R v PBO[2024] QCA 238

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  I have had the advantage of reading Doyle AJA’s reasons for judgment in draft.  I agree, for the reasons given by Doyle AJA, that each of the grounds fails and so the appeal should be dismissed.  Given the differences of view expressed, I add the following brief observations, in support of the conclusion reached in relation to ground 2.
2. [2]
   The rationale for replaying recorded evidence of important witnesses in a criminal case only in the courtroom (rather than letting the jury play it in the jury room) and for requiring a warning of some kind to be given to the jury after doing so, is to guard against the risk of disproportionate weight being given to that evidence simply because of repetition or because it can be replayed, whereas other evidence cannot.^[1]
3. [3]
   What is required, in terms of a warning, depends on the particular case,^[2] bearing in mind that the overriding consideration for the trial judge is fairness and balance.^[3]
4. [4]
   As this Court observed in R v Enright [2023] QCA 89 at [74]-[75]:

“There is no doubt that evidence in an audio-visual form has a force, particularly when compared with evidence only available in documentary or transcript form. However, what may be necessary to provide an appropriate balance in the replaying of that type of evidence, must be considered in the context of the trial as a whole, including its length and the other evidence.

For example, the risk of disproportionate weight being given to such replayed evidence is heightened in circumstances where an accused has given evidence at trial, or where a complainant has given evidence in cross-examination which places the content of that audio-visual evidence as requiring correction. Those were the circumstances in R v SDL.”^[4]

5. [5]
   This was a very short trial; the appellant gave no evidence; and the cross-examination of the complainant was brief (about 15 minutes), focussing on the implausibility, or unreliability, of the complainant’s allegations of physical assaults; the change in what the complainant said to police in 2022, compared with 2020; a suggestion that the complainant’s memory was somewhat faulty; and putting to her that none of the things she had described to police had happened.  The closing submissions were also succinct.
6. [6]
   The summing up was comprehensive and detailed, and included a fairly extensive summary of all the evidence, which is not an essential feature of a summing up.  Quite often, particularly in a short trial, a trial judge might say something like “I am not going to remind you of all the evidence, you have just heard it and it is fresh in your minds…”.  But the fact that a summary was given means that the jury was reminded, by the judge, of what the complainant had said in her evidence in chief (across the two police interviews) and in cross-examination, as well as what the complainant’s mother and grandmother had said in their evidence.  The judge also, as is required, summarised the competing arguments of the prosecution and defence in a fair and accurate way.
7. [7]
   The trial judge clearly highlighted for the jury that the issue for them was whether they were satisfied beyond reasonable doubt that what the complainant described had in fact happened; emphasising in that context that the defence case was, in respect of each count, “this did not happen”.  That was also set out in a written document given to the jury in the course of the summing up.
8. [8]
   About an hour after the summing up had finished (at the end of the second day of the trial), the jury asked to review the video recordings of both the complainant’s interviews with police.  First thing the next day (day three), they modified their request to only the first one.  For the reasons addressed by Doyle AJA at paragraph [87] below, there was no error in the trial judge acceding to that request in the circumstances of this case.  After the interview was replayed for the jury, the trial judge instructed the jury that, “just because you watch the same evidence again, that doesn’t make it more important than it was”.  That was, essentially, a plain English way of saying “avoid giving undue weight to evidence that is recorded and therefore available for you to hear a second time”.
9. [9]
   On this appeal, counsel for the appellant initially submitted that the trial judge should also have directed the jury in specific terms, to keep in mind that:

