R v Glastonbury - [2014] SASCFC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GLASTONBURY
[2014] SASCFC 44
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice David and The Honourable Justice Parker)
29 April 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
CRIMINAL LAW - PROCEDURE - JURIES - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
The appellant was convicted, following a trial by jury, of two counts of aggravated robbery and one count of attempted aggravated robbery, and acquitted on the third count of aggravated robbery.
The appellant appeals against his conviction on the grounds that: the Judge erred in providing the jury with the typed addresses of counsel; the Judge failed to correct certain submissions made by the prosecutor on the credibility of an accomplice who gave evidence against the appellant after being sentenced for his offending; and that the verdicts were manifestly unreasonable.
Held (Kourakis CJ, David and Parker JJ agreeing):
There is no doubting that the jury would have understood the prosecutor’s argument to be that the accomplice Howell could not have expected to get away with giving a false account of the appellants involvement and thereby win a reduction in his sentence (Kourakis CJ at [28]). The prosecutor’s address could only have been understood as an argument in favour of the jury accepting Howell’s evidence in their role as the sole arbiters of facts in the case (Kourakis CJ at [29]).
Having regard to the onerous nature of a jury’s duties, if they request the transcript of counsel’s addresses in a long or complex trial, speaking generally and subject to any countervailing factors arising in the particular case, it should be provided (Kourakis CJ at [41]). However, before providing the transcript consideration should be given to alternative ways to assist the jury with its particular concern (Kourakis CJ at [42]). The provision of the transcript of counsel’s addresses to the jury did not cause a miscarriage of justice (Kourakis CJ at [47]).
With respect to count 3 the jury may well have entertained a reasonable doubt given the absence of any objective evidence of the appearance of the offender (Kourakis CJ at [50]).Upon reviewing the evidence as a whole, it cannot be doubted that the appellant was properly convicted on count 4 (Kourakis CJ at [52]).
Appeal against conviction dismissed.
Evidence Act 1977 (Qld) s 21AK, referred to.
Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; Gately v The Queen (2007) 232 CLR 208; R v Taousanis (1999) 146 A Crim R 303; R v Bartle (2003) 181 FLR 1, discussed.
R v Sukkar [2005] NSWCCA 54, considered.

R v GLASTONBURY
[2014] SASCFC 44
Court of Criminal Appeal: Kourakis CJ, David and Parker JJ

KOURAKIS CJ: The appellant, Glastonbury, was charged with three counts of aggravated robbery and one count of attempted aggravated robbery. He was convicted by jury verdicts of two of the counts of aggravated robbery, acquitted on the third, and convicted of the attempted aggravated robbery. The appellant appeals against his convictions on the grounds that:
(a)the Judge erred in providing the jury with the typed addresses of counsel;
(b)the Judge failed to correct certain submissions made by the prosecutor on the credibility of an accomplice who gave evidence against the appellant after being sentenced for his offending; and
(c)the verdicts were manifestly unreasonable.
The first count alleged an aggravated robbery of the Elizabeth Vale Post Office on 8 November 2010 in the course of which about $2,000 was taken. The circumstances of aggravation alleged were that the appellant committed the offence in the company of another person, Shane Howell, whilst armed with a crossbow and firearm. The appellant was found guilty by majority verdict.
The second count charged attempted aggravated robbery of the Elizabeth East Post Office on 9 November 2010. The circumstances of aggravation were that the appellant again committed the offence with Howell and that he was armed with offensive weapons on this occasion, namely a firearm and a baton. The appellant was found guilty by majority verdict.
The third count charged aggravated robbery of a Blockbuster video store at Elizabeth South on 9 November 2010 in the course of which $400 was taken. It was alleged that the appellant committed the offence whilst armed with a firearm. The appellant was acquitted by majority.
The fourth count alleged the aggravated robbery of the Greenwith Post Office on 10 November 2010 on which occasion it was alleged that $1,700 was stolen. The circumstance of aggravation was that Glastonbury committed the offence whilst armed with an offensive weapon, namely a firearm. The appellant was convicted by a unanimous verdict of the jury.
