R v WBY[2023] QCA 230

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  On 24 October 2022 the appellant was convicted in the District Court after trial before a jury of one count of indecent treatment of a child under 16 (count 1) and one count of rape (count 2).  Both offences were committed against the same complainant on 25 April 2021.
2. [2]
   The appellant appeals against the conviction on the ground that a miscarriage was occasioned by the failure of the learned trial judge to warn the jury against giving the complainant’s evidence in chief undue weight because it was played to them twice and failing to remind the jury of the defence evidence.
3. [3]
   The prosecution case at trial depended on the jury’s acceptance of the complainant’s evidence of the offending conduct beyond reasonable doubt.  The appellant denied that he did the acts alleged by the complainant and the essence of the submissions put to the jury on behalf of the appellant that reflected the appellant’s counsel’s cross-examination of the complainant about inconsistencies within her own evidence and between her evidence and that of other witnesses was that the complainant was a liar.

Summary of the relevant evidence

4. [4]
   The appellant was a friend of the complainant’s family, as they had previously been neighbours between 2013 and 2015.  When the offending occurred, the complainant was 14 years old and resided with her parents.  There was a birthday party at the family home on Saturday 24 April 2021 for her younger brother.  The appellant and his partner and children had arrived to stay with the family on 23 April 2021 and left on 26 April 2021.
5. [5]
   After many of the guests had left the party and others had gone to bedrooms in the house to sleep, some children including the complainant were in the lounge room on mattresses watching movies.  The appellant fell asleep in the lounge room on a couch.
6. [6]
   The complainant was on the double mattress on the floor of the lounge room next to her friend X who was in the middle and was also 14 years old.  On the other side of X was the appellant’s son Y who was also 14 years old.  The two single mattresses were occupied by three young children of the appellant.
7. [7]
   The first police officer to whom the complainant made a complaint about the appellant’s conduct on 27 April 2021 was Senior Constable Neville.  He recorded his conversation with the complainant on a field tape that was tendered at the trial (exhibit 14) as preliminary complaint evidence.  The complainant explained she had come to the police station because a grown man was touching her inappropriately and said the following.  She and her friend were sleeping out in the lounge room and the appellant moved his children over and lay down next to the complainant and started touching her inappropriately.  He kept kissing her, put his hand down her pants and kept touching her and he kept touching her chest.  The next morning he kept following her and looking at her quickly and she did not like it.
8. [8]
   The complainant’s s 93A statement was recorded on 27 April 2021 soon after the initial complaint had been made to Officer Neville.  The complainant’s evidence included the following.  The complainant and X looked at the time at 12.48 am and the complainant deduced it was a bit earlier, say 12.40 am, when the appellant came up to her and started touching her inappropriately.  He was trying to wake her up and saying “you know you want me”.  He lay down next to her.  He had his hand down her shirt, touching her chest.  He then had his hand down her pants “touching down there” and he was “tongue kissing and everything”.  A bit of his hand went inside her vagina.  The complainant rolled over to face her friend X.  The appellant was telling her to come with him but she did not go with him and pretended she was still sleeping.  He tried to move her and then he got up and walked out to the kitchen.  He then returned and tried tickling her ribs.  He grabbed her arms and tried pulling her off her friend, but the complainant was holding on “really tight” to X’s arm.  The complainant whispered to X saying that she needed her help and to come to the bathroom.  They both got up and walked to the bathroom and the complainant was crying.  The appellant went to the couch after X and her got up.  X went back to the lounge room and grabbed the blankets and pillows to set themselves up in the bathroom.  They went to her parents’ room and the complainant told them what happened but they told her to go back to bed.  The complainant and X moved the table in the dining room out a bit and set up their bed under the table which is where they then slept.  On the night of the party, the appellant was wearing a grey “hoodie thing” and black shorts.  The complainant wore black shorts and a top to bed.  When they were in the bathroom, the complainant had sent a text to Z at 12.49 am on X’s phone saying she needed help.  The appellant had never previously touched the complainant inappropriately.
9. [9]
