R v CCZ[2023] QCA 237

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The appellant was convicted after trial in the District Court before a jury of one count of indecent treatment of a child under 16 who is a lineal descendant (domestic violence offence).  The offending conduct (which was referred to as the kitchen incident) was particularised as occurring on a date unknown between 31 March and 1 June 2019 when the complainant who was the appellant’s daughter was 14 years old.  Apart from the kitchen incident, evidence was given by the complainant of discreditable conduct of the appellant from when she started going through puberty, namely that when the appellant put her to bed he would kiss her on the ears with a wet mouth and with his tongue, he would give her “really long hugs” and would sometimes rub his hands down the sides of her body and on two occasions (referred to respectively as the café incident and the Church incident) he gripped and held her upper thigh.  The discreditable conduct was relied on by the prosecution to demonstrate the appellant’s sexual interest in the complainant.
2. [2]
   The appellant’s case at trial was that he did not commit the conduct alleged against him and that the complainant had fabricated claims he sexually assaulted her to assist with her mother’s family law matters against him.
3. [3]
   The appellant appeals against his conviction on three grounds:

1. The summing of the learned trial judge was unfairly weighted towards the prosecution which risked ostensible bias.
2. The jury was unnecessarily provided a transcript of the complainant’s evidence.
3. The trial judge erred in ruling that passages of the cross-examination of the complainant were inadmissible.

Relevant evidence

4. [4]
   The complainant’s evidence was pre-recorded pursuant to s 21A of the Evidence Act 1977 (Qld) before the trial judge on 25 July 2023.  It comprised her evidence in chief, cross-examination and re-examination.  The trial then commenced with the empanelment of the jury on 26 July 2023.
5. [5]
   The evidence in the trial commenced on 27 July 2023 with the complainant’s mother as the first witness and whose evidence included the following.  There were several children of the marriage between the appellant and the complainant’s mother, including the complainant.  The appellant and the complainant’s mother separated around May 2019.  The complainant’s mother had observed that the complainant would recoil when the appellant cuddled her.  She observed the Church incident when the complainant was seated between the appellant and her and the appellant placed his hand a bit higher than midway up the complainant’s thigh and started rubbing it in a way that the complainant’s mother thought was completely inappropriate, so she said to him not to do that and the appellant responded “Nothing wrong with that”.
6. [6]
   During cross-examination, the complainant’s mother conceded that the appellant saw the children unsupervised after they first separated up until 2022 when they were unable to agree on the conditions of continuing contact by the appellant with the children where the complainant’s mother was insisting the contact be supervised.  The complainant’s mother denied the proposition put to her in cross-examination that she had used the complainant to make the allegation against the appellant to assist in the family law proceedings against the appellant.
7. [7]
   The only other witness for the prosecution was the complainant.  The pre-recorded evidence of the complainant was played to the jury.  The complainant described the kitchen incident as occurring sometime in April 2019 when she was in the kitchen doing the dishes, her mother and her younger siblings were outside playing and the appellant came into the kitchen behind her.  The complainant stated:

“He didn’t say anything, but he just came up behind me and - and- and rubbed his hands over me and then - and kind of pulled me back onto him. And - and then I - I felt his penis on my bum cheek and it felt hard …”

8. [8]
   The complainant estimated the kitchen incident lasted a few minutes.  It was about a minute or so that he had pressed himself against her.  The incident ended when her mother walked in and the appellant quickly left the kitchen.
9. [9]
   The complainant first moved out of home in May 2019 and stated the kitchen incident was “the initiating event” for her moving out.
10. [10]
    The complainant gave evidence of the instances of discreditable conduct that was part of the prosecution case.  The complainant’s evidence about the café and Church incidents was as follows.  The appellant had taken her to the Sunshine Coast for her 13^thbirthday for a cycling trip.  They were at a café waiting for milkshakes after a bicycle ride.  They were seated outside and the appellant gripped the complainant’s inner thigh “really tightly” and held it there for several minutes.  The complainant tried to move away, but he would not let her and laughed when she asked him to stop.  She thought the Church incident occurred before she was 13 years old, when she was sitting next to the appellant at Church and he gripped her upper inner thigh in the same way as he did in the café incident.
11. [11]
    During cross-examination, the complainant acknowledged that the first complaint she made to the police was on 9 September 2021 when she gave a statement that was set out in the police officer’s notebook which she signed.  She then gave a subsequent statement on 23 November 2021.  The complainant denied the proposition put to her in cross-examination that she had lied about the appellant, because she liked the social status and attention it gave her.  The complainant conceded that she wanted to see her younger siblings “safe”, in relation to contact with the appellant.  She made her first complaint to the police on 9 September 2021, as a result of a family therapy session.  She did not make the complaint at the urging of her mother.  She stated that one of the ways she could protect her siblings was to speak up about what the appellant had done to her.
12. [12]
    The appellant did not give or call evidence.

