SUPREME COURT OF QUEENSLAND

CITATION:	R v VM [2022] QCA 88	
PARTIES:	R
v
VM
(appellant)	
FILE NO/S:	CA No 55 of 2021
DC No 1122 of 2020	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction	
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 9 March 2021 (Coker DCJ)	
DELIVERED ON:	24 May 2022	
DELIVERED AT:	Brisbane	
HEARING DATE:	9 February 2022	
JUDGES:	Sofronoff P and Mullins JA and Kelly J	
ORDER:	Appeal dismissed.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – TEST TO BE APPLIED – where the appellant was charged with one count of maintaining an unlawful sexual relationship with a child, four counts of indecent treatment of a child under 16 under care, four counts of rape and one count of attempted rape – where the complainant was 13 and the appellant was 43 at the time of the offending – whether the jury’s acquittal on some counts rendered the guilty verdicts inconsistent
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was charged with one count of maintaining an unlawful sexual relationship with a child, four counts of indecent treatment of a child under 16 under care, four counts of rape and one count of attempted rape – where the complainant was 13 and the appellant was 43 at the time of the offences – whether the trial judge’s failure to give a Robinson direction occasioned a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO A MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was charged with one count of maintaining an unlawful sexual relationship with a child, four counts of indecent treatment of a child under 16 under care, four counts of rape and one count of attempted rape – where the complainant was 13 and the appellant was 43 at the time of the offences – where the complainant’s s 93A evidence was let into the jury room – whether the jury having s 93A evidence in the jury room occasioned a miscarriage of justice
Criminal Code (Qld), s 229B, s 632
Evidence Act 1977 (Qld), s 93A, s 99
Bromley v The Queen (1986) 161 CLR 315; [1986] HCA 49, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, followed
R v H [1999] 2 Qd R 283; [1998] QCA 348, cited
R v KAH [2012] QCA 154, cited
R v Kirkman (1987) 44 SASR 591, followed
R v MCJ [2017] QCA 11, cited
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited	
COUNSEL: 	S J Hedge for the appellant
N W Crane for the respondent	
SOLICITORS:	Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	SOFRONOFF P:  The appellant was charged with one count of maintaining an unlawful sexual relationship with a child, four counts of indecent treatment of a child under 16 under care, four counts of rape and one count of attempted rape.  He was convicted of the maintaining count (count 1), two counts of indecent treatment (counts 3 and 9) and one count of rape (count 10).  The appellant was sentenced to five years’ imprisonment on the maintaining count and the rape count and one year’s imprisonment on each of the indecent treatment counts.  The offences were alleged to have been committed on various dates between December 2018 and 12 August 2019.
[2]	The appellant appeals his convictions on three grounds.  First, he contends that the guilty verdicts were unreasonable and that they cannot be supported by the evidence.  Second, he submits that the trial judge’s failure to give the jury a direction in accordance with Robinson v The Queen occasioned a miscarriage of justice.  Third, he contends that there has been a miscarriage of justice occasioned by the jury having certain video recordings in the jury room during their deliberations.
[3]	The complainant spoke to police on two occasions.  Both of those statements were recorded in the usual way and placed before the jury.  In summary, the complainant told police the following.
[4]	In 2019 the complainant, her mother and the appellant were living in a house at Morayfield.  The complainant turned 13 years old on 25 May 2019.  The appellant, who was 43, was in a relationship with the complainant’s mother.
[5]	While the complainant was preparing lunch, the appellant inveigled her into the adjacent hallway where he tried to touch her breasts and tried to take her shirt off.  She told him not to do that.  She then kicked him “in the stomach, somewhere there” and “went back to making my lunch”.  This was count 2, indecent treatment.
[6]	At the beginning of 2019, the appellant entered the complainant’s bedroom where she was asleep, woke her and cajoled her to come to the bathroom with him where he said he would give her kissing lessons.  He said he wanted to marry her.  He told her that she would then know how to kiss when she was older.  He then kissed her on the lips, inserting his tongue into her mouth.  This was count 3.