The evidence
The appellant’s alleged accomplice in the first two counts, Howell, gave evidence for the prosecution that he committed the first two offences with Glastonbury. Howell denied that he had any involvement in the offences charged in the third and fourth counts. The prosecution also relied on the evidence of another witness, Sarah Evans. Evans was Howell’s girlfriend. She testified of conversations she heard between Glastonbury and his girlfriend Yeates, in a flat on Wilkins Road which she shared with Yeates, in which they discussed robbing the Blockbuster video store. Evans gave evidence that they left the flat and later returned with the proceeds of a robbery.
The Judge directed the jury that both Howell and Evans should be regarded as accomplices. The Judge warned the jury that it is dangerous to convict on the evidence of an accomplice unless it is corroborated and that one accomplice cannot corroborate the testimony of another. The Judge also warned the jury that even if they found that there was corroborative evidence it remained necessary for them to examine the evidence of Howell and Evans with care. There is no complaint about the accomplice warning.
It is necessary to set out the prosecution evidence on each count in some detail.
The prosecution adduced both real evidence in the form of CCTV footage and testimonial accounts of the robbery of the Elizabeth Vale Post Office on 8 November 2010. One of the offenders wore a light coloured hooded top and baseball cap and was holding a crossbow. The prosecution case was that that was Glastonbury. The other offender was wearing a green top, had a ski mask over his face and was holding a sawn off rifle. Howell testified that he was that offender. The robbers escaped in a silver Holden commodore sedan with registration plates that started with the letters “BB”.
Howell’s evidence was that he went to the Wilkins Road flat on the morning of the robbery after receiving a call from Yeates. He was there introduced to Glastonbury by Yeates. It was the first time they had met. He testified that he joined in a plan to rob the Elizabeth Vale Post Office that morning. They each took a shopping bag from the Wilkins Road flat and then drove to Howell’s residence at Mainwaring Crescent where he collected a green jumper, a balaclava, a glove and a firearm. Howell said that they used his car for the robbery.
Howell testified that after the robbery they returned to the Wilkins Road flat where the money was counted and divided. Howell said that he sold the firearm used in the Elizabeth Vale robbery to Glastonbury on that morning for $300. Howell gave evidence that Glastonbury took the firearm and crossbow into Yeates’ bedroom. Howell returned to Mainwaring Crescent and used his share of the proceeds to buy food and drugs.
In his evidence Howell admitted that when first spoken to the police he had falsely implicated another man, Jason Talbot, in the offence. He acknowledged that he had pleaded guilty to the offences charged against Glastonbury in the first two counts. He gave evidence that he had received a slightly lighter term of imprisonment as a result of pleading guilty and because he agreed to give evidence against Glastonbury. Howell denied that he had given Evans a shopping bag containing a firearm, ammunition and the balaclava which he had used in committing robberies with instructions that she dispose of the items.
Evans gave an account of the activities in the Wilkins Road house which was similar to Howell’s account but there were some inconsistencies. Evans testified that the top worn by Glastonbury when he left the house with Howell was one that belonged to Jason Talbot.
Turning to the second count, both direct testimony and CCTV footage showed that the Elizabeth East Post Office was robbed on the afternoon of 9 November 2010. At least two disguised men entered the post office with intent to rob it. They were frustrated by the owner and an employee who were in a locked room at the back and raised the alarm. Both robbers wore balaclavas. Again one of the men wore a grey hooded top and cap and was carrying a gun. The car was a goldy/bronze coloured VT commodore, with the number plate “08”.
