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Court of Criminal Appeal 23 April 2019

AB (a pseudonym) v R

[2019] NSWCCA 82

Sexual offences
CRIMINAL LAW JURY TRIALS CHIEF AND CROSS EXAMINATION JURY TRIALS WARNINGS

Citation: AB (a pseudonym) v R [2019] NSWCCA 82
Court: NSW Court of Criminal Appeal
Date: 23 April 2019
Judges: Macfarlan JA (with whom Fullerton J and Bellew J agreed)

Background

The applicant was convicted at a District Court retrial of one count of aggravated sexual assault and two counts of aggravated acts of indecency. Because the complainant's evidence had been recorded at the first trial, the Crown relied on that DVD recording as evidence at the retrial, pursuant to s 306B(1) of the Criminal Procedure Act 1986 (NSW).

After the jury retired to deliberate, it sent a note asking to watch the DVD again. The trial judge allowed the jury unrestricted access to the disc, which had been marked as exhibit A. Defence counsel had objected the previous day, arguing this would cause the jury to give disproportionate weight to the complainant's evidence.

The applicant sought leave to appeal, contending the trial judge made two errors: permitting unsupervised, unrestricted jury access to the recording, and failing to give a further warning to guard against the jury affording the recorded evidence undue weight.

  • Whether the trial judge erred in allowing the jury unsupervised and unrestricted access to the DVD of the complainant's evidence-in-chief and cross-examination during deliberations
  • Whether the trial judge was required to give a "repetition warning" before providing the jury with the DVD, to prevent disproportionate weight being given to the recorded evidence

Decision

Ground 1: Unrestricted jury access to the recording

Macfarlan JA reviewed the leading authorities, beginning with R v NZ (2005) 63 NSWLR 628, which held that video evidence of a Crown witness should ordinarily not be treated as an exhibit and sent with the jury on retirement, though a discretion to do so was retained. Later decisions, including Gately v The Queen (2007) 232 CLR 208, Jarrett v R and CF v R, confirmed that the key concern is the risk of a jury giving disproportionate weight to recorded evidence compared to evidence given in more conventional forms.

In this case, however, those concerns did not arise. The DVD captured the complainant's complete testimony, including both evidence-in-chief and cross-examination, rather than only the favourable portions. The applicant called no evidence and did not give evidence himself, meaning there was no live witness testimony that could be unfairly overshadowed by repeated viewing of the recording. Transcripts of all other witnesses were also made available. His Honour concluded that no prejudice resulted from the procedure adopted and no miscarriage of justice occurred.

Ground 2: Failure to give a repetition warning

The trial judge had given the s 306X statutory warning twice: when the DVD was tendered and again in the summing-up. The applicant argued that a further "repetition warning" of the kind described in NZ should have been given at the point the DVD was handed to the jury for deliberations.

Macfarlan JA accepted that such a warning would not have been inappropriate, but held it was not necessary on the facts. There was no significant risk of disproportionate weight being given to the complainant's recorded evidence because the recording covered her entire testimony and the other evidence in the Crown case was limited in scope. The absence of the warning did not produce a miscarriage of justice.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the principle from R v NZ against treating recorded complainant evidence as a standard jury exhibit is not an absolute rule; a trial judge retains a discretion to allow jury access in appropriate circumstances.
  • Where the DVD captures a complainant's complete evidence, including cross-examination, the risk of unfair emphasis that concerned the courts in NZ, Gately, Jarrett and CF may be significantly reduced or absent.
  • The absence of any competing live witness testimony from the accused or defence witnesses can be a relevant factor in assessing whether unrestricted jury access to a recording causes prejudice.
  • A "repetition warning" before providing recorded evidence to a deliberating jury may be appropriate but is not invariably required; its omission will only constitute error if there is a real risk of disproportionate weight being afforded to the recording.
  • In dismissing the appeal, the Court found that the s 306X warnings given at the time of tender and during the summing-up were sufficient on the facts, without any additional direction at the point of providing the disc to the jury.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61O(1), 66C
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), ss 306B(1), 306X
- Criminal Appeal Rules, r 4

Cases
- R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278
- Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55
- Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140
- CF v R [2017] NSWCCA 318