   1. the fact of the complainant’s version changing between her first and second interview, specifically not including the rape allegations, was a significant part of the defence case.
   2. it was put to the complainant in cross-examination that her memory was somewhat faulty, and she agreed;
   3. the complainant gave evidence that she cried, loudly, when she was sexually assaulted, but the mother’s evidence, in cross-examination, was that she had never heard the complainant cry out unexpectedly without reason.
10. [10]
    However, in the course of the appeal hearing, counsel accepted that it would have been adequate for the trial judge to remind the jury, in addition to the warning his Honour did give, that the 2020 interview was only part of the complainant’s evidence, and that they must consider all the evidence.  Counsel explained that the matters set out in paragraph [9] above were the result of an effort to identify the “things the jury should have had in their mind in the context of viewing just that limited evidence” [the first police interview].
11. [11]
    In the circumstances of this case, I am of the view that neither a further direction of the narrower, nor the initially suggested broader, kind was necessary.
12. [12]
    Given the short duration of the trial, the scope of the cross-examination of the complainant, the fact that there was no defence evidence, the comprehensive summing up, the jury’s request only to view the first police interview and the narrow issue in the trial, it was not necessary for the trial judge to say more than he did.  The jury were plainly conscious of the fact that the 2020 interview was only part of the complainant’s evidence.  I would also infer, from the speed of the trial and the comprehensive summing up, that the jury remained cognisant of the challenges made by defence counsel (in cross-examination and closing address) to the credibility and reliability of the complainant (because both were repeated by the trial judge) and of the fact that the appellant denied physically and sexually assaulting the complainant.^[5]  The failure to give any additional direction, reminding them that the first interview was only part of the complainant’s evidence and that they must consider all of it, let alone repeating the points identified at paragraph [9] above, did not result in any unfairness or lack of balance.  The former would have been obvious to the jury, and the latter involved a degree of selection and detail that was not required.  I agree that the additional points mentioned by Doyle AJA in paragraphs [91] and [92] also support this conclusion.
13. [13]
    It is the routine practice of trial judges to warn juries, after pre-recorded evidence has been replayed, both of the need to avoid giving that evidence undue weight because they have been able to watch it again and of the need to consider the recorded evidence they have been able to re-watch in the context of the other evidence, and of any arguments of the accused in relation to that evidence.  Whether more detail is required as part of this warning, or whether the jury are required to also re-watch more of the evidence than they have requested, will depend on the circumstances of each case.  But a basic warning, with at least these two components, should be incorporated whenever recorded evidence is replayed.  It could readily have been done in this case, and would have avoided this ground of appeal arising.  The fact that I have concluded no miscarriage of justice was caused in this case by the failure to do so is not an indication that the brief form of warning given by the judge in this case ought be replicated in other cases.
14. [14]
    BODDICE JA:  I agree with Doyle AJA that grounds 1 and 3 must fail.  I have, however, come to a different conclusion in respect of ground 2.  I would allow the appeal on that ground.
15. [15]
    Doyle AJA’s comprehensive summaries of the evidence, addresses, summing up and relevant authorities, allow me to briefly state my reasons.
16. [16]
    There were significant discrepancies between the complainant’s first interview and the second interview including for the first time, the complainant mentioning the very significant allegations of the appellant trying to put his fist into her vagina and of having put his penis into her vagina.  Her description of the consequence of the first episode was significant, as was her concession that her memory was “somewhat faulty”.  These matters were central to the defence address which included reliance on there being no medical evidence of any injuries suffered by the complainant.
17. [17]
    Against that background, the failure to remind the jury of the salient features of the defence case, arising out of the second interview and cross-examination, gave rise to a risk of imbalance or unfairness in replaying the complainant’s first interview only.  The shortness of the trial exacerbated this risk, as the jury may have unduly focussed on the contents of the first interview without considering the need to view its contents in the context of the complainant’s evidence as a whole.  That risk was not adequately addressed by the trial judge warning the jury that the replaying of that evidence did not make it more important.
18. [18]
    These significant matters ought to have been the subject of specific identification by the trial judge, when directing the jury as to taking care not to make more of the replaying of the complainant’s first interview.  Each could have been the subject of a brief direction, reminding the jury of the relevant evidence and of the importance of the jury having regard to the complainant’s evidence as a whole, not merely that contained within the replayed first interview.
19. [19]
    In circumstances where the jury acquitted the appellant in respect of two counts involving the alleged infliction of physical violence, the failure to so direct gave rise to a miscarriage of justice.
20. [20]
    It was “prejudicial in the sense that there was a ‘real chance’ that it affected the jury’s verdict … or ‘realistically [could] have affected the verdict of guilt’ … or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’”.^[6]
21. [21]
    I would order:

1. The appeal be allowed.
2. The convictions below be set aside.
3. There be a new trial on counts 1 and 2.

22. [22]
    DOYLE AJA:  Following a jury trial in March 2024, the appellant was convicted of the offences of maintaining a sexual relationship with a child (Count 1) and rape (Count 2).  He was acquitted of two charges of assault occasioning bodily harm, one basic (Count 3) and one aggravated by reason that the appellant was alleged to have been armed (Count 4).
23. [23]
    The offences related to conduct approximately 10 years before the trial, when the complainant was six or seven years of age.  The prosecution case included video recordings of two police interviews of the complainant, conducted in March 2020 and June 2022.  It also included evidence-in-chief and cross-examination of the complainant which had been recorded in February 2024.
24. [24]
    After a short trial, and following the addresses and summing up, the jury requested that the recording of the complainant’s first interview be replayed.  The trial judge acceded to this request, and after replaying the first interview, instructed the jury that ‘just because you watch the same evidence again, that doesn’t make it more important than it was.’  The jury retired to consider their verdict, and soon returned verdicts of guilty on Counts 1 and 2, and not guilty on Counts 3 and 4.
25. [25]
    The appellant appeals the convictions on three grounds.  The first two grounds relate to the replaying of the complainant’s first police interview.  Ground 1 involves a contention that a miscarriage of justice was occasioned by replaying the first police interview without also replaying the complainant’s second police interview, and pre-recorded evidence.  Ground 2 involves a contention that the trial judge erred in not reminding the jury of the salient features of the complainant’s second interview and pre-recorded evidence (particularly the cross-examination).
26. [26]
    Ground 3 involves a contention that the trial judge erred in failing to give the jury a significant forensic disadvantage direction, pursuant to s 132BA of the Evidence Act 1977 (Qld).  The forensic disadvantage was said to relate to the unavailability of some potential witnesses, and the inability to test the complainant’s evidence as to the injury she claimed to have suffered as a result of the appellant’s sexual offending against her.
27. [27]
    For the reasons which follow, I would dismiss the appeal.

Background

28. [28]
    Before addressing the substance of the grounds of appeal, it is appropriate to summarise the charges faced by the appellant, and the trial context in which the grounds of appeal fall to be considered.

The allegations

29. [29]
    The complainant was born in April 2007.  The offending against her was alleged to have occurred between 31 December 2013 and 1 September 2014, when she was six or seven years of age.
30. [30]
    Count 1 involved an allegation that the appellant maintained a sexual relationship with the complainant, a child under 16 years of age.  The unlawful sexual acts by the appellant were alleged to include touching his penis in front of the complainant, touching the complainant’s vaginal area with his hand, penetrating the complainant’s vagina with his hand or finger(s), and penetrating the complainant’s vagina with his penis.
31. [31]
    Count 2 involved an allegation that appellant raped the complainant.  It was particularised as involving the appellant penetrating the complainant’s vagina with his finger(s), but by reference to the occasion the complainant described as involving the appellant trying to penetrate her vagina with his fist.
32. [32]
    Count 3 involved an allegation that the appellant struck the complainant with his hand, causing bruising and a cut on her lip.
33. [33]
    Count 4 involved an allegation that the appellant threw an object which struck the complainant’s arm, causing a cut on her arm.

