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

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

The trial judge's discretion miscarried because the DVD should not have been marked or treated as an exhibit, and the judge approached jury access on the footing that exhibits ordinarily go to the jury absent good reason to the contrary. The correct approach was that unsupervised jury access to such a recording is generally undesirable. However, the irregularity did not cause a miscarriage of justice: the DVD contained the whole of the complainant's evidence, including cross-examination; the applicant gave and called no evidence; the central issue was the complainant's credibility; and the jury had transcripts of the other relevant evidence. There was no significant risk of unbalanced...

Jurisdiction
Australia
Judgment Date
23 April 2019
Procedural Posture
Criminal Conviction Appeal / Application for Leave to Appeal and Appeal From Convictions in the District Court After Retrial
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['jury Trials' 'recorded Complainant Evidence' 'access to Exhibits During Jury Deliberations' 'repetition Warning' 'miscarriage of Justice' 'prescribed Sexual Offences']
['criminal Law' 'criminal Procedure' 'evidence'] ['jury Trials' 'recorded Complainant Evidence' 'access to Exhibits During Jury Deliberations' 'repetition Warning' 'miscarriage of Justice' 'prescribed Sexual Offences']

Case Brief

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Procedural Posture

Criminal Conviction Appeal / Application for Leave to Appeal and Appeal From Convictions in the District Court After Retrial

Legal Issues

  1. 1 ["Whether the trial judge erred in allowing the jury unsupervised and unrestricted access during deliberations to the DVD recording of the complainant's evidence-in-chief and cross-examination." "Whether the DVD recording of the complainant's evidence should have been treated as an exhibit." 'Whether the trial judge erred by failing to give a warning against giving the repeated recorded evidence undue or disproportionate weight.' 'Whether any irregularity caused a miscarriage of justice.']

Ratio Decidendi

The trial judge's discretion miscarried because the DVD should not have been marked or treated as an exhibit, and the judge approached jury access on the footing that exhibits ordinarily go to the jury absent good reason to the contrary. The correct approach was that unsupervised jury access to such a recording is generally undesirable. However, the irregularity did not cause a miscarriage of justice: the DVD contained the whole of the complainant's evidence, including cross-examination; the applicant gave and called no evidence; the central issue was the complainant's credibility; and the jury had transcripts of the other relevant evidence. There was no significant risk of unbalanced...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal.']