R v Haoui

[2007] NSWDC 6

CITATION:	R v HAOUI [2007] NSWDC 6
HEARING DATE(S):	30/01/2007 - 02/02/2007
JUDGMENT DATE:	1 February 2007
EX TEMPORE JUDGMENT DATE:	1 February 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraph [10]
CATCHWORDS:	Criminal Trial - Judgment - Supply of Transcript to Jury
LEGISLATION CITED:	Jury Act
PARTIES:	Crown Joseph Robert HAOUI
FILE NUMBER(S):	04/11/1278
COUNSEL:	P. Leask (Crown) D. Campbell SC (Accused) P.G. Bolster
SOLICITORS:	NSW DPP Slattery Jurd & Co

JUDGMENT

1 HIS HONOUR: This morning, after one of the breaks involving the jury leaving the courtroom, I was given a message from the jury. It reads “1 x a juror requesting transcripts please”. The matter was deferred until matters could be looked at over lunch.

2 Mr Campbell for his client maintains that I should not accede to the request of the juror, and that I should not provide transcripts to the juror either now or at any stage of the trial. It is his submission that things in this trial should take place in his client’s presence. A juror's review of the transcript would not take place in his client’s presence which he says breaches the requirements of a proper trial. He also submits that because this is a short trial there is no utility in providing transcripts to the jury and indeed there is the risk that jurors will focus on the transcript rather than their recollection of the evidence.

3 I find it puzzling in this day and age that jurors are not provided automatically with daily transcripts of what they have just heard. Even in a short trial where the facts are in a narrow compass such as this, jurors will no doubt find themselves in the position where they are unable to recall precisely what the evidence was on a particular issue. This is moreso the case where they, unlike the parties, do not know in advance the nuances of the various aspects of the evidence.

4 I will give an example from this trial. At one stage the address 105 Frederick Street was mentioned. At that stage, the jurors had not heard anything regarding 105 Frederick Street. They did not know, although I did because I had heard evidence about it on the voir dire, that two of the Crown’s witness happened to be in 105 Frederick Street at the time of the collision. I use this as an illustration. The jurors would not have appreciated the significance of the address at the time the evidence was given. For this reason, jurors may not recall every aspect of evidence which is given before them.

5 When this issue came up, I mentioned to counsel that my recollection was that some work done by Professor Warren Young in New Zealand in his important and well-known jury research project should be examined. I will not delay matters by repeating in this judgment the methodology which Professor Young followed but he does note that the juries which he studied were rarely told specifically that they would not be receiving a written copy of what in New Zealand is called the Judges Notes but in New South Wales we call the transcript. They were quite surprised that they did not get what the stenographers were clearly reporting. As a matter of common sense one can understand their surprise. It is they who as jurors ultimately make the most important decision in this case and to deny them the assistance of a transcript which is given to both parties and the Judge makes no sense at all.

6 In the discussion paper put out by the New Zealand Law Commission following Professor Young’s research he notes that the present practice in New Zealand was that the Judge’s Notes, and I emphasise again that that means the transcript, is not given to the jury unlike the situation in New South Wales where it commonly is.

7 At paragraph 87 of the Law Commission Report, Juries in Criminal trials Part 2, A Discussion Paper, the authors of the report note:

“The juries in the Research expressed a strong wish to receive a copy of the judge’s notes. At present they do not receive a copy because it is believed that;

Juries will become too absorbed in pouring over the judge’s notes and be distracted from issues of credibility and demeanour.”

I interrupt the quotation to interpolate that that is one of the matters that Mr Campbell raised. Returning to the quote;

“Jurors will get side tracked into details and deliberations will get prolonged as a result.

The Research suggests that these concerns are unfounded. Many juries already spend a lot of time trying to agree on a version of the evidence from the notes they have collectively taken, and search their own notes or the notes of others when they cannot recall a section of the evidence critical to the discussions. They also frequently need to have portions of the evidence read back to them. There is little reason to believe that they would pay much more attention to the judges notes than they currently do to their own notes, and every reason to believe that the provision of a copy of the judges notes, by eliminating the currently sometimes lengthy arguments, about what evidence has actually been given, would not only enable discussions to become more focused but also reduce deliberation time. It is to be expected that jurors are becoming computer literate and could use a search facility in the jury room. The main difficulty in giving the jury a copy of the judge’s notes is ensuring that they are accurate and the abbreviations intelligible. This could become the joint responsibility of judge and counsel, with the vetted notes being provided to the jury shortly after they retire to consider their verdict.”

8 Thus, what I consider to be commonsense, accords with the position adopted by the New Zealand Law Commission in that discussion paper.

9 Section 55C of the Jury Act says that I am in a position to provide to the members of the jury a copy of the transcript if they request it, and if I consider it appropriate and practical to do so. The jury has made a request, at least on behalf of one of the jurors. It is practicable to supply that transcript. As I speak yesterday’s transcript is being prepared, as is today’s.

10 For the reasons I have given above I consider it appropriate that it be given to the jurors.

11 I should say something specifically about one matter raised by Mr Campbell, that is, that his client has a right to see that things that happen in the trial happen in his presence. That right does not extend to the jury’s deliberations being conducted in his presence. Deliberations do not only occur at the end of a trial. Deliberations occur, I am sure, at each adjournment and the jury no doubt discuss their impression of the evidence, their recollection of the evidence, and the significance of what they have just heard. Part of those discussions will of course involve them relating what they have just heard to what occurred some time before and in doing so they would be assisted by having before them a transcript of what has gone before.

12 For more abundant caution, although I do not think it is strictly necessary, I will tell the jury that they should not allow the transcript to take the place of their recollection of the evidence, but use it instead as an aid to remembering what the evidence was.

********