(2003) 181 FLR 1
R v BB (No 5) [2019] NSWSC 1393
R v Perish
R v Lawton
Source
Original judgment source is linked above.
Catchwords
[2000] HCA 15
Parhizkar v R (2014) 88 NSWLR 647[2014] NSWCCA 240
R v Bartle [2003] NSWCCA 329(2003) 181 FLR 1
R v BB (No 5) [2019] NSWSC 1393
R v PerishR v LawtonR v Perish [2011] NSWSC 1155
R v Sukkar [2005] NSWCCA 54
R v Taousanis [1999] NSWSC 107
Judgment (5 paragraphs)
[1]
Judgment
PAYNE JA: On 26 April 2022, the accused Adam Michael Cranston, Lauren Anne Cranston, Dev Menon, Jason Cornell Onley and Patrick John Willmott pleaded not guilty to the following two counts in an indictment presented on that day:
"1. Between about 1 March 2014 and about 18 May 2017, at Sydney in the State of New South Wales and elsewhere, did conspire with each other, Simon Paul Anquetil, Devyn Michelle Hammond, Joshua Meredith Kitson, Peter Larcombe, Daniel Rostankovski and divers others with the intention of dishonestly causing a loss to a third person, namely the Commonwealth.
Contrary to section 135.4(3) of the Criminal Code (Cth).
…
2. Between about 1 March 2014 and about 18 May 2017, at Sydney in the State of New South Wales and elsewhere, did conspire with each other, Simon Paul Anquetil, Devyn Michelle Hammond, Joshua Meredith Kitson, Peter Larcombe and divers others to deal with money of a value of $1,000,000 or more believing it to be the proceeds of crime.
Contrary to sections 11.5(1) and 400.3(1) of the Criminal Code (Cth)."
R v Cranston [2022] NSWSC 564 | Case summary | Zoe
A jury of 15 were empanelled and on the afternoon of 26 April the Crown's opening address commenced. There was an adjournment of some days by reason of juror illness. On the afternoon of 3 May 2022, the jury provided a note (jury note #5), which said:
"To his Honour,
We, the members of the jury, would like to request a transcript for the Crown's opening statement to be completed as of 4 May 2022.
Kind regards."
Counsel for each of the accused opposed the jury being given the transcript of the opening. On 5 May 2022, I determined that the jury should be provided with a copy of the transcripts of all opening addresses, marked "submission, not evidence". On 6 May 2022 a copy of the openings marked "submission, not evidence" was given to the jury together with further instructions. These are my reasons for providing the jury with the transcript of the opening addresses in accordance with their request.
[2]
Power
It eventually became common ground that I had implied or inherent power to give the jury a transcript of the opening addresses: R v Taousanis [1999] NSWSC 107; (1999) 146 A Crim R 303; R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1 at [661]-[662]; R v Sukkar [2005] NSWCCA 54 at [82]-[84]; R v Perish; R v Lawton; R v Perish [2011] NSWSC 1155; Parhizkar v R (2014) 88 NSWLR 647; [2014] NSWCCA 240 at [60]; R v BB (No 5) [2019] NSWSC 1393.
[3]
Discretion
The issue in this case was whether I should exercise my discretion to grant the jury's request to be provided with a copy of the transcript of the opening addresses.
Mr Anderson SC, who made submissions adopted by all accused, identified the principal basis of the opposition to providing the transcript in the "sharp imbalance" between the parties at this point in the trial. Mr Anderson drew attention to s 159(2) of the Criminal Procedure Act 1986 (NSW), the effect of which is to limit the matters that a defence opening address may raise. Mr Anderson contrasted this restraint with the Crown opening, which he submitted was extraordinary in its detailed reference to evidence expected to be led at the trial. It was submitted that an unfairness to the accused would be occasioned by permitting the jury to use the transcript of the Crown opening as a "constant reference for the next six months" in circumstances where defence counsel had not been entitled to set out their case in an equivalent level of detail.
Mr Brasch, appearing for Mr Willmott, emphasised the potential unfairness in the jury having recourse to a Crown opening which refers to the evidence that the Crown anticipates will be given, but which ultimately may not be given. He submitted that providing the transcript generated a risk that the jury might revert to it as the evidence in the trial, notwithstanding that the evidence actually given may be substantially altered under cross-examination or fail to meet the Crown's burden of proof. Mr Brasch further submitted that, given the detail with which the Crown's opening referred to the evidence of some witnesses, providing the jury with a transcript of the opening would be akin to providing a copy of witness statements.
Both contended, in the alternative, that the defence openings should be provided at the same time as the Crown opening and warnings given as to the use which may properly made of it.
The Crown submitted that the transcript of all openings should be made available to the jury and highlighted the length and complexity of the trial and the fact that the transcript had been specifically requested by the jury as reasons favouring the exercise of the discretion.
[4]
Consideration
In considering whether to exercise my discretion to provide the transcript of the openings I proceed on the basis that the jury will follow my legal directions: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13] (Gleeson CJ and Gummow J). The jury were given directions by me about the role of the openings before the openings commenced, again during the Crown opening, again at the outset of the defence openings, and were given even more specific directions at the time the transcript of the openings was provided to them. I said:
"I stress again, as I have explained to you, that the openings are not evidence and it would be wrong to treat something that either the Crown or the defence said in opening as evidence. The Crown opening is a road map of what the Crown expects the evidence to be, and submissions about what the Crown says you should find about its case. Now, I've seen that a number of you have taken pretty careful notes of things that are said and, having asked for it, I've determined it's best you see what was actually said, and it's been considered by each of the barristers and it's an accurate transcript of all of the things that were said in opening.