Howell testified that on the morning after the Elizabeth Vale Post Office robbery he was again called around to the Wilkins Road flat by Yeates. When he arrived Evans and Glastonbury were also present. Glastonbury and he agreed that they would rob the Elizabeth East Post Office and that Glastonbury would use the firearm purchased from Howell on the previous day and that Howell would use an extendable baton. They again used Howell’s car. Howell identified himself and Glastonbury on the CCTV film. On this occasion Howell was wearing a pink hooded jacket which he had brought from his Mainwaring Crescent home. After the robbery he left that top and the baton at the Wilkins Road flat. The CCTV footage showed that the man identified by Howell as Glastonbury was wearing a grey hooded top.
The evidence of the robbery of the Blockbuster video store charged by the third count was given by the employee, Amy Watson. There was no CCTV footage of the robbery. Somewhere between $400 and $800 was taken.
Amy Watson’s testimony was that at about 8:00pm a lanky male entered the store disguised by a black beanie glove type item of clothing over his face. He was also wearing a dark hoodie. He was holding a black gun with brown wood about 39cm long. Police showed Ms Watson the gun found in Glastonbury’s possession. Ms Watson said that the gun shown to her by police was about half the size of the gun brandished during the robbery of the Blockbuster store. Ms Watson said that she put some money into a green and red fabric shopping bag presented to her by the offender. Ms Watson also testified that she handed over to the offender a DVD case in which some more money was kept. The DVD case had a “Monsters Inc” cover.
Evans testified that during the evening on which the Blockbuster Video Store was robbed she heard Glastonbury speaking with Yeates about committing another robbery and speculating about how much money he might obtain by robbing a video store. In the course of that discussion Yeates told Glastonbury that the nearest video shop was the Blockbuster Store on Phillip Highway. Evans testified that a little later, at 9:00pm, Glastonbury and Yeates left together in Yeates’ car. They returned about half an hour later, she heard them laughing and the sound of coins clinking. Evans also gave evidence that in late November or early December 2010 she discovered an empty “Monsters Inc” DVD case when she was packing to leave Wilkins Road.
On Wednesday 10 November 2010 the Greenwith Post Office was robbed. The CCTV footage of the Greenwith Post Office robbery and the time of the notification of the robbery to SAPOL communications suggest that it occurred shortly before 3:40 pm on 10 November. Eyewitnesses to the robbery describe the offender as a young man, about 5’8” tall, wearing a balaclava and black hooded jumper. He was carrying a sawn off rifle with a barrel of about 6 inches long and wooden handle and a supermarket shopping bag. The offender was seen to get into a small hatchback car with the number plate “WXE 834”. Yeates was the owner of a blue Astra motor vehicle with that registered number.
Both Howell and Evans testified that after the attempted robbery of the Elizabeth East Post Office on 9 November, they heard Glastonbury talk about robbing the Greenwith Post Office.
The prosecution also relied on a body of circumstantial evidence connecting Glastonbury to all four robberies. On 10 November 2010, police searched the Wilkins Road flat. The occupants of the flat were Yeates, Evans, and Ms Evans’ young child. In Yeates’ bedroom police found a crossbow, a grey baseball cap, a black and white Foodland enviro bag, a red hooded jumper and an extendable baton. There was a similarity between those items and items shown in the CCTV footage of the first two robberies. A red purse and wallet were also found together with identification cards for Yeates and Glastonbury. The detective who searched Yeates’ bedroom testified that he saw a DVD case on the bed. Photographs of the room were taken at the time and showed a DVD case, with a “Monsters Inc” movie cover.
In the lounge room of the Wilkins Road flat the detective found a grey Billabong hooded jacket similar to one shown as being worn by one of the robbers of the Elizabeth Vale Post Office. Tape lifts from that hooded top obtained DNA which had a profile which excluded Glastonbury but which was consistent with the DNA profile of Jason Talbot. Another unknown male A was also not excluded as a contributor.
Glastonbury was arrested on 9 December 2010 in Victoria. A gun found in his possession when he was arrested was similar to the gun shown in the CCTV film of the attempted robbery of the Elizabeth East Post Office.
Glastonbury’s palm prints and papers addressed to him were found in Yeates’ Astra.