   The complainant’s s 21AK evidence was pre-recorded on 27 April 2022.  Her cross-examination included the following.  She fell asleep during the second movie.  When they first got to the bathroom, X had gone back out to get their phones.  They were in the bathroom when they looked at the phone and the complainant sent the text to Z at 12.49 am.  The appellant was touching her chest from underneath the shirt from the bottom of the shirt.  The complainant knew it was the appellant because he spoke her name and she recognised his voice.  He grabbed her head and started kissing her.  He had used one hand to turn her head.  He then put both his hands on her chest and belly and then one hand inside her underwear.  He managed to get a finger inside her vagina.  The touching of the complainant inside her pants lasted a couple of minutes before he removed his hand and she rolled over and was facing X.  As far as the complainant was aware, no one else was awake.  The appellant tried to turn her back over, but she did not move.  The appellant went out to the kitchen and that is when the complainant woke X up.  When they went to the bathroom, the complainant told X everything that happened.  She told her that the appellant had put his hand down her pants and that he got one of her hands and put it on his penis.  She told X that the appellant put his hand under her bra.  The complainant did not raise up her shirt and show X marks or rashes on her chest and on her stomach.  The complainant did not have any such marks.  The complainant agreed that she did not tell X that the appellant had touched her before inappropriately, because he had not done that.
10. [10]
    Towards of the end of the cross-examination, it was put to the complainant that she did not want to make the complaint against the appellant because she knew it was not true.  That proposition was denied by the complainant who confirmed the complaint was true.  It was suggested to her that she “maintained the lie” because she had told so many people and was in a position where she was taken to the police station and repeated the lie she had initially told.  The complainant responded that it was not a lie and that it was all true.
11. [11]
    The police recorded X’s s 93A statement on 1 May 2021.  X’s evidence included the following.  Y slept next to X separately and the complainant and X slept together under the same blanket.  X fell asleep around 10.58 pm but around 12.48 am she felt the complainant’s arm tugging on her so she woke up.  The complainant whispered to her to get up with her and run as fast as they could to the bathroom.  The complainant locked the door and told X what had happened.  The complainant broke down crying.  After the complainant and X came out with their blankets and pillows from the bathroom, they moved the table and slept underneath it.  The complainant had told X that the appellant was “really drunk and tried touching [the complainant] up”.  The complainant had told X that the appellant put his hand down her pants and the appellant got the complainant’s hand and put it on his penis and whispered in her ear, saying “I know you want me”.  The complainant also told her that the appellant put his hands up her shirt and under her bra and she had red marks on her chest.  X saw “handprint shaped rashes” on the top of the complainant’s chest.  She also had handprints on her stomach as well.  The complainant told X that the appellant tried to get the complainant off X’s arm and the complainant pretended to be asleep and kept grabbing onto X’s arm.  After they had gone to the bathroom, X went back to the lounge room to get the complainant’s phone and the appellant was laying down where the complainant had told her he was.  When the complainant had woken her, she saw the appellant on the white mattress facing the way the complainant was facing and the complainant was facing X and clenching X’s right upper arm.  After the complainant had broken down in tears in the bathroom, they went to the complainant’s parents’ room and the complainant was crying as she told them that they had to do something about the appellant as the appellant kept touching her but the parents did not do anything about it.
12. [12]
    X’s s 21AK pre-recorded evidence included the following evidence in cross-examination.  X did see the appellant when she went back to the lounge room to retrieve the complainant’s phone.  She recognised him from his clothes.  He had on a yellow tradie singlet and shorts and a grey jumper.  She could remember him wearing an Hawaiian shirt but did not know if that was on Friday or Saturday night.  There was a small boy on the couch and the appellant was on the mattress closest to where the complainant would have been.  X saw red marks on the complainant’s chest and stomach, when the complainant raised her shirt.  The complainant told X that the appellant had done the same thing to her when she was little.  When the complainant told her parents she also said something along the lines of “he was doing it again”.  X denied sending Instagram messages on 7 June 2021 to Y to the effect that “I’ve already filed a complaint that there was no evidence supporting the crap that came out of her mouth” and “their (sic) just wasting their time on a lie”, as X was not speaking to Y by that stage.  X left an audio message for Y on the Instagram account on 30 August 2021 which suggested that X was going to go to the police station and say “that I think she’s lying because all she did was tell me that, like, I didn’t see anything actually happen”.  X explained that she left that message because of what Y was saying to X’s friend so “he could lay off my back” and if she had done what she said in the message, she would not be giving in evidence in court.  She had not withdrawn her statement to the police.  X did not say that she saw the appellant when the complainant woke her up.
13. [13]
