R v Benbrika & Ors

2 The list of documents to which the section applies specifically refers to every class of document one could imagine in a criminal trial and concludes with an omnibus category, "any other document that the trial judge thinks fit."

3 The list in s 19 specifically includes any schedules, chronologies, charts, diagrams, summaries or other explanatory material.

4 In this trial, in reliance on s 19, the Crown seeks to put before the jury a series of 225 large charts on A3 paper on which are summarised 481 separate conversations relied upon as part of the Crown case. The chart sets out full particulars of these conversations, the participants in them, the date and time they occurred and whether they were recorded from a listening device or from an intercepted telephone call.

5 In a column headed "Summary" there is, against each conversation, a description of part of the conversation expressed generally in indirect speech, although also often containing quotations attributed to various speakers. The transcript of the source recording from which the summary is compiled is indexed against each conversation, which transcript, together with the audio source recording, will be made available via a hypertext link when an electronic version of this chart is made available to the Court, the parties and possibly to the jury at trial.

6 That these charts were prepared by the Crown is made clear on the first page and that the summaries are not evidence in the case is stated unequivocally on every page of the charts. In fact, as explained by the prosecutor, after the summaries were initially prepared and discussed with counsel for the defence, they were expanded to include summaries of parts of other conversations. These parts had not been initially summarised at all by the prosecution because they were not considered of sufficient importance to the case, as the Crown perceived it and as it would present it to the jury. The summaries of those extra pieces of conversation which the defence wished to be included were also prepared by the Crown and are highlighted on the A3 chart in the colour green.

7 The question as to the final form of these charts (referred to generally in Court as the A3 chart) has been an issue between the Crown and the defence for some time, although all parties have used various editions of it as it progressed towards its final form in the course of pre-trial argument, especially as to the admissibility of various conversations or parts of conversations to which it refers. As such, it has been, it would appear, very useful, providing a reference point from which to go to the full transcript or even on some occasions to the audio source recording. However it is not insignificant to this ruling that it was seldom that a decision could be reached based solely on the A3 chart; it was almost always necessary to go back to the transcript of the actual conversation to enable argument about the actual words spoken. After all, it is those words which constitute the evidence, not summaries of them or even a transcript of them.

8 On about 14 December the Crown produced a final version of the A3 chart which incorporated all the matters to which I have referred as well as a colour coding system for easier identification of each of the accused whenever he was involved in any particular conversation. It uses a different colour for each accused, which colour is also used to identify his telephone number.

9 After production of this version of the A3 chart the question of whether it could be put before the jury as a series of summaries of intercepted conversations arose for determination. The Crown sought to tender it. The entire defence bar sought its exclusion on the ground that it was not a suitable document to be put before the jury, notwithstanding s 19 of the Crimes (Criminal Trials) Act 1999 (Vic).

10 Mr Montgomery of senior counsel had the conduct of the argument on behalf of all of the accused. He commenced by acknowledging that without the summaries, the A3 chart would still be a very useful document to enable easier access to the secondary evidence of the conversations which the Crown wishes to tender, that is the transcript of those conversations. It is agreed that those transcripts will be before the jury, each juror having a complete set comprising five lever arch files. The addition of an electronic version with hypertext link access not only to the secondary sources of the conversations but also to the primary source, the audio recording, was also not objected to by Mr Montgomery subject to the jury being adequately instructed in its use.

11 Mr Montgomery's only real objection to the use of the A3 chart was that it did not adequately summarise the relevant conversations, it was selective in its choice of which part of which conversation was to be summarised, it used conclusive language, it reflected the Crown case as the Crown wished to present it, and despite the warnings printed on it, to the effect that it was not the evidence in the case, it would be likely to be used as such by the jury, because it would be easier to do that than to retrieve the transcript or audio recording each time they wished to refer to a conversation.

12 In particular, Mr Montgomery criticised the use of conclusionary past participles to summarise the effect of a conversation, thus, he submitted, suggesting to the jury that they should view the conversation in that way. He said that in using words to describe the effect of a speaker's words, such as "asked", "replied", "reported", "discussed", "pointed out", "opined", "complained", "confirmed" and other similar conclusionary words, the A3 chart had a tendency to interpret the conversations for the jury, when, of course, that fact finding task the jury is constitutionally bound to perform.

