R v Al Batat (No 33)

[2021] NSWSC 340

Supreme Court

New South Wales

Medium Neutral Citation:

R v Al Batat & Ors (No 33) [2021] NSWSC 340

Hearing dates:

23, 24 November 2020

Date of orders:

24 November 2020

Decision date:

09 April 2021

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

Jury provided with transcripts of the closing addresses made on behalf of each of the accused, subject to minor amendments.

Catchwords:

CRIMINAL LAW – jury request for transcripts of addresses – no provision in Jury Act – discretion to provide – long and complex trial – careful and thorough addresses – discretion exercised to comply with jury request

Legislation Cited:

Jury Act 1977 (NSW), s 55C

Cases Cited:

R v Bartle & Ors (2003) 181 FLR 1; [2003] NSWCCA 329

R v Qaumi & Ors (No 66) [2016] NSWSC 1403

R v Taousanis [1999] NSWSC 107; 146 A Crim R 303

Regina v Sukkar [2005] NSWCCA 54

Category:

Procedural rulings

Parties:

Regina
Abdallah Hassan Al Batat
Ying Cheng Luo
Ian Fan
Jaiyu Liu
Jacob Blake Bayliss
Nai An Li

Representation:

Counsel:
P Hogan (Crown)
B Rigg SC (Al Batat)
R Webb (Luo)
T Quilter (Fan)
N Carroll (Liu)
A Norrie (Bayliss)
D Carroll (Li)

Solicitors:
Solicitor for the NSW DPP (Crown)
TS Law Firm (Al Batat)
Voros Lawyers (Luo)
Zahr & Partners (Fan)
George Sten & Co (Liu)
Ross Hill Lawyers (Bayliss)
Younes & Espiner (Li)

File Number(s):

2018/214586 (Al Batat)
2017/170943 (Luo)
2017/168582 (Fan)
2017/168476 (Liu)
2017/321618 (Bayliss)
2018/214894 (Li)

Judgment

1. During the course of its deliberations, the jury in the trial of Messrs Al Batat, Luo, Liu, Fan, Bayliss and Li sent a jury note (which became MFI 100) requesting a copy of the transcript of the closing addresses of the Crown Prosecutor and Ms Rigg, Senior Counsel for Mr Al Batat. The note, dated 23 November 2020, was in the following terms:

“Can we please get the transcripts for the prosecutor's and Ms Rigg's closing statements. We would like to cross-reference the exhibits and pieces of evidence that they refer to in their closing argument. Thank you.”

2. I ultimately allowed the jury to be provided with the two addresses they requested, as well as the closing addresses made on behalf of each of the remaining accused. I made this ruling subject to minor amendments being made to Ms Carroll’s closing address. These are my reasons for that decision.

The usual course

3. The Prosecutor initially opposed the jury having access to the transcripts of the closing addresses on the basis that it is not “something that is usually done”. I accept that the provision of such transcripts to the jury is not something usually done because of the relevant provisions of the Jury Act 1977 (NSW). The relevant section - s 55C - is in the following terms:

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.

4. This provision explicitly allows transcripts of the evidence adduced in a trial to be provided to the jury during its deliberations, however, there is no reference to the jury being provided with transcripts of either counsels’ addresses or the trial Judge’s summing up. In the absence of any provision regulating the provision of these documents, it has been held that a trial Judge has a discretion to comply with requests from the jury in situations such as this: see, for example, R v Taousanis [1999] NSWSC 107 at [9]; 146 A Crim R 30, R v Bartle & Ors [2003] NSWCCA 329 (“Bartle”), Regina v Sukkar [2005] NSWCCA 54 at [82]-[86].

5. The case of Bartle is of particular relevance. This case involved a joint appeal against conviction and sentence by multiple accused, following a complex drug importation trial heard in the District Court over a period of 7 months. One of the grounds brought on appeal was whether a miscarriage of justice had occurred as a result of the trial judge’s refusal to comply with the jury’s request for a copy of the transcript of the closing addresses made by two of the seven defence counsel. The Court upheld this ground. Relevant to the present case, Mason P and Barr J (Smart AJ agreeing on this point) said:

“668. … 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.”

