On 22 May 2019 just after completion of the summing up, the jury sent a note (MFI 27) in the following terms:
"Once completed, requesting a transcript of her Honour's summary."
The jury were provided at their request with the transcript of the evidence of the expert psychiatrists, Dr Martin and Dr Allnutt and expert psychologist Dr Hepner. They have also been given copies of documents setting out the elements of the offence of murder and the elements of the substantial impairment defence early in the trial. Also, on 21 May the jury requested and was provided with a transcript of counsels' addresses.
The Jury Act 1977 (NSW) states:
"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."
It will be seen that there is no reference to the jury being provided with transcripts of either counsels' address or the summing up. However, it has been held that a trial Judge has a discretion to comply with a request from the jury such as this.
In R v Bartle & Ors [2003] NSWCCA 329, the Court considered a case in which a trial judge had refused a request for a transcript of two of the addresses made by counsel in a multiple accused trial. The following extract from the judgment is relevant:
"655. During the morning of Tuesday, 11 September 2001 the jury asked this question:
'Your Honour could we have the transcript relating to the examination and cross-examination of WAV file PF518. Could we also have the transcript of Mr Buscombe's and Mr Dailly's final arguments.'
656. Mr Buscombe appeared for Fox. There was no objection to the jury having the transcript relating to the examination and cross-examination on WAV file PF518 which involved Fox. The transcripts of the addresses of Messrs Dailly and Buscombe were available. The Prosecutor objected to the jury being provided with the addresses of counsel. There was no provision in the Jury Act 1977 for this to happen. Counsel for McCaffrey submitted that the transcript of his final address should be given to the jury. There was no statutory provision preventing this. Mr Buscombe submitted that the jury should have the transcripts of the addresses as they had sought them.
657 Mr Simpson for Bartle strongly opposed the transcripts of the addresses being given to the jury, especially that of Mr Dailly. Many of the arguments he advanced cut directly across Bartle's case and, Mr Simpson submitted, would give the jury a biased view of portions of the evidence.
658. The judge decided not to give the jury the transcripts of the final addresses of Messrs Buscombe and Dailly. The judge said:
'I think the best thing is for me to say - which is the conclusion I have come to quite frankly - is that while the law makes specific provision for me to give them a copy of the transcript of evidence it does not specifically make provision for me to give them a copy of transcript of argument and for that reason I am not going to do so.'
659. The judge told the jury that he was not going to give them the transcripts of the addresses of Messrs Buscombe and Dailly. The judge continued:
'There are a couple of reasons but the main reason is that while the law specifically makes provision for me to give you copies of the of the transcript of evidence, the law does not specifically provide for me to give you copies of the transcript of argument - addresses, and argument and addresses are not evidence and it is for that reason and not for seeking to keep anything from you that I am not going to give you the copies of the addresses'.
660. Section 55C of the Jury Act 1977 provides:
'A copy of all or any part of the transcript of evidence at a trial … may, at the request of the jury, be supplied to the members of the jury if the judge … considers that it is appropriate and practicable to do so.'
661 Because the jury's request came without notice nobody had an opportunity to search for authorities. In R v Taousanis [1999] NSWSC 107 Sperling J, in response to a jury request for the transcript of the Crown and defence opening addresses and, after noting that prior to the 1987 amendment inserting s.55C juries were never provided (except possibly in a rare case) with a transcript of evidence and that a request for an opening address or opening statement by the accused's counsel would have been refused, continued:
'There is an inherent or implied power in this court to control its own operations. The power is hedged in by statute, rules of court, precedent and practice. I do not doubt, however, that a judge has, apart altogether from the operation of s.55C of the Jury Act , the discretionary power to make available to the jury a transcript of any part of the record of the proceedings to the extent that such proceedings have been conducted before them.'
662. The Crown correctly conceded that the District Court has an implied power to control its own processes and that this included a discretionary power to make available to the jury a transcript of the record of the proceedings to the extent that such proceedings have been conducted before the Court. (Obviously a judge would not make available a transcript of legal argument conducted in their absence). The Crown further correctly conceded that although Taousanis was concerned with opening addresses, the power extends to provide transcript of final addresses at the judge's discretion. The Crown submitted that this discretion should only be exercised where the judge considers it appropriate and practical to do so.
663. The judge stated in argument (SU312) that as the law did not specifically make provision for him to give the jury a copy of the transcript of argument and did as to the evidence, he was not going to give the jury a copy of the former.