13 Mr Montgomery pointed to a number of examples where, he said, the summary demonstrated the problems to which he had referred. In each of them, he submitted that had the jury not gone back to the transcript, they would have, or at least could have, adopted an interpretation of a conversation which, although it favoured the Crown case, was not the only interpretation open on a consideration of the words used. This situation arose particularly in the many conversations which are disjointed, apparently incomplete, and require assumptions to be made in determining the effect of what was said.

14 For example, in conversation at item number 28 (old line 38), the summary commences with the assertion, "Each person appeared to contribute money". A perusal of the transcript reveals that while this may well be a reasonable conclusion to draw from what was said, it was by no means an inescapable inference. The jury could easily reach the view that they could not determine how many and which people put money in.

15 Mr Montgomery pointed to a number of other examples where a similar point could be made. His concern, he said, was that the jury could be seduced by the summaries and might ignore the source material, or at least not refer to it as the primary source of their information.

16 Mr Taft of senior counsel and Mr Mullaly supported Mr Montgomery's argument in the same vein. Mr Taft referred to the jury being invited to view the case through the prism of the summaries, thus courting the danger of substituting third generation data for first generation data.

17 Mr Mullaly submitted that the "Summary" columns of the A3 chart were argumentative and should be rejected on that ground alone.

18 Mr Maidment defended the A3 chart as a legitimate summary of the conversations to which it referred and submitted that it enabled the jury more easily to find their way around the transcripts, which they will have in hard copy as well as in electronic form. He took issue with Mr Montgomery's characterisation of parts of the summary as being conclusionary or argumentative. He said the defence argument must proceed on the inappropriate assumption that the jury will not heed the numerous warnings and instructions which they will receive, to the effect that only the conversations themselves are evidence, not the summaries or even the transcript of the conversation. This, submitted Mr Maidment, was not the way to view the appropriateness of placing the A3 chart before the jury to help them in what will be a very complex task.

19 Whilst it is by no means certain that the provision of appropriate written or other aids to a jury in a criminal trial renders the trial irregular, s. 19 exists to eliminate any doubt as to the trial judge's power in this respect. Since its enactment it has become commonplace in Victoria to provide assistance to juries in the form of written material, particularly transcripts of the evidence of the trial itself and transcripts of records of interview, both for the purpose of assisting them to follow the playing of video or audio recordings when they are replayed and for reminding them of that evidence later. Some judges customarily provide written definitions of the elements of offences and other legal propositions to juries to reinforce their oral directions. Powerpoint presentations are also used for a similar purpose.

20 Mr Maidment referred the Court to the case of R v Schioparlan and Georgescu[1] where the Full Court of this court, compromising Young CJ and Brooking and Marks JJ, commended the provision to a jury of a chronology of the Crown case prepared by the judge himself, although the judgment does not make clear whether the jury were provided with the chronology in written form or whether it was merely read by the judge as part of his charge. Indeed, inasmuch as it refers to the chronology having been read by the trial judge it strongly suggests that the jury did not, themselves, have the document.

21 The law is clear as to the use juries may make of transcripts of record of interview and the like. They are covered by the High Court decision in Butera v Director of Public Prosecutions.[2]

22 The High Court has also endorsed the provision of a chart to a jury in an appropriate case. In Smith v The Queen,[3] a chart had been prepared by a witness to explain a complex financial transaction. It was admitted into evidence. The High Court agreed with the Court of Criminal Appeal[4] that the chart was rightly admitted. It was "nothing but a convenient record of a series of highly complicated cheque transactions which had been proved by other evidence and was likely to have been of assistance to the jury." In its judgment the Court of Criminal Appeal had endorsed the use of such charts and other time saving devices in complicated trials and described their use as, "A usual and desirable procedure which is encouraged by the courts." [5]

23 In a later civil case, Alucraft v Grocon Ltd [1996] VicRp 72; [1996] 2 VR 377, Smith J of this Court refused to admit a large and elaborate bar chart prepared by a witness setting out events which had occurred in the design and construction of various window and door structures for a large building. His Honour held that the question of the admissibility of such a chart was to be resolved by asking whether it would assist in the fact finding process. In deciding that question it would be appropriate to take into account its accuracy, the extent to which it incorporated facts which were not and could not be the subject of admissible evidence, and the completeness of the chart.

24 In South Australia the use of charts which collate or summarise all the evidence of an expert witness was considered in R v Van Beelen.[6] Such a chart may be used to assist the jury to follow the evidence, but only if the chart is complete and accurate and not selective of the evidence of the witness.[7]

25 Although in discussing Mitchell's case in Butera v Director of Public Prosecutions, the High Court appears to have accepted the Court of Criminal Appeal's characterisation of the chart there under discussion as evidence which went before the jury, in this case the Crown specifically disavows the tender of the A3 chart as evidence. It is, submits Mr Maidment, an aid to the jury's understanding and comprehension of the conversations recorded on the listening devices and telephone intercepts. As such it is not, itself, evidence, merely a conveniently compiled summary of the evidence.