Ground 1 – was the summing up biased in favour of the prosecution?

13. [13]
    There are two passages in the trial judge’s summing up relied on by the appellant in relation to ground 1 in the appellant’s written submissions which will be referred to in the order in which they appear in the summing up as the “first passage” and the “second passage”.
14. [14]
    The prosecutor had made a submission to the jury about their observations of the complainant as she was giving evidence, reminding the jury of the expressions on her face, that she cried, her hands shook and that she even smiled at a question she found hard to accept and suggested that the complainant’s “immediate emotional reactions appear genuine”.
15. [15]
    In the introductory part of the summing up in which the trial judge set out the standard directions on the jury’s task in fact finding involving the credibility of witnesses and the reliability of their evidence, reference was made to demeanour as one of the factors they might take into account in assessing the evidence of a witness:

“Matters which will concern you in your fact-finding process are the credibility of the witnesses and the reliability of their evidence. It is for you to decide whether the whole of what a witness says or only part of it - sorry, decide whether you accept the whole of what a witness says or only part of or indeed none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she - in this case actually she - has given evidence.

There are certain factors that are felt by the Courts to give some guidelines as to the accuracy of evidence, and there are a number of factors that can be considered. I will mention some general considerations that are felt to assist. Firstly, you have seen how the witnesses presented in the witness box, and in one case the witness room, when answering questions, often referred to by the lawyers and indeed referred to in this case as the demeanour of the witness.

Bear in mind when you focus on demeanour that many witnesses, including probably these two, are not used to giving evidence and may find the different environment somewhat distracting. Consider the likelihood of the witnesses’ version. Does the evidence of a particular witness seem reliable when compared with other evidence in the case that you do accept? Consider whether the witness seemed to have a good memory. You may also consider the ability and the opportunity that the witness had to see, hear or know the things that the witness gave evidence about. Another aspect may be whether the witness has said something different at an earlier point in time about the same topic.

These are only examples of possibly relevant factors. You may well consider that other general considerations assist. It is, as I have said, up to you how you assess the evidence and what weight you give to any witness’s testimony or to any particular exhibit.”

16. [16]
    Not surprisingly, when the prosecution’s case depended on the jury’s acceptance of the complainant as a credible witness whose evidence was reliable, the prosecutor’s address to the jury focused on the complainant’s evidence, including her demeanour as she gave her evidence.
17. [17]
    The first passage was in that part of the trial judge’s summing up summarising the prosecutor’s contentions:

“[The prosecutor] reminded you of [the complainant’s] description of the offence happening. It was committed against her not by a stranger but by her father. She reminded you of [the complainant’s] reactions during her evidence, tearful at times, particularly when she identified at a time when she was being asked, for example, why she did not tell the pastor about it; initially she did not initially know that this was not normal between a father and a daughter. It was submitted by [the prosecutor] that you would accept [the complainant’s] evidence and find the [appellant] guilty on the evidence.

She reminded you that [the complainant] described the offence and the timing. It was in the kitchen in the house, despite that being an open plan area, there was no-one else present at the time. He hugged her from behind and rubbed his hands down her, pulled her back onto him and pressed his erect penis against her buttock.

[The prosecutor] reminded you of the complainant’s demeanour when giving evidence, and it was said that she did not waiver in the way in which she described the events. She denied things put to her in cross-examination, including, for example, that she had made it up, that she wanted attention or enjoyed attention, or that she did it as part of a plan with her mother. She did, however, [the prosecutor] acknowledges, say, the Crown argued quite reasonably, that she wanted to protect her younger siblings.

