1 In this trial, the Crown prosecutor gave an opening address to the jury early in the day on Wednesday, 17 February 1999. That was followed by an opening statement by counsel for the accused. On Friday 19 February, several Crown witnesses had been called and several remained to be called.
2 It was at this stage of the trial that a written request was received from a member of the jury, as follows:
"I request a transcript of the opening addresses by both counsel, giving an overview of the prosecution and defence, and the names of all witnesses.
Juryman 27-18-044".
Juror 27-18-044 is the foreman of the jury but, as will appear, nothing seems to me to turn on that.
3 Before the jury was empanelled the Crown prosecutor had read out the names of the Crown's proposed witnesses. Several of them were again referred to by name in the course of the Crown prosecutor's opening address.
4 The Crown prosecutor's opening address was conventional. It commenced as follows:
"Ladies and gentlemen, it is, as his Honour told you, my function at this stage of the proceedings to give you a brief outline or a potted version, as it were, of the evidence which I anticipate will be led for the Crown in this trial. I use the word 'anticipate' because I don't give evidence in the trial. I call witnesses. They give their evidence to you in the witness box and they may very well produce certain exhibits which will also come your way for your consideration."
Then followed a resume of the evidence intended to be called. The Crown case as outlined was that Peter Mitris was believed by the accused and a colleague to have failed to account for a consignment of illicit drugs, that the accused and his colleague had beaten Mitris to death in retribution and that the accused had arranged for disposal of the body from a launch, and that the body had not been found. The Crown prosecutor concluded his opening address as follows:
"Members of the jury that is a basic outline of the case. Please don't make up your minds yet. You haven't heard any of the evidence. It is all very well for me to tell you what I think will fall from the lips of the witnesses. It is quite another thing for the witnesses to come along, give their evidence and you be the judge as to what you make of them, not only what they say but the way in which they say things. That is your function and yours alone.
Can I just repeat before I resume my seat, that the very, very important words that his Honour said to you at the start - and I have no difficulty with you hearing them from me as the Crown Prosecutor - the Crown brings the charges, the Crown has to prove them. The accused, as he sits in court, comes here with what is called the presumption of innocence, that is, he is presumed to be innocent until the Crown, with such evidence as it is able to muster, is able to convince each and every one of you beyond a reasonable doubt as to his guilt. Until such time as we have done that, he is and remains innocent and he does not have to say, tell or prove a thing in that regard. That is very important, members of the jury. Your Honour, I think that is all I need to say to the jury by way of opening."
5 In his opening statement to the jury, counsel for the accused said the defence did not concede that Peter Mitris was dead, that, if he is dead, he did not die at the hands of the accused, that the accused did not take part in any assault on Mitris as alleged, that there was no drug debt, that the accused had no other motive to harm Mitris, and that the accused was being framed. Counsel for the accused concluded his statement as follows:
"So hopefully, members of the jury, that short address will indicate to you where we feel or where the defence submits your attention ought to be focused and for you to perhaps better appreciate the significance of the evidence as it comes to you.
I join with the Crown in reminding you that at the end of the day it is the Crown that must prove the guilt of the accused and unless and until it does, he remains not guilty."
6 On Friday 19 February 1999, I heard submissions from counsel concerning the juror's request. I reserved my decision. On Monday 22 February 1999, I announced my decision that the jury should be provided with a copy of the Crown prosecutor's opening address and of the opening statement made by counsel for the accused. I said I would give my reasons at a later time. These are my reasons.
7 The Jury Act 1977 was amended by the Jury (Amendment) Act 1987 in a number of respects. Substantially, the amendments followed the recommendations of the New South Wales Law Reform Commission in its report "The Jury in a Criminal Trial" (LRC48 1986). The amendments included insertion of s 55C which provides as follows:
"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."
