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33
Court of Criminal Appeal 17 August 2005

Regina v NZ

[2005] NSWCCA 278

Also reported as (2005) 63 NSWLR 628
Sexual offences
CRIMINAL LAW VERDICTS WHETHER VERDICTS OF CO ACCUSED INCONSISTENT ACCUSED EVIDENCE

Citation: Regina v NZ [2005] NSWCCA 278
Court: NSW Court of Criminal Appeal
Date: 17 August 2005
Judges: Spigelman CJ; Wood CJ at CL; Hunt AJA; Howie J; Johnson J

Background

The appellant, a juvenile, was tried in the District Court alongside a co-accused, also a juvenile, on charges of aggravated sexual assault under s 61J of the Crimes Act 1900 and, in the alternative, sexual intercourse with a child under s 66C. Both charges arose from the same incident involving a single complainant who was also a juvenile.

The complainant and several other Crown witnesses gave their evidence in chief predominantly through videotaped police interviews, as permitted under the Evidence (Children) Act 1997. The jury also received transcripts of those recordings. Further examination and cross-examination was conducted via video-link. The videotapes were sent to the jury room as exhibits when the jury retired, without objection from either party.

The jury convicted the appellant of the s 61J offence but acquitted his co-accused of that charge, instead convicting the co-accused only of the lesser s 66C offence. The appellant appealed on four grounds: two concerning the consistency of the verdicts between the two accused, and two concerning the handling of the videotaped evidence during deliberations.

  • Whether the different verdicts returned against the appellant and his co-accused were legally inconsistent, given that both charges arose from the same incident and complainant
  • Whether there was a reasonable basis on which the jury could distinguish between the Crown cases against each accused
  • Whether sending the videotaped interviews to the jury room as exhibits, without a warning against giving that evidence disproportionate weight, amounted to a fundamental procedural irregularity causing a miscarriage of justice
  • Whether the preferred procedure for handling videotaped evidence of child witnesses in the jury room should be clarified

Decision

Consistency of verdicts: The Court confirmed that the principles governing inconsistent verdicts within a single accused's trial apply equally when comparing verdicts across multiple accused. Applying those principles, the Court found there was a reasonable basis on which the jury could distinguish the Crown's case against the appellant from that against his co-accused. The inconsistency grounds failed.

Videotaped evidence in the jury room: The majority (Howie and Johnson JJ, with Wood CJ at CL and Hunt AJA agreeing) held that a breach of practice or procedure regarding the use of videotaped evidence does not automatically constitute an irregularity going to the root of the trial. The Court acknowledged that a common law discretion exists to withhold exhibits from the jury room where there is a risk they will receive undue weight over other oral evidence.

No miscarriage of justice on the facts: Despite the videotapes being sent to the jury room without a cautionary direction, the Court was satisfied no miscarriage of justice had occurred. Crucially, the jury themselves requested and were provided with the transcript of the complainant's cross-examination, which the Court found effectively corrected any potential imbalance. The trial judge also gave appropriate directions regarding how the jury should approach the complainant's evidence.

Preferred procedure going forward: The Court took the opportunity to set out, as a general rule, the preferred procedure for handling videotaped evidence of child witnesses. That procedure is summarised in the Key Takeaways below.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the test for inconsistent verdicts applies equally when comparing verdicts across co-accused tried together, not only when examining a single accused's verdicts.

  • A procedural irregularity in handling videotaped evidence of a child complainant does not automatically produce a miscarriage of justice; the question remains whether the trial was rendered unfair or unbalanced in its overall conduct.

  • A common law discretion exists for a trial judge to withhold an exhibit from the jury room where there is a real risk that the exhibit will be given disproportionate weight over viva voce (live, in-person) evidence.

  • The Court set out a preferred procedure under the Evidence (Children) Act 1997: videotaped evidence in chief should not be tendered as an exhibit and should not be sent to the jury room on retirement; any transcript provided under s 15A should be recovered once that witness's evidence is complete; if the jury requests a replay, the judge retains discretion on how to respond, but should caution the jury against giving the replayed evidence disproportionate weight and remind them to take into account the cross-examination.

  • On the rule of comity, the Court noted that the weight given to intermediate appellate decisions from other Australian jurisdictions may be reduced where the question concerns practice and procedure in a local statutory context, rather than the interpretation of uniform or equivalent legislation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 66C
- Evidence (Children) Act 1997 (NSW), ss 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 15A, 17, 25, 30, Parts 3, 4, 5
- Evidence Act 1995 (NSW), ss 165A, 165B
- Jury Act 1977 (NSW), ss 55A, 55C
- Criminal Procedure Act 1986 (NSW), ss 285, 306B
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Criminal Appeal Rules, Rule 4
- Comparative provisions: Criminal Justice Act 1988 (UK), s 32A(2); Evidence Act 1908 (NZ), ss 23D, 23E; Evidence Act 1977 (Qld), ss 93A, 99; Evidence Act 1958 (Vic), s 37B; Evidence Act 1906 (WA), s 106I(1)(b)

Key Cases:
- Osland v The Queen (1998) 197 CLR 316
- Jones v The Queen (1997) 191 CLR 439
- R v Markuleski (2001) 52 NSWLR 82
- MFA v The Queen (2002) 213 CLR 606
- R v Skaf (2004) 60 NSWLR 86
- R v Madigan [2005] NSWCCA 170
- Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
- Fernando v Commissioner of Police (1995) 36 NSWLR 567
- R v Young (1999) 46 NSWLR 681
- S v Boulton [2005] FCA 821
- Camden Park Estate Pty Limited v O'Toole (1969) 72 SR(NSW) 188
- R v Domican (No 3) (1990) 46 A Crim R 428