Mullen, R v

Replaying video-recorded evidence-in-chief after a jury has retired is exceptional because it can disturb the evidential balance of a criminal trial. The judge should identify whether the jury needs to recall the evidence’s content, which may usually be supplied from notes, or its manner of delivery. Where the latter is sought, the judge may permit replay in the exercise of discretion, provided that a clear balancing direction guards against disproportionate weight and recalls the cross-examination and re-examination.

The discretion extends to a supporting child witness as well as a child complainant. A procedural error will not make a conviction unsafe where the replay was within the discretion, the jury received an adequate balancing direction, and no prejudice resulted.

The appellant was convicted at Croydon Crown Court of four counts of indecent assault upon a child and received an extended sentence. The complainant’s and her brother’s video-recorded interviews had been admitted as their evidence-in-chief under the Youth Justice and Criminal Evidence Act 1999.

Shortly after retiring, the jury asked to see all the video evidence again. The trial judge permitted replay. He initially failed to give a balancing direction, but interrupted the replay, gave a full warning against giving the complainant’s evidence disproportionate weight, and the next day reminded the jury of the witnesses’ cross-examination and re-examination.

The appeal challenged the replay procedure, its extension to the complainant’s brother, the presence of members of the public, and related directions. The central issue was whether the procedural defects rendered the convictions unsafe.

1. Appeal dismissed. The trial judge’s decision to permit the jury to replay the video evidence fell within the scope of his discretion. Although the proper procedure was not followed at the outset, the appellant suffered no prejudice and the convictions were safe.

2. Replaying video-recorded evidence-in-chief after retirement is a departure from the ordinary course of a criminal trial because it may give the prosecution an evidential advantage. The judge should ascertain whether the jury seeks the content of the evidence, which may be supplied from notes, or wishes to assess how the witness gave it. Where the latter is the purpose, replay may properly be permitted if the judge gives an effective balancing direction. The court followed the approach in R v Rawlings; R v Broadbent [1995] 2 Cr App R 222 and R v M. (J.).

3. The jury in fact wished to review the manner, as well as the content, of the complainant’s evidence. The judge’s full warning, though given before the video was half completed rather than at the outset, was sufficient. The defence had declined an invitation to consider discharging the jury and accepted the subsequent directions.

4. The discretion is not confined to a child complainant. Sections 19 and 27 of the Youth Justice and Criminal Evidence Act 1999 do not distinguish a supporting child witness. Subject to the content of the evidence, the validity of the jury’s request and an equivalent balancing direction, the evidence of such a witness may also be replayed. Where it extends only to recent complaint and opportunity, a reminder of its content will ordinarily suffice.

5. The court gave guidance that counsel concerned about public conduct capable of influencing the jury should alert the judge promptly. It declined to prescribe a general exclusion of the public during the replay of vulnerable-witness evidence or a general requirement to video-record live cross-examination and re-examination. Section 28 of the Youth Justice and Criminal Evidence Act 1999 did not supply such a power for live video-link evidence.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2004] EWCA Crim 602.
• Croydon Crown Court — the appellant was convicted by a jury of four counts of indecent assault and sentenced to an extended sentence.