    In R v Salahattin,^[22] the Victorian Court of Criminal Appeal considered whether the factual circumstances were sufficient to give rise to a conclusion that the accused had made what amounted to an implied admission by silence.  The evidence, which was led without objection, was that police raided a motel room and inside found three men and heroin.  The police questioned two of the men about who had financed the acquisition of the heroin.  One of those men pointed to the third man in the room and named him.  The admissibility of the third man’s silence was addressed in the following way:^[23]

“For the principle is that an allegation is not admissible in evidence against an accused person unless the circumstances are such as to leave it open to the jury to conclude that the accused, "having heard the statement and having had the opportunity of explaining or denying it, and the occasion being one upon which he might reasonably be expected to make some observation, explanation or denial, has by his silence, his conduct or demeanour or by the character of any observations or explanations he thought fit to make, substantially admitted the truth of the whole or some part of the allegation made in his presence": see R v Smith (1897) 18 Cox CC 470, at p 471, per Hawkins, J -- or that he has so conducted himself as to show consciousness of guilt -- see R v Thomas, [1970] VR 674, at p 679.

Whether that inference can be drawn in the present case depends on the coalition of a number of facts.”

68. [68]
    The Court addressed three matters: first, whether the accused heard the statement; secondly, whether he understood the statement; and thirdly, whether the facts contained in the statement were within his personal knowledge.  The Court held that it was open to the jury to decide whether or not a contradiction or denial could be expected if the allegations were untrue, as well as whether any inference could be drawn from the accused’s failure to deny what was asserted in the statement made in his presence.^[24]  The Court then emphasised that whilst what was in issue was a matter of fact for the jury, some direction to the jury was necessary:^[25]

“The justification of the doctrine of an adoptive admission rests on human experience, on the probabilities of human reactions, in the circumstances prevailing at the time, to the making of an accusation, and these probabilities are capable of being assessed by the jury provided that their attention has been directed to the need to be satisfied that the accused was silent because he did not dispute but on the contrary accepted the truthfulness of the allegations made in his presence concerning him.”

69. [69]
    Similarly, in R v Alexander^[26] the accused was alleged to have separately told two acquaintances that police could not prove a case of murder against him and, in addition, he had not protested his innocence.  The Victorian Court of Criminal Appeal observed that while special rules applied to statements made to police or others in authority, those rules did not apply to statements made to persons “on even terms”:^[27]

“The issue here concerns an assessment of human behaviour. That assessment is best made by a jury. In our opinion, it was open to the jury to accept that in the context of the whole of the relevant conversation, the failure of the applicant to proclaim his innocence amounted to conduct inconsistent with innocence. Taken out of context, different considerations may well apply. It is true that this evidence has no great probative value, and we think it would have been wise for the judge to have so advised the jury, and to have given some assistance to the jury as to the use which might be made of the evidence. However, his failure to do so cannot in our view lead to a finding of error.”

70. [70]
    In R v Gallagher^[28] the Victorian Court of Appeal held that the silence of an accused in response to an implicating statement put to him during a telephone conversation was admissible.  Evidence had been admitted, without objection, that during a telephone conversation the accused's former de facto wife threatened that if the accused did not stop making contact with her and her children she would tell the police that he had committed a robbery.  Her evidence was that the accused remained silent during the call and, after it, he stopped contacting her.  The trial judge gave a “consciousness of guilt” direction regarding the accused’s cessation of contact which was regarded as favourable to the accused.^[29]
71. [71]
    Ashley AJA, with whom Brooking JA agreed on this point, considered Salahattin and Alexander.  His Honour doubted whether the evidence of the conversation was sufficiently clear to enable any inference to be drawn from the accused’s silence, particularly as the call ended abruptly as a result of the accused hanging up.  However, his Honour held that the accused’s conduct after the call was capable of being characterised as a form of consciousness of guilt.^[30]
72. [72]
    In R v Nguyen, Winneke P (with whom Chernov JA agreed) recognised that evidence of post-offence conduct, introduced to support an inference of consciousness of guilt, is often “highly ambiguous and susceptible to jury error”.^[31]  As his Honour explained, the danger is that a jury may fail to consider alternative explanations for the accused’s behaviour and “mistakenly leap from such evidence to a conclusion of guilt” rather than consider whether the accused “fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation”.^[32]
73. [73]
    An example of the range of problems that may arise in cases of silence is provided by the decision of the Victorian Court of Appeal in R v MMJ, where the particular evidence was described as “beguilingly simple”.^[33]  In that case the applicant had been convicted by a jury in the County Court of one count of maintaining a sexual relationship with a child under 16 and three counts of incest.^[34]  One of the issues raised on appeal was the relevance and admissibility of evidence given by the applicant’s former wife and the mother of the complainant about a statement she made to the applicant and his response.  The evidence was as follows:

“Did you have a suspicion that something may be happening between your husband and your daughter? --- Yes

Did you have a conversation about that with your husband? --- Yes, one day I approached [the applicant] and I said, “Are you sexually involved with [A], or have you been sexually involved with [A]?”

All right, if I can just stop you there? --- M’mm.

Are you able to say about how old [A] was when you had that conversation? --- She would’ve been over seventeen.

What did he say, if anything, when you asked him that? --- He didn’t, he just looked at me and looked away and continued to watch television.

So he ignored you? --- Yes.”

74. [74]
    In cross-examination, the complainant’s mother agreed that the applicant often ignored her during their arguments, particularly if he thought her questions were “stupid”.  That was a case where the speech of the prosecutor on this point was criticised as being “forceful”^[35] and where no objection had been made or direction sought by defence counsel at the trial.
75. [75]
    Chief Justice Warren recited the argument on the issue of present relevance before the Court in that case in the following way:^[36]

“It was submitted for the applicant that on the basis of the principles in R. v. Salahattin^[37], R. v. Alexander^[38] and R. v. Gallagher^[39] directions ought have been given as to the use the jury could make of the evidence of the applicant’s silence towards his wife’s questions.  It was submitted for the applicant that the evidence (and its application as submitted by the prosecution to the jury) was tantamount to evidence of consciousness of guilt and that there ought to have been some attention by the judge to the ambiguity in the evidence and the way the jury could use the evidence of the applicant’s silence.”