The prosecution case

34. [34]
    The prosecution case focussed upon the evidence of the complainant.  However, it also included evidence from three witnesses: the complainant’s grandmother, the investigating police officer, and the complainant’s mother.
35. [35]
    The complainant first spoke to police on 31 March 2020, when she was 12 years of age.  She spoke with police again on 22 June 2022, when she was 15 years of the age.  The prosecution case included video recordings of both of these police interviews,^[7] as well as the complainant’s pre-recorded evidence-in-chief and cross-examination.^[8]
36. [36]
    By way of summary of the complainant’s first police interview, she made allegations that ‘when I was younger … [a] guy used to hit me and touch me’.  She identified this person as her mother’s boyfriend, the appellant.  She said that ‘he used to throw things at me … [a]nd he used to touch me’.  She thought it happened about four years ago, when she was seven, but that she ‘didn’t tell mum that he touched me or like tried to hurt me until, last night’.
37. [37]
    The complainant then summarised the house in which they were living at the time, including by drawing a diagram of the house.  She described who was living in the house with her, namely her mother, the appellant, his teenage sons (J and B), H (J’s girlfriend), C (the appellant’s friend) and C’s two children.
38. [38]
    When asked whether she thought anyone had seen the appellant physically assault her, the complainant said ‘I think J did’ because ‘he would just always be around’.  She added that ‘someone must’ve saw because it, it happened a lot’ but that ‘if people did see, they never did anything’.  She said that her mum ‘never knew’, explaining that she was always ‘locked in a room … having alone time, I think, or something’.  She could hear her mum ‘crying and stuff like that’.  The complainant also described B and H as generally staying in their rooms, and that C generally stayed downstairs.  Indeed, at one point, she seemed unclear about whether C was still living with them at the relevant time.
39. [39]
    In relation to the physical assaults, the complainant described an occasion when she had ‘blood on [her] lip’.  The appellant had got ‘really angry’ at her because she was not cleaning up leaves, and he had hit her face with ‘his hands’ (Count 3).
40. [40]
    The complainant also described an occasion when the appellant ‘threw things at me’, adding that he threw ‘utensils’ at her such as ‘spoons, knives, forks’.  She said that a ‘knife cut her arm’, and she put a band-aid on it (Count 4).  She was ‘really, really scared’.  She said that no one saw this incident, and that her mother was locked in her room when it occurred.  Later, in apparent reference to this incident, the complainant said that her mother never saw any of the blood.  She thought that H may have helped her clean up the blood, adding that ‘I think she saw it.’
41. [41]
    In relation to the sexual touching (Count 1), the complainant described it as starting ‘with him just like watching me getting dressed and watching me in the shower … then he, he started touching me on my, my, you know private areas … He just kept doing that, for a long time.’
42. [42]
    The complainant said that the appellant would sometimes call her disgusting and ugly, but other times call her cute and sexy.  It made her feel very ‘really weird’ and uncomfortable.
43. [43]
    Then ‘one day he showed me his private part when, when I was in the shower, out of random.’  She said that she saw his private part multiple times in the shower; that he would take it out and hold it and play with it, ‘like rubbing it’, with his hands.  She saw something coming out of his penis that was ‘like milk’; that he would make weird noises, ‘like breathing but louder’.  He would then stop doing it, and clean it up.
44. [44]
    The complainant described an occasion when she was sitting on her bed, getting dressed, and he put his whole hand on her ‘front private part’, touching her skin, and putting ‘his hand or fingers or whatever in, in it, one time, I think, I can’t like really remember.’  She also described an occasion when he put his finger in her private part, while she was in the shower and crying.  This happened the day after the appellant had thrown utensils at her.  She said that the touching on her genitals happened more than one time, because one time it was on the outside and one time on the inside.  She said that the appellant told her not to tell people or he would hurt her.
45. [45]
    Turning to the complainant’s second police interview, she repeated her allegation that the appellant had watched her in the shower and ‘jerked off’; that he would move his hand back and forth until he finished by ejaculating.  She saw this happen more than once; it happened a lot.
46. [46]
    The interviewing officer took the complainant through the allegations she had made during the first interview, which the complainant confirmed.  The complainant also said that things would happen when she was in her room, and that there were things she did not talk about when she last spoke with police.
47. [47]
    The complainant said that the appellant watched her getting changed more often than he watched her in the shower.  The touching on her vagina was not very regular at all, but progressively got worse each time.  It happened in her room, and once or twice in the room the appellant shared with the complainant’s mother.  At one point in the interview, the complainant said that ‘he would lay me down and like tell me it’s alright and everything and he would do it.  And then one time he tried to put his whole fist up there’ (Count 2).
48. [48]