8 It is my understanding that, prior to the 1987 amendment, juries were never provided with a transcript of evidence. If they were, that was a rarity. Juries were told that, if they wished to be reminded of any part of the evidence, it would be read to them. This was frequently done, usually by the trial judge reading the relevant evidence to the jury, sometimes at considerable length. I am not aware of any practice at that time concerning any transcript of the Crown's opening address or concerning any transcript of an opening statement by the accused's counsel. To this day, there is no universal practice in relation to the recording of opening addresses and opening statements. I am sure, however, that, prior to 1987, a request for the transcript of any such address or statement (if available) would have been refused, conformably with the practice in relation to transcripts of evidence.
9 There is an inherent or implied power in this court to control its own processes. 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. My reasons for that view are as follows.
10 The report of the New South Wales Law Reform Commission to which I have referred included the following recommendation.
"Recommendation 49: The Jury Act 1977 should confirm the discretionary power of the judge to provide a copy of all or part of the transcript of evidence to the jury in the jury room."
This recommendation conveyed the opinion of the members of the commission that, without the need for any specific statutory power, a discretion to provide the jury with transcript of evidence existed. The members of the commission who signed off on that report were Mr K Mason QC (as he then was), Mr P Byrne (then of junior counsel), Mr G James QC (as he then was), Matthews DCJ (as she then was), Roden J (as he then was) and Mr R Sackville (as he then was). The opinion of these persons carries weight. That was, as I have said, in relation to transcript of evidence.
11 In Lowe (1997) 98 A Crim R 300, a District Court judge had, without any request from the jury or from counsel, provided the jury with a copy of the evidence of a Crown witness. In the judgment of Hunt CJ at CL, there was no criticism in principle of the trial judge having taken it upon himself to make part of the transcript available to the jury (at 308-309). The only question was whether fairness required that other parts of the transcript ought also to have been made available if that was to be done. In the opinion of Hunt CJ at CL a new trial was not required. Smart J, on the other hand, was of the opinion that the judge had erred in allowing the transcript of portion of the evidence to be furnished without the transcript of certain other evidence (at 324). In his Honour's opinion, a new trial was required. Ireland J agreed with the orders proposed by Hunt CJ at CL and with his reasons.
12 It appears that, in this case, all three members of the bench were of the opinion that the trial judge had a discretion to provide transcript of evidence to the jury apart altogether from the operation of s 55C of the Jury Act, which is predicated on a request by the jury. That accorded with the opinion of the members of the Law Reform Commission to which I have referred.
13 The existence of such a discretion, apart altogether from s 55C, had also been accorded some support in the judgment of Ireland J in Guirguis (CCA (NSW), 11 November 1996, unreported). His Honour said:
"I would not go so far as to say that, absent a request from the jury, it would not be open to a trial judge to place before a jury part of the transcript of evidence."
His Honour went on to refer to the possible need to supply to the jury additional balancing transcript in the circumstances of the case. Gleeson CJ said he was in substantial agreement with the reasons given by Ireland J and did not dissent from the observation to which I have referred. James J agreed with Ireland J and with the supplementary reasons of Gleeson CJ (which do not bear on this topic).
14 These sources relate to transcript of evidence, as does s 55C. However, if there is a discretion in a trial judge to provide a jury with transcript of evidence dehors s 55C, as appears to be the case, there is no reason to doubt that the discretion extends to the provision of any part of the record of the proceedings, insofar as the proceedings have taken place in the presence of the jury. It remains to consider how the discretion should be exercised.
15 The Crown prosecutor raised no objection to the jury having a copy of his opening address and of the opening statement by counsel for the accused. He submitted that a list of Crown witnesses would be unnecessary. Requiring the accused to present a list of defence witnesses would, of course, not be entertained. Counsel for the accused objected totally to the jury being furnished with the materials requested.
16 The reasons given by counsel for the accused for his position are as follows. First, it is said that a jury might treat the transcript as evidence. Secondly, it is said that the jury might, later in their deliberations, treat the transcript as a summary of the evidence. Thirdly, it was said that the opening statement on behalf of the accused identified issues rather than specifying the evidence which would or might be called on behalf of the accused. It was submitted that the accused might be prejudiced by highlighting the fact that, at the commencement of the proceedings, the Crown had specified the witnesses it would call, whereas the accused had not done so.