She submitted that the complainant displayed no embellishment of her evidence. She was upset when giving her description of the events, including the fact that she froze, and this was commended to you as a persuasive version of someone recounting a lived event. It was argued she was honest and made reasonable concessions. She - so it was argued - did not want to guess in relation to the dates, and that is why she was referring to whether there could be documentary establishment objectively of various dates, and that was argued by [the prosecutor] to merely be the hallmark of a reliable witness.

She submitted that the complainant’s expressions in her demeanour while giving evidence were persuasive. She was tearful at times. Her hands were shaking. She came across as a genuine person describing the events, and that aspect of her demeanour is important, so it is argued, in assessing her truthfulness and reliability.”

18. [18]
    The appellant submits the first passage had the effect of inviting the jury to place excessive weight on demeanour and emotion and wrongly directed the jury that the complainant’s emotions were something which supported the complainant’s truthfulness and reliability.
19. [19]
    The appellant submitted correctly that evidence of distressed condition does not extend to distress at the time of giving evidence but this submission misses the point that the first passage was the trial judge’s summing up of the prosecutor’s contentions and was an accurate summary of the prosecutor’s submissions to the jury.  The prosecutor did not rely on the complainant’s demeanour in the witness box as evidence of distressed condition but relied on aspects of the complainant’s demeanour as relevant to the jury’s task of assessing the complainant’s credibility and the reliability of the complainant’s evidence.
20. [20]
    The appellant submitted that, in view of the heavy reliance of the prosecutor on the complainant’s demeanour which was given emphasis by the trial judge’s summarising the prosecutor’s arguments, the trial judge should have warned the jury that demeanour may not be a reliable indicator of the credibility of the witness or the reliability of the witness’ evidence.  This was not a direction sought by the appellant’s counsel at the trial.
21. [21]
    The assessment of the complainant as a witness was a matter entirely within the jury’s function.  The trial judge had provided general directions on factors, including demeanour, that might be relevant to the jury’s assessment of the complainant’s evidence. It was apparent from these general directions that, as is the case, demeanour was only one factor of many factors to which the jury may have regard.  Both addresses to the jury focused on aspects of the complainant’s evidence that may be considered relevant to the jury’s assessment of the complainant’s evidence.  The trial judge summarised the appellant’s trial counsel’s submission to the jury that “[the complainant’s] evidence was not persuasive, she was tearful at times, but it was argued that tears can be faked”, in addition to repeating the discrepancies in the complainant’s evidence that were the subject of the appellant’s counsel’s address and the arguments for why they should not accept the complainant’s evidence.  It was sufficient in the circumstances of this trial for the trial judge to summarise the respective contentions of the prosecutor and the appellant’s counsel relevant to the assessment of the complainant’s evidence which was determinative of whether the jury would be satisfied of the appellant’s guilt beyond reasonable doubt.  There was no error made by the trial judge in not giving a specific warning that demeanour may not be a reliable indicator in respect of a witness’ evidence that the appellant now submits should have been given.
22. [22]
    The second passage was a comment (rather than a direction) that the trial judge made in relation to the submission that the appellant’s trial counsel had made in addressing the jury about the delay between the occurrence of the kitchen incident that was in April 2019, according to the complainant, and her attendance on the police on 9 September 2021 and that she had not told anyone else in the intervening period about her allegations.  The second passage was as follows:

“There were submissions made to you about the delay. This happened in 2019, and [the complainant] did not go to the police until 2021, when her mother took her to the police station and she had not told anyone else in the 2019 to 2021 period. Now, in relation to that argument - it is a matter for you, but there is also a comment that I should make. This is only a comment. It is not a direction. This is an example of something that is about the facts, which are a matter for you, and so you can accept or reject this comment. It is a matter for you. But I do comment to you that there are no rules about how people who engage in sexual abuse of children behave and no rules about how their victims behave.

Hopefully no one on the jury has been subject to any kind of sexual abuse, but if one has not it is difficult to know how anybody who has not been in that position can really say how someone who is in that position is expected to behave afterwards. For example, the law for a long time assumed that if someone was a victim of sexual abuse that such a person would promptly complain. But we now know that there are numerous victims of sexual abuse, particularly children, who say nothing about it for months or years or indeed decades afterwards. They just go on living their lives in the same way as if nothing was happening.

