Page:Pell v The Queen.pdf/16

Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

members of the Court of Appeal to watch any video-recordings of the witnesses at trial because his case on appeal did not depend upon an assessment of the credibility of any witness. The applicant agreed that the members of the Court should have the benefit of a view of the Cathedral.

33 The applicant also submitted that, if the Court were nevertheless disposed to watch the video-recordings of some witnesses, the Court should also watch the recordings of a number of other named witnesses in order to avoid the risk of "imbalance" or "undue focus". The risk of "imbalance" was adverted to by French CJ, Gummow and Kiefel JJ in SKA v The Queen.

34 The respondent agreed, both with the course proposed by the Court and with the further suggestions by the applicant. The respondent submitted that watching the video-recordings of the witnesses was "desirable given the existence of the relevant recordings".

35 In this Court, the applicant maintained the position that it was unnecessary and undesirable for the members of the Court of Appeal to have watched the recordings of any of the witnesses. Nevertheless, the applicant was not disposed to contend that the course taken by the Court of Appeal was itself an appealable error. The respondent maintained the position that the existence of the recordings was enough to make it "appropriate" for them to be watched by the Court of Appeal.

36 The position maintained by the respondent is not one that should generally be adopted by courts of criminal appeal. In SKA, French CJ, Gummow and Kiefel JJ rejected the suggestion that the mere availability of a video-recording of a witness' evidence at trial meant that the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitated a viewing of the recording. There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the videorecording. But such cases will be exceptional, and ordinarily it would be expected