76. [76]
    After reviewing the authorities, Warren CJ agreed that the jury should have been given directions about the accused’s silence.  Her Honour found that the accused’s silence could only be used as an admission of guilt if it revealed knowledge of the offence and that the accused had acted as he did because he knew that he might otherwise be implicated.^[40]   The absence of any directions “at all” from the trial judge created “a substantial risk of injustice … as to how the jury would treat the evidence and the address of the prosecutor”.^[41]
77. [77]
    Ashley JA (with whom Buchanan JA agreed) commenced with the way in which silence or other behaviour may be used as an admission, citing the observations of Windeyer J in Woon v The Queen:^[42]

“A question asked of a person accused or suspected of a crime, or a statement made in his presence, is admissible if he is invited to, or might reasonably be expected to, respond in some way indicative of denial or of acceptance.  It is not that what is said to the accused can of itself be evidence against him.  But his response or reaction may be; and that is why what is said to him is admitted.  His words, silence or conduct may amount to an admission of the truth of what was said.  This is subject to the qualification that no inference adverse to a man can be drawn from his refusal to answer questions which he has been expressly told he is not bound to answer or from his silence after he has been told he need not speak at all.”

78. [78]
    Justice Ashley held that it was difficult to treat the accused’s silence as an admission or as revealing a consciousness of guilt because the question asked of the accused was put in such general terms.^[43]  It could not have been referable to the allegations of offending which occurred after the conversation and, as to the allegations of offending before it, there remained a number of uncertainties as to exactly what it was that the accused was said to be admitting, with the result that the jury should have been directed against adopting consciousness of guilt reasoning:^[44]

“Given the prominence which the particular evidence assumed in the prosecutor’s final address, ambiguity as to the use to which he invited the jury to use that evidence, and the likely very prejudicial impact upon the applicant’s case of such evidence being misused, I consider that it was necessary for the trial judge to give a direction which  made it plain that  the jury was not able to reason that the applicant had been silent out of consciousness of guilt of the offences charged, or any of them.  But whether or not a direction along those lines was required - notwithstanding the fact that no relevant exception was taken at trial - there were, in my opinion, other problems with the particular evidence which unarguably called for directions that were not given.”

79. [79]
    Justice Ashley later explained the questions the jury should have been directed to consider, which included the following:^[45]

“…the jury could only use the accusatory statement implicit in the question as evidence of the truth of what was stated if it was satisfied that the accused had by his silence admitted the truth thereof.

… in considering the reaction of the accused to the accusatory statement implicit in the question, the jury should consider, first, whether it was satisfied that the accused had heard the question, and second, whether the circumstances were such that the accused should have been expected to make a denial of it.  If it was satisfied of each of these matters then it might treat his silence as evidence of the truth of the accusatory statement implicit in the question.  In those circumstances, it could treat the evidence as showing a relationship between the accused and the complainant – at least in the period embraced by the question, but not necessarily confined to that period – in which context the evidence of the particular charged offences could be considered.”

80. [80]
    The appeal was allowed.
81. [81]
    By contrast, in R v Lester, the relevant statement was specifically directed to particular offending, in that case the murder of the accused’s wife.^[46]  Four weeks after the murder, a longstanding friend of the accused asked him whether he “did it”, to which the accused responded, “Just mind your own fucking business.  Keep out of it. It’s nothing to do with you”.  This Court held that this evidence was admissible and no error was made in declining to exclude the evidence under s 130 of the Evidence Act for, as the trial judge held, the accused’s words were:^[47]

“expressed in circumstances where it's reasonable to expect that the defendant would immediately deny it, so that the absence of such a denial is some evidence of an admission on his part of the truth of the charge or some evidence of conduct by him such as to show consciousness of guilt.”