[7]	At the end of May 2019, the complainant was living with one of her adult sisters at Caboolture.  One night, at about midnight, after the complainant had finished a lengthy phone call with a school friend, and while other adults were out, the appellant entered her room and asked her to come to the garage.  There he removed his pants so that he was naked below the waist and got her to sit on his lap.  Then “[the appellant] started fingering [the complainant]”.  This was count 4.
[8]	One night at the end of June, also at her sister’s house, the complainant was watching a movie on a laptop computer, sitting on her bed.  The appellant entered and locked the door behind him.  He “pulled my pants, he put his hand in my pants”.  He then began “fingering and stuff”.  This was count 5.
[9]	The appellant then left the room, had a shower and returned.  He “pulled all my pants, my whole, pan-, pants down… and then he tried putting his dick in me”.  This was count 6.  It is not entirely clear whether the complainant meant that he had removed her pants before or after the appellant left the room to have a shower; that is to say, it is not clear whether that act was part of the offence in count 5 or whether it was part of the sequence of acts that led to count 6.  In any case, the complainant “said no, so [the appellant] he then, put his pants up and left”.
[10]	At the end of June 2019, the complainant, her mother and the appellant moved to live with the complainant’s grandparents at Bellmere.  While the other adults were away collecting a car that the complainant’s mother had bought, the appellant took the complainant by her wrist and led her to the bathroom where he put his hand down her pants and inserted his finger into her vagina.  She protested and he removed his hand, sucked his fingers and washed his hands.  This was count 7.
[11]	During an afternoon in June or July 2019, the appellant entered the complainant’s bedroom and told her to lie on her bed.  She tried to cover herself with blankets to stop him from touching her.  He told her to pull her pants down.  She told him not to touch her.  He then removed his own pants and lay on top of her, “rubbing his penis all over [her] body”.  He tried to insert his penis into her vagina but only succeeding in having it touch her there.  The complainant threatened to tell her mother and the complainant then gave up.  This was count 8.
[12]	Sometime in July 2019, the appellant tried to wake the complainant on a weekend morning.  He said, “I’m gonna put my dick in your face if you don’t wake up”.  He then began to touch her all over her body.  This was count 9.
[13]	At about the same time in 2019, the appellant entered the complainant’s bedroom at the Bellmere home and, taking her by the arm, “dragged” her into the bathroom.  There he entered the shower stall, removed his pants and made the complainant kneel and, forcing her jaws open, placed her mouth over his penis.  He moved his penis in and out of her mouth while he made “weird sounds”.  When he had finished, he told her that “one day I’m gonna do that to you properly” and that “[w]e’re gonna have a kid”.  He told the complainant that he wanted to marry her.
[14]	The complainant said that she had made preliminary complaints to her mother, her aunt and to two of her school friends.  These accounts to them were of the most general kind.  Each of these persons gave evidence which supported the evidence of the complainant.
[15]	The appellant did not give evidence and called no evidence.
[16]	The complainant’s accounts about each offence were coherent, clear and reasonably detailed.  However, in cross examination some contradictions emerged and she also failed to come up to proof in some respects.
[17]	Count 2 was remarkable in the complainant’s memory because her school friend, to whom I will refer by the pseudonym Hannah, was staying for a two-week visit.  In cross examination, the complainant volunteered that she was about to get her lunch out of the microwave when the appellant pulled her into “a room” and made her kneel.  He then asked her to kiss him, which she did.  She then stood up and went outside.  This was a considerably different account from that which she had given police.
[18]	In relation to count 4, the complainant’s evidence in cross examination was similarly at odds with the account which she had given to police.  She said that she had gone to say goodnight to the appellant “in the shed”, which might be taken to be a reference to the garage.  He then took her to his bedroom where he sat on his bed.  He pulled down his pants and the complainant then said that she was going to bed.  The appellant said, “No, wait. You can listen to me. I’m your father.”  She repeated that she was going to bed and “walked away and went back to bed”.  The complainant failed to affirm her statement to police that the appellant had inserted his fingers into her vagina.
[19]	The complainant accepted in cross examination that the appellant had never tried to take any of her clothes off.  This acknowledgement contradicted a vital part of her statement to police about counts 5, 6 and 8, in relation to which she had said that the appellant had removed her pants.  It also contradicted the particulars given in relation to count 2.