    The complainant’s mother’s evidence included the following.  On the night of the party the appellant went to bed before the complainant’s mother.  He had drunk a carton of VB and he was very intoxicated.  During the night the complainant and X came into the bedroom of the complainant’s parents.  The complainant said that the appellant had touched her inappropriately.  The complainant’s mother was half asleep and just said “Huh?” and the complainant and X left the bedroom.  The next morning, the complainant’s mother saw the complainant sleeping with X and Y underneath the table.  Her cross-examination included the following.  When she went to bed, the appellant was still watching the movie and was on the couch up against the lounge room wall.  He was wearing the same clothes he was in during the party.  Neither the complainant’s mother nor her father told the complainant before the following Tuesday afternoon that she had to pack her bags or threatened to kick her out.
14. [14]
    The complainant’s father’s evidence included the following.  The last time that he saw the appellant on the evening of 24 April 2021 was in the lounge room and the appellant was “fairly intoxicated”.  The complainant’s father went to sleep in his and his wife’s bedroom and they were woken up when the complainant and X came into their bedroom and the complainant said something like “[the appellant] fell over and hurt her”.  He could not recall the exact words.  He was exhausted and responded that they would talk about it in the morning.  The complainant’s father’s evidence in cross-examination included the following.  The complainant was crying when she came into the bedroom.  For the rest of the weekend, the complainant just kept to herself in her room or with her friends as she usually did.  Neither he nor the complainant’s mother told the complainant before the following Tuesday afternoon that she had to pack her bags or threatened to kick her out.
15. [15]
    Z’s s 93A interview took place on 28 April 2021 and included the following.  Z followed up the complainant on the text he had received from her saying that she needed help.  She told him that the appellant had touched her inappropriately and she had told her parents and they had both said nothing about it.  The complainant had told him she was sitting on a couch with her friend X and the appellant’s two daughters and the appellant moved his daughters to get closer to the complainant and that the complainant grabbed onto X’s arm and X pulled her up and out into the bathroom and they locked themselves in the bathroom.  They were out walking the previous day and he asked the complainant if everything was sorted out and she said “no it’s gotten worse”.  Z asked the complainant is she was having anywhere to sleep and “she told me that her parents like, told her to go collect her clothes and they would pretty much kick her out of the house”.  The complainant went home and then Z met up with her at a park and took her back to his home.  Z’s father’s partner came over.
16. [16]
    Z’s father’s partner gave evidence of attending at her partner’s house on 27 April 2021 and meeting the complainant who disclosed to her that an adult male who was a family friend had walked into the lounge room, laid down beside her, put his arm around her, touched her chest, and then put his hand down her pants.
17. [17]
    The appellant’s evidence at the trial included the following.  People started leaving the party at about 8.30 or 9.00 pm and the appellant set up his Xbox in the lounge room to play movies.  He wore an Hawaiian shirt, shorts and thongs to the party and stayed in those clothes all night.  The appellant was on the long couch on the left hand side of the lounge room (looking into the lounge room from the front door) and did not move from that couch all night.  There were two recliner chairs that were usually used by the complainant’s parents facing the front door and near the back wall of the lounge room.  The complainant’s father’s brother in law (the brother in law) was seated in the complainant’s father’s recliner.  The children were on the floor so that his two daughters were closest to him, then his son and then there was the complainant, X and Y, so that Y was closest to the other couch on the right hand side of the room.  The appellant fell asleep during the second movie.  The brother in law and Y were still awake.  The complainant and X were asleep before the appellant fell asleep.  The appellant did not wake up until about 8.30 am the next day.  He did not get up at all during the night and indecently touch the complainant on her chest, indecently put his finger down her pants or grab her hand and put it on his penis.
18. [18]
    Y was called as a witness in the trial by the appellant who was his mother’s partner and not his biological father.  His evidence included the following.  The appellant did not start drinking at the party until around 6.00 pm and was half drunk.  He was wearing a blue Hawaiian shirt and did not wear any other shirt that day.  After the party wound up, Y was amongst the group in the lounge room but was watching movies on the appellant’s Xbox.  The appellant was on the left side couch closer to the wall.  The complainant, X and Y were on the double mattress when they went to sleep.  The complainant and X were sharing a blanket and Y had his own blanket.  The double mattress was closest to the right hand couch.  The complainant and X fell asleep early in the second movie.  The appellant fell asleep during the second movie and was snoring quite loudly.  When Y got up the next morning, he saw the complainant and X under the kitchen table.  In cross-examination, Y stated that he did not wake up at all again during that night after he fell asleep.

