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District Court 11 May 2009

R v James Duncan SMITH

[2009] NSWDC 411

Sexual offences
CRIMINAL LAW JURY NOTE DISCUSSION OF AUTHORITIES

Citation: R v James Duncan SMITH [2009] NSWDC 411
Court: District Court of New South Wales
Date: 11 May 2009
Judge(s): Cogswell SC DCJ

Background

The accused faced a retrial on charges involving a child complainant. Because this was a retrial, the prosecution relied on two separate recorded items: a video recording of the complainant's police interview (tendered as the complainant's evidence-in-chief under s 306U of the Criminal Procedure Act 1986), and a DVD recording of the complainant's testimony from the original trial (tendered under s 306I of the same Act). Both recordings were marked for identification rather than formally admitted as exhibits, following agreement between the parties.

During deliberations, the jury sent a note requesting a copy of the transcript of the complainant's police interview. The judge interpreted this as a request for the transcript of the recorded police interview. The question became how to respond to that request in a manner that was balanced and fair to both parties.

  • Whether, and in what form, the court should provide the jury with transcripts of recorded evidence given by a child complainant.
  • Whether the jury's request for the police interview transcript should be met in isolation, or whether fairness required that cross-examination material also be provided.
  • Whether the DVD recordings of the complainant's evidence should have been admitted as exhibits or merely marked for identification (noted but not resolved).

Decision

His Honour considered two key authorities. In R v NZ (2005) 63 NSWLR 628, the Court of Criminal Appeal held that a video recording played as evidence-in-chief becomes part of the court record rather than a formal exhibit, and that any provision of transcript to a jury should maintain balance by also providing or summarising the cross-examination. In Gately v The Queen (2007) 232 CLR 208, Hayne J identified strong considerations against sending video evidence into the jury room as an exhibit at all.

His Honour noted the distinction drawn in NZ between the Evidence (Children) Act 1997 provisions considered in that case and s 306B (now s 306I) of the Criminal Procedure Act, which expressly allows a record of original evidence to be "tendered as evidence." This distinction raised, but did not resolve, whether the DVD in the present case should have been formally admitted as an exhibit. His Honour regarded it as unnecessary to decide that question.

On the core question of responding to the jury note, His Honour applied the principle from NZ that a jury asking to be reminded of a witness's evidence-in-chief should not receive that material in isolation. Providing only the evidence-in-chief, without also providing the cross-examination, risks giving disproportionate weight to one side of the evidence. His Honour noted he had warned the jury to read all of the transcript, including the challenges made in cross-examination.

Accordingly, His Honour directed that the jury receive transcripts covering not only the complainant's police interview but also her evidence-in-chief, cross-examination, and re-examination from the previous trial.

Orders Made

  • The jury was to be provided with a transcript of the complainant's police record of interview and a transcript of the complainant's evidence-in-chief, cross-examination, and re-examination from the previous trial.

Key Takeaways

  • Where a jury requests a transcript of recorded evidence-in-chief given by a child complainant, the principle of balance and fairness requires that the cross-examination (and re-examination) also be provided, not just the evidence-in-chief.
  • The Court of Criminal Appeal in R v NZ established that a judge may respond to such a request either by summarising the whole of the evidence or by providing the full transcript, but must avoid presenting the evidence-in-chief in isolation.
  • Under s 306I of the Criminal Procedure Act 1986, a prosecutor in a retrial may tender the record of a complainant's original trial evidence, and this statutory language potentially distinguishes such material from ordinary evidence-in-chief video recordings for the purpose of exhibit status.
  • Whether a DVD of prior testimony tendered under s 306I should be formally admitted as an exhibit or merely marked for identification was left open in this decision; His Honour found it unnecessary to resolve that question.
  • A jury should be cautioned, where transcript or recordings are provided, against giving disproportionate weight to repeated exposure to the complainant's evidence-in-chief, and should be reminded to consider all other evidence in the case.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 306B, 306I, 306U
- Evidence (Children) Act 1997 (NSW)

Cases
- Gately v The Queen (2007) 232 CLR 208 (High Court of Australia)
- R v NZ (2005) 63 NSWLR 628 (NSW Court of Criminal Appeal)