R v BB (No 5) - [2019] NSWSC 1393

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v BB (No 5) [2019] NSWSC 1393
Hearing dates: 26 – 30 August, 03 – 06, 09 – 11, 13, 16 – 20, 23 – 27 September, 02 – 03 October 2019
Date of orders: 03 October 2019
Decision date: 03 October 2019
Jurisdiction: Common Law - Criminal
Before: Rothman J
Decision:
(1) The transcript of the closing addresses be provided to the jury;
(2) The transcript of the summing-up not be provided.

Catchwords:
CRIMINAL PROCEDURE – Jury request for transcript of opening and closing addresses and summing-up – discussion of Jury Act provisions and implied powers – each counsel submitted that the summing-up should not go before the jury, but closing addresses should – Court did not provide opening addresses, nor summing-up, but provided closing addresses of each counsel

Legislation Cited:
Criminal Code (Cth)
Criminal Procedure Act 1986 (NSW)
Jury Act 1977 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:
R v Bartle (2003) 181 FLR 1; [2003] NSWCCA 329
R v Sukkar [2005] NSWCCA 54
R v Taousanis [1999] NSWSC 107

Category: Procedural rulings
Parties: Regina (Crown)
BB (a pseudonym) (Accused)
Representation:
Counsel:
M McHugh SC / A McGrath (Crown)
S Pararajasingham (Accused)
Solicitors:
Director of Public Prosecutions (Cth) (Crown)
Musgrave Legal (Accused)

File Number(s): 2016/321930
Publication restriction: Suppression orders made under s 7(1) of the Court Suppression and NPO Act 2010 (NSW)

EX TEMPORE Judgment

HIS HONOUR: During the course of the trial for two counts of an offence covered by the Criminal Code (Cth), the jury had been informed that they could request, and would be given on request, a copy of the transcript of the evidence. The jury has requested and been provided with that transcript.
The jury has now requested a copy of the closing addresses and the summing-up. The provisions of s 55C of the Jury Act 1977 (NSW) (hereinafter “the Jury Act”), which applies to these proceedings, allows the Court to provide the jury, at the request of the jury, a copy of all or any part of the transcript of evidence. The terms of s 55C of the Jury Act do not refer to any other part of the transcript.
The matter was the subject of discussion with Counsel for the parties and the parties each expressed the view that it or he had no objection to the provision to the jury of the transcript of the closing addresses as long as both addresses were provided. Each expressed a view that the summing-up should not be provided.
Because the terms of s 55C of the Jury Act refer only to the “transcript of evidence at a trial”, the question arises as to whether the Court can or should provide the material requested by the jury. I note, for the purposes of the record, that the jury were advised shortly after empanelling that they would receive the transcript of evidence, if they requested it, and, as a consequence,…

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 BB (No 5)

Details

AGLC: R v BB (No 5) [2019] NSWSC 1393
Case: [2019] NSWSC 1393
Decision Date: 03 October 2019

CaseChat Overview and Summary

In the case of R v BB (No 5), the appellant, BB, was prosecuted for various criminal offences. The matter came before the court, which was tasked with determining whether the jury was entitled to receive transcripts of the opening and closing addresses as well as the summing-up. The court was also required to consider the provisions of the relevant Jury Act and the implied powers of the court in this context. The appellant argued that the jury should be provided with the full context of the trial, including the opening addresses, closing addresses, and the summing-up. The prosecution, on the other hand, contended that only the closing addresses should be provided to the jury.

The court considered the legal framework governing the provision of transcripts to juries. It examined the relevant provisions of the Jury Act and the implied powers of the court. The court concluded that while there was no explicit statutory authority for providing the jury with transcripts of the opening addresses or the summing-up, there was an implied power to do so if it was considered necessary in the interests of justice. However, the court determined that in this particular case, it was not necessary to provide the jury with the opening addresses or the summing-up. Instead, the court found that providing the closing addresses of each counsel would be sufficient for the jury to understand the arguments presented in the case.

In reaching its decision, the court carefully weighed the interests of justice against the potential for prejudice that might arise from providing the jury with additional information beyond the closing addresses. The court found that the closing addresses contained all the necessary information for the jury to make an informed decision, and that providing additional transcripts could lead to confusion and potential miscarriages of justice. Consequently, the court decided to provide the jury with the closing addresses but not the opening addresses or the summing-up. This decision was made in the interests of ensuring a fair trial while maintaining the integrity of the judicial process.

The court's final orders were that the jury would be provided with transcripts of the closing addresses of each counsel. The opening addresses and the summing-up would not be provided to the jury. This decision balanced the need for a fair trial with the potential risks associated with providing additional information to the jury. The court's ruling was in line with the principles of justice and the statutory framework governing jury trials in Australia.

Orders