Criminal law: June 2019

AB (a pseudonym) v R [2019] NSWCCA 82

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 1986 s 306B(1). The DVD containing the recorded evidence was admitted as an exhibit. Having already heard and seen the evidence during the trial-proper, the jury asked for, and was given, the DVD during their deliberations. The jury was granted access to the material 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 as well and unrestricted access was provided to the jury in the jury room. The jury returned guilty verdicts later the same day.