6. I applied this reasoning in R v Qaumi & Ors (No 66) [2016] NSWSC 1403.

The positions of the parties

7. A lengthy discussion as to the jury’s request took place over the course of the afternoon of 23 November 2020 and the following morning.

8. Senior Counsel for Mr Al Batat submitted that the jury’s request should be complied with. However, counsel for Mr Luo (Dr Webb) and Mr Fan (Mr Quilter) shared similar concerns about the jury having access to the Prosecutor’s address, in the absence of their addresses to counterbalance the submissions made (which may have been unfavourable to the cases of their respective clients). Dr Webb and Mr Quilter opposed the provision of the Prosecutor’s and Ms Rigg’s addresses only but indicated that they would agree to an approach granting the jury access to the addresses of all counsel. Counsel for Mr Bayliss (Mr Norrie) and Mr Li (Mr Carroll), adopted this position. Ms Carroll initially took no opposition to either approach.

9. The Prosecutor, following the in-Court discussions, agreed that his and Ms Rigg’s addresses should be provided to the jury but also did not oppose the provision of the closing addresses of all seven counsel. Ms Rigg took the same position.

10. Before the day’s end, Mr Quilter and Mr Webb offered to provide directions to accompany the provision of the transcripts to the jury. Mr Quilter sought specific directions in relation to an issue Ms Carroll raised in her address. On the first day of Ms Carroll’s address she displayed a chronology listing an entry that wasn’t in evidence. This entry stated that “Mr Liu left the apartment at 1 Railway Parade and went to the Prado which was waiting downstairs”. The following day, Ms Carroll did inform the jury that she had taken the final entry out of the chronology but did not retract her statement that the Prado was waiting downstairs.

11. Following Mr Quilter’s submissions, Ms Carroll (abruptly) changed her position and stridently opposed the provision of the addresses that were not specifically requested by the jury. Her primary position was that the Prosecutor’s and Ms Rigg’s addresses be provided but that the jury not receive “any of the addresses that haven’t been asked for”. Her secondary position was that all of the addresses should be provided to the jury, but that any associated directions remain “neutral or general” and be somewhat limited to the fact that the addresses are not evidence in order to not disadvantage Mr Liu at this critical stage of the trial.

12. Given the timing of the jury’s note, and the weighty discussions that followed, the parties were provided with the opportunity overnight to consider their positions and the nature of any directions that should accompany the provision of the transcripts (in the event that the jury’s request was compiled with).

13. The following morning, the Prosecutor, Ms Rigg, Mr Quilter, Mr Norrie, Ms Carroll and Mr Carroll maintained their positions from the previous afternoon.

14. However, overnight Mr Webb revised his position and submitted that none of the addresses should be provided on the grounds that it was not a palliative response to the jury’s note and would instead:

“… create an imbalance and the imbalance is not, it is submitted, necessarily or perhaps meaningfully cured by providing them with other addresses as something palliative to that particular course, because the jury didn’t ask for them.”

15. Mr Webb’s secondary position was that if I was minded to exercise my discretion to grant the jury’s request in some way, I should do so in relation to all the closing addresses.

16. On the topic of directions, Mr Quilter proposed that certain parts of Ms Carroll’s closing address (that is, T2839.38-40 and T2869.1-19) be excised and submitted that the jury be told “there has been a small amount of editing of the addresses to remove some errors” (see MFI VD 100 at [10]-[11]). This accords with the approach of Sperling J in Regina v Taousanis [1999] NSWSC 107; (1999) 146 A Crim R 303, where his Honour held (at [9]) that the discretionary power to make available to the jury a transcript, also allowed the trial judge to make available “any part” of the record of proceedings.

17. Ms Carroll maintained her position that the Prosecutor’s and Ms Rigg’s addresses be provided; but submitted that “…if balance needs to be met, and the remainder of the addresses be given, then that should be done”. Ms Carroll suggested some general directions to deal with any difficulties within those addresses (see MFI VD98), but opposed the amendments proposed by Mr Quilter in their entirety.