    When asked by the interviewer whether there came a time when it was occurring almost every day, the complainant responded ‘mm, yeah at the end … Maybe not every day but yeah … basically, okay’.
49. [49]
    In addition to touching her vagina, the complainant said that the appellant would sometimes ‘feel me up a little bit on my butt and stuff’.  In particular, there was one time at the shops when he ‘slapped my butt’.  She said she was ‘pretty sure H said something about that that day’.
50. [50]
    The complainant said that the appellant had ‘ruined’ her vagina, that ‘it doesn’t look how it should look’.  She explained that it was ruined from him putting his fingers in her and ‘the stuff he did’.  She said ‘you’re not supposed to have sex when you’re seven.  You’re not supposed to have things in you when you’re seven, and like, it’s all stretched out’.  She later said that she has really bad pain, and that her vagina is stretched.  She said she had not been to see a doctor about this.
51. [51]
    When asked how the appellant had ‘ruined it’, she said that ‘he tried to have sex with me … He tried … to put his penis in my vagina … I think it was on Easter.’  She said that she would bleed when this happened.  He would ask her to touch his private part, but she never would.  When asked whether the appellant ever ejaculated inside her, the complainant answered ‘Mm-mm’.
52. [52]
    When asked how all of the things she described occurred with other people living in the house, the complainant repeated what she had said in her first interview about her mother being in her room, and about J, B, H and C (and her children) being either in their rooms or staying in the downstairs part of the house.  Referring to being ‘punched … and stuff’, she mentioned again that ‘I feel like H knew because she would help me clean up my like injuries sometimes and I didn’t tell her but.’
53. [53]
    The complainant’s evidence for trial was pre-recorded on 5 February 2024.  It was brief, lasting approximately 20 minutes, and may be summarised as follows.
54. [54]
    In evidence-in-chief, the complainant confirmed the truth of what she had said in her police interviews.  The diagrams she had drawn of the house and bathroom, and a photograph of the bathroom were tendered through her.  The complainant was asked to explain what she meant when she said to police that the appellant ‘tried to have sex’ with her.  She responded that he ‘raped’ her; that he put his penis in her vagina; and that he did so multiple times ‘but I’m not sure on a number’.
55. [55]
    In cross-examination, the complainant accepted that she was bruised and indeed knocked unconscious when the appellant hit her, but that she did not tell anyone and no one (including her teacher and grandparents) commented on her bruising.  She agreed that she thought that J probably saw, but that she had not told him not to tell anyone.  Others could have been in the house.  As for the incident when utensils were thrown at her, the knife caused a ‘medium size’ cut to her arm, but she did not go to hospital.  Some blood was on the floor, which H helped her clean.  She told H not to tell anyone.  The incident caused noise, but she was not sure whether anyone else heard it.
56. [56]
    Turning to the allegations of sexual offending, the complainant agreed that she was crying quite loudly when the appellant put his finger in her vagina; and that her mother would have been in her room, just over the hallway.  The complainant agreed that she had only mentioned the appellant trying to put his fist, and putting his penis, into her vagina during her second interview.  She agreed she had some trouble remembering back to 2013, and agreed with the cross-examiner’s suggestion that her memory was ‘somewhat faulty’.  She agreed that she could not remember some specifics, but she did not agree with the suggestion that it was ‘all a bit of a blur’.  It was put to her that none of the sexual offending occurred, but she maintained that it did.
57. [57]
    The complainant’s grandmother gave evidence that the complainant lived with her from August 2014.  During cross-examination she confirmed that the complainant would visit her during the period of the alleged offending, but she never observed any cuts or bruises.  She did say that the complainant’s mood and demeanour had changed at around the time of the alleged offending; that she went from being happy to being ‘a bit scared’.
58. [58]
    The investigating officer gave evidence that in June 2022 she tasked officers with trying to locate the J, B and H.  They could not be located.  In June 2022 she had also sought more details about C from the complainant and her mother, but had been unable to locate her.  During cross-examination, the investigating officer acknowledged that she had been given the names of J, B, C and H in 2020, but that she had not taken any steps to locate them for two years.
59. [59]
    The complainant’s mother gave evidence that she moved in with the appellant in March 2014.  She said that in 2020, the complainant told her that ‘at night he used to come in, and it started – he would masturbate in front of her, and then it went to touching, and then it escalated to rape.’  During cross-examination, the complainant’s mother said that she saw bruises on the complainant, but thought it was ‘normal kids stuff’.  She did not see any blood on the floor, or unexplained cuts on the complainant’s arm.  Nor did she ever hear her cry out unexpectedly.  She said she was afraid of the appellant, and that there were times when she could not leave her room.  She agreed that the complainant had not disclosed the rape to her in her initial complaint; that she did not tell her about this until later.