The addresses and the summing up

19. [19]
    The jury’s questions about watching the complainant’s s 93A interview again should be considered in the context of the addresses by counsel at the trial and also the summing up.
20. [20]
    The appellant’s trial counsel had been addressing the jury for almost two hours, when the Court adjourned for the day.  It is noteworthy that the appellant’s trial counsel had read out extensive passages from the evidence to highlight the inconsistencies in the complainant’s accounts and the inconsistencies between her account and the accounts given by the preliminary complaint witnesses.  The appellant’s trial counsel also focused particularly on X’s evidence and the aspects of it that were denied by the complainant, including that X saw red marks or handprints on the complainant’s stomach and that the complainant had told X that he had done similar things to her when she was small.  The appellant’s trial counsel had made submissions to the jury on the discrepancy within X’s own evidence as to when she saw the appellant on the mattress, namely whether she saw the appellant on the mattress next to the complainant when the complainant woke X up or whether she saw the appellant on the mattress when she returned to the lounge room to get the complainant’s phone.
21. [21]
    There was a jury note before the trial resumed the next morning enquiring whether the jury would have access to the “section 93As and transcripts” and also enquiring what material they would have access to in their deliberations.  The trial judge then explained the process for replaying a s 93A interview and explained what exhibits the jury would have with them when deliberating.  After about an hour during which the appellant’s trial counsel finished his address to the jury and the prosecutor commenced his address, there was a break.  It was during that break the jury sent a note stating they “would like to see [the complainant’s] interview with the two detectives again, specifically her recount of the Saturday night and Sunday morning”.  Counsel suggested to the trial judge that should be done after the summing up.  When the jury returned, the trial judge informed them that neither the addresses nor the summing up would be interrupted to play that evidence and that they would be asked after the summing up, if they still wanted that played.  Over the next hour, the prosecutor completed his address to the jury and the trial judge commenced the summing up.  The jury retired to consider their verdicts after the summing up that took about two hours in total.
22. [22]
    The trial judge identified for the jury that the real issue in the trial was whether they were satisfied beyond reasonable doubt that the appellant did the acts that were alleged to constitute each of counts 1 and 2.  For each of the counts, it was identified for the jury that they had to be satisfied that the complainant’s account was truthful and accurate such that they were satisfied beyond reasonable doubt that the appellant did do the act that constituted the relevant offence.  There is no criticism on the appeal of any aspect of the summing up by the trial judge before responding to the jury request to hear the complainant’s evidence of the incident.  The trial judge noted the defence was that the respective acts that constituted the offences did not happen.  The trial judge summarised in extensive detail the submissions put by the appellant’s trial counsel about the inconsistencies within the complainant’s evidence and the inconsistencies between her evidence and the accounts she gave to the witnesses who gave preliminary complaint evidence and the inconsistencies within X’s evidence.