26 It is at that point, however, that difficulties arise. The summaries have been criticised as expressing conclusions about the conversations being summarised. The use of conclusionary past participles listed by Mr Montgomery gives credence to this argument and a review of the summaries generally leads to a conclusion that many of them state or suggest the effect of a conversation rather than merely summarising the words used. It is not immaterial that a witness in a witness box could not, of course, give such evidence. He would be confined, if the rules of evidence were strictly applied, to recounting the words used, or at least, giving the substance of the conversation being tendered.

27 Further, as Mr Maidment freely conceded, the summaries are selective. They do not purport to summarise all of every conversation which will be tendered in evidence. He explained that long, seemingly irrelevant, parts of conversations had not been summarised because such a summary would not assist the jury. But this process inevitably involved evaluation and judgment, even where defence counsel were encouraged to cooperate in denoting conversations or parts of conversations which they wanted included. This evaluation of what to summarise was then followed by a second evaluation of how to express the summarised conversation.

28 Very recently, in Gately v The Queen,[8] the High Court considered a case where pre-trial video recorded testimony of a child complainant in a sexual assault case was permitted to be seen by the jury other than in open court. Although the appeal was dismissed by application of the proviso (Kirby J dissenting), Hayne J, who wrote the leading judgment, emphasised the oral nature of the criminal trial in our system and drew attention again to the warning given by the High Court in Butera to the effect that care must be taken to avoid the risk that undue weight will be given to a written record of a conversation as compared to the conversation itself heard in oral form.[9]

29 Kirby J expressed similar views at 214[10]:

Whilst it is doubtless appropriate to recognise and utilise technological advances that might assist juries to perform their task, it is self evident that such assistance must accord with the fundamental requirements and essential characteristics of a fair criminal trial. Such a trial is accusatorial and adversarial. In a jury trial a heavy duty falls on the presiding judge to protect the accused against material risks of unfairness and to direct and sometimes warn the jury about any particular dangers of unfairness to which they need to be alert in considering an electronic recording of evidence or a printed transcript based on such a recording.

30 Hayne J's warning and Kirby J's comments must apply a fortiori to a summary of a transcript of a recorded conversation, if only for the reason that it is in effect a third generation piece of data.

31 Having considered the A3 chart carefully, I have reluctantly come to the conclusion that no matter what warnings were given to the jury concerning its compilation and its function and even if its shortcomings were emphasised, a material risk of unfairness to the accused will remain. This risk can only be eliminated by not permitting the jury to use the summaries on the A3 chart.

32 I say reluctantly because, in general, the philosophy behind s 19 of the Crimes (Criminal Trials) Act 1999 (Vic) is one to be embraced by criminal courts in the interests of efficiency generally and in the assistance of juries in the performance of their task in particular. But the embracing of such philosophy must always be subject to the overriding responsibility of the court to ensure, as far as possible, that the accused's right to a fair trial according to law is not infringed. The A3 chart in its present form must not go before the jury.

33 In the course of argument it became clear that defence counsel have no objection to the A3 chart being recast as an index to the transcripts of the listening devices and telephone intercepts. There would appear to be no reason why this should not occur. Whether the chart needs to remain on A3 or can be reduced to A4 can be a matter for the technicians, although it might be helpful to the jury if space for note taking was retained on any revision of the chart.

34 Also, as mentioned during argument, it might be better if each telephone intercept or listening device was designated as an item rather than as a line as it presently is. This might aid comprehension.

35 Any further consideration of this matter can now be deferred until after 14 January 2008.

[1] (1991) 54 A Crim R 294.

[2] [1987] HCA 58; (1987) 164 CLR 180.

[3] [1970] HCA 48; (1970) 121 CLR 572.

[4] R v Mitchell [1971] VicRp 5; [1971] VR 46, 58-60.

[5] R v Mitchell [1971] VicRp 5; [1971] VR 46, 59.

[6] (1973) 4 SASR 353.

[7] See also Collins v The Queen (1986) 32 A Crim R 31, 50-52 and 66.

[8] [2007] HCA 55; (2007) 232 CLR 208.

[9] Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208, 237.

[10] Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208, 214-15.