The defence case

60. [60]
    The defendant did not give evidence, and did not call any witnesses.  The defence case was that none of the alleged incidents occurred.  It involved a challenge to the complainant’s credibility and reliability.

Closing addresses

61. [61]
    In his closing address, the prosecutor contended that the complainant had described what happened in an authentic way, consistent with her age at the times she was interviewed and then gave evidence.  The delay in her complaining was explained by her fear, and there were in any event no rules about how and when someone might complain.  The complainant had been forthcoming about the gaps in her memory, consistent with the passage of time.  She had nevertheless maintained that the offending occurred as she alleged.
62. [62]
    Defence counsel emphasised that the complainant had accepted that her memory was ‘somewhat faulty’, and that her version had changed or developed between her interviews.  He mentioned the complainant’s young age and delay in reporting her allegations.  He also emphasised that there was no evidence before the Court that anyone saw or heard anything happening, despite the complainant’s claims of protracted and regular abuse, and that there were several people living in the house.  He pointed out that there was no medical evidence of any injuries suffered by the complainant.  He contended that the combination of these features would lead the jury to have reasonable doubt.

The course of the trial

63. [63]
    The trial was short in duration, lasting only two and a half days, and relatively narrow in scope.  It commenced on the morning of Wednesday, 6 March 2024.  During the course of that day, the complainant’s two interviews, and pre-recorded evidence, were played to the jury.  The grandmother gave evidence.  When the trial resumed the next day, the investigating officer and mother gave evidence.  Shortly before the lunch break on the second day, the prosecutor and defence counsel both gave short closing addresses.  Following the lunch break, the trial judge delivered his summing up.
64. [64]
    The summing up included a number of standard directions.  In addition to addressing the elements of the various offences, the trial judge also gave a relatively detailed summary of the evidence, along the lines of what has been set out above.  This included reference to pertinent aspects of the cross-examination of the complainant and defence case.  The trial judge noted that the jury had not heard any evidence from H, J, B or C, instructing the jury that they should not speculate as to what they might have said, had they given evidence.  The judge concluded his summing up by summarising the closing addresses given by the prosecutor and defence counsel, in similar terms to the summaries set out above.
65. [65]
    There was no request for any redirections and, at 3.21 pm on the second day of trial, the jury retired to consider their verdict.
66. [66]
    At 4.29 pm, the trial judge received a note from the jury.  The note contained a request to review the footage of the complainant’s two police interviews, and a request to be provided with the transcripts of those interviews.
67. [67]
    The jury returned to the courtroom and were told by the judge that he would replay the footage for them the following morning.  However, as to the second request, the judge explained that the footage, including its sound, were quite clear, and so queried whether there would be any need for the transcripts once the footage had been replayed.  He explained that it would be unusual to replay the footage and then also review the transcripts ‘because the danger with these things is, the evidence doesn’t become more significant because you watch it more, and read about it more, and – but there’s obviously – that’s something we wish to guard against.’  Noting that the footage of the interviews was quite long (just less than an hour for the first, and about 45 minutes for the second), the judge suggested resuming early the following morning.
68. [68]
    Once the jury had left the courtroom, defence counsel suggested that because the pre-recorded evidence of the complainant was short (approximately 20 minutes), it might also be replayed so that there would be ‘a complete representation of the evidence’.  The judge agreed with this suggestion, and said that he would give the jury the usual direction that they should not place too much emphasis upon the replayed evidence.
69. [69]
    The following morning, the trial judge received a further note.  The note was from a juror who was concerned with how she was being treated by another juror.  It included reference to that other juror saying that she wanted to go home and ‘doesn’t want to sit through the videos again’.  After speaking with the concerned juror in court, and then reminding the jury of the collective and collaborative nature of their responsibilities as jurors, and the importance of them respecting and discussing each other’s points of view, the judge invited the jury to resume their deliberations.  In so doing, the judge invited the jury to take a moment to decide whether they still wished to ‘view the tapes’ rather than simply starting to play them.
70. [70]
    After a short break, the jury sent a note to the judge indicating that they wanted to rewatch the first interview.  No reason was sought or given for this narrowed request.
71. [71]
    The first interview was replayed in court, commencing just after 10 am, and concluding just after 11 am.  In then inviting the jury to resume their deliberations, the judge gave the following direction:

“Obviously, just because you watch the same evidence again, that doesn’t make it more important than it was.  It’s fine to be reminded of things.”

72. [72]
    Counsel did not make any further submissions, or request any further directions.
73. [73]
    About an hour later, and so just after midday on the third day of the trial, the jury returned verdicts of guilty on Counts 1 and 2, and not guilty on Counts 3 and 4.

Grounds 1 & 2: replaying the complainant’s first police interview

74. [74]
    The two limbs of the appellant’s complaints about the replaying of the complainant’s first police interview have been set out earlier.  They involve complaints of a miscarriage of justice either by reason of the failure to also replay the complainant’s second police interview and recorded evidence (including cross-examination) (Ground 1), or by reason of the trial judge’s failure to remind the jury of the salient features of the complainant’s cross-examination and the defence case (Ground 2).
75. [75]
    The purpose of repeating a part of the evidence is to enable the jury to be reminded of what was said and, in some cases, the way in which it was said.  However, the jury’s obligation remains to consider the whole of the evidence, and this informs the trial judge’s role in ensuring a fair and balanced trial.
76. [76]
    Numerous authorities have recognised the risk that evidence that is repeated or replayed for the jury more recently than other evidence may, in the absence of an appropriate warning from the judge, be given disproportionate or undue weight by the jury.^[9]  The risk is one that arises from more recent repetition, and may be exacerbated by the form of the evidence that is replayed (for example, where it takes an audio-visual form).^[10]
77. [77]
    The extent of the risk, and what should be done to guard against distortion of the balance and fairness of the trial, may be influenced by a range of factors, including not only the nature and extent of the evidence repeated or replayed, but also the nature and extent of other countervailing evidence and considerations arising in the trial.  Whilst some general propositions may be made about the replaying of evidence, and the directions which should accompany that course when it is adopted,^[11] what is appropriate and necessary to ensure fairness and balance must ultimately be determined in the context of the particular case.^[12]
78. [78]
    The relevant principles were summarised in the following terms in R v LAK:^[13]

“The authorities establish that where all or part of the complainant’s evidence is replayed to the jury after they have retired, it is desirable that the jury be warned not to give undue weight to that evidence and, where applicable, to remind the jury of evidence called by the defendant.^[14]  The giving of such a direction is not, however, an immutable standard.^[15]  As was emphasised [by the High Court] in Gately, whether such a direction is necessary depends on the circumstances of the particular case.^[16]  The overriding consideration is whether fairness and balance gives rise to the need to guard against the risk that undue weight might be given to a complainant’s evidence where it is played a second time without a warning, or where no reminder is given to the jury about the competing evidence or considerations relied on by the defence.^[17]”