Dealing with the jury’s question

23. [23]
    After the jury had retired to consider their verdicts, a further note was received from them indicating that they had narrowed the evidence in the complainant’s s 93A statement that they wished to have replayed and would like to see the complainant’s s 93A recount to the detectives of the alleged incident and the questions about earlier in the day and later on Sunday “can be skipped”.  Counsel were then requested by the trial judge to identify the portions of the interview that should be replayed.  The appellant’s trial counsel properly raised that counsel should be doing the same exercise in respect of the complainant’s pre-recorded evidence which the prosecutor and trial judge endorsed.  The Court adjourned to the next sitting day.
24. [24]
    Before the Court resumed the trial, counsel had emailed the trial judge the references to the portions of the complainant’s s 93A interview and s 21AK pre-recorded evidence that they respectively submitted should be played to the jury.  On the resumption of the trial in the absence of the jury, the trial judge ruled on which passages would be played.  There were four passages of the complainant’s s 93A evidence that were sought to be replayed by the appellant (but that was opposed by the prosecution) and two small passages of the s 21AK cross-examination that were also sought to be replayed by the appellant (but that was also opposed by the prosecution).  The refusal of the trial judge to direct those six passages be replayed was not the subject of a separate ground of appeal.  The relevance of the trial judge’s ruling in that respect was whether there was balance in what was replayed to the jury of the complainant’s s 93A interview and s 21AK pre-recorded evidence.
25. [25]
    The contents of the six passages can be summarised as follows.  The first passage was from the s 93A interview and dealt with the complainant’s recollection that the appellant was wearing black shorts and a grey hoodie but this was not part of the complainant’s account of the offending.  The second passage concerned the location of those in the lounge room when the movies were being viewed and was therefore outside the jury’s request.  The third passage was the exchange that the complainant had when she reported the incident to her parents which was outside the jury’s request.  The fourth passage repeated the evidence that the complainant had already given in the s 93A interview about the incident but was given in terms of the parts of the appellant’s body which the complainant could feel when he started touching her.  The fifth and sixth passages were from the s 21AK pre-recorded evidence about watching the movies and where everyone was located in the lounge room which was also outside the jury’s request.
26. [26]
    Each juror was provided with the transcript of the s 93A interview of the complainant that was MFI “A” and given the page and line references as each portion was played.
27. [27]
    After the selected parts of the s 93A interview were played to the jury, the transcripts were collected and the trial judge explained that the s 93A interview of the complainant constituted her evidence in chief and “so considerations of fairness mean that it’s necessary that you also view some portions of the pre-recorded evidence” which was the cross-examination of the complainant.
28. [28]
    A quite extensive part of the cross-examination was replayed which was from line 5 on page 37 of the transcript of the pre-recorded evidence (MFI “C”) through to line 43 on page 61 and also part of the re-examination from line 1 on page 74 through to line 8 on page 75.  This included the cross-examination of the complainant on the incident, her recognition that it was the appellant who was touching her, her waking X, her moving to the bathroom and sending the message to Z at 12.49 am which was responsive to the jury’s request for hearing the complainant’s evidence of the incident.
29. [29]
    Even though the appellant’s trial counsel had sought the further six passages to be replayed to the jury, the extensive cross-examination of the complainant in her pre-recorded evidence that was replayed to the jury provided balance with respect to the replaying of those parts of the s 93A interview that focused on the incident.
30. [30]
    After the jury had retired again, neither trial counsel sought any redirection.

