At about 10:30am on 10 June 2021, the jury retired in this matter to deliberate on its verdicts. This followed the closing addresses of counsel, which concluded on 9 June 2021, and my summing‑up, which took place in the afternoon of 9 June 2021 and the morning of 10 June 2021.
Late in the afternoon of 10 June 2021, I received a note from the jury. The note was marked MFI 14 and reads as follows:
"Request for transcript from closing arguments and closing address and judge's summing‑up".
On receipt of the note, I reconvened the Court and informed the parties of the note and of its contents. I also informed the parties that, in the limited time available, I had not had time to review any relevant authorities but had reviewed the Jury Act 1977 (NSW) and the notes in the Criminal Practice and Procedure service: see R Howie and P Johnson, LexisNexis, Criminal Practice and Procedure. Having regard to the lateness in the day and the fact that the parties wished to consider the authorities and any submissions they would want to make on the question of whether the jury should have access to the transcript of counsels' addresses and my summing‑up, and also to the fact that even if the material was to be provided to the jury, it could not have been done so that afternoon, I called the jury back into the Court and separated them for the evening. I informed them that I had received their note and I would provide an answer to them on 11 June 2021.
The parties have now had an opportunity to consider the position and have submitted as follows. The Crown accepts that the authorities indicate that there is a discretion for the Court to provide the relevant materials. Those authorities indicate that, in more lengthy and complicated trials, that material is usually provided, but the discretion remains with the Court in the particular circumstances of the case.
Mr Edwards, on behalf of the accused, stated that a matter that may weigh in the exercise of my discretion is that, in this case, we have available the transcript of counsels' addresses and of my summing‑up so that there will not be any delay. If it was the case that the material was not readily available and there would have been a longer delay, he submitted that may have been a matter which weighed against the exercise of the discretion.
Section 55C of the Jury Act 1977 (NSW) provides that:
"55C Supply of transcripts to jury.
A copy of all or any part of the transcript of evidence at a trial or inquest may, at the request of the jury, be supplied to the members of the jury if the judge or coroner considers that it is appropriate and practicable to do so".
(emphasis added)
As can be seen, a plain reading of the text provides a discretion to the trial judge to provide members of the jury all or any part of "the transcript of evidence at a trial". The section does not deal with provision of a copy of all, or any part, of the transcript of other parts of the trial, including opening addresses, closing addresses or the trial judge's summing‑up.
There have been several authorities which deal with the question of whether, despite the express terms of s 55 of the Jury Act 1977 (NSW), the trial judge may, at the request of the jury, provide it with a copy of all or any part of the transcript of the other parts of the trial, other than the transcript of evidence given at that trial. Those authorities were reviewed by Bellew J in R v Medich (No 24) [2017] NSWSC 293.
The position is that each of the Supreme and District Courts has a discretion to control the processes before them. That control includes a discretion whether or not to provide the jury, at its request, with a copy of part or all of the transcript of, relevantly, counsels' closing addresses and the trial judge's summing‑up. The exercise of the discretion must have regard to the circumstances of the particular case.
As I have said, Bellew J in Medich reviewed the authorities to assess guidance that they may provide as to what factors would be relevant to the exercise of the discretion. From this, his Honour accepted that a fundamental guiding principle to the exercise of the discretion is that a jury should be provided with such assistance as is reasonable and appropriate; see [20]. This flows from the fact that what is said in counsels' addresses ‑ and I interpolate, in the trial judge's summing‑up ‑ is said for a purpose, namely for the benefit of the jury. If the jury or a member of the jury wishes to be reminded of what has been said, provision of the material would facilitate such purpose; see [14], referring to R v Taousanis [1999] NSWSC 107 at [18] per Sperling J.
Bellew J also referred to Sperling J's reference to the passage in Williams v R [1982] Tas R 266, where Everett J said, at [280]:
"To deny the jury the benefit of reading with their eyes the same words as they heard with their ears seems to me to put the law into an ill-fitting straightjacket".