79. [79]
    The application of these principles when replaying the evidence of child complainants has been addressed in a number of decisions of this Court.^[18]  These decisions identify a number of relevant considerations, including: the nature and extent of the evidence requested to be replayed by the jury; any apparent rationale for the jury’s request; the nature and extent of the cross-examination of the complainant, and whether it is included within the evidence replayed; the nature and extent of the other evidence in the case; whether the defendant gave evidence; and the nature of the defence case more generally.  The length of the trial, and in particular the lapse of time between when the balance of the evidence was heard, and the complainant’s evidence is replayed, may also affect what is necessary to ensure fairness and balance in the trial.  It may also be relevant to consider any submissions made by trial counsel as to the process to be adopted in replaying any evidence, and as to the directions that should be given.  In particular, acquiescence by defence counsel in the course adopted, and the directions given, may weigh against a conclusion of miscarriage, particularly where there may have been a sound forensic reason for counsel’s approach.
80. [80]
    In R v CCW,^[19] the trial judge acceded to the jury’s request to replay the audio-visual recording of the child complainant’s police interview.  The jury declined the judge’s invitation to also replay the complainant’s subsequent pre-recorded evidence (including cross-examination).  In rejecting the complaint of miscarriage on appeal, the Court (Morrison and Flanagan JJA and Beech AJA) acknowledged the risk that evidence that is replayed to the jury more recently than other evidence may, in the absence of a warning from the judge, be given undue weight by the jury.^[20]  However, the Court considered the trial judge’s approach ‘impeccable’, explaining that the judge had specifically warned the jury not to place undue weight on the complainant’s police interview simply because they had seen it twice, and also reminded the jury of the salient features of the defence case advanced in cross-examination of the complainant (in terms which the appellant’s counsel had agreed).^[21]
81. [81]
    Most recently, in R v SDL,^[22] Dalton JA (with whom Mullins P and Boddice J agreed) reviewed several of the key authorities.  This included reference to the High Court’s decision in Gately v The Queen^[23] where, apart from the complainant’s police statement and pre-recorded evidence (including cross-examination) which were repeated for the jury, there was only limited evidence.^[24]  In those circumstances, no warning or direction was given about undue weight, and the High Court accepted that none was necessary.^[25]  However, their Honours recognised that, depending on the circumstances, it may be necessary to warn the jury of the risk of undue weight being attached to evidence which has been repeated, and to remind the jury of any countervailing evidence or considerations relied upon by the defence.^[26]  In Dalton JA’s view, this might be so even in cases where the defendant did not give evidence.^[27]
82. [82]
    The jury in R v SDL had requested that the complainant’s police interview be replayed.  The judge acceded to this request, but also replayed the complainant’s pre-recorded evidence (including cross-examination).  However, the judge did not give any direction warning the jury against attaching undue weight to the replayed evidence, or otherwise reminding the jury of any of the countervailing evidence or considerations arising in the defence case.  In circumstances where the defendant had given evidence, this was held to have occasioned a miscarriage of justice.  Dalton JA explained that, because the whole of the complainant’s evidence had been replayed to the jury:^[28]

“… it was incumbent on the trial judge to remind the jury in some detail of the appellant’s evidence, and what his counsel made of that evidence in address in order to achieve a fair balance.

As it was, the trial was distorted or unbalanced because nearly all the Crown case was replayed to the jury without any reminder of the defence case.  I accept the submission on behalf of the appellant that the fact that the appellant’s evidence had been given on a Friday, and that a weekend intervened before the complainant’s evidence was replayed to the jury, exaggerated the effect of this.  However, my view would have been the same even if the weekend had not intervened.”