Now, this shows how dangerous it is to make assumptions about how people in this position should behave, either generally or in a particular case. So consider carefully the extent to which any of you are really in a position to assess whether behaviour of this nature - that is, the not complaining immediately for two years - by someone in such a position as the complainant is inherently improbable. Now, as I say, that is only a matter of comment. You do not have to follow that if you do not want to. I just make that comment for you to consider.”

23. [23]
    The appellant’s written submissions particularly focused on the comment in the opening words of the second paragraph of “Hopefully no one on the jury has been subject to any kind of sexual abuse” as inflammatory and submitted those opening words may have created an impression that the trial judge accepted the complainant was a victim of sexual abuse.  The comment that the trial judge was making about there are no rules on how people who engage in sexual abuse of children behave and no rules about how their victims behave is one that was based on the summing up considered in R v Cotic [2003] QCA 435 and was to alert the jury that they should not act on pre-conceived ideas as to how perpetrators and victims of sexual abuse should behave.  It was held in Cotic that the comments of the trial judge of that nature in the context of the summing-up in that case were unremarkable, did not display partiality and did not render the trial as unfair.
24. [24]
    In oral submissions, the appellant focused on the last paragraph of the second passage and the opening words “Now, this shows how dangerous it is to make assumptions …” and submits that the trial judge was withdrawing from the jury the task of assessing the complainant’s evidence by reason of the delay in making the complaint by describing as dangerous the assumption that a victim of sexual abuse would promptly complain about the abuse.  The primary judge was careful to replicate the language that had been used to make a similar comment in Cotic.  The point of the comment was to stop the jury from starting their assessment with an assumption that a victim of sexual abuse should complain promptly about the sexual abuse but the jury were told expressly that the appellant’s argument about the delay between the timing of the kitchen incident on the complainant’s evidence and her first attendance on the police was a matter for them.
25. [25]
    In this matter, the trial judge flagged unambiguously that he was making a comment and not giving a direction and, as it was a comment in connection with the facts which were a matter for the jury, it was a matter for the jury to accept or reject the comment.  It was unexceptional for the trial judge to point out that, if one has not been the subject of any kind of sexual abuse, “it is difficult to know how anybody who has not been in that position can really say how someone who is in that position is expected to behave afterwards”.  That unexceptional comment was introduced by the words “Hopefully no one on the jury has been subject to any kind of sexual abuse” which naturally linked with the unexceptional comment and could not in any way be taken as the trial judge’s accepting the complainant was a victim of sexual abuse.  The trial judge was commenting objectively about victims of sexual abuse for the purpose of emphasising that there are no rules on how either people who engage in sexual abuse of children behave or how their victims behave.  By describing it was dangerous to make the sort of assumptions that were referred to in the comment, the trial judge was emphasising the point he was endeavouring to make by way of comment.  The description of “inflammatory” that the appellant uses in its submissions is not applicable to a fair reading of the trial judge’s comment.
26. [26]
    In oral submissions, the appellant sought to rely on a third passage from the summing up in support of ground 1.  This third passage was within the trial judge’s explanation of the elements of the offence by reference to a handout on the elements of the offence which was MFI “B”.  In dealing with the five elements, the trial judge explained that what was really in issue was whether the prosecution had proved that “there was this dealing in the kitchen that you have heard evidence about”.  In giving the definition of “dealing”, the trial judge stated that it includes an act which, if done without consent, would constitute an assault.  The third passage arose in the context of explaining that the dealing had to be without consent:

“But really whether there is consent or not for this charge does not matter. So it is an act, namely a contacting of her body in the way described in those kinds of behaviours, which if done without consent would be an assault. But her consenting or not - I think it is pretty clear probably that she was not consenting, but whether she is consenting or not does not matter to this charge.”

27. [27]
    The third passage was immediately followed by the trial judge repeating the essence of his directions on the elements:

“So they are the elements, and, as I say, the really contentious one is has the Prosecution proven beyond a reasonable doubt that there was this kind of dealing that the complainant gave evidence of in the kitchen.”