82. [82]
    In the present case, it is true that what was said by the complainant’s mother to the appellant on 16 September 2020 was not the subject of submissions made in opening or closing by the prosecution so as to suggest to the jury they should rely upon what was said, and particularly the appellant’s silence and reaction to what was said, as some evidence which was probative of the appellant’s guilt.  No explicit resort was made to consciousness of guilt reasoning.
83. [83]
    Equally, it is also true that counsel for the appellant at the trial did not address this evidence.  No attempt was made by defence counsel to have any aspect of the evidence excluded or to seek a direction or warning from the trial judge about the way in which this evidence might properly be used by the jury.  In particular, the judge was not asked to give directions on the matters about which the jury must first be satisfied before they could, for example, use the appellant’s reaction as some evidence probative of his guilt.
84. [84]
    The failure of defence counsel at the trial to seek a warning or direction regarding certain evidence may in some cases represent an indication that the impugned evidence did not feature in the trial and was, at least relatively speaking, of no real significance.^[48]  That kind of consideration may well assist the appeal court to conclude that the absence of a direction or warning has caused the appellant no prejudice and there has been no failure to ensure that the trial was fair according to law.
85. [85]
    In addition, though a party is generally bound by the conduct of counsel at the trial,^[49] it is nonetheless relevant to consider whether there is any rational forensic justification for counsel’s failure to object or seek a warning or direction concerning a point later raised on appeal.^[50]
86. [86]
    Whether this Court should in this case conclude that there has been a miscarriage of justice depends on a review of the record as a whole, particularly the nature and quality of the evidence given by the complainant’s mother, about which the appellant was cross-examined, concerning their interaction on 16 September 2020.
87. [87]
    Evidence about a statement which has been made to or in the presence of an accused, which went unanswered by the accused, may or may not be associated with a real risk that the jury could use that evidence as in some way implicating the accused in the offending alleged.  Each case must necessarily depend on its own facts and circumstances, particularly the matters in issue and precisely what it is contended was said to or in the presence of the accused.  Where the statement made to or in the presence of the accused is clearly referable to the allegations made against the accused, as in R v Lester,^[51] the trier of fact might well regard any failure by the accused to respond with a denial as a matter of some significance.  Indeed, the morestark the statement or accusation made to the accused, the more significant will be the evidence concerning any response made by the accused, even if little is made of the issue in addresses.
88. [88]
    In the course of argument before this Court it was suggested by the Crown that the cross-examiner in the passage earlier outlined had merely “flirted” with “consciousness of guilt” reasoning.
89. [89]
    The cross-examination of the appellant, whilst not lengthy on this point, was very clear in its effect.
90. [90]
    It was the prosecution case that the appellant had ejaculated on the complainant’s underwear and that this had been discovered by the complainant’s mother.  The mother’s evidence was that she became angry and that she challenged the appellant about what she had discovered, in circumstances where the appellant and the complainant had just spent two nights alone together on the appellant’s boat.  Unlike cases such as R v MMJ,^[52] this was not a case where the timing of what was in contemplation was uncertain, or where the circumstances surrounding the statement and the accused’s response to it did not clearly refer to particular offending.
91. [91]
    The better view of the cross-examination in this case was that it was being put to the appellant that he looked at the complainant’s mother “oddly” and left the house because he knew that he had been caught out, having engaged in the sexual abuse of the complainant.  The cross-examination clearly went to the accused’s guilt,^[53] rather than merely his credibility.^[54]  That this was put to the appellant toward the end of the cross‑examination and just before the cross-examiner formally put to the appellant that he had engaged in various kinds of sexual offending cannot have escaped the attention of the jury.
92. [92]
    The jury might well have thought that this was exactly the kind of pointed accusation which it would be expected the appellant should immediately have answered.  The jury might well have reasoned that the appellant gave an “odd” look and walked out of the house because he was unable to provide any answer to the complainant’s mother which was consistent with his innocence.  This process of reasoning tends to underscore the prejudicial nature of the evidence concerning the appellant’s “odd” look, whatever that was intended to convey, when combined with the appellant’s silence and departure from the house.
93. [93]
    In a manner that accorded with this potential process of reasoning, the trial judge took the matter a step further than the prosecutor’s closing address in the course of his summing-up.  The trial judge’s summing up connected the condition of the complainant’s underwear with the appellant’s reaction to the statement of the complainant’s mother which, his Honour told the jury, “in part, supports the complainant’s testimony”.
94. [94]
    That is, both the condition of the complainant’s underwear and the appellant’s reaction were to be treated by the jury as supporting the complainant’s testimony.  On one view of it, this merely reflected how the jury might approach the evidence in any event.  And, whilst this portion of the summing-up was given in the course of reciting the arguments of counsel for the prosecution, that feature nonetheless reinforced the proposition that this was how the prosecution case should be viewed, namely, that the complainant’s evidence was, effectively, corroborated by the condition of the complainant’s underwear and the appellant’s reaction to the mother’s accusation (that is, silence combined with an odd look and then walking out of the house).
95. [95]
    Of course, the appellant’s reaction could only be regarded as supporting the complainant’s evidence if it was open to view it as a form of implied admission of guilt.
96. [96]
    As the cases which have been discussed show, there are a number of features associated with cases involving what appears to be an admission by silence which may not immediately be apparent to a jury.  Whilst this kind of evidence might be thought to be straight forward, raising inferences which can be determined by a combination of “common sense” and the collective life experience of the jury, there is a real risk that important issues may be overlooked, such as whether the appellant heard and understood all that was said by the complainant’s mother.
97. [97]
    As is clear from the question asked by the jury about the missing “object”, the complainant’s underwear was an important issue at the trial.  Whether it was stained with semen or was simply dirty was likewise an important issue.  Because the complainant’s mother had thrown the underwear out, no forensic testing for semen could be undertaken.  The presence or absence of semen was effectively addressed as part of the conflict between the evidence of the prosecution and the appellant’s evidence.  That extends to whether the appellant saw dried semen on the underwear when confronted by the complainant’s mother.  Given the way in which the evidence was elicited from the complainant’s mother about what she said and did about the underwear, together with the way in which the appellant was cross-examined on these matters, it is not possible to treat the evidence about the complainant’s underwear as somehow divorced from the appellant’s reaction to the conversation about it.  Those two matters were necessarily linked.  It was necessary, in the circumstances of this case, that the jury be given some assistance when undertaking their fact-finding so as to avoid a miscarriage of justice:^[55]

“When a warning is needed to avoid a miscarriage of justice, it must be given; when none is needed to avoid a miscarriage, none need be given.  The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content.”

98. [98]
    In these circumstances, it is difficult to understand what the rational forensic justification could be for refraining at the trial from objecting to the evidence of the complainant’s mother that the appellant gave an “odd” look or, indeed, for refraining from objecting to the cross-examination of the accused about that “look”.  But even if one were to leave that issue to one side, once that evidence was before the jury it is particularly difficult to understand the rational forensic justification for failing to have the trial judge give clear directions to the jury about the way in which the evidence should have been addressed.
99. [99]
    The assistance which a trial judge can give a jury in circumstances such as these has, as has been seen, been considered on a number of occasions.^[56]  The directions in this case need not have been lengthy or complicated.  The jury should have been directed along the following lines:

1. If the jury accepted the evidence of the accused about the conversation with the complainant’s mother on 16 September 2020, or if his account remained a reasonable possibility, or they were in doubt about what was said or seen, then they could not use the account given by the complainant’s mother and the accused’s reaction to it in support of the prosecution case.
2. Alternatively, if the jury was satisfied that the account given by the complainant’s mother occurred as she described, then the jury had to be satisfied that the accused heard and understood all of what was said.  If it was reasonably possible that the accused did not hear and understand all of what was said, then the jury could not use the evidence.
3. If the jury was satisfied that the accused heard and understood what was said, the jury would then have to be satisfied that, in the circumstances, the accused should have been expected to deny the implication conveyed.  It was necessary to consider whether the accused failed to respond and left the house for an entirely innocent reason, such as panic, embarrassment or fear of false accusation, in which case the jury could not use the evidence.
4. Only if the jury was satisfied that the accused heard and understood what was said, and should have responded to the complainant’s mother, could the jury use the appellant’s silence and departure from the house as a form of acknowledgment that he was involved in the sexual abuse of the complainant on the boat.

