RC v R

1. [1]

   ADAMSON JA: I agree with Garling J.

2. [2]

   GARLING J: In these proceedings, the applicant, to whom the pseudonym “RC” has been given, was convicted of six offences after a trial before Grant DCJ in the District Court at Albury in October 2023 (“the second trial”). Three of those offences, being offences contrary to s 61M(2) of the Crimes Act 1900 (NSW) (“Crimes Act”) of indecent assault of a person under 16 years, were committed between August 2013 and June 2015, against the victim to whom the pseudonym “PH” has been given. As well, the applicant was convicted of three similar offences also contrary to s 61M(2) of the Crimes Act, occurring over a three-month period in 2016, involving a victim given the pseudonym “JB”.

3. [3]

   The applicant was sentenced to an aggregate term of imprisonment of 3 years with a non-parole period of 2 years to date from 14 August 2021.

4. [4]

   By the time these proceedings came before the Court, the applicant had completed serving his aggregate term of imprisonment.

5. [5]

   In his application for leave to appeal against the convictions entered after the jury returned with verdicts of guilty at the second trial, the applicant identified a single ground, in respect of which he would prosecute the appeal (“the second appeal”) if leave were granted, namely:

Procedural Background

1. [6]

   There are some complicating features in the procedural background which require an explanation of the proceedings leading up to the trial which resulted in the convictions of the applicant.

The First Trial

1. [7]

   The applicant first stood trial in respect of the offences upon which he was convicted in December 2020 (“the first trial”). Grant DCJ presided over that trial. The Indictment for the first trial also included three additional counts in respect of a different complainant, to whom the pseudonym “CG” was given.

2. [8]

   When each of PH and JB had made complaints to the Police, because they were juveniles, they were interviewed by specialist police who were members of the Joint Investigation Review Team (“JIRT”). In accordance with the standard procedure, those interviews were video and audio recorded (“JIRT Interviews”) and a transcript of the interviews prepared.

3. [9]

   It is not at all uncommon that, before the recordings of JIRT Interviews come to be played at trial, they are subject to editing. Some edits are made by agreement to remove irrelevant material, and some edits are made to reflect rulings on evidence given by a trial judge. In circumstances where edits are made, a fresh video is prepared of the JIRT Interview alongside a fresh transcript to reflect the edited video.

4. [10]

   In the first trial of RC, the JIRT Interviews of PH and JB were played to the jury and as well, PH and JB gave further evidence, and were cross‑examined before the jury, by both the prosecutor and counsel for the defence. Their evidence in court was also recorded by audio-visual means.

5. [11]

   During the course of the first trial, the prosecutor tendered a statement of CG, the third complainant who did not give any evidence in person to the jury. She was very reluctant to do so.

6. [12]

   The applicant was convicted of all counts upon which he stood trial.

The First Appeal

1. [13]

   The applicant appealed to the Court of Criminal Appeal which, on 14 December 2022, for the reasons it gave, held that the written statement of the complainant, CG, was not admissible in evidence in the circumstances which existed at the time, and that the Judge had erred in law by admitting it: RC v R [2022] NSWCCA 281. The Court concluded that the convictions ought be quashed and that a new trial should be ordered in respect of all counts.

2. [14]

   Having regard to the obvious and demonstrated reluctance, by CG, to give evidence against the applicant at the first trial (which had led to the prosecution tendering her statement and relying upon it as evidence in the Crown case), when the applicant was arraigned for his second trial, before Grant DCJ in October 2023, the Crown did not proceed against him in respect of the three charges which related to CG.

The Second Trial

1. [15]

   At the second trial:

   1. (1)

      the subject matter of the charges against CG became irrelevant and was not to be referred to in the course of the evidence;

   2. (2)

      neither of the complainants, PH or JB, gave any evidence in person before the jury; and

   3. (3)

      the jury was shown the recordings of their JIRT Interviews, and the recordings of their evidence from the first trial.

2. [16]

   During the second trial, transcripts of the JIRT Interviews of each of the complainants were handed to the jury members, for their use as aide‑memoires during the playing of the JIRT Interviews. The videos and the accompanying transcripts were marked as MFI-2, in respect of PH, and MFI‑4, in respect of JB.

