The jury in the accused's trial retired shortly before the luncheon adjournment on 24 March 2017 to commence deliberations. On the afternoon of that day I received a series of communications from the foreperson of the jury, although only one of them is material for present purposes. That communication is now MFI 109 and was in the following terms:
"The jury requests the following:
Two full transcripts;
One digital copy of full transcript;
The summing-up of the Crown, the defence and the trial judge;
List of all witnesses;
The list of exhibits."
The note concluded with the following:
"Are the jury able to request any of the MFIs?"
The contents of the note were discussed with the Crown and senior counsel for the accused. There was no issue that two hard copies of the transcript could be provided. The Crown simply requested that some time be given to prepare it, so as to ensure that those parts of it which recorded proceedings in the jury's absence were not included.
Senior counsel for the accused objected to the provision of a digital transcript to the jury. He submitted that in all of the circumstances, it would lend itself to a member or members of the jury using it for the purposes of searching for various words or phrases as they appeared in the transcript. He submitted that this gave rise to a danger of particular emphasis being placed upon certain words or phrases which was not warranted. Although the Crown did not object to the provision of the transcript in that form, it was explained to me that it would take some time, perhaps even a few days, for it to be prepared.
I am not persuaded that the concerns expressed by senior counsel are necessarily well-founded but in all of the circumstances, and given that the jury have two hard copies of the entire transcript, provision of it in a digital form seems to me to be largely unnecessary. I have also taken into account the practicalities of the matter which include some delay in being able to provide that material.
R v Ronald Edward Medich [2017] NSWSC 293 | Case summary | Zoe
Needless to say, the jury cannot have any document marked for identification although, in some cases, the content or contents of a document marked for identification have been read on to the record in the transcript. There is no issue that the jury can be provided with a list of witnesses and a list of exhibits. I understand that those documents have been prepared and their contents agreed upon.
The focus of debate has been whether the jury should be provided with copies of the Crown address, the defence address and my summing-up.
Counsel for the accused initially strenuously objected to the provision of any of that material. He submitted, in particular, that the addresses did not constitute evidence, and that their provision to the jury in a written form carried the risk that they would, as it were, be "elevated" to having evidentiary status. As far as my summing-up is concerned, senior counsel drew attention to the fact that, as is customarily the case, I had exhorted the members of the jury to ask me any further question or questions in the course of their deliberations in the event that any further assistance was required. Senior counsel submitted that in those circumstances, there was no necessity for a transcript of the summing-up to be provided.
The Crown raised no real objection to the provision of the material. The Crown pointed out, amongst other things, that there was a discretion to provide it and submitted, in my view quite properly, that one of the fundamental principles which informed the exercise of that discretion was that within the bounds of what is appropriate, reasonable and lawful, a jury should be provided with such assistance as they may need for the purposes of carrying out their deliberations.
After giving some consideration to the matter, it seems that senior counsel for the accused revised his position, and concluded that he had no objection to the provision of any of this material to the jury. That said, the matter remains a matter for the exercise of my discretion.
Section 55C of the Jury Act 1977 (NSW) is in the following terms:
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.
Necessarily, the exercise of that discretion must have regard to the circumstances of the particular case. There are a number of authorities which provide some guidance as to what factors may be relevant to its exercise.
In R v Taousanis [1999] NSWSC 107, Sperling J made a number of observations regarding the issue, in the context of a request by a jury for copies of opening addresses by counsel. Obviously the request in the present case is slightly different, but his Honour's observations remain apposite.
Firstly, his Honour observed (at [18]) that what had been said in the Crown's opening address, and in the opening address made on behalf of the accused, had been said for a purpose, and that if the jury (or a member of the jury) wished to be reminded of what had been said, that would facilitate such purpose. His Honour observed that there was a strong reason for making the record available if it was requested, and that there would need to be strong reasons to the contrary which outweighed that consideration, and which could not be met by appropriate warnings being given regarding possible misuse of the material.
In making those observations, his Honour made reference to the decision in Williams v The Queen [1982] Tas R 266 where Everett J had 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."
Sperling J also observed (at [19]) that to provide the jury with a transcript of the addresses was to do no more than the jury was effectively able to do for themselves. He pointed out that a member of the jury might have the capacity to make a shorthand record, or might alternatively have the capacity to make a comprehensive summary of what had been said, which could then be read to other members of the jury in the jury room. His Honour observed that in circumstances where there could be no objection to that course, it was inconsistent to refuse to provide the official record in response to a request, particularly when the record carried the additional quality of guaranteed accuracy.
His Honour also observed (at [20]) that the enactment of s. 55C was an expression of opinion by the Parliament that the practice in relation to the non-provision of a transcript of evidence which existed prior to that time was wrong. He also observed (at [21]) that the provision of parts of a transcript of evidence for the jury at their request had become commonplace. His Honour also acknowledged (at [23]) the risk that the record of an opening address might be misused. However in my view that is a risk which can be more than appropriately addressed by reminding the jury that addresses of counsel are not evidence.
There are a number of subsequent authorities which also touch upon this issue. They include 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. In R v Sukkar [2005] NSWCCA 54, 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 provisions served to reinforce the issues for the jury, and the legal principles by which they were to be resolved (at [86]).
These judgments were most recently referred to by Hamill J in R v Qaumi (No. 66) [2016] NSWSC 1403. His Honour in that case acceded to a request by the jury to be provided with the evidence and summing-up, in circumstances where the trial had proceeded for some months and where the transcript exceeded more than 5000 pages.
As I have said, the Crown properly pointed out that a fundamental guiding principle to the exercise of the discretion to provide the requested material is that a jury should be provided with such assistance as is reasonable and appropriate. The present trial has proceeded for two months. A large number of witnesses have been called. The transcript has run to substantially more than 2000 pages. Whilst the case is not one of the length complexity with which Hamill J was dealing when he made his decision in Quami (No. 66), there is, in my view, no factor which should prevent the jury's request from being met. Quite apart from anything else, and as Hamill J pointed out in Qaumi (No. 66), such summary of the respective cases of the Crown and the accused as I was able to provide in my summing-up was just that, a summary. There should be no problem with the jury having the entirety of the submissions put to them by each counsel for their assistance, providing they are reminded that the addresses are not evidence.
To the extent that senior counsel for the accused had initially submitted that the provision of the summing-up might render the jury reluctant to ask further questions or seek further assistance, it can be explained that the provision of a copy of the transcript of my summing-up does not mean that they should not feel free to ask questions for the purposes of clarification if and when they think it appropriate.
For all of those reasons I propose, in the exercise of my discretion, to provide the material requested by the jury.
[2]
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Decision last updated: 24 April 2018