[20]	The prosecution called the complainant’s grandparents.  Each of them gave evidence that the appellant had accompanied the complainant’s mother when she and they had gone to collect her new car.  Indeed, the grandfather said that it was the appellant who drove the new car back home because the complainant’s mother did not have a licence.  This gave the appellant an alibi for count 7.
[21]	Consistently with those significant inconsistencies, the jury found the appellant not guilty on counts 2, 4, 5, 6, 7 and 8.
[22]	The appellant argues that there is such an inconsistency in the verdicts that the guilty verdicts should be regarded as unreasonable.  He also argues that the complainant’s evidence is so tainted by these inconsistencies that it was unreasonable for the jury to find him guilty and that the evidence did not support such verdicts.
[23]	The authorities do not establish that a jury’s acquittal of a defendant on some counts and guilty verdicts on other counts demonstrates that the guilty verdicts were unreasonable just because the evidence in relation to all counts depends upon a single witness.  The obligation to establish that inconsistent verdicts are unreasonable lies on the person making that submission.  The kind of inconsistency in verdicts that will demonstrate unreasonableness of the necessary kind is an inconsistency that results in “an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”.
[24]	In MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ said that where there is some evidence to support the verdict that is said to be inconsistent, it is not the role of an appellate court to substitute its own opinion for one that was open to the jury.  Their Honours approved King CJ’s dictum in R v Kirkman as follows:
“[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”
[25]	The jury must have accepted the complainant as a reliable witness having regard to their guilty verdicts.  That was a course that was open because her evidence about these offences was detailed and clear.  Her credit was supported by the evidence of preliminary complaint.  The jury acquitted on the counts in which the complainant’s inconsistencies were capable of raising a doubt.  This was not a case like Jones v The Queen in which evidence given by certain witnesses, the acceptance of which led to an acquittal on one count, must have involved an actual rejection of the complainant’s evidence and in which there were other factors, such as a delay in making any complaint, which affected the reasonableness of the two guilty verdicts.
[26]	Rather, this is a case in which the different verdicts are explicable upon the basis that certain evidence raised a doubt that did not arise in relation to the other four counts.  It is an example of a case in which the jury was directed correctly about the significance of their credit findings in relation to some counts, namely, that the jury’s lack of sufficient confidence about the credit of the complainant about a particular count might, but need not, impinge upon other counts and that they had to consider each count separately.  A verdict of not guilty which implies that a jury has actually rejected the evidence of a complainant is one thing.  A verdict of not guilty that can imply that, for some particular reason, the jury had a reasonable doubt about the reliability or accuracy of evidence is another.  In such a case, as the jury was correctly told here, a jury has to consider whether or not the doubt felt in relation to one or more counts should cause them to have a reasonable doubt about other counts.
[27]	The complainant was 12 and 13 when these offences were said to have been committed.  She gave police her statement soon after these events in August 2019.  She was cross examined on 21 July 2020 when she was 14 years old.
[28]	As Henry J said in R v MCJ, victims of sexual abuse ought not be disbelieved merely because they experience difficulty in recalling specific separate episodes of abuse with sufficient particularity to set them apart from other instances of the same kind in the same kinds of circumstances.  That is why the offence of maintaining a sexual relationship defined in s 229B of the Criminal Code (Qld) was enacted.  It was open to the jury to conclude that the kinds of inconsistencies in the complainant’s evidence, or conflicts with the evidence of other witnesses, upon which the appellant now relies meant that her evidence, while possibly, or even probably, true in substance, could not justify a guilty verdict on some counts while, in relation to the other offences described by the complainant, her evidence, in the context of the other evidence in the trial, was so compelling that they were satisfied of the appellant’s guilt to the necessary standard of proof.
[29]	The credit of a witness is a matter for a jury.  Ms Hedge’s criticisms of the prosecution evidence are valid but these criticisms constitute no more than arguments that a jury had to consider, not the Court of Appeal.  Accordingly, these arguments were put to the jury at the trial but the jury rejected them.