3. [17]

   As well, the evidence of each of the complainants from the first trial, including cross-examination, was also played to the jury. The recordings of that evidence were marked MFI-3 and MFI-5, respectively. The jury was provided with transcripts of each of those recordings as well. Those transcripts were not tendered in evidence.

4. [18]

   Prior to the second trial, in accordance with the common practice, the parties had discussed, and agreed upon, various edits to be made to the recorded material. As earlier noted, the editing, in part, occurred because the offences relating to CG were not being pursued at the second trial, and material prejudicial to the applicant had to be removed from the recordings.

5. [19]

   I have earlier noted that transcripts of the recordings were provided to the jury immediately prior to the various recordings being played to the jury. The transcripts were collected back from the jury directly after the recordings were completed.

6. [20]

   Prior to the playing of each recording, Grant DCJ gave the appropriate directions to the jury, including reminding them that it was what they saw and heard on the video screen which comprised the evidence, and that the transcripts were provided to them by way of an aide-memoire.

7. [21]

   After the playing of the recorded JIRT Interviews and the recorded evidence from the first trial, the Crown called three further witnesses, who dealt with a variety of matters. The evidence which those witnesses gave is not of significance, or relevance, to the issues on this appeal.

8. [22]

   The applicant’s case consisted of an agreed fact which was announced to the jury – that he had no record for any sexual offences. He did not give evidence, and no witnesses were called on his behalf.

9. [23]

   The entirety of the empanelling of the jury, the evidence, addresses from counsel and the Judge’s summing up, occupied about a day and a half.

10. [24]

    In the course of the playing of the recording which comprised the pre-recorded evidence-in-chief and cross-examination of JB from the first trial, during which a transcript had been provided to members of the jury, it became apparent that there was some discrepancy between the transcript with which the jury had been provided and the recording which was being shown to them.

11. [25]

    When this was noticed, it was brought to the attention of Grant DCJ, who invited the jury to leave the court room and retire to the jury room. He asked them to leave the transcripts of MFI-5 on their chairs.

12. [26]

    There was then an exchange between the Crown Prosecutor and the Court, a part of MFI-5 was replayed, a gap or discrepancy was identified, and the jury were asked to return.

13. [27]

    When the jury returned, the trial Judge said:

14. [28]

    The recording, MFI-5, was then played in its entirety to the jury.

15. [29]

    This episode occurred at a point in time after the JIRT Interview of PH and the recording of his evidence from the first trial had been played.

16. [30]

    The jury retired to consider their verdict at 12.25pm on the second day of the trial. After lunch on that day, the Court was reconstituted at 2.08pm to deal with two jury notes.

17. [31]

    The first jury note comprised a request to have the evidence of the complainant’s grandmother read to the jury. By agreement with counsel, the Judge informed the jury that they would be provided with a transcript of her evidence as soon as it was available.

18. [32]

    The second jury note read as follows:

19. [33]

    His Honour agreed, and the Court set about replaying the recordings to the jury. Again, in the course of the replaying of the recordings, the jury were provided with a transcript, which was then removed from them once that recording was replayed in its entirety.

20. [34]

    It is clear from the transcript of the second trial that transcripts of the recordings were distributed to the jury, and collected from the jury, at the commencement, and completion of, the playing of each recording to the jury.

21. [35]

    Before replaying the recordings, the Judge reminded the jury, as he had earlier done, that what the jury saw and heard on the recordings was the evidence upon which they should act, and that the transcript was simply being provided to them to assist them whilst the recordings were being played.

22. [36]

    Ultimately, on the third day, the jury returned with its verdicts.

Evidence on the Second Appeal

1. [37]

   On the second appeal, the applicant relied upon a number of affidavits - one, from the applicant himself dated 13 March 2025, which described and explained the delay in his institution of the appeal.

2. [38]

   The second affidavit was that of his solicitor, Ms Janet Witmer, also affirmed on 13 March 2025. Relevantly, Ms Witmer’s affidavit includes the following statements:

3. [39]

   The applicant also relied upon the affidavit of Julian Stevens, a solicitor employed by Legal Aid NSW, affirmed on 14 March 2025, who was assisting with the appeal.

4. [40]

   That affidavit contained the following material. Mr Stevens identified that the transcript of the JIRT Interview of the complainant, PH, used in the first trial, was marked MFI-8. This Court, on appeal, was not provided with a copy of MFI-8 from the first trial. The transcript used in the second trial was, with respect to PH, as earlier noted, marked MFI-2.

5. [41]

   Mr Stevens says that, in the preparation of the appeal, “all relevant trial material was requested from the Court of Criminal Appeal section of the District Court of NSW Registry”.

6. [42]

   He then said this:

7. [43]

   Mr Stevens made enquiries with the relevant DPP office, who were unable to provide him with any copy of MFI-2 which might have been in their possession.

8. [44]

   Mr Stevens then engaged in an exercise of listening to a copy of the JIRT Interview, which was contained in the court file, and which was marked MFI‑9, from the first trial. He compared that interview with the highlighted parts of the unedited transcript of MFI-2.

9. [45]

   A comparison of those two items undertaken by Mr Stevens showed that there had been some editing within the contents of the transcript. He lists the details of those in the following way:

10. [46]

    On the appeal, the Crown relied upon the affidavit of Philippa Winston, a solicitor in the employ of the Office of the Director of Public Prosecutions (“ODPP”). Ms Winston, by reference to the file kept physically by the ODPP and the computer files in relation to the proceedings, made the following statements:

11. [47]

    None of the witnesses for the applicant, or for the Crown, were cross‑examined in the course of the appeal proceedings.

Submissions for the Applicant

1. [48]

   The applicant’s submissions contended that the transcript of PH’s JIRT Interview which was provided to the jury, was the unedited and highlighted version that appeared on the court file marked as MFI-2 (“the unedited transcript”). He further submitted that, for the purposes of this appeal, the highlighting in MFI-2, which was made available to this Court, was intended to indicate parts of the JIRT Interview that should have been edited out and which were edited out in the transcript distributed by email from Ms Coleman, the solicitor at the ODPP, to the lawyers involved in the second trial (“the final transcript”).

2. [49]

   The following submission was put on the assumption that the copy of MFI-2 in the court file was a copy of the transcript that the jury received:

3. [50]

   The applicant submitted that it was clear that the allegations which were contained in the transcript formed no part of the Crown case and that:

4. [51]

   Ultimately, the applicant submitted that material:

5. [52]

   Ms Hall SC explained, in her oral submissions, that the applicant’s contention was:

6. [53]

   Ms Hall SC submitted that this Court was not obliged to make a positive finding that the wrong transcript, in fact, was handed to the jury, rather, she submitted that it was sufficient if this Court was satisfied:

7. [54]

   Ms Hall SC also accepted that, if the Court were to be satisfied that the incorrect transcript was placed before the jury, the Court must apply the test found at [10] in Brawn v The King [2025] HCA 20; (2025) 423 ALR 69, where the High Court said:

The Crown’s Submissions

1. [55]

   The Crown submits that the Court would not be satisfied that the erroneous unedited transcript was provided to the jury and that, accordingly, the factual foundation for the applicant’s contention that there had been a miscarriage of justice had not been made out.

2. [56]

   The Crown submits that consideration of the whole of the evidence does not support a finding that the unedited transcript of PH’s JIRT Interview was provided to the jury. The Crown draws attention to the following matters which can be established from the transcript of the second trial, and the available emails between the parties prior to the start of the second trial.

3. [57]

   The end result of the exchange of emails between the Crown and lawyers for the applicant, in the week prior to the trial commencing, was that the solicitor for the Crown emailed, to the applicant’s representatives (barrister and solicitor), a “final copy” of the relevant transcripts for the trial which were consistent with the edits agreed between the parties. The document attached to that email which relates to PH’s JIRT Interview, which was called “final [PH] JIRT”, removed the highlighted yellow portions from the unedited transcript.

4. [58]

   The Crown draws attention to the fact that this means that PH’s transcript was not simply missed or overlooked, but rather that an edited transcript was prepared in advance of the trial, which reflected the agreement of the parties, and that, on the probabilities, that transcript was provided to the jury.

5. [59]

   The Crown next submitted that the trial transcript, when considered as a whole, demonstrated that the parties were alive to the issue of editing and conscious to ensure that only admissible evidence was before the jury. The Crown draws attention to the exchange which took place on the first day of the trial, in the absence of the jury, with respect to the recorded JIRT Interview of JB to which I have referred at [24]-[28] above.