Bellew J (at [18]) also referred to the authorities of:
1. R v Bartle [2003] NSWCCA 329, where the Court of Criminal Appeal concluded that a trial judge had erred in not exercising the discretion to provide similar material to a jury when it was requested; and
2. R v Sukkar [2005] NSWCCA, where the Court of Criminal Appeal concluded that the exercise of a discretion by the trial judge to provide such material upon request was appropriate for a case which was lengthy, and that its provision served to reinforce the issues for the jury and the legal principles by which they were to be resolved.
Reference was also made to the decision of Hamill J in R v Quami (No 66) [2016] NSWSC 1403, where his Honour acceded to a request by the jury to be provided with the transcript of his Honour's summing‑up. Bellew J in Medich also acceded to the jury's request for a provision of, relevantly, the closing addresses of counsel and his Honour's summing‑up. His Honour was satisfied that the risk of any misuse by the jury of that material could be met by appropriate warnings given to the jury and a reminder that the material is not evidence.
Each of the cases referred to above, including Medich, were lengthy and complex trials. As I have observed, the Court of Criminal Appeal has concluded that in such cases, it may be appropriate for the trial judge to exercise the discretion to provide this material to the jury if it is requested. Of course, as I have also said, the exercise of the discretion would necessarily be subject to the particular circumstances of each case.
The trial commenced before me in this matter on 3 June 2021. Addresses commenced on the fourth day of the trial (with the Court not sitting in this matter on 4 June 2021). There were 12 witnesses for the Crown and two witnesses for the accused. However, many of the witnesses were short complaint witnesses who were not cross‑examined. The most significant witnesses were, at least in terms of time, the complainant and the accused. The accused stands trial on an indictment which contains four counts, one an alternate count, with a further statutory alternative to the final count. It could not be said that this trial was lengthy or overly complex.
It seems to me that even though the trial of these proceedings has not been overly lengthy or complex, that is not of itself a reason to refuse the provision of the material to the jury. There were matters which the jury may wish to be reminded of including, for example, the numerous addresses where the accused, the complainant and their family resided and where various of the offences were said to have been committed. Of course, whether that is what the jury are concerned about is purely a matter of speculation which, in some circumstances, may not be helpful. I mention this as but an example of a matter that they may wish to be reminded of, having heard the evidence and the addresses of counsel and my summing‑up.
As Sperling J observed in R v Taousanis [1999] NSWSC 107, and as was referred to by Bellew J in Medich at [14], there is a strong reason for making the material available to the jury if it is requested and there would need to be strong reasons to the contrary which outweigh that consideration which could not be met by appropriate warnings being given regarding the possible misuse of that material. It seems to me that this consideration would equally apply to the exercise of the trial judge's discretion to provide the transcript of parts of the trial other than the evidence, even in trials which may not be necessarily lengthy or complex.
In this case, despite my reminder to the jury that if they wish to be reminded of any part of the evidence or had questions or concerns about my directions to them, then they should send me a note in the usual way, they have after some hours of deliberation, requested the transcript of counsels' addresses and of my summing‑up. If the provision of that material is, as I must assume, being requested for their assistance and to remind them of what they have heard, I see no reason in this case as to why they should not be provided with that assistance. When that material is provided to them, I will remind them that neither counsels' addresses nor my summing‑up constitute evidence in the case and, if they wish to have further assistance on any directions of law that I have given in my summing‑up, then they should send a note in the usual way.
For these reasons, I propose to exercise my discretion to provide the jury with the transcript of counsels' addresses and my summing‑up. I note that the transcript of that material is being reviewed by the parties and is available, and the transcript of my summing‑up is also being reviewed to correct any typographical errors and otherwise for accuracy.
[2]
ORDERS
I therefore make an order as follows:
1. The jury be provided with copies of the transcript of counsels' closing addresses and my summing‑up.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 21 July 2021