Prosecutor’s address on Howell’s credibility
The prosecutor anticipated the attack that defence counsel were likely to make on Howell’s credibility by addressing the jury as follows:
No doubt it's going to be suggested he did all of this to get credit for himself so he would get a lesser sentence. Of course he did. That's how the system works. Can we ask ourselves this: what credit could Shane Howell hope to get by telling lies about Luke Glastonbury? To get a reduction in sentence you have to tell the truth. You don't tell more lies. To get credit, members of the jury, to get a reduction you have to tell the truth. His story didn't work. If it didn't fit, if he was lying, he wasn't going to get any credit, was he, for lying about Luke Glastonbury? Let's pause to think what the suggestion really is what Mr Mead has been putting to Shane Howell. Shane Howell's fooled us, fooled the police, fooled the prosecution. Not only has he lied to get a lesser sentence, he's somehow come up with an account which perfectly fits the evidence. His friend, poor old Mr Glastonbury, by hiding items under his bed, presumably when no-one was looking, and getting Sarah Evans to pass on the gun and the bag, he's pulled the wool over the police and prosecution eyes about doing it all and has kept the pretence up throughout days of cross-examination. It would be fiendishly brilliant wouldn't it? Was Shane Howell fiendishly brilliant? Is he a criminal genius? That's what is being suggested. If he was, if he is that brilliant to con us all, why did he plead guilty at all?
Shortly thereafter the court adjourned for lunch. When the court resumed counsel for Glastonbury asked that the Judge declare a mistrial because of the prosecutor’s remarks. Glastonbury’s counsel claimed that the prosecutor’s comments on Howell’s sentence reduction were:
… an unhappy submission because it conveys to the members of the jury that there has been an acceptance of what Mr Howell has said as the truth and, indeed, if that wasn’t the case he wouldn’t have got any reduction in his sentence which of course the members of the jury know that he did. So I am quite concerned about that submission, your Honour.
On this appeal Glastonbury’s counsel contends that the trial miscarried by reason of those remarks and that the conviction should therefore be set aside. That submission should be rejected for the reason that the prosecutor’s address did not carry the alleged implication. The prosecutor’s argument was that it is not as simple as defence counsel might suggest for an offender to win a reduced sentence by falsely implicating others because an accomplice can expect to have his or her account closely examined. The prosecutor did not submit that Howell’s account had in fact been accepted as truthful by the Judge who sentenced Howell and that it must therefore be accepted as truthful by the jury. Such a submission would be fundamentally inconsistent with the Judge’s direction that the facts are for the jury to find. The very issue on which the trial was fought was Howell’s credibility. It is inconceivable that the jury would have understood the prosecutor to be submitting that that issue was as a matter of law conclusively determined by the Judge who had sentenced Howell.
I have no doubt that the jury would have understood the prosecutor’s argument to be that Howell could not have expected to get away with giving a false account of Glastonbury’s involvement and thereby win a reduction in his sentence.
The second limb of the prosecutor’s argument was simply that on an analysis of the evidence Howell’s account withstood scrutiny and should be accepted. Considered as a whole, the prosecutor’s address could only have been understood as an argument in favour of the jury accepting Howell’s evidence in their role as the sole arbiters of facts in the case.
Transcript of Addresses
After the jury had retired the jurors sent a request to the Judge for transcripts of the closing address of both counsel and the evidence of Amy Watson. Glastonbury’s counsel expressed some reluctance to provide the transcript of the addresses on the ground that the addresses are not evidence in the case. After some discussion about other matters and some corrections were made to the transcript Glastonbury’s counsel consented, and the transcript was then provided to the jury. The jury then retired, with the transcript, to continue its deliberations.