664. While stating the main reason for not making the transcripts of the addresses available the judge did not specify or rely on any other reasons. It seems reasonably clear that, in the absence of specific legislative provision which existed in the case of evidence, the judge did not think that he had the power to make available to the jury a copy of the transcripts of the addresses of Messrs Buscombe and Dailly. Accordingly, he declined to make them available. The judge erred in that view. The judge never exercised the discretion which he had according to law. It is not a discretion which is given to this Court. As this Court is a court of error and does not rehear matters, can it exercise the discretion itself? McCaffrey and the Crown approached the matter on a different basis. McCaffrey contended that the circumstances of this case were so exceptional that it was erroneous not to make the transcript requested by the jury available to them. McCaffrey's case seemed to be that the judge had exercised his discretion and erred in refusing to make the transcripts available. The Crown case seemed to be that the judge had exercised his discretion in refusing to make the transcript available to them. Error having been established in that the judge incorrectly held that he had no power to give the transcript of the addresses of Messrs Buscombe and Dailly to the jury, and had not thereby exercised his discretion correctly, it falls to the Crown to show that even if the judge had exercised his discretion according to law he should have refused to make the transcript of those two addresses available to the jury and that there was no miscarriage of justice. The Crown relied on these reasons:
(a) Provision of the requested final address in written form would have afforded undue weight to the arguments advanced by McCaffrey in the absence of the Crown's arguments.
(b) The Crown address was more remote in time than that of McCaffrey's counsel The Crown did however accept that the arguments advanced by the Crown were effectively covered in the summing-up.
(c) Delay may have occurred due to the matters raised in argument by the Prosecutor, requiring argument as to their excision from the defence addresses and editing if successful. If the Prosecutor's submissions had been upheld any editing may have had an adverse effect on the addresses even with the appropriate explanation.
(d) The opposition of counsel for Bartle to either address being provided and in particular, his description of the address of counsel for McCaffrey as 'cutting across Mr Bartle's case … and they would be getting a biased view of portions of the evidence'.
(e) If the jury request was to be met both addresses, or neither, had to be provided due to the particularly strong opposition by Bartle to the address of McCaffrey's counsel being provided. If only the address on behalf of Fox were provided it would have been difficult, at the least, to explain to the jury why that of McCaffrey's counsel was not provided without some adverse impact on McCaffrey.
(f) If there was any particular matter that the jury desired to be reminded of from either of the addresses it could be more expediently dealt with by the traditional practice of reading out the appropriate passages or summarising them. The alternative was the provision of 68 pages, being the address of counsel for Fox and 77 pages, being the address of counsel for McCaffrey.
(g) It cannot be presumed that the cause of the request was something that was either to the advantage or disadvantage of either Fox or McCaffrey.
(h) It was possible that the jury were interested in Fox' case as to whether Fox' counsel dealt with the aspect of "tainted evidence". (SU 228-231)
(i) The jury did not request any further information as to the addresses of counsel and returned with verdicts shortly thereafter.
The jury retired to consider their verdict at 10.37am on 4 September 2001 and continued that consideration on 5, 6 and 7 September 2001 until 1.00pm. They resumed on Tuesday 11 September 2001. Later that morning they asked for the respective addresses of counsel for Fox and McCaffrey. The judge heard relatively brief argument and announced that he would give his decision after the luncheon adjournment. At 2.30pm the judge gave the directions quoted and told the jury that they would receive the transcript of PF518 very shortly. The jury retired at 2.34pm and continued to consider their verdict until 4pm that day but did not sit on 12 September as one of the jurors was sick. The jury returned with their verdicts at 2.15pm on 13 September 2001.
665. The requests for the transcripts of the addresses came at a late stage in the jury's deliberations. Fry, Roberti and Thompson were on the Ngaire Wha and brought the cocaine into Australia. Fry had also travelled to Panama and had made arrangements with Diez. Bartle travelled to New Zealand and was closely involved in the selection and purchase of the Ngaire Wha, taking it to the north of New Zealand and acted as treasurer in New Zealand for incidental expenses. Diez managed the Central American end of the importation. The Crown case against each of these five men was very strong.
666. The cases of Fox and McCaffrey could be regarded as those likely to cause the jury most concern. Turning to the arguments of the Crown I disagree that the provision of the two final addresses requested would have afforded undue weight to these. The Crown case had been led in detail in chief. The Crown's cross-examination was lengthy and effectively the Crown case was put again and an attempt was made to demolish McCaffrey's case. This was followed by a lengthy address from the Prosecutor. The Crown accepted that its case was effectively covered in the summing-up. The repetition of the Crown case in various forms would have embedded it in the minds of the jurors.