Now, to summarise, though, it is a submission. It's not evidence. The Crown opening was much longer than the accused's openings, and as I said to you before, I want to emphasise you shouldn't draw any adverse conclusions to the accused about that. As I said to you and I think Mr Anderson and a few of the other barristers explained, the law constrains barristers for the accused, at this stage, in what they can say. So the Criminal Procedure Act says that an opening of the kind here is limited generally to an address on the matters disclosed in the Prosecutor's opening address, including those that are in dispute and not in dispute, and the matters to be raised by the accused person. So it's much more limited necessarily, and you shouldn't draw any inferences about that.
That's another reason why, as I've said to you a few times, your role is to consider all of the evidence when it's in. There will be addresses at the end from the Crown and, in an unconstrained way, by each of the barristers for the accused. And then I'll sum up the case to you. I'll give you directions of law that you'll have to follow, and summarise the cases. As I've said to you a few times, I won't be making submissions to you or suggestions to you about facts you should find because that's not my role. That's entirely your role. But it is a cogent reason why you should wait before coming to any decisions, until you have all of the evidence, have heard all of the submissions, have my directions of law, and then you can consider each of the matters that have been raised for you, ultimately circling back to where we started, to MFI 3, whether the Crown has satisfied you beyond reasonable doubt of each of the elements I've told you of each of the offences, in relation to each individual, because as I've said to you a few times, there are really five trials going on here."
Jury trials, which are recognised in and mandated by s 80 of the Constitution in federal law, are predicated on the jury following judicial directions of law. In exercising my discretion, I proceeded on the basis that the jury will follow those directions.
I was persuaded that this is a case where it is appropriate that the jury be provided the transcript of the Crown and defence opening addresses. This, of course, was subject to redaction of relevant portions of the transcript, and the directions I have set out above about the use which may properly be made of the transcripts.
As to Mr Anderson's principal point, that providing the transcript would unfairly highlight the "sharp imbalance" between the parties at this point in the trial, I agree with Sperling J in Taousanis at [19] that to provide the transcript to the jury in response to their request would be to "do no more than the jury are entitled to provide for themselves". Jurors may take notes of the opening. I observed several members of the jury apparently taking very detailed notes during the opening addresses. The present jury are obviously very interested in understanding what it is they were being told in the openings; the request for the transcript demonstrates that interest.
Accepting for present purposes that the effect of s 159 of the Criminal Procedure Act is to create a "sharp imbalance" between the parties at this point in the trial, that is the effect of the statute. If I were to deny the jury's request for the transcript it was not suggested that I could or should direct the jury that they were not to have regard to their notes of what was said by any party in opening. The jury would, in those circumstances, have regard to their own notes. I do not suggest that they would do so for any impermissible purpose. The jury are, however, entitled to have regard to the openings to understand how the Crown and each of the accused submit they should approach the issues. In a lengthy and potentially complex trial, that is a perfectly understandable approach by the jury to the diligent discharge of their duties. It is far preferable in those circumstances to give the jury an accurate and complete record of what was said in opening rather than have the jury rely on what may be imperfectly recorded notes. I agree with Sperling J in Taousanis at [18] that what has been said by the Crown in opening address is said for a purpose. If the jury wish to be reminded of what was said, that will facilitate the purpose for which it was said in the first place. That is a strong reason for making the transcript available if the jury requests it.
I do not regard the fact that a transcript of the Crown opening has been made available gives rise to the risk that the jury will use the opening for any impermissible purpose. To the extent that there is any risk that the transcript as a formal typed record of the opening address may be given a greater status than it warrants or that it may otherwise be misused, that risk is sufficiently ameliorated by judicial directions, which I gave and repeated as set out at [10] above.
I do not accept Mr Brasch's submission that there is any relevant unfairness in this case by reason of the Crown opening referring to the evidence that the Crown anticipates will be given, but which ultimately may not be given. The jury have been directed that the Crown's opening address is merely an outline of what the Crown expects or anticipates the evidence will establish and is not evidence. In any event, I agree with Price J in Perish (at [7]) that:
"Should the evidence or part of the evidence fall short of that expectation the jury will have, by the provision of the transcript, an accurate and complete record as to the way in which the Crown's expectation was not fulfilled by the evidence given in the trial. To my mind, this is a consideration that could advantage the accused by the addresses of their counsel that are to come."
I reject Mr Brasch's submission that providing a transcript of the Crown's opening is equivalent to providing a copy of witness statements. The Crown's opening did not mention the existence of witness statements and did not purport to encompass material which may be understood to comprise a witness statement.
The context in which this request was made by the jury is also important. This a trial estimated to last for 6 months. There are numerous issues the jury is being asked to address. The evidence is already and will be voluminous. The Crown's opening was a lengthy one. The jury were entitled to have regard to it. That being the case, and a request having been made, I determined that in the exercise of my undoubted discretion the transcript of the openings clearly marked "submission, not evidence" should be provided to the jury with the directions I have set out at [10] above.
[5]
Amendments
21 March 2023 - Name of witness redacted.
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Decision last updated: 21 March 2023