83. [83]
    Returning to the circumstances of the present case, the trial was undoubtedly a short one.  The issues were relatively narrow, and clearly defined.  The cross-examination of the complainant was brief, and the defendant did not give evidence.  The closing addresses were succinct.  The trial judge’s summing up included a summary of the evidence that made reference to the salient features of the cross-examination of the complainant and defence case, and a summary of the closing addresses.  The evidence, addresses and summing up having occurred over the course of two days, the jury had only been deliberating for about an hour when they made their initial request to replay the complainant’s two police interviews.  The request was then narrowed, and the first interview was replayed for the jury on the morning of the third day.  The interview was thus replayed not long at all after the jury had heard the balance of the evidence, the closing addresses and summing up.
84. [84]
    Whilst there was no risk that the jury would have overlooked the balance of the evidence, the closing addresses and summing up, the issue is whether there was some risk that the replayed evidence was given disproportionate weight; or, put another way, some risk that aspects of the defence case were not given appropriate weight.
85. [85]
    In arguing that this was a real risk in the circumstances of the present case, the appellant acknowledged that he did not give evidence, but contended that maintaining a fair balance nevertheless required that the jury be reminded of several countervailing aspects of the evidence and defence case.  He pointed to various discrepancies between the complainant’s first interview and second interview, as well as matters raised in the pre-recorded cross-examination of the complainant.  The discrepancies included the failure to mention the rape allegations in the first interview.  The matters raised in cross-examination included the complainant’s acknowledgment of her ‘somewhat faulty’ memory, and that her mother was in her room over the hallway at the time the complainant was sexually assaulted and crying loudly.  These were, of course, all matters mentioned by defence counsel in his closing address, and reiterated by the trial judge in his summing up.
86. [86]
    To some extent, this risk of imbalance or unfairness was addressed by the judge warning the jury that replaying the complainant’s first interview did not make it more important.  It may be accepted that this alerted the jury to the nature of the risk, and implicitly reminded them of their obligation to consider the first interview in the context of the evidence as a whole.  However, the issue is whether, in the circumstances of the present case, adequately guarding against the risk of the jury attaching disproportionate weight to the replayed evidence required that the judge go further and either (i) replay the balance of the complainant’s evidence (the second interview, and the pre-recorded evidence, including cross-examination), or (ii) summarise the countervailing evidence and considerations relied upon by the defence (or, at least, remind them of the need to consider all of the evidence).
87. [87]
    I do not accept that the judge was required to replay the balance of the complainant’s evidence.  Whilst the circumstances in which the jury narrowed its initial request to replay both interviews were unusual, nothing ultimately turns on this.  There is no reason to go behind the jury’s apparently considered decision to confine their request to the first interview.  Even if there may be circumstances in which fairness and balance would require that the entirety of a complainant’s evidence be replayed, that will not always be required.^[29]  I do not consider that the circumstances of this case required that the judge encourage or require the jury to re-watch the entirety of the complainant’s evidence.  Ground 1 must therefore fail.
88. [88]
    That said, the fact that the second interview, and pre-recorded cross-examination, were not replayed is nevertheless a relevant consideration when assessing the appellant’s submission, in support of Ground 2, to the effect that the judge ought to have reminded the jury of the salient features of the defence case arising out of the second interview and cross-examination.^[30]
89. [89]
    As to the directions which should have been given when replaying the complainant’s first interview, it would have been desirable for the trial judge to have gone further than he did.  Directions which not only warned against the risk of attaching undue weight to the recently replayed evidence, but also reminded the jury of the salient features of the complainant’s cross-examination and the defence case,^[31] or at least reminded them of the need to consider all the evidence, would have ensured the appropriate fairness and balance.
90. [90]
    Whilst it is unfortunate that the jury were not also reminded of the salient features of the cross-examination and defence case, at least in a general way, I am not ultimately persuaded that the failure to do so occasioned a miscarriage of justice.  Given the short duration of the trial, the way in which the issues had been clearly and narrowly defined in the closing addresses and reiterated in the judge’s summing up, and the judge’s warning against attaching too much importance to the replayed part of the evidence, this Court can be confident that the jury was not only conscious of the risk of attaching undue weight to the replayed evidence, but also cognisant of the countervailing evidence and considerations raised on the defence case.  The requisite fairness and balance was maintained.
91. [91]
    For completeness, I observe that defence counsel had initially suggested that the pre-recorded evidence might be replayed in addition to the two police interviews requested by the jury.  However, when the jury’s request was narrowed, and only the first interview replayed, defence counsel did not seek any further direction.  Whilst not decisive, the fact that neither defence counsel, nor the trial judge, apprehended any risk of unfairness or imbalance provides some support for the conclusion I have reached.  It is appropriate to have some regard to the assessments made by these key participants in the trial as to what was necessary to ensure the requisite fairness and balance.
92. [92]
    I also observe that the jury ultimately found the appellant not guilty of the two assault charges.  The fact that these allegations were central to the complainant’s account in the first police interview, but challenged in the complainant’s cross-examination and in the defence case more generally, provides some additional support for my conclusion that there was no risk that the jury lost sight of the salient features of the complainant’s cross-examination and the defence case.
93. [93]
    Grounds 1 and 2 have not been made out.

Ground 3: significant forensic disadvantage

94. [94]
    Ground 3 involves a complaint of miscarriage by reason that the trial judge failed to give a ‘significant forensic disadvantage’ direction under s 132BA of the Evidence Act.  As mentioned earlier, there are two aspects to the forensic disadvantage relied upon by the appellant: the unavailability of some potential witnesses, and the inability to test the complainant’s claim to have suffered injury by reason of the absence of any forensic or medical evidence.
95. [95]
    The circumstances in which such a direction may be given, and its content, are governed by s 132BA of the Evidence Act:

“132BA Delay in prosecuting offence

1. This section applies in relation to a criminal proceeding in which there is a jury.

2. The judge may, on the judge’s own initiative or on the application of a party to the proceeding, give the jury a direction under this section if the judge is satisfied the defendant has suffered a significant forensic disadvantage because of the effects of delay in prosecuting an offence the subject of the proceeding.

3. For subsection (2), a significant forensic disadvantage is not established by the mere fact of delay in prosecuting the offence.

4. In giving the direction, the judge—

1. must inform the jury of—

1. the nature of the disadvantage; and

2. the need to take the disadvantage into account when considering the evidence; but

2. must not warn or in any way suggest to the jury that—

1. it would be dangerous or unsafe to convict the defendant; or

2. the complainant’s evidence should be scrutinised with great care.

5. However, the judge need not give the direction if there are good reasons for not doing so.

6. The judge must not, other than under this section, give the jury a direction about the disadvantages suffered by the defendant because of the effects of delay in prosecuting the offence.

7. In this section—

"delay", in prosecuting an offence, includes delay in reporting the offence.”