The requirement for fairness in replaying video-recorded evidence

31. [31]
    Dalton JA (with whom Mullins P and Boddice J agreed) in R v SDL [2022] QCA 207 at [24]-[36] considered the case law on the replaying of video-recorded evidence of a complainant before the jury and the directions required of the trial judge to ensure fairness to the defendant.
32. [32]
    The defendant in SDL had been charged with maintaining an unlawful sexual relationship over a period of six years with the complainant who was his stepdaughter.  The prosecution case comprised mainly the complainant’s s 93A interview and two pre-recordings of her evidence.  There was also evidence lasting an hour from the complainant’s mother, preliminary complaint evidence lasting 13 minutes from two friends of the complainant, and short evidence from the defendant’s girlfriend who was his girlfriend after he had separated from the complainant’s mother.  The defendant gave evidence that lasted 45 minutes in which he denied the allegations but also dealt with evidence of his working hours and travel time to work which limited his opportunity to be alone with the complainant at times, particularly the afternoons, when the complainant alleged abuse had frequently taken place over the years.  After the jury had commenced their deliberations, they requested to watch the complainant’s s 93A interview.  They returned to the courtroom where both the s 93A interview and the complainant’s pre-recorded evidence were played.  After the complainant’s evidence was replayed, the jury were not reminded of the details of the appellant’s evidence and no warning was given to the jury about the risk of giving disproportionate weight to the complainant’s evidence because it was played to them twice.  It was held (at [39]) that “the trial was distorted or unbalanced because nearly all the Crown case was replayed to the jury without any reminder of the defence case”.  It was observed (at [40]) that the appellant had given evidence for around 45 minutes about relevant matters and that:

“If the judge decided to replay the entirety of the complainant’s evidence, the judge ought to have reminded the jury that the appellant gave evidence; that they had a chance to see, hear and assess him in the box, and ought to have reminded the jury of the matters which were the subject of the appellant’s evidence.”