100. [100]
     In the circumstances of this case, in the absence of any directions along these lines, there necessarily remains the risk that the jury reasoned that the appellant’s reaction represented evidence, independent of the complainant, which supported a finding that he had engaged in the sexual offending which the complainant alleged occurred on the boat.^[57]  That is, the jury may have used the evidence as probative of guilt without first considering whether the appellant’s version of events should be preferred or remained a reasonable possibility, as well as without considering whether they were satisfied that the appellant heard and understood all that was said and should have responded to the complainant’s mother.  It was only after considering questions such as these that the jury could use the conversation and the appellant’s reaction to it as some evidence in support of the prosecution case, to be considered as part of the whole of the evidence before them.
101. [101]
     Accordingly, there is a significant possibility that the absence of any directions to the jury on this topic prejudiced the appellant and affected the outcome of the trial.^[58]  The result is that there has been a miscarriage of justice within the meaning of s 668E(1) of the Criminal Code (Qld).
102. [102]
     It follows that appeal ground 1 should be upheld.

Appeal Ground 2

103. [103]
     The general rule applied in Queensland regarding the statements of a child complainant, whether they have been obtained before the trial and admitted pursuant to s 93A, or pre-recorded on video as part of the trial pursuant to s 21AK of the Evidence Act, is that they do not usually go into the jury room.^[59] 
104. [104]
     Section 93A is concerned with the admission into evidence of statements made out of court and before the trial by children or witnesses with a mental impairment and provides:

“93A Statement made before proceeding by child or person with an impairment of the mind

3. (1)
   In any proceeding where direct oral evidence of a fact would be admissible, any statement tending to establish that fact, contained in a document, shall, subject to this part, be admissible as evidence of that fact if—

1. (a)
   the maker of the statement was a child or a person with an impairment of the mind at the time of making the statement and had personal knowledge of the matters dealt with by the statement; and

2. (b)
   the maker of the statement is available to give evidence in the proceeding.

3. (2)
   If a statement mentioned in subsection (1) (the main statement) is admissible, a related statement is also admissible as evidence if the maker of the related statement is available to give evidence in the proceeding.

(2A) A related statement is a statement—

1. (a)
   made by someone to the maker of the main statement, in response to which the main statement was made; and

2. (b)
   contained in the document containing the main statement.

(2B) Subsection (2) is subject to this part.

3. (3)
   Where the statement of a person is admitted as evidence in any proceeding pursuant to subsection (1) or (2), the party tendering the statement shall, if required to do so by any other party to the proceeding, call as a witness the person whose statement is so admitted and the person who recorded the statement.

(3A) For a committal proceeding for a relevant offence, subsections (1)(b) and (3) do not apply to the person who made the statement if the person is an affected child.

Note—

For the taking of an affected child’s evidence for a committal proceeding for a relevant offence, see part 2, division 4A, subdivision 2.

(3B) This section does not affect the application of the Justices Act 1886, sections 110A to 110C to a committal proceeding.

3. (4)
   In the application of subsection (3) to a criminal proceeding—

party means the prosecution or the person charged in the proceeding.

3. (5)
   In this section—

affected child see section 21AC.

child, in relation to a person who made a statement under subsection (1), means—

1. (a)
   a person who was under 16 years when the statement was made, whether or not the person is under 16 years at the time of the proceeding; or

2. (b)
   a person who was 16 or 17 years when the statement was made and who, at the time of the proceeding, is a special witness.

relevant offence see section 21AC.”

105. [105]
     Section 93A is confined in its operation to statements made by children or witnesses with a mental impairment who are available to be called, see s 93A(1)(b).  It supplements ss 92 and 93, which are general provisions facilitating the admission into evidence of documents containing statements made out of court that might otherwise be regarded as inadmissible hearsay.  For example, in civil proceedings, s 92 permits the admission into evidence of a statement made in a document where the maker of the statement had personal knowledge of the matters dealt with by the statement, or where the document forms part of a record relating to any “undertaking” and made in the course of that undertaking.  Whether it is necessary to call the maker of the statement is addressed by s 92(2).  In the case of criminal proceedings, s 93 requires that the document is or forms part of a record relating to any “trade or business” and the document was made in the course of that trade or business, and the supplier of the information is dead, unable to give evidence or otherwise unable to be called or recollect the matters dealt with by the statement.
106. [106]
     None of these provisions address the weight that might be given to the statements which are admitted.  That must be addressed in the usual way having regard to the credibility and reliability of the maker of the statement, or the apparent contemporaneity and reliability of the record or document in which the statement is contained.  The weight to be given to the evidence, regardless whether it is in writing or some other form, such as a video recording, is not necessarily affected, still less determined, by its form.
107. [107]
     Sections 21AK and 21AM form part of a dedicated suite of provisions in Division 4A of the Evidence Act, designed to facilitate the taking and recording of evidence from “affected children” in court and ostensibly as part of the trial but before the jury has been empanelled.  The purpose of these provisions is explained by s 21AA:

“21AA Purposes of div 4A

The purposes of this division are—

1. (a)
   to preserve, to the greatest extent practicable, the integrity of an affected child’s evidence; and

2. (b)
   to require, wherever practicable, that an affected child’s evidence be taken in an environment that limits, to the greatest extent practicable, the distress and trauma that might otherwise be experienced by the child when giving evidence.”

108. [108]
     In order to achieve these purposes, s 21AB provides:

“21AB How purposes are to be achieved

To achieve the purposes of this division, the division prescribes the following measures for an affected child when giving evidence for a relevant proceeding—

1. (a)
   for a criminal proceeding—

1. (i)
   the child’s evidence is to be prerecorded in the presence of a judicial officer, but in advance of the proceeding;

2. (ii)
   if the measure in subparagraph (i) can not be given effect, the child’s evidence is to be given at the proceeding, but with the use of an audio visual link or with the benefit of a screen;

3. (iii)
   for a committal proceeding, the child’s evidence-in chief is to be given only as a statement and, ordinarily, the child is not to be called as a witness for cross-examination;

2. (b)
   for a civil proceeding, the child’s evidence is to be given at the proceeding with the use of an audio visual link or with the benefit of a screen.”