[30]	The appellant’s second ground is that there has been a miscarriage of justice occasioned by the learned judge’s failure to give a Robinson direction.  In order to determine whether that ground should be upheld, it is necessary to consider the nature of this kind of direction.
[31]	Robinson was an appeal from the Queensland Court of Appeal.  The appellant had been convicted on two counts of unlawful anal intercourse with a child under the age of 12 years.  The complainant alleged that the offences were committed on a night in October or November 1993 when the appellant was 19 years old and the complainant was eight years old.  The complainant did not tell his parents about the offences until three years later, in 1996, and the matter was then immediately reported to police.  The complainant told police that he had mentioned the offences to a friend in the course of a conversation about sexual matters.  Otherwise, the prosecution case depended solely upon the complainant’s evidence.  The appellant gave evidence in which he agreed with the complainant’s evidence as to the circumstances in which they had spent the night together but denied that he had penetrated the complainant or acted indecently towards him.  The trial judge referred to defence counsel’s argument that the absence of early complaint was relevant to an assessment of the complainant’s credibility and said that there could be many reasons why a complaint is not made promptly.  He gave no warning about the nature of the evidence for the prosecution.  The appeal to the Court of Appeal was dismissed by a majority but the appeal to the High Court was allowed.
[32]	The appeal to the Court of Appeal in Robinson raised a number of grounds.  For the purposes of the present appeal, the relevant ground was that the trial judge had erred in failing to give the jury an appropriate warning in relation to the complainant’s evidence.  Counsel on the appeal, Mr Rafter, submitted that the trial judge had erred by failing to warn the jury that the evidence of the complainant child should be scrutinised with particular care.  Defence counsel at the trial had not sought such a direction.
[33]	An amendment to s 632 of the Code came into effect on 1 July 1997, just before the trial.  As amended, s 632 provided:
“(1)	A person may be convicted of an offence on the uncorroborated testimony of l witness, unless this Code expressly provides to the contrary.
(2)	On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.
(3)	Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of complainants as unreliable witnesses.”
[34]	The appellant in Robinson argued that s 632 only prohibited the giving of a warning to the effect that children as a class were unreliable in giving evidence in such cases.  He argued that this did not abolish the requirement to warn a jury about the potential unreliability of a child witness according to the circumstances of the case and that that particular trial had required such a warning.  He relied upon dicta in Longman v The Queen, which was also a sexual offence case in which the complainant was a child at the time of the offences and which was concerned with an analogous provision in the Evidence Act 1906 (WA).  The Court in Longman held that the provision prohibited the giving of a warning to the effect that the evidence of a witness might be unreliable because the witness belonged to a particular class but it did not prohibit the giving of a warning about the potential for unreliability of a witness according to the particular circumstances of the case.  As Deane J put it, a trial judge has a responsibility to give the jury an appropriate warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a warning, be appreciated by the jury.  This had been the applicable principle for many years.  For example, in Bromley v The Queen, Gibbs CJ observed that a jury must be made aware, in words that meet the justice of the case, of the dangers of convicting on evidence that is potentially unreliable.
[35]	The point in Longman that gave rise to the requirement to warn was that the 32 year old complainant was giving evidence about acts of the appellant that she said he had done to her when she was six years old and also when she was 10 years old.  She said that on each occasion she had been asleep and had been awakened by the appellant touching her genitalia.  No penetration was alleged.  As McHugh J observed, the fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to “remember” is well documented; the longer the period between an “event” and its recall, the greater the margin for error.  Recollection of events that occurred in childhood is particularly susceptible to error.  To this danger of unreliability was added the lack of opportunity for the defence to explore the surrounding circumstances of each offence to ascertain whether those circumstances contradicted or were inconsistent with the complainant’s testimony.
[36]	Longman is usually cited to as a case about the necessity to warn a jury about the significance of delay.  That happened to be the particular danger in that case that gave rise to the need to warn the jury.  However, it is apparent that the principle that underlies a requirement to give a warning about the dangers inherent in particular evidence at a trial is not just that the evidence might possibly be unreliable but that, without a warning, a jury might not appreciate that it might be so.
[37]	In accordance with that principle, in Robinson both Williams J and Cullinane J concluded that, even without a warning, the jury must have been aware of the significance of the reliability of complainant’s evidence to the matters relied upon by the appellant.
