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34
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: Court of Criminal Appeal, New South Wales
Date: 17 August 2005
Judge(s): Spigelman CJ; Wood CJ at CL; Hunt AJA; Howie J; Johnson J

Background

The appellant and a co-accused, both juveniles, were tried in the District Court on charges of aggravated sexual intercourse without consent (s 61J, Crimes Act 1900), with an alternative charge of sexual intercourse with a child aged between 10 and 16 years (s 66C). All charges related to a single complainant, also a juvenile, arising from an incident in the early hours of 30 January 2003 involving alcohol, a vehicle, and two separate alleged assaults.

The evidence in chief of the complainant and several other juvenile Crown witnesses was given by the playing of videotaped police interviews, consistent with the Evidence (Children) Act 1997. Further examination in chief and cross-examination occurred by video-link from a remote location. The videotapes were admitted as exhibits without objection and sent to the jury room with all other exhibits when the jury retired. No warning was given to the jury about the risk of giving the videotaped evidence disproportionate weight during deliberations.

The jury convicted the appellant of the s 61J offence but acquitted the co-accused of that charge, convicting him only of the alternative s 66C offence. The appellant appealed against conviction on four grounds: two relating to the alleged inconsistency of the verdicts, and two concerning the use and handling of the videotaped evidence.

Legal Issues

  • Whether the jury's verdicts as between the appellant and his co-accused were inconsistent, such that the conviction was unreasonable or could not be supported by the evidence.
  • Whether a miscarriage of justice arose from the jury having unsupervised access to the videotaped evidence in chief of the complainant and other Crown witnesses during deliberations.
  • Whether the trial judge erred by failing to warn the jury against giving the videotaped evidence disproportionate weight.
  • What procedural rules should govern the use of videotaped evidence in chief of child witnesses under the Evidence (Children) Act 1997, including the extent to which the rule of comity applies to interstate authority on those procedural questions.

Decision

Grounds 1 and 2: Inconsistency of verdicts (per curiam)

The Court held that the principles governing inconsistent verdicts against a single accused on multiple counts apply equally where verdicts differ as between co-accused. The relevant question was whether, in light of the evidence, issues, and directions, no reasonable jury applying its mind to the evidence could have returned the two different verdicts.

The Court found there was a rational basis for the different outcomes. The two assaults occurred in different circumstances, were of a different character, and the complainant's relationship with each accused differed. An alleged admission by the co-accused to a Crown witness raised, for that accused alone, a live issue about his belief as to the complainant's consent. The jury was entitled to conclude that the elements of the s 61J offence were proved against the appellant but not against the co-accused. These grounds were rejected.

Ground 3: Miscarriage of justice from jury access to videotapes (majority: Howie and Johnson JJ, with whom Wood CJ at CL and Hunt AJA agreed)

The majority held that the presence of the videotapes in the jury room did not cause a miscarriage of justice in the circumstances of this case. The Court observed that the content of the complainant's videotaped interview was unremarkable, the complainant gave her account in an unemotional and matter-of-fact manner, and there was nothing in the visual presentation of the tape likely to have an independent persuasive impact upon the jury. The jury had throughout their deliberations the transcripts of the videotaped interviews, and they themselves requested and received the transcript of the complainant's cross-examination, suggesting they were actively considering the whole of the evidence rather than focusing disproportionately on the evidence in chief.

The majority also noted that the appellant gave no evidence, meaning there was no defence case to be eclipsed by the prominence of the complainant's tape. Although rule 4 of the Criminal Appeal Rules was engaged because no objection had been raised at trial, the majority was prepared to assess whether any miscarriage of justice had occurred and concluded that none had.

Ground 4: Failure to warn the jury (majority)

The majority confirmed that a warning should ordinarily be given when a jury is reminded of videotaped evidence in chief, directing them to guard against giving that evidence disproportionate weight and to bear in mind all the other evidence in the case. However, the failure to give such a warning does not automatically constitute a miscarriage of justice. The effect of any failure depends on the circumstances of the individual trial, including the significance of the evidence and whether other protections were in place.

Grounds 3 and 4: Dissent (Spigelman CJ)

Spigelman CJ disagreed on these grounds. His Honour held that, as a general rule, videotaped evidence of this character should not go to the jury room unsupervised, and that rule should be strictly enforced where the evidence is that of a complainant in a sexual assault case. His Honour considered that evidence given confidently and with precise recollection, as the complainant gave it, was capable of being highly persuasive, and that persuasive effect would be reinforced by repetition. The availability of the cross-examination transcript did not sufficiently correct the imbalance because the tape carried a greater persuasive force than a written transcript. His Honour would have allowed the appeal and ordered a new trial.

Procedural framework (majority: Howie and Johnson JJ, with whom Wood CJ at CL and Hunt AJA agreed)

The majority set out a preferred procedure for the handling of videotaped evidence in chief of child witnesses, while declining to lay down any inflexible rule. The Court held that a common law discretion exists to withhold an exhibit from the jury room where there is a risk it will be given undue weight over viva voce evidence. The Court also addressed the extent to which the rule of comity applies to interstate authority, holding that the weight given to decisions of intermediate appellate courts in other jurisdictions may be reduced where the question concerns practice and procedure arising from local statutory provisions, rather than the construction of identical or substantially similar legislation.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The principles governing inconsistent verdicts between a single accused and multiple counts apply equally when assessing whether verdicts as between co-accused are inconsistent: the question is whether no reasonable jury could have returned the different verdicts given the evidence, issues, and directions.
  • A miscarriage of justice does not automatically follow from a breach of the preferred procedure for handling videotaped evidence in chief of a child witness; the significance of the evidence and the overall fairness of the trial must be assessed in the circumstances of each case.
  • At common law, a trial judge retains a discretion to withhold an exhibit from the jury room where there is a real risk it will be given disproportionate weight over the viva voce evidence, and the Court of Criminal Appeal considered that discretion to survive the enactment of s 55A of the Jury Act 1977 (NSW).
  • Where a jury is to be reminded of videotaped evidence in chief of a child witness, the preferred procedure includes: not making the tape an exhibit, recovering transcripts after the witness's evidence is complete, giving a balancing warning against disproportionate weight, and considering whether to remind the jury of cross-examination.
  • The rule of comity, which ordinarily requires a court to follow an intermediate appellate court of another jurisdiction on identical or substantially similar statutory provisions, carries reduced weight where the question is one of practice and procedure arising from local legislation, particularly where the relevant statutory schemes differ, as between NSW (with a uniform Evidence Act framework) and Victoria or Queensland (without one).

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated