Area of Law – Sexual Offences

An Article about VATE tapes

Evidence – Sex matters – VATE (Video and Audio Taped Evidence) tapes
In a rape or sexual assault case the complainant often has participated in a VATE tape. This is used as evidence of what their allegations were. When the matter comes to Court the tape is played to the jury and then the defendant’s lawyers cross-examine the complainant. Initially as part of the brief of evidence a copy of the transcript is given to the defendant. It is always important for a VATE to be properly viewed (generally at a Police Station) prior to the hearing as often transcript does not really indicate how they are behaving in this process

Some law from the Victorian Courts about VATE tapes follows:

Vate tape should not become an exhibit
It should not be made an exhibit and should not go into the jury room during deliberations. A miscarriage has been held to have resulted where that has occurred

R v BAH (2002) 5 VR 517, R v Lewis (2002) 137 A Crim R 85, R v Lyne (2003) 140 A Crim R 522

Errors in relation to VATE tape
S. gave her evidence-in-chief by means of a pre-recorded “VATE tape”; a procedure introduced into this State in 1991 (s.37B Evidence Act 1958) enabling a young complainant’s evidence-in-chief to be pre-recorded by video/audio means in an interview between the complainant and a police officer “prescribed” for the purpose. As this Court said in R. v. BAH, this procedure provided by s.37B “represents a significant departure from criminal procedure as recognized by the common law”, in the sense that the critical evidence which is led by the prosecution will stand as the evidence-in-chief of the complainant. It is, therefore, not surprising that the Legislature has written into the statute certain procedural safeguards; whilst common law courts have grafted additional procedural safeguards onto those which have been included in the statutory provision. One such additional procedural safeguard is that the VATE tape is not to be provided to the jury in order that they should have unrestricted access to it during the course of their deliberations.

In this case, the jury was not given unrestricted access to the VATE tape when they retired to consider their verdict. However, after deliberating for some 2½ hours, the jury asked whether they could see “S’s police interview again”. The trial judge said “certainly”; and then and there the VATE tape of S’s evidence was re-played to the jury; and they retired again at 4.08 p.m. No exception to this procedure was taken by counsel. At 5.30 p.m. the jury announced that they had arrived at their verdicts. Before the verdicts were taken, and in the absence of the jury, trial counsel for the applicant told the judge that, at about 4.30 p.m., he had spoken to her Honour’s tipstaff and indicated to him that he wished to raise a matter with the Judge; namely that the VATE tape having been replayed to the jury, there should have been further directions from her Honour, as a matter of fairness, reminding the jury of the cross-examination of S. Counsel told the Judge that he had later received an intimation from her Honour that, in the absence of a specific request from the jury she would not be giving further directions. Her Honour said to counsel:

“I asked the jury if there was anything else they wanted, and they said No.”

She then directed that the jury be brought in; and verdicts were taken.

It was submitted to this Court by counsel for the applicant that a miscarriage of justice had occurred in the events which had happened. Mr. Priest submitted that, upon counsel’s request, the judge should have recalled the jury and summarized for them the cross-examination of S; or – at the very least – warned the jury against giving to the VATE tape disproportionate weight. Mr. Priest submitted that the applicant had been prejudiced by the judge’s declining to take these steps, particularly because she had made little or no reference in her directions to the cross-examination of either complainant. He referred to a passage in my judgment in R. v. BAH where the following comments were made:

“The playing back to the jury, at their request, of a video recording which forms the evidence-in-chief of a complainant is a matter under the discretionary control of the trial judge. It is part and parcel of the practice and procedure which the trial judge is bound to administer, as he or she does whenever the jury asks to be reminded of the evidence. Nevertheless, for the reasons adverted to in the authorities to which I have referred, caution should be exercised by judges in this State when faced with requests by juries to replay the video-taped evidence-in-chief of child complainants admitted pursuant to the provisions of s.37B of the Evidence Act. Generally speaking, in my view, the procedure outlined by the President of the Court of Appeal of Queensland in R. v. H to which I have referred, should be followed in this State … . Compliance with that procedure means that, in the event that the jury requests to be reminded of the complainant’s evidence, or to review the video-tape, the judge should deal with the situation on the facts as they arise, bearing in mind that the maintenance of balance and fairness in the trial is the overriding consideration. If, after discussing the jury’s request with counsel in open court and being careful … not to intrude on the confidentiality of their deliberations, the judge decides to allow the jury to view the video-tape, it should be done in open court in the presence of the accused and counsel, and should be attended, at least, by a general warning of the type to which McMurdo, P. referred in R. v. H. … . Whether fairness also requires the judge to remind the jury of the cross-examination and re-examination of the complainant will be a matter for the trial judge who is in the best position to determine whether that is necessary.”

I think Mr. Priest is right in his submission that insufficient was done by the trial judge to protect the interests of the applicant when acting upon the jury’s request to have the VATE tape of S replayed. In my view the judge should, at the very least, have warned the jury that, because they were hearing the evidence-in-chief of S for the 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 (my emphasis). The emphasized passage was the “general warning” referred to by McMurdo, P. in the case of R. v. H., which is the warning which should be given (at the very least) when a jury requests to have replayed the VATE taped evidence-in-chief of a child complainant.

In concluding that there was a lack of balance and fairness in the procedure adopted by the judge in responding to the jury’s request to have replayed to them the VATE tape of S’s evidence-in-chief, I do not intend to impute any blame to the trial judge who, in this regard, appears to have been given very little assistance by counsel.

R v MAG [2005]

Unsupervised access to VATE tapes
R v BAH and R v Richard Henry Lyne refer to the dangers of allowing a jury to have unsupervised access to VATE tapes during the course of their deliberations.

The danger inherent in allowing a jury to have unsupervised access to a VATE tape is that the jury will give undue weight to the complainant’s evidence in chief and correspondingly insufficient attention and weight to the complainant’s in-court examination in chief and evidence in cross examination. The damage exists because the VATE tape is a video tape of the complainant giving testimony in chief.

R v Davies [2005] VSCA 90


Date: 09/01/2009