Some 25 minutes later the court reconvened at the request of Glastonbury’s counsel who informed the Judge that on further reflection he had come to the view that the transcript of the closing addresses should not have been provided. Counsel asked the Judge to request the jury to return their copies on the grounds that:
• the addresses were not evidence;
•principles of law discussed in the addresses might cut across the Judge’s directions;
•the jury may be influenced to return a verdict in accordance with the closing address which was most persuasive in a written form, and
•undue weight might be given to the transcript of the closing addresses.
The Judge declined the request observing that asking for the return of the transcript might in itself cause the jurors to speculate about the reasons for its withdrawal.
In Butera v Director of Public Prosecutions (Vic)[1] the High Court considered the admissibility of transcript of a tape recording of an out of court admission made by the accused. Mason CJ, Brennan and Deane JJ explained the central role played by the principle of orality in common law criminal trials in this way:[2]
[1] (1987) 164 CLR 180.
[2] Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180, 189-190.
The adducing of oral evidence from witnesses in criminal trials underlies the rules of procedure which the law ordains for their conduct. A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury's estimate of the witnesses. By generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jury's discussion of the case in the jury room will be more open, the exchange of views among jurors will be easier, and the legitimate merging of opinions will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence. And there are, of course, logistical and financial obstacles to the provision of general transcripts for each juror. If the general body of evidence is given orally, a written transcript of a part of the evidence available in the jury room tends to give an emphasis and perhaps an undue air of credibility to that part. In Driscoll v The Queen this problem arose with respect to unsigned records of interview which, according to police evidence, an accused had adopted orally. Gibbs J., with the concurrence of Mason and Jacobs JJ., said:
The danger is that a jury may erroneously regard the written record as in some way strengthening or corroborating the oral testimony. Moreover the record, if admitted, will be taken into the jury room when the jury retire to consider their verdict, and by its very availability may have an influence upon their deliberations which is out of all proportion to its real weight. For these reasons, it would appear to me that in all cases in which an unsigned record of interview is tendered the judge should give the most careful consideration to the question whether it is desirable in the interests of justice that it should be excluded.
The general rule that witnesses must give their evidence orally is not without exception. In Smith v The Queen, a chart had been prepared by a witness to explain complicated business transactions. The chart was admitted in evidence, though what it showed could have been described — albeit laboriously — in oral evidence. This Court agreed with the view expressed by the Court of Criminal Appeal (sub. nom. Reg. v Mitchell) that the chart was rightly admitted:
The chart was nothing but a convenient record of a series of highly complicated cheque transactions which had been proved by other evidence, and was likely to be of considerable assistance to the jury. Had they all been accountants, doubtless after considerable time they could have prepared such a chart for themselves. The use of such charts and other time-saving devices in complicated trials of this kind is a usual and desirable procedure and is encouraged by the courts.
The practice of requiring witnesses to give their evidence orally should not be waived lightly, especially if there be a risk that writing will give undue weight to that evidence to the disadvantage of an accused person. But the practice is not immutable. If a witness writes out a proof of his evidence and swears to its truth or if a written transcript of part of the witness' oral evidence is produced, and if the task of the jury can be facilitated by admitting the document in evidence, there is no absolute bar against doing so. For example, a written document may prove more convenient than oral evidence as a foundation for cross-examination upon its contents or it may be a valuable aide-mémoire for the jury in a case where precise recollection of words is important. In every case, even when an accused consents to the admission of the document, the trial judge should bear in mind the overriding consideration of fairness to the accused and the risk involved in allowing the document to be taken into the jury room. A further relevant consideration is the risk that documentary evidence may impair public understanding of the proceedings.