[38]	Lee J dissented.  In an elaborate and comprehensive judgment, his Honour considered the reasons for, and the nature of, a warning of the kind discussed in Longman and the earlier cases.  Lee J set out a catalogue of features of the evidence in the case before him that, in his Honour’s opinion, required a warning to be given to the jury.  These matters are set out in the report of the case and do not need to be recited here.
[39]	The High Court allowed an appeal against the decision of the Court of Appeal.  However, the decision of the High Court in Robinson does not require that the jury be given a warning in every case in which the evidence of a child complainant in a sexual offence case is uncorroborated or contains inconsistencies.  The reason that a warning is required is to ensure against the possibility of a miscarriage of justice.  Sometimes that is because judicial experience has given a judge an advantage in the reasoning involved in assessing credibility but which a jury lacks.  There may be other reasons why a warning is required.
[40]	In this case, the learned trial judge gave the jury several particular instructions about the assessment of credibility.  In particular, the judge directed the jury’s attention to aspects of inconsistency in the complainant’s evidence and how those matters might be relevant to an assessment of credit.  His Honour also directed the jury that they should only convict the defendant if, after carefully scrutinising the complainant’s evidence, they were satisfied beyond a reasonable doubt.  His Honour reminded the jury of the criticisms made by defence counsel about the complainant’s evidence.  None of these directions have been the subject of any criticism.  Nor was any redirection sought at the trial.  That is understandable because a risk of the kind discussed did not arise.
[41]	In my respectful opinion, the jury was adequately directed about the scope of their task in these respects and I would reject this ground of appeal.
[42]	The appellant’s final ground concerns the use made of the recordings of the complainant’s evidence.
[43]	The complainant was interviewed by police on two occasions and those interviews were video recorded.  The recordings were admitted pursuant to s 93A of the Evidence Act 1977 (Qld).  So too were recordings of interviews police conducted with the three children who gave evidence of preliminary complaint.  The appellant did not give evidence and called no evidence.
[44]	The complainant and the three witnesses who gave evidence about preliminary complaint were cross examined at proceedings that were also recorded and the recordings were played to the jury.
[45]	The complainant’s s 93A statement, of course, contained the direct evidence that incriminated the appellant.  Some aspects of that evidence were reinforced by her recorded evidence in chief.  Defence counsel’s cross examination of the complainant lasted for 48 minutes.  As is common, cross examination of the other three witnesses was very brief.
[46]	The learned judge’s summing up concluded at 3.48 pm on the fourth day of the trial and the jury then retired to deliberate.  This was a Friday.  At 11.00 am on the following Monday the Court reconvened and the learned judge informed counsel for the parties that he had received a note from the jury.  The jury had two inquiries, only one of which is presently relevant.  The jury wanted to have transcripts of the recorded evidence of the complainant and the evidence of one of the other child witnesses.  During the ensuing discussion, and in the absence of the jury, it emerged that, without anyone’s having noticed, the s 93A recordings had been furnished to the jury in the jury room together with the means to view them.  It was not yet clear whether the witnesses’ pre-recorded evidence had also been given to the jury.  The prosecutor, Ms Nikolic, and defence counsel, Mr Polley, both submitted that the recordings should not have been given to the jury.  The learned judge was referred to the relevant parts of the Bench Book and to R v H and R v KAH.  Defence counsel submitted that if a jury was to be given a complainant’s s 93A statement, then, as a matter of balance and fairness, the jury should also be given the pre‑recorded cross examination.  The learned judge told counsel that his associate had informed him that the discs containing the s 93A evidence had only gone to the jury just before the jury sent its note to the judge.
[47]	The jury then returned.  The judge gave the jury the redirection that it had sought and then turned to the question of the recorded evidence.  First, his Honour pointed out that, while the transcript of the recordings had been made available to the jury during the hearing of the evidence, it was only somebody’s opinion about what had been said and it was for the jury to decide for themselves what was actually said; the transcript had been only an aide memoire.  The Speaker for the jury then said that the jury would be content to view the evidence without the aid of the transcripts.  The learned judge then said that that could be done but the recordings would have to be played in the courtroom.  The Speaker said that “the reason we want it in there is we can fast‑forward, stop and view because [indistinct] [we] do not have any controller here”.  The jury retired so that the judge and counsel could consider the matter.
