The jury in the present trial is currently in its fourth day of deliberations. They have already requested (and have been provided with) the vast majority of the transcript of the evidence which was given in the trial.
Shortly before the conclusion of proceedings yesterday I received a note from the jury in the following terms: [1]
"Transcripts of closing addresses for both parties. The Crown and accused."
Because of the lateness of the hour at which that request was received, I indicated to the jury that it would be considered overnight and a determination made this morning as to whether or not it should be met.
Prior to adjourning yesterday I referred both the Crown and the accused to some authorities which I considered may be helpful in determining the issue.
Upon resumption this morning, the Crown submitted that it would be appropriate to exercise my discretion in favour of providing the requested material to the jury. That position was expressed with one qualification, namely, that the transcript of the accused's address to the jury should be edited by removing those portions in which the accused had made submissions to the jury which were inflammatory, scandalous, or otherwise not covered by the evidence, and which caused me to interrupt the accused.
The accused objected to any form of editing being undertaken. He asserted that to redact portions from his address would be unfair, and would be reflective of a "double standard" being applied by the Court as between himself and the Crown. The accused complained about the fact that he had been interrupted in the course of addressing the jury, and submitted that there were no similar interruptions made in the course of the Crown's address, in circumstances where he submitted that the Crown had made a number of "unfounded assertions".
There are therefore two issues to be determined. The first is whether, in the exercise of my discretion, the material should be provided. The second, if my discretion is exercised in favour of providing the material, is the form in which the accused's address should be provided to the jury.
Section 55C of the Jury Act 1977 (NSW) confers a discretionary power on the Court to provide to the jury a transcript of evidence given in the trial. In circumstances where it is the addresses of counsel and the accused which have been sought by the jury rather than evidence, section 55C has no application. However, there is certainly authority for the proposition that the inherent powers of the Court extend to a discretionary power to provide transcripts of addresses and, for that matter, the summing-up. [2]
I had occasion to consider a similar issue in R v Ronald Edward Medich (No 24), [3] although in that case s 55C did have some role to play because of the rather expansive request which had been made by the jury. In exercising my discretion in favour of providing the material sought (which included transcripts of counsel's addresses) I made reference to a number of authorities which had considered that issue. [4] In doing so, I observed that in the course of argument, the Crown had properly pointed out that a fundamental guiding principle in terms of the exercise of the discretion is that a jury should be provided with such assistance as is reasonable and appropriate. [5]
The present trial has been proceeding for more than six weeks. The evidence is voluminous. The trial transcript now extends to more than 1,650 pages. The Crown's address extended over two days, in the course of which the Crown traversed a number of aspects of the evidence.
The Crown's submissions (as well as those of the accused) were summarised in the course of my summing-up. Those summaries came with the usual qualification, namely that they did not purport to repeat every single submission which had been put, either by the Crown or by the accused. I stressed to the jury that any failure on my part to refer to a particular submission was not a matter from which any inference whatsoever should be drawn. In the course of argument yesterday the Crown raised the option of repeating those summaries. In circumstances where they have already been given, and where the jury have seen fit to make the present request (I infer on the basis that it will assist in their deliberations) repeating the summaries would not, in any view, be sufficient.
In all of those circumstances and bearing in mind the touchstone to which I referred earlier, I have determined that I should accede to the jury's request and, in the exercise of my discretion, provide the material.
That then gives rise to the second issue, namely, the form in which the accused's address should be provided. In that regard it is necessary to note that for some period of time the accused has represented himself, having withdrawn his instructions from his solicitor and senior counsel who had previously appeared on his behalf. The transcript of the accused's address to the jury will reflect the fact that on several occasions I was forced to interrupt the accused when he made submissions which were irrelevant, and/or scandalous, and/or which referred to matters which were not the subject of evidence. On each of those occasions I asked the accused not to make such submissions, and reminded him that this was his opportunity to address the jury in relation to the evidence. One does not need to reflect at any length on those circumstances to come to the conclusion that providing the jury with a copy of the accused's address which included those passages would be inappropriate. Apart from anything else, it would have the effect of reminding the jury of matters about which they should not have been addressed in the first place.
I do not accept the accused's submission that the removal of those passages is reflective of the application of any double standard. The reason why the Crown's address is not being edited in a similar fashion is because the Crown did not make submissions which were objectionable. There was only one matter which was the subject of a submission by the Crown, upon which I invited the Crown to reflect. That submission was ultimately withdrawn from the jury.
Insofar as the accused complains that the Crown addressed in a way which was objectionable, it should be observed that at no stage of the Crown's address did the accused raise any issue about what had been put.
Since receiving the jury's note I have reviewed the transcript of the accused's address to make some preliminary determination of those passages which ought be redacted. The Crown has performed the same exercise, and has provided me with a highlighted transcript of the accused's address identifying those passages which, it is submitted, should be removed. The proposed redactions are directed to those instances in which the accused made submissions of the kind to which I have previously referred, and which necessitated my intervention.
Having compared the Crown's highlighted document with my own marked-up transcript, the Crown's proposals as to the proposed redactions are, but for three matters, consistent with my own. In respect of the first, [6] I propose that on and from the words "like the search", [7] up to and including the words "for hours", [8] be redacted in addition to what had been suggested by the Crown.
Although two additional matters were raised in the course of discussions with the Crown this morning, the Crown is content to leave those respective passages as they are. In those circumstances, I will take them no further.
So that there is a record of what has been redacted from the transcript, the highlighted version of the transcript provided to me by the Crown for the purposes of determining this issue has been marked for identification. [9]
In providing this material to the jury, I will firstly remind them of the fact that the addresses are not evidence and cannot be used in that way. Secondly, I will remind them that the fact that they have now been provided with the vast majority of the trial transcript, as well as the addresses, does not mean that they should not feel free to ask questions if and when they need further assistance. Thirdly, I will point out to the jury that those matters that I determined were inappropriately included in the accused's address have been removed, but that they should not draw any inference adverse to the accused from that fact.
[2]
Endnotes
MFI 56.
See generally Parhizkar v R (2014) 88 NSWLR 647; [2014] NSWCCA 240 at [60] per Basten JA and the authorities cited therein.
[2017] NSWSC 293.
Commencing at [13].
At [20].
T1601.18 -T1601.21.
T1601.18.
T1601.21.
MFI 57.
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: 08 April 2020