(footnotes omitted)

Twenty years later in Gately v The Queen,[3] the High Court considered the admissibility of the transcript of the pre-recorded testimony of a complainant under a statutory scheme which allowed that testimony to be given by playing an audio/visual recording of the complainant giving her evidence on an earlier occasion. Hayne J, with whom Gleeson CJ, Heydon and Crennan JJ agreed, held that a complainant’s testimony, pre-recorded, pursuant to s 21AK of the Evidence Act 1977 (QLD) was not an item of real evidence but was to be assimilated as the testimony of the complainant on the trial. Hayne J discussed what he described as some fundamental characteristics of the Australian trial process:[4]
First, there are some fundamental characteristics of Australian trial processes, particularly at a criminal trial, that must be borne at the forefront of consideration. Subject to whatever statutory modifications may have been made to applicable rules of procedure, a criminal trial in Australia is an accusatorial and adversarial process. It is essentially an oral process^. Subject to exceptions, the hearsay rule excludes evidence of out-of-court assertions when tendered as evidence of the truth of the assertions. As a result, the focus of the trial falls chiefly upon what is said in the evidence given in the courtroom.
…
Several of the steps taken at the trial of the appellant in relation to the recorded evidence of the complainant were of a kind similar to those that would be taken in dealing with recordings of out-of-court statements made by an accused person, tendered at trial as admissions. In particular, the provision of a transcript of the recording as an aid to understanding what was said, coupled with a direction that the recording not the transcript was the relevant evidence, reflect principles of the kind discussed in Butera. But the critical difference between Butera and cases of the kind now under consideration is that Butera concerned the admission of evidence of out-of-court assertions as an exception to the hearsay rule. The relevant evidence in Butera was what the accused person had said on an earlier occasion. In cases like the present, the affected child gives evidence of what he or she knows, saw, or did. The evidence that the child gives is direct evidence, not hearsay. Unless some exception to the hearsay rule is engaged, the child may not give evidence of an out-of-court assertion as evidence of the truth of its content.
When the effect of the relevant provisions of the Evidence Act is thus understood, it becomes evident that seldom, if ever, will it be appropriate to admit the record of that evidence as an exhibit. (That is not to say that there may not be evident good sense in marking the record for identification; but that is a step that is distinctly different from receiving the record in evidence and marking it as an exhibit.)
Moreover, when the effect of the relevant provisions is understood in the manner described, it also follows that a request by a jury for access to evidence pre-recorded in accordance with those provisions should ordinarily be dealt with in the same way as any request by a jury to be reminded of evidence that has been led at the trial. Seldom would it be appropriate to meet a request of that kind by giving the jury unrestrained access to the recording to play and replay. The reasons for not allowing access of that kind lie in the need to preserve fairness and balance in the conduct of the trial.
Replaying the evidence given by one witness, after all the evidence has been given, carries risks. First, there is the risk inherent in the form in which it is presented. As was said in Butera, there is the risk that undue weight will be given to evidence of which there is a verbatim record when it must be compared with evidence that has been given orally. Secondly, there is the risk that undue weight will be given to evidence that has been repeated and repeated recently. Other risks may arise from the circumstances of the particular trial.
The purpose of reading or replaying for a jury considering its verdict some part of the evidence that has been given at the trial is only to remind the jury of what was said. The jury is required to consider the whole of the evidence. Of course the jury as a whole, or individual jurors, may attach determinative significance to only some of the evidence that has been given. And if that is the case, the jury, or those jurors, will focus upon that evidence in their deliberations. While a jury's request to be reminded of evidence that has been given in the trial should very seldom be refused, the overriding consideration is fairness of the trial. If a jury asks to be reminded of the evidence of an affected child that was pre-recorded under subdiv 3 of Div 4A of the Evidence Act and played to the jury as the evidence of that child, that request should ordinarily be met by replaying the evidence in court in the presence of the trial judge, counsel, and the accused. Depending upon the particular circumstances of the case, it may be necessary to warn the jury of the need to consider the replayed evidence in the light of countervailing evidence or considerations relied upon by the accused. It may be desirable, in some cases necessary, to repeat the instructions required by s 21AW. Seldom, if ever, will it be appropriate to allow the jury unsupervised access to the record of that evidence.
(footnotes omitted)
[3] (2007) 232 CLR 208.
[4] Gately v The Queen (2007) 232 CLR 208, [88]-[96].