28. [28]
    The appellant submitted that the third passage suggested an acceptance by the trial judge of the truthfulness of the complainant’s evidence as to the kitchen incident.  That is reading the third passage out of context.  It is apparent from the whole of the summing up, but particularly the discussion on the elements of the offence that immediately preceded and followed the third passage, that the trial judge was saying to the jury in the third passage that it was “pretty clear”, if they accepted the complainant’s evidence as to the kitchen incident, that she was not consenting.  It would not have been understood otherwise by the jury when the trial judge repeatedly emphasised for them the onus was on the prosecution to prove the occurrence of the kitchen incident beyond reasonable doubt and the assessment of the complainant’s evidence was a matter for the jury.
29. [29]
    The appellant submits that these passages led to an unbalanced summing up which was prejudicial to the appellant.  The reading of the summing up as a whole does not support a submission that the summing up was unfair to the appellant.  The appellant’s challenge to each of the three passages was misconceived.  It follows that he does not succeed on ground 1.

Ground 2 – should the transcript of the complainant’s evidence have been provided to the jury?

30. [30]
    The appellant acknowledges that it is within the trial judge’s discretion to provide the jury with the transcript of the evidence at the trial: R v Tichowitsch [2007] 2 Qd R 462 at [7]-[9].  Mr Kennedy of counsel who appeared for the appellant at the trial objected to the transcript of the complainant’s evidence being provided to the jury where the jury had heard the evidence the previous day and had not made a request for any of the evidence to be replayed.  The trial judge considered it was likely that when the jury commenced deliberations they would request to hear the evidence again and the trial judge therefore proposed that two copies of the complainant’s evidence be provided to the jury for use in the jury room.
31. [31]
    The trial judge gave the jury a lengthy direction about use of the transcript:

“What I am going to give you when you retire is two copies of a transcript of the complainant’s evidence, of which you have seen the recording played back. As you are aware, this proceeding, like all trials, is recorded, and that includes the recorded evidence of the complainant, including her cross-examination. I will give you the hard copy of the transcript to assist as an aid during your deliberations. To that end, anything that occurred that was not part of the evidence has been removed from it, such as legal arguments which took place during various breaks during the recording, as you saw. So that is going to be given to you as an aid because the evidence is pretty lengthy; right?

But it is important that you keep in mind at all times that the transcript is not itself the evidence; it is merely an aid for your use. The evidence is what you heard the witnesses say when giving the evidence from the witness box, or in her case the remote witness room. The transcript is just provided to you to help you recall the evidence the witness gave.

Bear in mind also that a transcript is only ever at best another person’s opinion of what can be heard on the recording; that is, what the person typing up the transcript believed he or she heard. Usually the transcript is fairly accurate and the parties have had the opportunity to check it. But even then that does not mean that the transcript is in all respects an accurate transcription. I am yet to see one that is 100 per cent accurate despite revision. So you do need to exercise caution.

The critical thing to remember, though, and to act on is that if you see something in the transcript which is different to what you heard the witness say you must act on what you heard the witness say, not on the transcript, because it is what you heard which is the evidence.

Lastly, you should not give the evidence of the complainant any more weight than it deserves merely because there is an aid to your recall of that evidence which is in written form. It is important to recall the evidence as it was given during the trial and what, if anything, you thought about the reliability of the evidence as you heard it. You are also entitled if necessary to have the recordings replayed in whole or in part if you think that is helpful. As I say, you will be given two copies of the transcript to share between you. They will remain in the jury room with you.”

32. [32]
    This direction given by the trial judge to the jury in relation to the use of the transcript during their deliberations made it clear that it was primarily an aid for them to recall any specific aspect of the evidence given by the complainant which they wished to check.  As the jury had listened to the complainant’s evidence on the preceding day, it was most likely that was the purpose for which the jury would use the transcript.  They were told that the recordings could be replayed in whole or in part, if they thought that was helpful.  They were also given appropriate warnings about the evidence being what they had heard the complainant say in her evidence and that they should not give the complainant’s evidence any more weight than it deserved because they had the transcript as an aid to their recall of that evidence.
33. [33]
    In the circumstances of this trial, no miscarriage of justice occurred by the provision of two copies of the transcript of the complete evidence of the complainant to the jury for their deliberations as an aid to help them recall the evidence of the complainant.  The appellant does not succeed on ground 2.

Ground 3 – did the trial judge err in the ruling on the editing of the complainant’s cross-examination?

34. [34]
    The portion of the cross-examination that was ruled inadmissible by the primary judge was directed at pages 78 and 79 of the statement recorded by the police officer in the officer’s notebook when the complainant first went to the police on 9 September 2021.  The portion of the cross-examination commenced with this exchange:

“Now, you first went to the police over a year later on the 9th of September 2021, that’s correct?---Yes, I believe so - - -

And you made a notebook statement?---Yes.