6. [60]

   As well, the Crown draws attention to the fact that, prior to the playing of the recording of JB’s evidence-in-chief from the first trial, there had been an omission from the transcript of three introductory questions and answers. The prosecutor sought, and was granted leave, to read the questions aloud to the jury.

7. [61]

   The Crown submitted that this Court would be satisfied from the trial transcript that, not only were edits agreed in advance of the trial, but that care was being taken by the legal practitioners, during the trial, to ensure that the transcripts and the recordings matched, and in circumstances where this was not so, corrections were made promptly.

8. [62]

   The Crown notes that neither the Judge, nor his associate, nor any of the lawyers present in the courtroom when the JIRT Interview was played to the jury raised any issue about the accuracy of the transcript of that interview.

9. [63]

   The Crown also submits that the fact that the jury did not raise any issue about the content of the transcript they received “strongly militates” against the conclusion that the copies they received were anything other than copies of the agreed edited transcript.

10. [64]

    The Crown emphasises the fact that it would be very surprising, given that the plaintiff’s contention is that the transcript provided to the jury ought be found to be a copy of the transcript in the file, containing the yellow highlighting, if the attention of members of the jury had been drawn to that part of the transcript, and it did not reflect the video which they were seeing, that they would not have noticed and said something.

11. [65]

    Further, the Crown drew attention to the fact that, in the prosecutor’s closing address, there was a specific reference made to Q144 of the interview, by the prosecutor. He said this to the jury:

12. [66]

    In the highlighted transcript upon which the applicant’s case is principally based, Q144 was in the following form:

13. [67]

    Whereas in the edited transcript prepared by the solicitor for the Crown and distributed by email, Q144 is in these terms:

14. [68]

    The question described immediately above as Q144 in the edited transcript was Q158 in the highlighted transcript.

15. [69]

    Whilst the Crown submits that whilst it was not an identical quotation, the reference in the closing address by the Crown Prosecutor to Q144 strongly supports a conclusion that the prosecutor was working from the numbering in the final transcript.

16. [70]

    Accordingly, the Crown submitted that, when all of the circumstances are looked at in their entirety, this Court would not be satisfied that the unedited transcript was the document provided to the jury. It submits that a more likely option is that the transcript was tagged with the MFI-2 label in error.

17. [71]

    The Crown accepted that if the highlighted, unedited version of PH’s JIRT Interview did go to the jury, then a miscarriage of justice would be established. It accepts that the provision of the highlighted transcript to the jury was a material error in the sense that it could realistically have affected the reasoning of the jury to its verdict. The Crown did not rely upon the proviso in those circumstances.

Discernment

1. [72]

   As just observed, the Crown conceded that if the unedited and highlighted transcript was given to the jury whilst they watched the recorded JIRT Interview of PH, there would have been an irregularity in the trial process of sufficient materiality to have resulted in a miscarriage of justice.

2. [73]

   It follows from this concession, which I accept is appropriately made, that the only issue which falls to be determined by this Court is whether, having regard to the contents of the appeal book containing, as it does, the transcript of the second trial, and the further evidence placed before the Court, the Court is satisfied, on the balance of probabilities, that the jury were provided with the unedited (and hence incorrect) transcript.

3. [74]

   The jury was provided with a transcript whilst viewing the JIRT Interview. The second trial transcript records that the JIRT Interview was played and for the purpose of watching that interview, the jury were provided with a transcript. The transcript was removed from the jury immediately at the conclusion of the playing of the recording of the JIRT Interview.

4. [75]

   With respect to the availability of transcripts prior to the trial, the unchallenged evidence of Ms Winston, a solicitor in the ODPP, is that, prior to the commencement of this second trial, having reached an agreement with the defence counsel as to what edits should be made to the transcript of the JIRT Interview, and the interview itself, a copy of the final version of the transcripts was prepared and then emailed to counsel and solicitors for the defence. The evidence satisfies me that this final and edited transcript consisted of 172 questions and occupied 15 pages. The unedited transcript consists of 190 questions and 17 pages. As well, there is highlighted on that version a series of questions and answers which do not appear in the final edited version.

5. [76]

   To my mind, the significance of this fact is that the defence counsel and solicitor had a copy of the “final version”, as did the Crown Prosecutor and ODPP solicitor who were in the courtroom. There was no reason, unless an administrative error occurred, for the ODPP solicitor to have prepared any, let alone 12, copies of the unedited transcript for use in the Court by the jury. The only transcript which was relevant to be copied for the purpose of distribution to the jury was the edited final transcript.

6. [77]

   I am also satisfied from all of the material presently before the Court that there is no independent recollection by any of the practitioners involved in the hearing of the trial, as to which transcript it was that was given to the jury. Differently put, no-one who was present in Court during the second trial positively asserts that they have a recollection of or knowledge gleaned in another way, which demonstrates that the unedited transcript was given to the jury during the playing of the JIRT Interview with PH.

7. [78]

   The applicant’s case is that the Court should infer from the fact that, in the court file, identified over 12 months after the file was closed, a label identifying a transcript as MFI-2 had been placed on the unedited transcript, it was that transcript which was distributed to the jury.

8. [79]

   I am unable to draw such an inference. To my mind, the facts are to the contrary. The transcript of the second trial records two separate occasions to which I have earlier referred, when concerns about the contents of transcripts being shown to the jury were raised. Those concerns were raised by one or other of the practitioners appearing in the matter, thereby demonstrating that the practitioners were alert to the need to ensure the correctness of the transcripts and to ensure that the transcripts reflected the recordings that were being played to the jury.

9. [80]

   I do not find this surprising, because the recordings which were being played to the jury of the two JIRT Interviews, and the evidence at the first trial of the two witnesses, PH and JB, constituted the substance of the Crown case. It is not as though, as may happen in other trials, there are a very large number of videos being played, the relevance of which is not always central to the offences, but form part (and perhaps a peripheral part) of the proof of the Crown’s case.

10. [81]

    No practitioner drew attention to any discrepancy between the recording of PH’s JIRT Interview and any copy of the transcript which the jury received. It is obvious from a comparison of the final transcript and the unedited transcript that there were significant differences. I am not in any doubt that the discrepancies would have been detected by one or more of the practitioners in the court room and, if detected, would have been drawn to the Judge’s attention.

11. [82]

    As well, it can be safely assumed that the Judge was in possession of a transcript of the JIRT Interview and was also following it at the time the recording was played.

12. [83]

    Furthermore, the transcript was provided to 12 members of the jury. Whilst, of course, it is not to be thought that the jury were under any obligation to draw attention to any discrepancy between the transcript and the recording, there is no reason to expect that, had a member of the jury observed such a discrepancy, they would have not raised it with the Judge in the courtroom or, subsequently, by a note.

13. [84]

    In summary, the fact that the recording was played whilst the jury were in possession of a transcript and that no-one in the court room observed and raised the existence of a discrepancy of the kind which existed between the highlighted transcript and the recording which was being played, is strong evidence contrary to the inference which the applicant asks the Court to draw.

14. [85]

    In the absence of being satisfied, as a matter of fact, that the jury received an inappropriate transcript, I cannot be satisfied from the entirety of the evidence before this Court that the applicant has established, on the balance of probabilities, the factual circumstances necessary to underpin a finding that there has been a miscarriage of justice.

15. [86]

    In those circumstances, the appeal must be dismissed.

Orders

1. [87]

   I proposed the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal dismissed.

2. [88]

   SWEENEY J: I have had the benefit of reading in draft the judgment of Garling J, and am grateful for his Honour’s account of the evidence and issues.

3. [89]

   I have come to a different conclusion from his Honour’s.

4. [90]

   In the circumstances described by his Honour, where no one involved in the trial has a recollection about the transcript, the fact that the unedited transcript of a complainant’s interview was marked for identification by the judge’s associate has significance.

5. [91]

   I am of the view that there is a risk, and not a fanciful risk, that the jury had access to the unedited transcript which included allegations of misconduct by the applicant against a child who was not a complainant in his trial. As the Crown acknowledged, that would cause a miscarriage of justice in his trial.

6. [92]

   In those circumstances I would order that his convictions be quashed and order a new trial. I appreciate that if that were the order of the Court that RC has served his sentence would be a consideration in whether a new trial occurred. I would not order an acquittal, as the applicant sought, because to do so would in my view distort the record.

7. [93]

   I am aware that my view is in the minority.