109. [109]
     The definition of “affected children” is contained in s 21AC and essentially comprises children who are witnesses (but not defendants) in a relevant proceeding for a relevant offence:

“relevant offence, in relation to a proceeding, means—

1. (a)
   an offence of a sexual nature; or

2. (b)
   an offence involving violence, if there is a prescribed relationship^[60] between a child who is a witness in the proceeding and a defendant in the proceeding.

relevant proceeding means—

1. (a)
   a criminal proceeding for a relevant offence, whether or not the proceeding also relates to other offences; or

2. (b)
   a civil proceeding arising from the commission of a relevant offence.”

110. [110]
     The admissibility of s 21AK video recordings is addressed by s 21AM:

“21AM Use of prerecorded evidence

3. (1)
   The affected child’s evidence contained in a videorecording made under this subdivision for a proceeding, or in a lawfully edited copy of the videorecording—

1. (a)
   is as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court; and

2. (b)
   is, unless the relevant court otherwise orders, admissible in—

1. (i)
   any rehearing or retrial of, or appeal from, the proceeding; or

2. (ii)
   another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or

3. (iii)
   a civil proceeding arising from the commission of the relevant offence.

3. (2)
   The admissibility of the evidence for a proceeding is not affected only because the child turns 18 before the evidence is presented at the proceeding…”

111. [111]
     By s 21AS, where the trial is on indictment, the prosecutor must inform the court at the time the indictment is presented that an affected child may give evidence in the proceeding, and by s 21AU the public are excluded from the court when the affected child gives evidence or the recording is replayed.  Under s 21AV the affected child is entitled, with the court’s approval, to the presence of a support person.  Section 21AW prescribes the instructions that must be given to a jury about this evidence:

“The judicial officer presiding at the proceeding must instruct the jury that—

1. (a)
   the measure is a routine practice of the court and that they should not draw any inference as to the defendant’s guilt from it; and

2. (b)
   the probative value of the evidence is not increased or decreased because of the measure; and

3. (c)
   the evidence is not to be given any greater or lesser weight because of the measure.”

112. [112]
     It can be seen that both s 93A and s 21AM facilitate the admission into evidence of evidence that is given before the trial commences and, in the case of s 21AM, by s 21AW the evidence is not to be given any greater or lesser weight because of the way in which it was recorded.
113. [113]
     The cases cited by the parties on this appeal addressed video recordings of evidence given by child complainants and, whether adduced under s 93A or s 21AM of the Evidence Act, the same approach was generally taken to the way in which those video recordings were managed before the jury: they were played in open court and, if they were replayed, they were the subject of directions that they were not to be given undue or disproportionate weight and had to be assessed together with the whole of the evidence in the case.  Ordinarily, they did not go into the jury room during deliberations.
114. [114]
     Section 93A of the Evidence Act applies just as much to a written statement^[61] as it does to video recordings of statements made by child complainants.  The question which is raised for decision on this appeal is whether the approach which is applied to video recordings admitted under s 93A or s 21AM should, in the circumstances of this case, have also applied to a written s 93A statement, Exhibit 4.
115. [115]
     The starting point is that a jury is ordinarily entitled to have all of the trial exhibits with them in the jury room when they retire to deliberate.^[62]  That is subject to the exercise of discretion by the trial judge to exclude exhibits from the jury room if there is a risk that they may be given “disproportionate weight” by the jury in the course of their deliberations.^[63]
116. [116]
     Technically, however, a video recording of the evidence of a child complainant is not the evidence, the evidence is the oral testimony it contains.^[64]  That video recordings of the evidence of a child complainant are not properly to be regarded as exhibits, and “seldom, if ever will it be appropriate to admit the record of that evidence as an exhibit”^[65] was the conclusion of the High Court in Gately v The Queen and represents one reason why video recordings ought not go into the jury room.^[66]
117. [117]
     However even if a video recording becomes an exhibit, in R v H McMurdo P acknowledged that the common law was supplemented by s 99 of the Evidence Act which afforded a specific statutory discretion to withhold a document containing a statement from the jury room where, if the jury were to have the document with them during their deliberations, they might give the statement “undue weight”:^[67]

“99 Withholding statement from jury room

Where in a proceeding there is a jury, and a statement in a document is admitted in evidence under this part, and it appears to the court that if the jury were to have the document with them during their deliberations they might give the statement undue weight, the court may direct that the document be withheld from the jury during their deliberations.”

118. [118]
     As her Honour explained in that case:^[68]

“There is a real danger that in replaying a videotape, possibly many times, the jury may overemphasise that evidence, as against other evidence in the case, particularly cross-examination.  Section 99 of the Act clearly gives a trial judge a discretion to withhold such an exhibit from the jury room, although such a discretion exists independently of the Act.  Without in any way limiting that exercise of discretion, the principles discussed in the authorities I have reviewed suggest that as a general rule, at least in the absence of the consent of both Crown and defence, videotaped evidence tendered under s 93A of the Act will not be permitted to go into the jury during deliberations.  If the jury request to hear the evidence of the complainant child a trial judge must deal with each situation on the facts as they arise.”

119. [119]
     President McMurdo reviewed the practices which applied in other jurisdictions.  For example, her Honour referred to the English case of R v Rawlings & Broadbent, where it had been held that it was a matter for the exercise of the trial judge’s discretion as to whether the jury should see a replay of a video-recording of evidence from child witnesses after they commenced their deliberations.  As Lord Taylor CJ explained:^[69]

“In our judgment it is a matter for the judge’s discretion as to whether the jury’s request for the video to be replayed should be granted or refused.  You must have in mind the need to guard against unfairness deriving from the replay of only the evidence-in-chief of the complainant.  Usually, if the jury simply wish to be reminded of what the witness said, it would be sufficient and most expeditious to remind them from his own notes.  If, however, the circumstances suggest or the jury indicate that how the words were spoken is of importance to them, the judge may in his discretion allow the video or the relevant part of it to be replayed.”

