R v Ambrosius (No 2) - [2017] NSWSC 1846

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Ambrosius (No 2) [2017] NSWSC 1846
Hearing dates: 6-10, 13-17, 20-24 November 2017
Date of orders: 21 November 2017
Decision date: 21 November 2017
Jurisdiction: Common Law
Before: Campbell J
Decision:
It is not appropriate for the transcript of closing addresses of counsel to be supplied to the jury.

Catchwords:
EVIDENCE – Transcript of evidence – Consideration of “transcript of evidence” in s 55C Jury Act 1977 – Whether “evidence” extends to closing addresses of counsel – R v Sukkar [2005] NSWCCA 54 applied – Held that not appropriate to supply transcript of closing addresses to jury

Legislation Cited:
Jury Act 1977 (NSW)

Cases Cited:
R v Bartle [2003] NSWCCA 329
R v Sukkar [2005] NSWCCA 54
R v Taousanis [1999] NSWSC 107

Category: Procedural rulings
Parties: Regina (Crown)
Mr Rodney Rees Ambrosius (Accused)
Representation:
Counsel: P Rosser QC (Crown Prosecutor)
P Young SC (Public Defender)
Solicitors: Director of Public Prosecutions (Crown)
Legal Aid (Accused)

File Number(s): 2016/0075590
Publication restriction: Publication restriction lifted

EX TEMPORE Judgment (REVISED)

I am in Port Macquarie for the trial of Mr Rodney Rees Ambrosius, now in its third week. A jury was empanelled on 8 November 2017 and evidence in the Crown case commenced the following day. The jury retired to consider its verdict on the afternoon of 16 November 2017 and is now in its fourth day of deliberations.
Having reflected on a matter this morning and raised it with counsel in chambers before coming in to Court, I have reached the view that I misdirected the jury as to a question of law yesterday.
The jury, by a note (marked Jury Note No 8), requested copies of the transcript of counsels' addresses. I took the view, which I thought at the time was an uncontroversial view and one that I was presumptuous enough to think that counsel would share, that the transcript of counsels' closing addresses was not covered by the provisions of s 55C Jury Act 1977 (NSW).
I have, however, in the course of researching other matters this morning in chambers, come across the decision of R v Sukkar [2005] NSWCCA 54 where at [83] – [84] Wood CJ at CL referred to various authorities and said, “in an appropriate case, where requested, the trial judge could properly provide the jury with a copy of a transcript of the summing up or arrange for it to be replayed to them”. That was the issue in that case.
In coming to that conclusion, his Honour had referred, with approval, to a decision at first instance of Sperling J in R v Taousanis [1999] NSWSC 107 where that learned judge had said that a judge had a discretionary power to make available to a jury a copy of the transcript of any part of the record of the proceedings conducted in their presence including a transcript of Crown and defence opening addresses.
Wood CJ at CL also referred to R…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ambrosius (No 2)

Details

AGLC: R v Ambrosius (No 2) [2017] NSWSC 1846
Case: [2017] NSWSC 1846
Decision Date: 21 November 2017

CaseChat Overview and Summary

The case of R v Ambrosius (No 2) involved the defendant, Ambrosius, and the Crown. The dispute centred around the interpretation of section 55C of the Jury Act 1977, specifically whether the "transcript of evidence" provided to a jury during deliberations should include the closing addresses of counsel. This matter came before the court as a result of the defendant's appeal against a conviction. The central legal issue was whether the closing addresses of counsel, as part of the "evidence" for the purposes of section 55C, should be made available to the jury for their consideration during deliberations. The court was required to determine the extent of the term "evidence" in the context of the statute.

The court applied the decision in R v Sukkar [2005] NSWCCA 54, which had previously addressed the issue of what constitutes "evidence" in this context. The court found that the closing addresses of counsel were not part of the evidence that should be made available to the jury. The reasoning was that such addresses are not factual evidence presented during the trial but rather persuasive arguments by the parties aimed at interpreting and applying the evidence. The court emphasised the importance of maintaining a clear distinction between factual evidence and the legal arguments made by counsel. Consequently, the court concluded that it was not appropriate to supply the transcript of closing addresses to the jury during deliberations. This decision upheld the integrity of the jury's role in determining the facts of the case based solely on the presented evidence and not on the persuasive arguments made by counsel.

The court's decision was grounded in the necessity to preserve the impartiality and independence of the jury. By excluding closing addresses from the transcript provided to the jury, the court ensured that the jury's deliberations would be based on the evidence presented and not influenced by the legal arguments. The court's ruling reinforced the principle that the jury's function is to assess the facts, not to engage with the advocacy presented by the parties. The court's decision in this matter provided clarity on the scope of "evidence" under section 55C of the Jury Act 1977, affirming that closing addresses are not to be included in the transcript provided to the jury.

Orders