New South Wales District Court CITATION: R v James Duncan SMITH [2009] NSWDC 411 JUDGMENT DATE: 11 May 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: I will provide the jury with a transcript not only of the record of interview with the police but with a transcript of the evidence-in-chief, cross-examination and re-examination of the complainant which was given at the previous trial. CATCHWORDS: CRIMINAL LAW - jury note - evidence of complainant in trial given according to s 306U of Criminal Procedure Act 1986 - jury note requesting transcript of complainant's interview with police - discussion of authorities LEGISLATION CITED: Criminal Procedure Act 1986 s 306B, s 306I, s306U Evidence (Children) Act 1997 CASES CITED: Gately v the Queen (2007) 232 CLR 208 R v NZ (2005) 63 NSWLR 628 PARTIES: Regina James Duncan Smith FILE NUMBER(S): 2007/113560 COUNSEL: Mr J Gibson Mr G Porter JUDGMENT 1. In the course of this trial I received a note from the jury which I marked for identification 6. The note reads: "Your Honour I would like to request a copy of the transcript of the record of interview DVD of [the complainant]." [The complainant] is the complainant in this case. As I have made clear to anybody in the court, her name is not to be published outside the court, nor is she to be identified in any other way. This was a trial that - sorry it was three zero - what was the section? CROWN PROSECUTOR: 306 capital 'I' was it? HIS HONOUR: Capital 'I'. Yes it's not after a new trial being ordered is it, it's a-- CROWN PROSECUTOR: No your Honour. HIS HONOUR: And Mr Gibson the complainant's evidence was admitted under 306U wasn't it? CROWN PROSECUTOR: The pre-trial, the recorded pre-recorded interview yes. HIS HONOUR: Correct. CROWN PROSECUTOR: That's right. HIS HONOUR: I will return to the judgment now. 2. In this trial the complainant's evidence was admitted pursuant to a number of provisions of the Criminal Procedure Act 1986. Under s 306U the complainant, who was at all relevant times a child, gave evidence in chief partly in the form of a recording made by an investigating official of an interview between the complainant and the official. 3. That interview was recorded on video tape; the video tape was marked for identification 2 and played to the jury. The jury were supplied with copies of the transcript of that interview which they had access to during the recording but the transcripts were returned at other times. In addition, because this was a re-trial, the Crown Prosecutor elected to use the provisions of s 306I of the Criminal Procedure Act and tendered as evidence in these proceedings, a record of the original evidence of the complainant. The complainant had given evidence in a previous trial. That evidence was given on 12 February 2009. The record was in the form of a DVD and it too was marked for identification. The jury did not have a transcript of that evidence whilst they were viewing and listening to the DVD. 4. The request by the jury for a copy of the transcript of the record interview, although referring to DVD, I took to mean a transcript of the interview with the police. In determining how to respond to the request by the jury I have been referred to and considered the Court of Criminal Appeal's decision in R v NZ (2005) 63 NSWLR 628 and the decision of the High Court of Australia in Gately v The Queen (2007) 232 CLR 208. 5. NZ was a case where evidence was adduced by the Crown of the complainant and other young witnesses by way of playing various video tapes of interviews between the witnesses and police officers. In each case further examination in chief and cross-examination was conducted by questioning the respective witnesses. The video tapes of the interviews were tendered and admitted as exhibits. Transcripts of each of the interviews were provided to the jury. The video tapes were made available with the rest of the exhibits to the jury when they retired. 6. The principal judgment of the court was delivered by Howie and Johnson JJ who analysed the relevant provisions of the then Evidence (Children) Act 1997 and authorities touching upon the provision to juries of video tapes which had been used as evidence in chief. Their Honours concluded at [194] that there was "no basis upon which the tape should become an exhibit because once it is played to the jury as the evidence-in-chief of the witness, it becomes part of the court record just as does a recording of the viva voce evidence of any other witness". Their Honours drew support for that conclusion from the wording of the provisions which were relevant in that case. Their Honours contrasted the wording of the relevant provisions of the Evidence (Children) Act in that case with s 306B of the Criminal (Procedure) Act which provided that - "The prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant". 7. Section 306B referred to by their Honours is in relevantly the same terms as s 306I which is the relevant provision in this case. I have not been asked to rule on the question of whether the DVD of the examination-in-chief and cross-examination of the complainant in this case should have been admitted into evidence as an exhibit. The parties agreed and I concurred that the DVD should be marked for identification. This occurred and, as I said, the video tape of the police interview was also marked for identification.It is not necessary to resolve that question by this judgment. 8. On the one hand, the contrast referred to by Howie and Johnson JJ between the two relevant statutory provisions suggests that where s 306I is being applied, as in this case, it is appropriate for the record to be admitted as an exhibit itself. 9. On the other hand, there are powerful considerations referred to by Hayne J in Gately for such a course not to be adopted. Even if it were admitted into evidence as an exhibit, there would be a strong case for withholding it from the jury room as an exhibit, a power which Howie and Johnson JJ consider and regard as appropriate to exercise in certain circumstances. 10. But, as I say, in this case the request has been for transcript. Howie and Johnson JJ discuss the provision of transcript in their judgment. At [204], their Honours say as follows - "In the normal case of a witness giving all evidence viva voce and where a request is made by the jury to be reminded of the evidence-in-chief of the witness, the judge has two options. The judge can use his or her notes or the transcript to refresh the jury of the salient aspects of the evidence or the judge could provide the jury with the transcript". Their Honours went on to observe in the same paragraph that they would expect that "normally a judge would not comply with a request to be reminded of part of the evidence of a witness simply by furnishing the jury with the transcript of that part of the evidence of the witness without requiring that the jury should also have the transcript of the cross-examination or at least reminding the jury of the cross-examination of the witness". Their Honours observed that that should be done in order to maintain balance and fairness so that the jury should not pay regard to the evidence-in-chief without being reminded of the attack made upon the reliability of the evidence by the defence. Their Honours concluded at [206] as follows - "We believe that no different approach should be adopted in relation to the evidence-in-chief given by the playing of a video tape. If the jury wants to be reminded of the evidence the judge could, instead of replaying the tape, offer them assistance either by summarising the whole of the evidence including all or part of the cross-examination or by providing the jury with the whole or part of the transcript of the evidence of that witness. What is done depends upon the nature of the jury's request and how that might be addressed with balance and fairness". Their Honours went on to observe - "If the tape is to be replayed or the transcript provided, the judge should caution the jury about their approach and warn them 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 a disproportionate weight simply for that reason and should bear well in mind the other evidence in the case". 11. Although I did not give them that specific warning, this was not a case where they reviewed the video tape or the DVD but they were supplied with a copy of the transcript. I did warn them that they had to read all of the transcript including the challenges which were made in cross-examination of the complainant. 12. For the reasons which I have just given, I regard it as appropriate to respond to the jury request by providing them with a transcript not only of the record of interview with the police but with a transcript of the evidence-in-chief, cross-examination and re-examination of the complainant which was given at the previous trial. All right, that's my judgment and I think we've now disposed of Mr Smith's case. He's coming back in July for the second proceedings. Nothing else? CROWN PROSECUTOR: No your Honour. HIS HONOUR: All right, Mr Smith can be taken down. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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