18. Following another lengthy discussion surrounding the proposed excisions to Ms Carroll’s address, the parties agreed to remove the reference to Mr Fan waiting downstairs in the Prado (at T2839) and the reference to Ms Carroll withdrawing the last line of the timeline on the basis that “the evidence hadn’t gone in” (at T2869).

The application of Bartle to this case

19. The evidence in the present case was elicited over approximately four months and resulted in a transcript of approximately 2,000 pages. The closing addresses of the Prosecutor and made by defence Counsel on behalf of each of the accused ran over a period of about a week. The closing addresses were dense in their reference to the evidence and the exhibits and provided detailed transcript references throughout. Counsel’s submissions were thorough and detailed, and put the case of each party with precision. There is no way that the jury could have remembered the submissions made by each party in any great detail in a case such as this.

20. As in the case of Bartle, this was not your run of the mill criminal trial. The trial in this matter was complex, involving essentially six trials in one and multiple counts alleged against each accused; countless legal arguments that had to proceed in the absence of the jury; a number of disruptions due to the COVID-19 pandemic and associated delays; and occasions (albethey rare) where jurors were sick or needed to be excused for personal appointments. The cases against each of the six accused had their own nuances and required consideration of different parts of the evidence.

21. Like the case of Bartle, the factors in favour of exercising the discretion to provide the transcripts requested by the jury were compelling. Counsel’s addresses set out and analysed the evidence in a way that the summing up could (and did) not. I came to the conclusion that the jury would be better placed to review the closing addresses of counsel for themselves and cross-reference the submissions of the barristers with the evidence already before them.

22. I also took into account the positions and submissions of the parties as set out above, and the fact that the parties did not oppose the proposed course of action or did so subject to the amendments or directions that were discussed and ultimately made.

23. For those reasons, on 24 November 2020 (the seventh and final day of the summing up), I advised the jury that the transcripts of the closing addresses would be provided subject to minor amendments. The provision of the relevant transcripts was subject to the following direction to the jury (see Transcript, Summing Up, pp 246-247):

“Having heard the arguments of counsel, members of the jury, I have decided to accede to your request for the transcripts of the addresses of the prosecutor and Ms Rigg. I have also decided, in the interests of balance and fairness, and having listened to the arguments of counsel, to also provide you with the addresses of the barristers who appear for the other accused men. I know you haven't specifically asked for those, but it just seems fair that you at least have access to the things said on the other side of the debate in the cases of the other five accused men.

I do understand why you specifically asked for the two addresses, because each of those addresses had quite careful references to the evidence and I know you have said you want to cross reference what was said with the actual evidence. I'm going to send those transcripts down to you very soon.

Before I do, I should provide you with some warnings. I'm almost certain you are conscious of the things I am about to say. Even though it does happens sometimes, it is not all that usual to provide the arguments of the barristers to the jury because it is not evidence. So that is the first warning I need to give you again. That the things that counsel say in their closing addresses and, indeed, in their opening statements is not evidence.

Largely, in this trial, the addresses have completely accurately reflected the evidence in the case and the law. Where they have not, in many instances they have been corrected by counsel if it is a mistake of evidence or fact, or by me if it is in the case of the law, but I have been told during the course of our discussions since we got your note, which became MFI 100, that some mistakes were made and not corrected.

Where there have been those honest mistakes, it just means you have to be cautious in the approach you take to your consideration of the addresses. You shouldn't just act uncritically on facts asserted in the addresses. It is the evidence upon which your decision must be based. So you will need to do as you foreshadowed in your note to me you would do, which is to cross check what is said in the addresses with the evidence.

Having said that, the addresses do provide you with a helpful summary of the case of each party and of the evidence upon which each individual accused and the prosecution relies in substantiating their arguments to you. For those reasons I have decided I will give you those transcripts and I think you will have them very soon. They are just being double checked by counsel now.”

**********

Decision last updated: 19 April 2024