Special Bulletin 13 — August 2005

This Bulletin has been archived because it has been superseded and/or incorporated in the relevant section of the Bench Book

R v NZ [2005] NSWCCA 278

Evidence in chief of a witness given by playing a videotape

 

In R v NZ [2005] NSWCCA 278, the Court of Criminal Appeal, constituted by five judges, set out the preferred procedure in cases where evidence in chief of a witness has been given by playing a videotape.

The appellant had been convicted of the offence of aggravated sexual assault under s 61J of the Crimes Act 1900. The complainant and several other Crown witnesses all fell within the definition of “child” in s 6 of the Evidence (Children) Act 1997. At the trial, their evidence in chief was given substantially by way of videotaped interviews with police officers. Further examination in chief and cross-examination were conducted by way of video-link between the courtroom and a remote location in which the witness was present. The videotapes were marked as exhibits and provided to the jury, without objection, along with the other exhibits when they retired to consider their verdict. The jury room contained facilities to play videotapes, albeit defence counsel appears to have been unaware of this fact.

The court, by majority, held that there was no miscarriage of justice as a result of the tender of videotapes containing only a portion of the Crown case against the appellant and their being allowed to be played by the jury during their deliberations in the jury room.

The leading judgment of the majority was given by Howie and Johnson JJ (Wood CJ at CL and Hunt AJA concurring). Although their Honours held that the videotapes should not have been tendered as exhibits, they held that there had been no miscarriage of justice. Spigelman CJ, in a dissenting judgment on this issue, held that there had been a miscarriage of justice by reason of the members of the jury playing the videotapes in the privacy of the jury room.

The court, in the majority judgment, took the opportunity to summarise their views as to the procedure to be followed generally where evidence is given in chief by way of videotape, in the following terms (at [210]):

(a) 

The videotape evidence of a Crown witness should not become an exhibit and, therefore, should not be sent with the exhibits to the jury on retirement;

(b) 

Any transcript given to the jury under s 15A [Evidence (Children) Act 1997] should be recovered from the jury after evidence of the witness has been completed;

(c) 

It is for the discretion of the trial judge how a jury request to be reminded of the evidence in chief of the witness should be addressed;

(d) 

It would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed.

(e) 

If the tape is to be replayed or the transcript of the tape provided to the jury, the judge should caution the jury about their approach to that evidence when the tape is being replayed to them or the transcript of the tape returned to them in terms to the effect that “because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case”;

(f) 

The judge should consider whether the jury should be reminded of any other evidence, for example the cross-examination of the witness at the time that the tape is replayed or sent to the jury room, if that step is considered to be appropriate.

But other than expressing those views, we believe that the request by a jury for the replaying of the tape should be dealt with by the judge in the exercise of discretion bearing in mind the need for fairness and balance in addressing that request.

The court emphasised that it did not intend by the above expression of views to lay down any rule of practice or procedure to be followed in every case where the evidence in chief of the witness has been given by the playing of a videotape.

Earlier at [208], Howie and Johnson JJ expressed the view that the trial judge should also give a warning to the jury as to the caution with which they are to approach the re-playing of the videotape of the evidence in chief of a witness in the manner suggested by McMurdo P in R v H [1999] 2 Qd R 283, viz, the judge should also warn the jury that:

because they are hearing the evidence in chief of the [complainant] repeated for a second time and well after all the evidence, they should guard against giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case.

Amendments will be made to the Bench Book to incorporate the above principles.