Which you signed?---Yes.

And you read through it before signing it?---I believe so, yes.

Now, your evidence in court today and also the evidence that you gave in your statement from a few months later was that he caressed your body; is that right?---Are we talking about the kitchen incident?

Yes?---Yeah, he put his hands down my body.”

35. [35]
    It is apparent from the above exchange that the premise on which the appellant’s counsel commenced the cross-examination on these passages in the police notebook was that they related to the kitchen incident and that was the basis on which the complainant was responding to the questions.  Although this ground of appeal is directed at the trial judge’s ruling that the portion of the cross-examination that commenced with the above exchange should be edited from pre-recording of the complainant’s examination, the ruling was based on an earlier ruling of the trial judge that the cross-examination was unfair.  That ruling was as follows:

“HIS HONOUR: Yeah and the notebook version with that introduction, right, so that passage at the bottom of 78 top of 79 he is talking about these erection cuddling events, to use that inelegant shorthand. And says that, it seems to me, on some of those occasions she would ask him to “let me go” and he wouldn’t. But nowhere does it say this happened in the kitchen, you know, on this particular month in 2019 and “I asked him to let me go.”

So I don’t say it is not fair of you to be asking a question along the lines that sometimes she has said that she did ask him to let her go, right? But it would have to be with that introduction, that she has only ever said it in the context of a much broader allegation. In other words, I do think it is unfair for you to rely on that bit of narrative at 78 and 79 to say that she’s at some stage said something different about this kitchen incident that she’s talking about in this trial. Because it is not that and it is not even necessarily one of those. See what I mean?”

36. [36]
    Pages 78 and 79 of the notebook statement were not in evidence at the trial.  The trial judge had a copy as they were provided to the trial judge by the prosecutor when the trial judge queried what statement was being put to the complainant in the cross-examination and the prosecutor objected that it did not appear that the statement was “being put properly to the witness”.  The relevant pages were not marked for identification.  There was no application to adduce the relevant pages from the notebook statement as evidence for the purpose of this appeal.  The Court on appeal is not able to review the trial judge’s ruling that the relevant cross-examination of the complainant was unfair by reference to pages 78 and 79 of the notebook statement.
37. [37]
    The ruling on the cross-examination shows that the complainant in the relevant paragraphs in the notebook statement was describing the general conduct of the appellant in caressing her body and was not referable only to the kitchen incident but the appellant’s counsel had directed the complainant to the kitchen incident as the subject of the first passage on which he was cross-examining her and the kitchen incident remained the focus of the appellant’s counsel’s questions as he put further passages from the notebook statement to the complainant.  The trial judge therefore ruled that it was unfair for the appellant’s counsel to rely on the narrative at pages 78 and 79 of the notebook statement to say that the complainant was saying something different about the kitchen incident.  It is not readily apparent from the exchanges between the trial judge and counsel that preceded the ruling on the unfairness of the cross-examination and the content of the ruling that any error was made by the trial judge in making that ruling.
38. [38]
    The trial judge’s upholding of the prosecutor’s objection to that line of cross-examination means the trial judge’s ruling to edit the impugned passages of cross-examination from the pre-recording was not an error in the circumstances.
39. [39]
    After ruling that the cross-examination was unfair, there was an exchange between the trial judge and the appellant’s counsel about how the appellant’s counsel might resume the cross-examination and the trial judge pointed out that the complainant was talking about more than one occasion where there was conduct of the nature of the kitchen incident and that there was a forensic benefit for the appellant in that the prosecution was proceeding with one charge only.  The appellant’s counsel then indicated that he would “just move on”.  When the cross-examination resumed, the appellant’s counsel sought confirmation again that the complainant first spoke to police on 9 September 2021 and that was over a year after the complainant said the kitchen incident occurred and did not seek to revisit the passages at pages 78 and 79 of the notebook statement.
40. [40]
    In view of the trial judge’s ruling that the impugned passages of cross-examination were unfair which was the basis for the trial judge’s ruling that those passages should be edited out from the pre-recording, the appellant cannot show there was an error in the editing of the pre-recording.  The appellant does not succeed on ground 3.

Order

41. [41]
    The order which should be made is: Appeal dismissed.