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

1. 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.

2. 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.

3. 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.

4. 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, some of the jury did not take full notes of the evidence.

5. During the course of the addresses, it was noticed that not all of the members of the jury took extensive notes of the closing addresses. During the course of dealing with the question asked by the jury, in relation to the transcript of the closing addresses, it was indicated, by body language (nodding of heads) that a number did not take the notes they would otherwise have taken, as a consequence of their understanding that they may receive the transcript of the closing addresses.

6. This is a matter that has been dealt with on a number of occasions, but not recently. The Court in R v Taousanis [1999] NSWSC 107 held that a judge had a discretionary power to make available a copy of the transcript of any part of the record of the proceedings conducted in the presence of the jury, which included the transcript of the Crown and defence opening addresses (and closing addresses).

7. The Court of Criminal Appeal, in R v Bartle (2003) 181 FLR 1; [2003] NSWCCA 329, held that there had been a miscarriage of justice in circumstances where the trial judge had refused to comply with a jury’s request for a copy of the transcript of the closing address of two of the defence counsel.

8. It seems on the basis of those two judgments, that the Court has the discretion to provide the transcript of any part of the proceedings to which the jury was party, including the closing address and summing-up. This flows from the reasons for judgment of Wood CJ at CL (with whom Hidden J agreed) in R v Sukkar [2005] NSWCCA 54 at [82]-[87]. While Smart AJ dissented on a number of grounds, his Honour expressly agreed with the reasons for judgment of the majority in that passage. Thus, the principles, there stated, are binding on the Court, as presently constituted.

9. I do not by the foregoing intend to suggest that I would otherwise have come to a different view. The Court of Criminal Appeal (Mason P, Barr J and Smart AJ) in Bartle, supra, in the reasons for judgment of Smart AJ (with whom, relevantly, Mason P and Barr J agreed) addressed, expressly, the effect of s 55C of the Jury Act and the power of the Court to control its own processes. The Court concluded, albeit in the circumstances of a concession by the Crown, that the District Court had an implied power to control its own processes. The Court said:

“The Crown correctly conceded that the District Court has an implied power to control its own processes and that this included a discretionary power to make available to the jury a transcript of the record of the proceedings to the extent that such proceedings have been conducted before the Court. (Obviously, a judge would not make available a transcript of legal argument conducted in their absence.) The Crown further correctly conceded that, although Taousanis was concerned with opening addresses, the power extends to provide transcript of final addresses at the judge’s discretion. The Crown submitted that this discretion should only be exercised where the judge considers it appropriate and practical to do so.”

10. As a consequence of the foregoing, it seems clear that the permissive terms of s 55C of the Jury Act are not intended as a code, excluding any other transcript that may be thought appropriate in certain proceedings. In Bartle, the proceedings had been going for eight months and the closing addresses were almost essential in allowing the jury to understand the manner in which the evidence should be dealt with in relation to each of the several defendants. This trial, on the other hand, is a trial of short duration.

11. Nevertheless, the existence of a power to order the transcript of addresses cannot depend upon the length of the trial. The power must exist regardless. However, whether a Court exercises the discretion to which the Court of Criminal Appeal referred in each of Bartle and Sukkar, above, may well depend upon the complexity of the trial and its length, amongst other factors.

12. In the present matter, the trial has not been overly lengthy. In part, this has been due to the excellent cooperation between the Crown and the accused, through his legal representatives. That does not mean that the trial is uncomplicated.

13. As has been outlined in the previous judgments, the trial concerns an allegation that the accused breached UN sanctions against Iran, which the legislature has rendered criminal conduct under Australian law. The Crown case concerns complicated financial transactions and the tracing of letters of credit, bills of lading and packaging labels, together with over 1,100 emails that have been, due to the cooperation of the parties, consolidated in a table form.