120. [120]
     In that case Lord Taylor CJ suggested that any replay should be conducted in open court in the presence of the judge, counsel and the accused.  His Lordship explained that the judge should warn the jury that, because they are hearing the evidence-in-chief of the complainant a second time, they should guard against the risk of giving it disproportionate weight and they should bear well in mind all the other evidence in the case.  And, finally, to assist in maintaining a fair balance, the judge should remind the jury of the cross-examination and re‑examination of the complainant, whether or not the jury request it.^[70]
121. [121]
     In R v H both McMurdo P and Shepherdson J emphasised that a trial judge must exercise care to ensure that the trial judge’s questioning does not intrude on the confidentiality of the jury’s deliberations, and that what is done should generally be done only after discussing the proposed procedure with counsel in open court:^[71]

“The judge should also warn the jury that because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case.”

122. [122]
     President McMurdo emphasised that the overriding consideration of the trial judge must be fairness and balance, “something which can be difficult to achieve in emotive sexual cases” which it may be anticipated were “likely to arouse feelings of prejudice in the jury”.^[72]
123. [123]
     Although the Crown in that case argued that there was no miscarriage and that the proviso in s 668E(1A) of the Criminal Code (Qld) should be applied, that was rejected because “it is impossible to know what effect the videotaped evidence had on the jury’s verdict”.  In a case where the evidence was not regarded as overwhelmingly strong and where the appellant had claimed that the allegations were false and that the child had been coached by her mother, the presence of the video tape in the jury room during deliberations “may well have deprived the accused of the chance of an acquittal which was fairly open to him”.^[73]  The appeal was allowed.
124. [124]
     Later cases have demonstrated that, whilst a trial judge retains a discretion, whether at common law or under the Evidence Act, as to the course which should be taken regarding the way s 93A video recordings are considered by a jury, the “ordinary position” is that video recordings do not go into the jury room and any request for replaying the evidence is addressed in open court in the manner described in R v H, together with a warning that the recording is not to be given undue weight.^[74]
125. [125]
     For example, in R v DAJ the trial judge exercised the discretion conferred by s 99 of the Evidence Act to allow s 93A statements and transcripts to go into the jury room.^[75]  Both prosecution and defence counsel agreed with the judge's suggestion that this be done.  Nonetheless the appeal was allowed for, as McMurdo P explained:^[76]

“The exercise of that discretion and counsels' concession was made, however, without any reference to or discussion of the important principles in R v H, that, ordinarily, allowing a jury to have unsupervised access to a complainant child's video taped evidence creates a danger that a jury may give undue weight to that evidence without appropriate judicial warnings and a consideration also of the complainant child's cross-examination at trial and any evidence given by the accused. H sets out important guidelines to minimise this risk. His Honour gave no reason for his decision that would justify displacing the ordinary position required by H, apparently because no-one raised the principles discussed in H. In these circumstances, I am satisfied that counsels' concession and the learned primary judge's exercise of discretion were not made upon a consideration of the relevant legal principles. That error was compounded by the failure of the learned trial judge to warn the jury in the terms set out in R v H. In a case like this which requires a jury to weigh the largely unsupported complainant child's evidence against the evidence of the accused these errors alone require that the appeal must be allowed.”

126. [126]
     In R v GAO the appellant’s conviction was set aside and a retrial ordered where s 93A statements went into the jury room during deliberations.^[77]  On appeal, counsel for the prosecution conceded that, even though there had been no objection taken to this course by counsel for the defence at trial, this course was “an irregularity”.^[78]  White JA held that “the failure to give a direction to the jury to guard against the risk of giving the evidence in the s 93A statements disproportionate weight” was an error of law and that there was “no place for a consideration of the proviso”.^[79]
127. [127]
     Similarly, in R v KAH the trial judge exercised the s 99 Evidence Act discretion to allow s 93A statements to go into the jury room during deliberations.^[80]  The absence of any “direction warning the jury to guard against the risk of giving that evidence disproportionate weight, a direction this Court has made clear is necessary”, together with cross-examination that revealed that the appellant had been in gaol “constituted, in combination, a miscarriage of justice which was beyond the application of the proviso”.^[81]  The appeal was allowed.
128. [128]
     That the taking of s 93A video recordings into the jury room might not necessarily result in a miscarriage of justice is demonstrated by R v VM.^[82]  In that case the “s 93A recordings” were of the evidence-in-chief of the complainant and the three complaint witnesses.  Their cross-examinations were also recorded on video.  Without anyone having noticed, the s 93A recordings had gone into the jury room, together with the means to view them.^[83]  In answer to questions from the jury, and after submissions from counsel, the trial judge proposed to allow the jury access to transcripts and replay the s 93 recordings, together with the recordings of the cross-examinations, in open court.
129. [129]
     The jury then indicated that they did not wish to see any but the video recording of the complainant’s evidence.  The jury had wanted the transcripts and the s 93A recordings in the jury room so that the recordings could be replayed, fast-forwarded and stopped.^[84]
130. [130]
     After the complainant’s evidence was replayed in open court, the trial judge gave a clear warning to the jury that they were not to give any greater weight to the evidence of the complainant than any of the other evidence, and the jury’s obligation was to balance that evidence against all of the other evidence in the case.^[85]
131. [131]
     On the appeal against conviction, Sofronoff P referred to the ruling of McMurdo P and Sheperdson J in R v H before explaining:^[86]

“When a question arises at a trial, or on an appeal, about the possible significance of a jury having recorded evidence replayed, or having unlimited access in the jury room to such evidence so that the jury can replay the evidence at will, with or without a transcript, the crucial question that has to be decided is whether such access might distort the jury’s sense of the evidence in the case to the prejudice of the accused. There can be no question of denying a jury’s request to review evidence of that kind, or of any kind. The only point to consider is whether, if there is a real risk that the process of review that the jury has asked for, or which it is to be given, might result in the jury’s unconsciously giving undue weight to the evidence that it has seen repeatedly, how that risk can be eliminated.”

132. [132]
     In that case it emerged at trial that the jury had not played the evidence “to any substantial degree”.^[87]  Sofronoff P said that it must be assumed that a modern Australian jury is “not to be treated as a group of credulous plodders who are prone to make errors in reasoning” and, in addition, “a jury will faithfully follow a trial judge’s instructions”.  Accordingly:^[88]

“Because of these two assumptions, there can be no valid concern that, in every case in which a jury has been given recordings to replay in the jury room, there is therefore a risk of an erroneous guilty verdict.”