[48]	Both the prosecutor and defence counsel submitted that the appropriate course was for the jury to view the whole of the recorded evidence, with the transcripts, in the courtroom.  The learned judge invited defence counsel to take instructions from his client if he wished to do so but Mr Polley said that that was unnecessary.
[49]	The jury returned and the learned judge told them that if they wished to review the recorded evidence, they could do so with the aid of a transcript but the whole of the evidence would be replayed in the courtroom.  The whole of the complainant’s evidence was then played.  The jury had earlier informed the judge, through the bailiff, that they no longer wanted to see the evidence of the other witness.
[50]	Just before court adjourned for the day, the learned judge gave the jury the following re-direction:
“I would remind you of two things, however. The weekend has passed; you have heard evidence again. Obviously, I would reinforce the indication I gave previously that you should not discuss any of the evidence with anyone else other than your fellow jurors. You are the ones who are to make the determination in relation to this particular matter. And the other thing that I would obviously indicate to you is that although you have seen the evidence of the complainant again, it still makes it no more – of no greater weight or of no greater consequence than any of the other evidence you have heard. You have just had the opportunity to be reminded in relation to what [the complainant’s] evidence was in relation to the matter, but, of course, your obligation to balance it against all of the other evidence, of course, remains exactly the same.”
[51]	The jury resumed its deliberations at 9.05 am on the following day and returned with its verdicts at 11.27 am.
[52]	The law concerning a jury’s use of the recorded evidence of children in sexual offence cases was summarised as follows by McMurdo P in R v H:
“There is a real danger that in replaying a videotape, possibly many times, the jury may overemphasise that evidence, as against other evidence in the case, particularly cross-examination. Section 99 of the Act clearly gives a trial judge a discretion to withhold such an exhibit from the jury room, although such a discretion exists independently of the Act. Without in any way limiting that exercise of discretion, the principles discussed in the authorities I have reviewed suggest that as a general rule, at least in the absence of the consent of both Crown and defence, videotaped evidence tendered under s. 93A of the Act will not be permitted to go into the jury room during deliberations. If the jury request to hear the evidence of the complainant child a trial judge must deal with each situation on the facts as they arise. As Shepherdson J. notes in his judgment, a trial judge must be careful that any questioning does not intrude on the confidentiality of the jury’s deliberations. If the judge decides to allow the jury to view the videotape, this should generally be done after discussing the proposed procedure with counsel in open court. The judge should also warn the jury 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. It is not in our view necessary in every case after replaying the videotape to remind the jury of the cross-examination and re-examination of the complainant from the judge’s notes or transcript, where this is not requested by the jury. ln many cases this may be wise but every case will depend on its own facts. The overriding consideration for the trial judge must be fairness and balance, something which can be difficult to achieve in emotive sexual cases which are particularly likely to arouse feelings of prejudice in the jury.”
[53]	In coming to the conclusion in that case that there had been a miscarriage of justice, McMurdo P took into account various factors.  There had been important discrepancies between the evidence of the complainant and the evidence given by her mother.  The appellant had given evidence and had claimed that the complainant’s allegations were false and that the mother had coached her to make them after he and the mother had separated and in order to prejudice the appellant’s prospects of gaining access to their children.  Her Honour observed that it was impossible to know what effect the recorded evidence might have had on the jury’s verdict, particularly in a case in which the prosecution evidence was “less than overwhelmingly strong”.
[54]	Shepherdson J said that it could be inferred that the jury had refreshed their memory of the complainant’s evidence at least once and that, as a result, the jury’s consideration of the complainant’s evidence “lacked balance” because the jury did not have “a transcript of the complainant’s cross-examination and re-examination from which to refresh their memories”.