14. The Crown case depends upon inferences that the Crown asks the jury to draw from the primary documentation and some oral evidence. The duration of the trial is mostly associated with the level of cooperation as to the proof of documents, agreement as to the documents and the lack of necessity to call witnesses to prove formal matters.

15. As a result of the complexity of the factual matrix upon which the Crown relies, and with which the accused was required to deal, the Crown went to some lengths to take the jury through those documents in closing and, to some extent, in opening. Likewise, counsel for the accused took the jury through a large number of the emails and attachments to those emails, together with other documents, for the purpose of showing, on the material before the Court, an innocent hypothesis, or hypotheses inconsistent with guilt, and agitating for a not guilty verdict to each of the two counts.

16. As a consequence of the detailed analysis of the facts in each of the closing addresses, Counsel agreed that it was unnecessary for the trial judge to summarise the facts in any substantial way. As a further consequence, the directions and summing-up were essentially directions of law and the approach that one should take to the facts and deriving or drawing inferences. Some factual circumstances were used as examples, but it would be, in my view, misleading for the jury to use those examples as some form of summing-up or summary of the evidence.

17. In those circumstances, I adopt the following approach. First, I accept that there is an implied power to control the trial and to take steps to render it fair. In the case of the Supreme Court, as a superior court of record with general jurisdiction, there is also an inherent power, but it is unnecessary to rely on that inherent power or on the terms of s 23 of the Supreme Court Act 1970 (NSW).

18. It is sufficient for the Court, as presently constituted, to rely upon the implied power to which Smart AJ referred and to which, it would seem, Wood CJ at CL referred, in the cases to which reference has been made.

19. Fundamentally, the exercise of the discretion that is reposed in the Court should be on the basis of that which achieves a fair trial in the most expeditious and practical way and, in that manner, aids the administration of justice.

20. A request was made for the opening and closing addresses. The Court is reluctant to provide the opening addresses for two reasons. First, opening addresses are an indication of that which the party expects will be the evidence before the Court. The evidence may not manifest.

21. Secondly, in a criminal trial, the opening address of counsel for the accused is necessarily circumscribed by that which is prescribed by the provisions of s 159 of the Criminal Procedure Act 1986 (NSW) which, by s 159(2) of the Criminal Procedure Act, limits the matters that may be dealt with in the accused person’s opening address. Thus, the provision of opening addresses may, in some circumstances, this case being one of them, give rise to an unbalanced or incorrect version of that which is before them at trial.

22. The closing addresses are in a different situation. Where, as here, the administration of justice would be aided, and fairness served, by the provision of the closing addresses, I see no reason not to exercise the discretion to provide those addresses; and I see every reason to provide them. As a consequence of the formation of that view, the Court ordered that the closing addresses be provided to the jury and that has occurred.

23. As to the summing-up, there are different discretionary considerations. At the moment, the summing-up is not available. It may be available during the course of today and it may not. If it were available, it would only be late in the afternoon, after the jury has disbursed. As a consequence, the jury could not have a copy of the summing-up until at least Monday afternoon.

24. Furthermore, given the nature of the summing-up and the directions of law and the very minimal reference to the facts, as examples only, there is a risk that the jury would impermissibly utilise the examples out of context and a further risk that they would treat the directions of law and the summing-up on principles as if it were “legislation”. In the circumstances, I acceded to the view of both counsel and did not order that the transcript of the summing-up be provided to the jury.

25. However, in answering their question, I once more reminded the jury that any aspect of the summing-up, on which they required further detail, or clarification or reminding, could be the subject of questions and, in that way, the Court would control better the manner in which the jury would understand the directions and summing-up already given. Such a method better ensures the fairness of any approach or consideration by the jury and the appropriate balance in any explanation that may be provided.

26. For the reasons given, I directed that the transcript of the closing addresses the provided to the jury, but the transcript of the summing-up not be provided.

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Amendments

08 December 2021 - Pseudonym revised.

Decision last updated: 08 December 2021