17 In my opinion, the jury should, generally speaking, be provided with a copy of the Crown's opening address and of the opening statement on behalf of the accused if these have been recorded and if that is requested by the jury or by a juror for the following reasons.
18 First, what has been said in the Crown's opening address and in the statement made on behalf of the accused has been said for a purpose. If the jury or a member of the jury wishes 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 record available if requested. There would need to be reasons to the contrary which outweighed that consideration and which could not be met by appropriate warnings against misuse of the transcript. In another connection but in words which convey the present point, Everett J said in Williams (1982) Tas R 266,280:
"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."
19 Secondly, to provide a transcript of the opening address and opening statement is to do no more than the jury are entitled to provide for themselves. A member of the jury might be able to make a shorthand note or might make a very comprehensive summary which can be read to other jurors in the jury room. If there could be no objection to that - and there cannot be - it is inconsistent to refuse to provide the official record, at request, when the record carries the additional quality of guaranteed accuracy.
20 Thirdly, the enactment of s 55C was an expression of opinion by the parliament that the practice in relation to the non-provision of transcript of evidence which existed prior to 1987 was wrong. The Law Reform Commission gave reasons for rejecting that practice and for the recommended reform to end it. In the introduction to Chapter 6 of the report, Making the Jury's Task Easier, the Commission said (at page 71):
"It is our view that efforts should be made to simplify the task of juries. We reject the argument that the difficulties identified lead necessarily to the conclusion that juries should be abandoned. In this chapter we recommend ways in which, at various stages, the task of the jury can be made easier, by which we mean more convenient, more comfortable, simpler and fairer. The easier this task is made, the more effective will be the jury's performance and the more reliable the verdict."
In support of Recommendation 49, to which I have referred the Commission said (page 90):
"The jury should be assisted to deliberate effectively and rationally on the evidence presented in court. We have recommend above (Recommendation 38, para 6.20) that jurors should be provided with notebooks as a matter of course and permitted to make notes during the trial. The provision of the transcript in addition could compensate for any lack of reliability in the notes made and could save time in the jury's deliberations."
In the second reading speeches in the House and in the Assembly, it was acknowledged that the amending bill was an implementation of a number of the recommendations in the report (Hansard, 48th Parliament, 3rd Session, page 16523, 19 November 1987; and page 17131, 24th November 1987). The reasoning which led the Commission to make Recommendation 49, and which can be taken to have led the parliament to enact s 55C, applies to provision of the record of any part of the proceedings which take place before the jury and which bears on the jury's function.
21 Fourthly, since the enactment of s 55C, the provision of parts of the transcript of evidence to the jury, at their request, has become commonplace. In that regard, a new factor has arisen which bears on the provision of the transcript of an address or opening statement. If the purpose of providing a transcript of evidence is to remind the jury, accurately and in a complete way, of what was said in a part of the proceedings before them - as it is- consistency requires that the record of other parts of the proceedings conducted before the jury should also be provided, at request, for the same purpose.
22 There is no difference in the considerations which arise if the request is made by a member of the jury as distinct from the jury as a whole. Counsel for the accused could see no distinction.
23 Lastly, I acknowledge the risk that the record of an opening address or of an accused's opening statement might be misused. That is also true of the address or statement as delivered in court when one has regard to the possibility that a member of the jury might have made a full note which is subsequently used in jury room. But it has to be acknowledged that the risk of misuse is higher when a formal looking, typed record is provided. In another connection, that kind of heightened risk has judicial recognition: Driscoll (1977) 137 CLR 517 (per Gibbs J at 542). Driscoll is not, however, authority for proscribing the supply to the jury of part of the record of the proceedings.
24 As I have recorded, counsel in the present case had incorporated cautions against misuse in what they said to the jury. These could be reinforced and supplemented by me.
25 Having regard to the foregoing considerations, I decided that it was appropriate in the present case to provide the jury with the transcript of the Crown's opening address and of the accused's opening statement.
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