[55]	When a question arises at a trial, or on an appeal, about the possible significance of a jury having recorded evidence replayed, or having unlimited access in the jury room to such evidence so that the jury can replay the evidence at will, with or without a transcript, the crucial question that has to be decided is whether such access might distort the jury’s sense of the evidence in the case to the prejudice of the accused.  There can be no question of denying a jury’s request to review evidence of that kind, or of any kind.  The only point to consider is whether, if there is a real risk that the process of review that the jury has asked for, or which it is to be given, might result in the jury’s unconsciously giving undue weight to the evidence that it has seen repeatedly, how that risk can be eliminated.
[56]	Two assumptions have to be made.  First, a modern Australian jury is not to be treated as a group of credulous plodders who are prone to make errors in reasoning.  Long judicial and practical experience has shown that juries are very good at making sound decisions upon the evidence and in accordance with the law as it has been explained to them.  Second, a jury will faithfully follow a trial judge’s instructions.  Because of these two assumptions, there can be no valid concern that, in every case in which a jury has been given recordings to replay in the jury room, there is therefore a risk of an erroneous guilty verdict.
[57]	In this case it did not even appear that the jury had played the relevant evidence to any substantial degree.  The uncontested facts were that the jury had been given the recordings on the second day of deliberations and just before the jury sent the judge its note.  The jury wanted a transcript to better understand what they were hearing.  Immediately after delivering their note, there was no real opportunity for the jury to study any of that evidence before proceedings involving the jury recommenced in court.  The absence of opportunity for the jury to study the recordings before court resumed in the jury’s presence appears from the following exchange:
“SPEAKER:	All right. Just maybe return to the jury room and see how we fare and – but sorry about the - - -
HIS HONOUR:	Not at all. There is just one matter, and that relates to the Crown and Defence’s view in relation to whether you should view them. The bailiff tells me they were just made available to you only a little - - -
SPEAKER:	Yes, sir.
HIS HONOUR:	- - - moment ago and you turned them on and realised that they were too difficult to follow. Ms Nikolic, Mr Polley, what do you say?
MR POLLEY:	Your Honour, perhaps – I think the jury needs to discuss matters amongst themselves, and perhaps we should as well.”
[58]	After that, the jury’s review of the evidence happened before the eyes of the trial judge and counsel.
[59]	It cannot be said, therefore, that there was any risk in this trial, that “in replaying a videotape, possibly many times, the jury may overemphasise that evidence”.
[60]	Moreover, this was not a case, like R v H, in which the jury had seen only the complainant’s evidence in chief and not her cross examination and not the accused’s evidence.  When the jury finally came to review the evidence that they wanted to see, it was the entirety of the complainant’s evidence, including her cross examination.  The appellant gave no evidence and called no evidence so there was little risk that the “jury may give undue weight to it as against the other evidence”.  The prosecution called evidence that tended to exculpate the appellant.  For example, there was the evidence of the complainant’s grandparents which gave the appellant an alibi for count 7.  However, it could not be seriously suggested that there was a real risk that the jury’s review of the complainant’s evidence overshadowed evidence of that kind because the jury acquitted on that count and on other counts where there was such evidence.
[61]	Perhaps it was the learned judge’s sense of the absence of such risk at the trial as it was actually conducted in this case, as well as the sense of both counsel, that led him to give the limited direction that he gave about the jury’s review – which has been quoted earlier.  It is significant that, while defence counsel (and the prosecutor) insisted upon the review of the complainant’s evidence being conducted in court and in its entirety, including the cross examination, no submission was made that the jury’s limited access to the material in the jury room had risked such a miscarriage of justice that the jury should be discharged.  It will be recalled that the learned judge gave defence counsel an opportunity to speak to his client.  Such a decision was a typical forensic choice, made in the context of counsel’s assessment of the prospects of acquittal in the trial as it has progressed to that point.
[62]	Nor was any redirection sought.  In the present case that was understandable for, in my respectful opinion, there was no appreciable risk that the jury’s consideration of the whole of the evidence might have become unbalanced by whatever they had looked at within the jury room and after being required to see the whole of the complainant’s evidence in the courtroom.
[63]	For these reasons I would reject this ground and dismiss the appeal.
[64]	MULLINS JA:  I agree with Sofronoff P.
[65]	KELLY J:  I agree with the reasons of Sofronoff P and with the order proposed by his Honour.