33. [33]
    It is common ground between the parties that when a complainant’s video-recorded evidence is replayed to the jury a second time, the overall question is whether fairness and balance require a warning to guard against the risk of giving the evidence undue weight and whether the jury should be reminded of competing evidence.
34. [34]
    The appellant’s trial counsel was alive at the trial to the need to ensure fairness in the replaying of the complainant’s evidence, as it was he who raised the replaying of the evidence from the s 21AK pre-recorded evidence which covered the cross-examination of the complainant about the incident.
35. [35]
    The submission is made on behalf of the appellant that, in determining on the appeal whether on the replaying of parts of the complainant’s evidence the absence of a warning about not giving it undue weight and the lack of referral to the defence evidence at the trial amounted to a miscarriage of justice, the Court can consider matters which were adverse to the complainant’s credibility as revealed in the testimony of other witnesses and inconsistencies within the prosecution case.  The assumption that undermines that submission in relation to inconsistencies between the complainant’s evidence and that of other witnesses, particularly those giving preliminary complaint evidence, and inconsistencies within the prosecution case is that it is the evidence of the other witnesses who should be preferred over the complainant.  Particular reliance is placed on the discrepancies between the complainant’s evidence and X’s evidence, including that X gave evidence that the complainant showed X red marks on her body caused by the appellant committing count 1 and that the complainant had told X that the appellant had done something similar when she was younger.  The complainant denied having any red marks or making complaint of them to X and asserted that the appellant had never done anything inappropriate towards her before the subject offending.  As was pointed in R v Miller (2021) 8 QR 221 at [24], there needs to be a firm foundation for a submission based on an assumption that a witness to whom preliminary complaint was made gave “scrupulously accurate accounts” while the complainant’s recollection should be considered as suspect where it is in conflict with the preliminary complaint evidence.  That firm foundation was not present in this matter.  In relation to X’s evidence, there were inconsistencies within X’s own evidence that were the subject of lengthy submissions to the jury by the appellant’s trial counsel and there were the discrepancies between the evidence of X and the complainant that were for the jury to consider.  On the basis of all the relevant evidence, this appeal could not proceed safely on the assumption that any discrepancies between X and the complainant had to be resolved against the complainant.
36. [36]
    It is submitted on behalf of the respondent that the fact that a direction of the type now sought by the appellant was not sought by his trial counsel in the circumstances indicates that the consideration of fairness and balance at the trial did not necessarily require that direction be given.  The respondent accepted that it would have been preferable, as a matter of prudence, for the direction now sought to have been given, but that it was not essential as fairness and balance was achieved by the trial judge and counsel ensuring that the evidence in chief, cross-examination and the re-examination of the complainant dealing with the incident was replayed.
37. [37]
    The appellant’s trial was very different to that in SDL.  The touching that constituted the two offences took place over a period of minutes and comprised the one episode of offending.  There was support as to the timing of the conduct from the message sent by the complainant to Z at 12.49 am on 25 April 2021 asking for help.  The appellant’s evidence on the critical issue of whether the touching took place was a denial.  Much time was spent in the trial with all the witnesses on traversing details about the birthday party including who was there, what the appellant was wearing and where and when everyone went to sleep.  The ambit of the evidence directly relevant to whether the appellant did the acts which the complainant alleged that he did was very narrow.  Some weight can be given to the respondent’s contention that it was not apparent to the appellant’s trial counsel (or the prosecutor) that the direction now sought by the appellant should be given.  It is also relevant that the focus of the jury’s request for what part of the complainant’s evidence they sought to be replayed narrowed considerably after they finished hearing the lengthy address of the appellant’s trial counsel, the prosecutor’s address and the summing up.
38. [38]
    Although desirable as a matter of prudence, the fairness and balance of the appellant’s trial neither required a warning to be given to the jury to guard against the risk of the jury’s giving the evidence that was replayed undue weight nor another reminder to the jury that the appellant denied that he touched the complainant as she alleged in the incident.  There was no failure to give a direction in the circumstances of this trial that could constitute a miscarriage of justice.

Order

39. [39]
    The order which should be made is: Appeal dismissed.
40. [40]
    BODDICE JA:  Mullins P’s comprehensive summary of the evidence, closing addresses, summing up and jury questions, which I gratefully adopt, allows me to briefly state my reasons for ordering that the appeal be dismissed.
41. [41]
    A determination of whether fairness and balance required a warning to guard against the risk of giving the replayed evidence undue weight and whether the jury ought to have been reminded of the appellant’s evidence, requires a consideration of the evidence, which was replayed, in the context of the evidence as a whole and the issues for determination by the jury.
42. [42]
    Here, the replayed evidence was in response to a specific request which had been narrowed by the jury, after the jury had the benefit of hearing closing addresses and a detailed summing up, about which there is no complaint on appeal.
43. [43]
    The trial judge, in responding to that specific request, expanded what was played to include not only the complainant’s s 93A statement of the alleged incident, but also a substantial part of the complainant’s s 21AK pre-recorded evidence, which included the cross-examination of the complainant in respect of key matters in issue.
44. [44]
    Whilst the fact that the appellant’s evidence contained a sworn denial with little extra detail would not of itself mean it was unnecessary for the jury to be reminded of that evidence, the content of the specific request and the detailed response thereto, including the replaying of extensive parts of the complainant’s cross-examination in respect of the alleged incident, mean that fairness and balance did not necessitate the giving of a warning by the trial judge against giving that evidence undue weight, or of a need to remind the jury of the appellant’s evidence.
45. [45]
    In those circumstances, the failure to give such a direction did not occasion a miscarriage of justice.
46. [46]
    I agree with the order proposed by Mullins P.
47. [47]
    WILLIAMS J:  I have read the draft reasons of Mullins P and Boddice JA and agree with those reasons and the order that the appeal be dismissed.