It is important to keep in mind that those passages address the dangers in providing the jury with the means to replay and/or refresh their memory of a part only of the evidence. The provision of the whole of the transcript of the addresses of counsel does not carry with it the risk identified by Hayne J of undue emphasis on only one part of the evidence in the case. Counsel’s addresses will usually cover the whole of the evidence material to the main issues in the trial. I acknowledge that it might equally be said that there is a risk that the jury will give undue weight to the addresses over the evidence itself. However, unless the evidence has been misrepresented, the addresses and arguments of counsel can be expected to reflect the evidence.
In R v Taousanis,[5] Sperling J provided transcript of the opening addresses of both counsel on the request of the jury and against the objection of counsel for the accused. Sperling J gave the following reasons for doing so:[6]
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.
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.
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 v The Queen [1982] Tas R 266 at 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."
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.
[5] (1999) 146 A Crim R 303.
[6] R v Taousanis (1999) 146 A Crim R 303, [16]-[19].
In R v Bartle[7] Smart AJ, with whom Mason P and Barr J agreed, held that a trial judge should have acceded to a request by the jury for the transcript of the addresses of counsel of two of the three accused. Smart AJ said:[8]
… Turning to the arguments of the Crown I disagree that the provision of the two final addresses requested would have afforded undue weight to these. The Crown case had been led in detail in chief. The Crown's cross-examination was lengthy and effectively the Crown case was put again and an attempt was made to demolish McCaffrey's case. This was followed by a lengthy address from the Prosecutor. The Crown accepted that its case was effectively covered in the summing-up. The repetition of the Crown case in various forms would have embedded it in the minds of the jurors. …
The objection raised by counsel for Bartle cannot be a determining factor if the jury thought that the transcripts would assist them as they apparently did, although the objection is a matter to be taken into account. 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. …
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 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.
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. …
[7] (2003) 181 FLR 1.
[8] R v Bartle (2003) 181 FLR 1, [666]-[672].
I respectfully agree with the tenor of the above cited observations. Subject to taking appropriate measures to address any risks of misuse, the administration of justice is generally advanced by providing the jury with aids which ease the burden of, and increase the accuracy of, their recollection of the evidence and the arguments of counsel.
In R v Sukkar[9] an audio recording of the summing up had been made. The jury asked the trial Judge for an audio record and transcript of his summing up. The Judge had the recording of the whole summing up played to the jury. In dismissing Sukkar’s appeal against conviction, the New South Wales Court of Criminal Appeal affirmed the decisions in Taousanis and Bartle.
[9] [2005] NSWCCA 54 (Wood CJ at CL and Hidden J).
The New South Wales authority to which I have referred is strongly persuasive. Moreover I see no objection in principle to the provision of the transcript of closing addresses if the jury request it. Once the transcript is certified by the trial judge to accurately record the addresses of counsel, it forms part of the record of the court. It is difficult to see any reason in the principle why the jurors who, together with the Judge, constitute the Court in a criminal trial should be denied access to that record. True it is that the written word will not convey the persuasive passion of an oral address. However, the transcript will contain a complete account of the argument.
It is a notorious fact of which judicial notice may be taken that some people are more proficient in understanding and retaining aural information whilst others are more adept at comprehending written information. It is equally notorious, and a matter of which judicial notice can be taken, that court sitting times tax the capacity of many people to listen attentively and concentrate exclusively on the evidence. There is no reason to volunteer the transcript of counsel’s addresses to a jury but, having regard to the onerous nature of the jury’s duties, if a jury requests the transcript of counsel’s addresses in a long or complex trial, speaking generally and subject to any countervailing factors arising in the particular case, it should be provided.
However, before the transcript is provided consideration should be given to alternate ways of assisting the jury with its particular difficulty short of providing the transcript.
In this case, the credibility of the prosecution witnesses was a difficult and substantial issue. There were multiple counts, conflicting direct evidence and a substantial body of circumstantial evidence. In this case the transcript of counsel’s addresses was likely to materially assist the jury.