667. The delay caused by the Prosecutor's objections and any editing of the transcript was not of consequence. It was likely to be short.
668. The objection raised by counsel for Bartle cannot be a determining factor if the jury thought that the transcripts would assist them as they apparently did, although the objection is a matter to be taken into account. A joint trial should not be used as a vehicle to restrict the rights of an accused or the material to which recourse may be had. The jury had previously heard the attack on Bartle's evidence by McCaffrey. The Crown's reliance on the objection of Bartle's counsel is not a sufficient ground to reject the jury's request.
669. It is not an adequate answer in a long detailed case to suggest that if there was any particular matter which the jury wish to be reminded of they could ask to be reminded of the evidence and arguments on that matter. That assumes that they could remember such matters sufficiently well to be able to make an intelligible request. The address of counsel for McCaffrey extended over about 77 closely typed pages and was spread over three days, that is from shortly after lunch on 14 August 2001 to and including some of the morning of 16 August 2001. That address covered a great deal of material. It would not have been easy to recall all the detail. The problem was compounded by the mass of oral and documentary evidence, the many addresses, some of which were lengthy, the complexity of the voluminous materials and that the jury had to deal with seven separate cases.
670. The trial was fragmented and much disrupted. Apart from the times when the jury were absent while sundry applications were made there were numerous hearing days on which the jury did not sit because a juror was sick or had to attend to personal matters. It is not easy to recall matters amongst such disruptions or to retain impressions especially over such a long period. The material overall was quite complex and seven separate cases fell for consideration.
671. The transcripts would have reminded the jury of the details of McCaffrey's defence accurately and comprehensively and of the material which might give rise to a reasonable doubt and of how the various strands of evidence might be drawn together and viewed. It would also remind the jury of the explanations of the various pieces of potentially adverse evidence. This would have been very helpful in this rather intricate trial with its voluminous evidence, lengthy addresses and necessarily extended summing-up. The judge could have given directions and made comments to ensure that the transcript was not misused. A trial is not a memory test for the jury. With such a volume of material over such a long time it was entirely prudent for the jury to check out their recollection of the address of McCaffrey's counsel against the transcript.
672. This was a case where the transcripts requested by the jury should have been made available to them. The reasons for doing so were compelling. It has not been overlooked that the making available of a transcript of evidence or of addresses is a matter which falls within the discretionary judgment of the trial judge and that the Court exercises much restraint before intervening. The trial judge is usually the person best placed to make that decision. However, his decision was based on an incorrect understanding of his powers and the reasons for making the transcript available were cogent and outweighed those for not doing so."
Whilst the evidence in the present case was succinct and was led or tendered over the space of only nine hearing days, the partial impairment defence is technical. Counsels' addresses provided assistance to the jury on the evidence directed to this issue. The summing up contained some specific additional matters salient to the legal test of substantial impairment, including definitions of "abnormality", "substantial" and "impairment".
The Crown correctly pointed out that it was a discretionary matter, but the discretionary factors relied upon in other cases to provide the transcript of the summing up do not apply here, for example, long trial, multiple or complex charges, multiple defendants.
It was held in R v Sukkar [2005] NSWCCA 54, upon request in an appropriate case, a trial judge may provide the jury with a copy of a transcript of the summing up (or, as happened in that case, arrange for an audio recording to be played). Wood CJ at CL (with whom Hidden J and Smart AJ agreed) said:
"84. The discretion which his Honour exercised was appropriate for a case which was lengthy, and involved two Appellants, and it served to reinforce for the jury the issues involved for each accused and the legal principles by which they were to be resolved. Moreover it followed several requests by the jury for assistance."
While the jury has been provided with written directions as a reminder of the elements of murder and the substantial impairment defence, the oral directions I gave in the summing up were more detailed, and included a reference to definitions to assist, which the written direction and earlier oral direction did not.
There is intellectual complexity associated with the substantial impairment defence and the lay and expert evidence led to support and to raise doubt about it. If the jury take the view that a transcript of the summing up will assist, I am of the view that that assistance should be given, and I consider it to be, within the terms of s 55C of the Jury Act, appropriate and practicable to do so in this case.
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Decision last updated: 22 November 2019