133. [133]
     President Sofronoff held that, because the jury had not replayed the evidence many times in the jury room, and had been given access to both the evidence-in-chief and cross-examination of the complainant, and then reviewed the whole of her evidence in open court, there was no risk that the jury might “overemphasise” the evidence of the complainant.^[89]  Sofronoff P was evidently fortified by two further considerations.  First, no submission was made by defence counsel at the trial that there had been a miscarriage of justice and the jury should be discharged.  This was described by his Honour as “a typical forensic choice, made in the context of counsel’s assessment of the prospects of acquittal in the trial as it has progressed to that point”.^[90]  Secondly, defence counsel at the trial had made no request for a redirection, as to which Sofronoff P said:^[91]

“… that was understandable for, in my respectful opinion, there was no appreciable risk that the jury’s consideration of the whole of the evidence might have become unbalanced by whatever they had looked at within the jury room and after being required to see the whole of the complainant’s evidence in the courtroom.”

134. [134]
     The appeal was dismissed.
135. [135]
     Whilst there are a number of points of difference between s 93A statements that consist of written evidence from a complainant, and evidence presented by way of a video-recording of the complainant’s evidence, neither counsel on the hearing of this appeal referred to any relevant authority directly on point.
136. [136]
     In Gately v The Queen, however, the High Court considered a case involving the evidence of a child complainant which was contained in both video recordings, admitted under s 21AM, and a written statement, admitted under s 93A, of the Evidence Act.^[92]  In that case the jury had, with the consent of both counsel, been given unrestrained access to the video-recordings.  This was regarded by the High Court as an irregularity.  By contrast, the trial judge had declined the jury’s request to allow them to have the written statement in the jury room.  Instead, the trial judge re-read the written statement to the jury in court.  By a majority, the High Court dismissed the appeal, finding that there was no miscarriage of justice.
137. [137]
     Hayne J (with whom Gleeson CJ, Heydon and Crennan JJ agreed) emphasised that a criminal trial is both an accusatorial and adversarial process, as well as essentially an oral process.^[93]  As mentioned, Hayne J did not regard it as appropriate to tender the video-recordings, though they could be marked for identification, because the admissible evidence comprised the oral testimony contained in the recordings which were to be viewed by the jury in open court.^[94]  Hayne J, with whom all other members of the Court agreed on this point, arrived at this ruling after a close consideration of the terms of ss 21AM and 21AW.^[95]
138. [138]
     A similar point had been made in Butera v The Director of Public Prosecutions (Vic) about a tape recording of a conversation in foreign languages concerning heroin importation.  The High Court held in that case that the audio tape was admissible, though the evidence comprised the sound produced by playing the tape in open court.  That was the “best evidence of the sounds entrapped in the record”, not transcripts of what was heard by a witness out of court.^[96]  The importance of adducing evidence orally was explained:^[97]

“The adducing of oral evidence from witnesses in criminal trials underlies the rules of procedure which the law ordains for their conduct. A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury's estimate of the witnesses. By generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jury's discussion of the case in the jury room will be more open, the exchange of views among jurors will be easier, and the legitimate merging of opinions will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence.”

