AB (a pseudonym) v R [2019] NSWCCA 62
AB (a pseudonym) v R [2019] NSWCCA 62 · Read the judgment on AustLII
Catchwords: Recorded evidence of a complainant – whether jury should have unrestricted access in jury room
In a decision with consequences for retrials where the complainant’s evidence was recorded (and which might be relevant in other matters where some of the evidence is pre-recorded), the Court of Criminal Appeal (‘CCA’) has determined that it will seldom, if ever, be appropriate for the recording to be provided to the jury in the jury room.
The applicant was convicted after a trial of a range of sexual offences. That conviction came at the end of the second attempt at the trial (the first had also resulted in a conviction, but it was overturned on appeal). Because this was a retrial, the complainant’s evidence-in-chief and cross examination was played from a recording made at the first trial, pursuant to Criminal Procedure Act s306B(1). The DVD containing the recorded evidence was admitted as an exhibit. Having already heard and seen the evidence during the trial-proper, during their deliberations the jury asked for, and was given, the DVD. The access granted to the jury was over the objection of the accused, who pointed to earlier authority which told against that course of action (R v NZ (2005) 63 NSWLR 628 – ‘NZ’), but the trial judge decided that decision could be distinguished because in NZ the recording was only of the evidence-in-chief. Defence counsel submitted in the alternative that the access should be time-limited, but the trial judge declined that request also; unrestricted access was provided to the jury in the jury room. The jury returned guilty verdicts later the same day.
The applicant appealed his conviction on grounds including an asserted irregularity in providing unsupervised and unrestricted provision of the DVD of the complainant’s evidence to the jury.
Macfarlan JA (with whom Fullerton and Bellew JJ agreed) found that error was established in providing the DVD to the jury, but dismissed the appeal in the exercise of the proviso (i.e. on the basis there was no miscarriage of justice in this particular case).
The Court noted that the giving of evidence by DVD or sound recording does not constitute the DVD or sound recording itself as evidence in the proceedings (at [40]). As a result, the DVD should not have been marked as an exhibit. It followed that the ordinary (though discretionary) rule that exhibits are to be made available to the jury in the jury room did not apply, and it was for one of the parties to persuade the trial judge that there was a good reason why the DVD should be made available to the jury (at [42]). The judge should have approached the issue on the basis that it will seldom, if ever, be appropriate to allow a jury access to a recording in the jury room (at [43]). That irregularity notwithstanding, the Court did not consider that there was a miscarriage of justice in the circumstances of this case. Those circumstances included that no evidence was called by the accused (i.e. there was no danger of the complainant’s evidence being given undue weight as against that of the accused), both the evidence-in-chief and the cross examination were on the DVD, and the prime – if not exclusive – issue in the trial was the complainant’s credibility (at [44] to [51]). Likewise, although it would not have been inappropriate to give the jury a warning that they should not give the complainant’s evidence undue weight because they are hearing it a second time (a warning which had been referred to in NZ), its absence did not result in a miscarriage of justice (at [54]).