96. [96]
    The threshold requirement for the operation of s 132BA is satisfaction that the defendant has suffered a significant forensic disadvantage because of the effects of delay in prosecuting the offending (noting that this includes delay in reporting the offence).  As Bradley J explained in R v BEA:^[32]

“The statute excludes the mere fact of delay as sufficient to show such a disadvantage and requires the nature of the disadvantage to be identified.  The accused bears the onus of establishing there is a significant forensic disadvantage and that it is a consequence of the delay.  The disadvantage must be forensic, so it must be a disadvantage in challenging, producing, or giving evidence in the conduct of the case.  A party seeking such a warning must specify the nature of the significant forensic disadvantage to the accused and the particular consequences of the delay that give rise to that precisely identified disadvantage.”

97. [97]
    Consistently with the above, the forensic disadvantage must be based upon more than general speculation.  It must be real and identifiable.  It has also been emphasised that the defendant must satisfy the trial judge that he has suffered not merely a forensic disadvantage, but a significant forensic disadvantage.^[33]
98. [98]
    In considering a similar New South Wales provision in Jarrett v R,^[34] Basten JA described the trial judge’s task as follows:^[35]

“… the judge must identify the significant forensic disadvantage and must inform the jury of the nature of that disadvantage; the direction will therefore need to be case-specific.  In directing the jury of the ‘need’ to take that disadvantage into account, it will usually be expected that a direction would identify, so far as it is not obvious, how the disadvantage may affect the jury’s consideration of the evidence.  This aspect of any direction will not be straightforward: the usual consequence of delay is the loss of evidence or the loss of opportunity to test evidence; each involves a counterfactual assumption.”

99. [99]
    Basten JA went on to explain that the issue of delay is ‘relative and judgmental’.^[36]  It follows that the ‘counterfactual assumption’ contemplated by his Honour involves consideration of matters such as the evidence, witnesses and lines of cross-examination that might have been available in the event of a timely (but not necessarily immediate) report and prosecution.
100. [100]
     In the present case, the prospect of a significant forensic disadvantage direction was raised by the trial judge.  His Honour provided counsel with a proforma draft direction, and invited counsel to identify any significant forensic disadvantage suffered by the defendant.  After submissions in which counsel were not able to identify any specific disadvantage, and with the acquiescence of counsel, the judge decided he would not give the direction.
101. [101]
     Whilst not decisive, defence counsel’s acquiescence in this course is a relevant consideration in considering whether the failure to give such a direction involved any miscarriage of justice.
102. [102]
     The first matter relied upon on appeal as giving rise to a significant forensic disadvantage was the loss of an opportunity to obtain evidence from the people living in the same house as the complainant, her mother and the appellant at the time of the offending (namely, the appellant’s then teenage sons (J and B), H (J’s girlfriend) and C (the appellant’s friend)).
103. [103]
     The investigating officer gave evidence about the unsuccessful attempts to contact these potential witnesses, acknowledging in cross-examination that there was a delay of two years from when the complainant first reported the matter to police until inquiries were made.  In his summing up, the judge noted that the jury had not heard from J, B, H and C, but directed them not to speculate about what they might have said, had they given evidence.
104. [104]
     The primary difficulty with reliance upon the unavailability of these potential witnesses is that it is not clear that they would have been in a position to give evidence of any probative value in relation to the alleged offending, particularly the sexual offending of which the appellant was convicted.
105. [105]
     In relation to the physical offending (of which the appellant was acquitted), it is true that the complainant gave some evidence suggesting that J and H might have seen something: J, because he was often around and the offending happened a lot; and H, because she might have been helped cleaned up some blood.  However, the complainant’s evidence to this effect was fairly general, and needed to be seen in the context of other statements by her to the effect that the others in the house would not have seen what the appellant did to her because they tended to stay downstairs or in their rooms.
106. [106]
     As for the sexual offending, there was nothing in the evidence to suggest that B, J, H or C might have been in a position to give any relevant evidence.  There is no reason to think that any of them saw anything of significance to these allegations, or would be in a position to give evidence of any preliminary complaint.
107. [107]
     Further, and in any event, even if they might have been in a position to give some relevant evidence, it is not clear that the attempts to locate these potential witnesses would have been more successful if undertaken some years earlier.
108. [108]
     In summary, any disadvantage from the unavailability of potential witnesses was more theoretical and speculative than real and identifiable.  It did not provide a proper basis for a direction to the effect that the defendant had suffered a significant forensic disadvantage from the delay in reporting and prosecuting the complainant’s allegations.
109. [109]
     The second matter relied upon by the appellant was the absence of any medical or forensic evidence in relation to the injuries the complainant said she suffered, particularly the damage to her vagina that she described occurring as a result of the appellant’s sexual offending.  Whilst the trial judge mentioned this aspect of the complainant’s evidence in his summing up, his Honour did so only in the context of summarising the parties’ rival contentions.
110. [110]
     Importantly, the appellant seeks to rely upon the absence of any forensic or medical evidence, rather than the loss or destruction of any forensic or medical evidence by reason of delay.  The complainant made it clear in her evidence that she never sought any medical attention for her injuries.  There is no reason to think that a more timely reporting and prosecution of the alleged offending would have resulted in any probative forensic or medical evidence.  Medical evidence (including as to the absence of any genital injury) is unlikely to have been of any assistance in refuting the complainant’s allegations of sexual offending.
111. [111]
     For the reasons given, I am not satisfied that it has been established that the defendant suffered any significant forensic disadvantage because of the effects of delay in reporting and prosecuting the appellant’s offending.  There being no occasion for a direction to be given, the judge’s failure to give any such direction did not occasion a miscarriage of justice.
112. [112]
     Ground 3 has not been made out.

Conclusion

113. [113]
     For the reasons set out, I would dismiss the appeal.