139. [139]
     In Butera interpreters had listened to the audio tapes out of court and transcribed what they heard into English.  The interpreters gave their evidence in court, but transcripts of what the interpreters had heard and transcribed were available to be used as aides.
140. [140]
     By contrast, in Gately v The Queen, the High Court regarded the written statement admitted under s 93A as an item of evidence which was appropriately marked as an exhibit.^[98]  The argument that it was an error to permit the statement to be tendered where a video-recording of the evidence of the same witness was also before the court was rejected.  And, as mentioned, the trial judge evidently exercised the discretion to keep the statement out of the jury room.
141. [141]
     The difference between written and video evidence is reflected in the difference between the conveyance of information in writing and the conveyance of the same information, supplemented by seeing the witness convey that information.^[99]  The playing of the video recording is apt to convey much more information than the printed words on a page because it permits the jury to see the way in which the evidence was given, enabling the demeanour of the witness to be assessed.  Indeed, in most cases the video recording of the complainant giving evidence, rather than the bare information conveyed by a transcript of it, will be particularly important.  As was recognised in Gately v The Queen, reading or hearing the reading of a s 93A statement cannot be equated to watching a video recording of the witness giving evidence.  Less information is conveyed.  In some cases the written statement may not appear as compelling as the video recording.
142. [142]
     Nonetheless, both forms of evidence can raise similar risks if they are allowed to go into the jury room during deliberations.  Both a written statement of the complainant’s evidence and the evidence presented by way of a video recording may contain only the complainant’s version of events.  They are both apt to create the risk, which is well-recognised, that if they are reviewed by the jury in the jury room during deliberations, possibly many times, they may be given disproportionate weight.^[100]
143. [143]
     Though the jury in the present case were properly warned against giving disproportionate weight to the s 93A video recordings, which were viewed in open court, no warning at all was given regarding the potential for disproportionate weight to be given to the written s 93A statement which, at common law, would have been both inadmissible and self-serving.^[101]
144. [144]
     The risk that Exhibit 4 might be given undue weight was in this case heightened.  When compared with the varying accounts in the video recordings, the email contained a particularly clear and concise statement of serious sexual offending spanning many years.  As Heydon J alluded in Gately v The Queen, it is inevitable that what lay behind the preparation of a written statement, particularly where it has been prepared with assistance, is not apparent from reading it.  This may be contrasted with the transparent “technique of oral question and answer” which makes it easier to assess reliability and credibility.^[102]
145. [145]
     It cannot be known how this evidence was actually used by the jury in this case.  However, because the email is relatively brief, it may well have been read and re-read many times over by the jury in the course of deliberations about a case which was effectively one of ‘oath against oath’.^[103]  That and the seriously incriminating nature of the complainant’s account tends to demonstrate why the jury’s access to the written s 93A statement should have been addressed with particular care.
146. [146]
     It is difficult to see why the jury’s access to the written s 93A statement should not have been treated in exactly the same way as the s 93A video recordings, where both contained the complainant’s account.^[104]  Whilst the written s 93A statement became Exhibit 4 and treated as both admissible and available to the jury like any other relevant evidence, the fact that it contained the complainant’s version of events gave rise to the need for the trial judge to consider the exercise of discretion to exclude it from the jury room, whether at common law or under s 99 of the Evidence Act.  Whether the evidence is adduced under s 21AM or s 93A, the existence of a statutory aid to proof should not obscure the fact that it represented the account of the complainant.  If that evidence had been given orally, a transcript of it would not necessarily have gone into the jury room.^[105]  And, it ought not be overlooked that in Gately v The Queen the trial judge declined to furnish a copy of the written statement to the jury for use in the jury room.  Rather, the trial judge re-read the statement in open court.^[106]
147. [147]
     It seems to have been assumed at the trial that the written s 93A statement should go into the jury room.  The absence of any ruling on whether Exhibit 4 should have gone into the jury room suggests that the relevant discretion was neither considered nor exercised.  The concession by the Crown on this appeal that allowing Exhibit 4 to go into the jury room represented an irregularity was properly made.  That concession recognised that it was necessary to determine whether, in the exercise of the trial judge’s discretion, the evidence should not have gone into the jury room in this case.  The preferable view is that the s 93A statement should not have gone into the jury room.  Nonetheless, that does not mean that will always be so.  In other cases, the written statement may contain material inconsistencies which both parties agree should be before the jury.  The s 93A statement may, for example, be an email or diary entry which is inconsistent with portions of the complainant’s account.  Each case depends on its particular circumstances.  The court has a discretion, whether at common law or under s 99, and it must be exercised judicially having regard to relevant considerations.
148. [148]
     However, in this case, once the written s 93A statement went into the jury room, or if it had been re-read to the jury, there was a need to give clear directions and warnings for the reasons outlined by this Court in R v H and by the High Court in Gately v The Queen: “the overriding consideration is fairness of the trial”.^[107]  The exhibit contained the complainant’s account of the appellant’s wrongdoing and, unlike in Gately v The Queen, there was evidence from the appellant in this case in answer to the prosecution case.  The absence of any direction or warning against giving Exhibit 4 undue or disproportionate weight suggests that the need to ensure “fairness and balance” on this aspect of the case was likewise overlooked.^[108]
149. [149]
     There was no conceivable forensic advantage to the appellant in allowing this evidence to go into the jury room, or in failing to seek appropriate directions and warnings from the trial judge once it had done so.  The risk that the evidence contained in Exhibit 4 may have been given undue or disproportionate weight in the course of the jury’s deliberations cannot be excluded.  Neither the absence of cross-examination on the written s 93A statement nor the failure by defence counsel to object or seek a direction about it demonstrate that there was no miscarriage of justice.
150. [150]
     There is a significant possibility that the outcome of the trial was affected by the failure to exercise the discretion conferred at common law and under s 99 of the Evidence Act to withhold the written s 93A statement from going into the jury room.  That conclusion is reinforced by the absence of any directions and warnings of the kind addressed in R v H and Gately v The Queen.
151. [151]
     The result is that there has been a miscarriage of justice within the meaning of s 668E(1) of the Criminal Code (Qld).^[109]
152. [152]
     As has been seen, the Crown conceded that the proviso should not be applied.  That concession was properly made.  It follows that appeal ground 2 should be upheld.

Conclusion

153. [153]
     The appeal should be allowed, the appellant’s convictions should be set aside, and a new trial ordered.
154. [154]
     CALLAGHAN J:  Both grounds of appeal are problematic; in effect they aver that the learned trial judge ought to have done something that he was not asked to do.  However, for the reasons explained by Livesey AJA, the arguments made in support of both grounds demonstrate that a miscarriage of justice has occurred.
155. [155]
     Submissions under the heading of ground 1 were also met with the difficulty that the relevant evidence – as given by the complainant’s mother – was unchallenged.  However, as the review conducted by Livesey AJA demonstrates, reliance upon this type of evidence is frequently fraught, since there will so often be social, cultural or other reasons that might explain a defendant’s silence.
156. [156]
     At least one potentially applicable reason was identifiable by the time the appellant had completed his evidence.  It was then open to consider whether the evidence established only that a distracted middle aged man decided he had nothing of value to say on the subject of a teenage girl’s “festy underwear”.  The situation was very different from, for example, Salahattin’s failure to engage with an implied but unambiguous accusation of dealing in heroin.^[110]  Even in that case some sort of direction was thought necessary.
157. [157]
     It was within contemplation that the condition of the underwear was something that might be discussed by the jury in the course of reasoning to a conclusion of guilt.  The Crown Prosecutor would not otherwise have mentioned it in her closing address.
158. [158]
     I am unable to conclude that the jury’s attention would have been confined to the evidence about the underwear itself, divorced from the evidence about the appellant’s reaction, or lack thereof.  Any consideration of the former would, inevitably in my view, be followed quickly by reference to the latter.  Nothing was said to prevent jury discussion from flowing in that very natural way.  As a matter of fairness, it was necessary for that discussion to be moderated by some directions.
159. [159]
     The potential for ground 2 to succeed was compromised by the bewildering absence of any attempt to keep the relevant document out of the jury room.  There is nothing in the record to suggest that any attention was given to s 99 of the Evidence Act 1977 (Qld).  In his address, Defence counsel made a glancing and indirect reference to the document.  That forensic “use” was too slight to reflect a considered decision of the kind that should now be used against the appellant.
160. [160]
     If the document had been withheld from the jury room, and if the jury had asked to see it or for it to be read to them, the degree of interest in it would to some extent have been ascertainable.  Directions could have been fashioned accordingly.  Repeated requests to be reminded about the contents of the same document might have been met with concern.  They would have suggested that its impact was becoming, in the context of all the evidence, disproportionate.
161. [161]
     As it happened, however, the potential effect of this document was immeasurable.  One or more jurors may have insisted on viewing it – for all that is known, perhaps on many occasions – during the course of deliberations.  As a source of evidence, it was short, direct and accessible.  In a case with some difficulties, there is every reason to think that jurors might have found attraction in its clarity, and dwelt upon it to the exclusion of evidence that was not in the room with them.

Conclusion

162. [162]
     I agree with the conclusion of Livesey AJA and with the orders he proposes.