Moreover both counsel initially consented to the course. I accept that a Judge retains a discretion to withhold the transcript even in the face of the consent of both the prosecuting counsel and counsel for the accused. However in the ordinary course of common law adversarial trials, a judge will act reasonably in acceding to a reasonable procedural request made by all counsel. The question is whether in this case there was a good reason not to do so.
The reason advanced by the appellant is that the style of the prosecutor’s address was more suited to the written record than that of defence counsel. I would not accord that consideration great weight. There always have been, and there will forever continue to be, differences in the styles of advocacy practiced by barristers. The same is true for both oral and written addresses. Ultimately it is the soundness of the arguments made to which the juries attention must be and is directed. It is for assistance in recollecting the argument itself that the jury requests the transcript. The jury will already have had the benefit of counsel’s rhetorical skills. Moreover, apart from cases which can be expected to be rare, in which counsel’s address does not “on its face” put only reasoned argument forward, it is difficult to see on what basis a Judge could make decisions as to whether to provide the transcript. In those cases, in which the address is incoherent or very poorly reasoned, a Judge must assist the jury to understand the defence case as best as he or she can whether the transcript is provided or not. However, that was not the case here. The arguments of counsel for the appellant were plain and clear on the face of the transcript.
Once the transcript had been provided, it became very difficult to reverse the decision. As the Judge observed, withdrawing the transcript would have created its own difficulties. The jury would have been left to speculate about why the transcript had been withdrawn despite their wish to see it. It is difficult to see the jury accepting as a good explanation the fear that it might place undue weight on the written word. Moreover by the time the transcript was retrieved, the jury may have read only parts of the addresses. In particular the jury may have read only the prosecutor’s address. The desire of the appellant to abort the trial had to be balanced against the public interest in the expeditious resolution of criminal charges. The appellant having consented to the procedure carried a heavy onus to show that the continuation of the trial would result in a miscarriage of justice. The appellant has failed to do so.
The Judge told the jury that the addresses of counsel were not evidence. Finally, I observe that true it is that the Judge did not remind the jury that they need not limit themselves to the matters mentioned by counsel. However, there is no reason to think that the jury might have confined itself in that way and, in any event, the addresses were comprehensive. I am satisfied that the provision of the transcript of counsel’s addresses to the jury did not cause a miscarriage of justice.
Unreasonable verdict
On this ground the appellant’s primary contention is that the unanimous guilty verdict on count 4 is inconsistent with the majority not guilty verdict on count 3.
It can be accepted that there was a strong circumstantial case which tended to show that the offender on count 4 also committed the offence charged in count 3. The prosecutor made much of that connection in his address. However, the prosecution case on the identity of the offender depended on the circumstantial evidence to which I referred and the evidence of Yeates. There was no CCTV footage. It will be remembered that the jury also asked for the transcript of the evidence of Amy Watson. Ms Watson’s description of the offender was general and did not identify Glastonbury as the offender. Further, Mr Watson thought that the gun seized from Glastonbury was not the gun used in the robbery.
The jury may well have entertained a reasonable doubt, notwithstanding the probability of guilt established by the circumstantial evidence, because of the absence of any objective evidence of the appearance of the offender who robbed the Blockbuster Video store.
The appellant also submitted that the absence of evidence from Ms Yeates that she, or the appellant, had access to the Holden Astra motor vehicle which was used in the Greenwith Post Office robbery gives any reason to doubt that the appellant was the offender. I reject that contention. To the contrary, the use of Ms Yeates’ car by the offenders who robbed the Greenwith Post Office is powerful evidence of Glastonbury’s guilt.
On a review of the evidence as a whole, I do not doubt that the appellant was properly convicted on count 4.
Conclusion
I would dismiss the appeal.
DAVID J: I would dismiss the appeal. I agree with the reasons of Kourakis CJ.
PARKER J: I would dismiss the appeal. I have nothing to add to the reasons of Kourakis CJ.