R v J Lucas; R v B Lucas (No 10)

[2022] NSWSC 1816

Supreme Court

New South Wales

Medium Neutral Citation:	R v J Lucas; R v B Lucas (No 10) [2022] NSWSC 1816
Hearing dates:	31 May 2022
Decision date:	31 May 2022
Jurisdiction:	Common Law
Before:	Button J
Decision:	Jury provided with USB containing PowerPoint presentation which accompanied final address
Catchwords:	CRIMINAL PROCEDURE – where the jury during deliberations requested a transcript of all three final addresses – where one defence counsel presented a hybrid address using oral submissions and PowerPoint presentation – submission by that defence counsel that paper copy of PowerPoint presentation or USB with PowerPoint should accompany transcript of their final address into jury room – where defence counsel chose not to provide PowerPoint presentation to jury in paper or digital format before, during or after delivery of final address – where transcript of final address would be incomplete without presentation
Category:	Procedural rulings
Parties:	Regina Joshua Lucas (Accused) Benjamin Lucas (Accused)
Representation:	Counsel: C O’Donnell SC & R Taylor (Crown) M Avenell SC & J Brock (J Lucas) S Howell & R Baldeo (B Lucas) Solicitors: Solicitor for Public Prosecutions (Cth) (Crown) Legal Aid NSW (J Lucas) Hugo Law (B Lucas)
File Number(s):	2020/82674; 2020/89279
Publication restriction:	Nil

REVISED EX TEMPORE Judgment

1. A dispute has arisen in the following context. The jury has requested a transcript of all three final addresses. Mr Howell's final address was a hybrid, in the sense that whilst he spoke, a PowerPoint presentation was played. All counsel and I have agreed that the jury should have a copy of the typed transcripts of all three final addresses. But the question is how precisely the transcript with regard to Mr Howell's final address should be, as it were, annotated or cross‑referenced, or otherwise reflective of the PowerPoint presentation?

2. The Crown's primary position was that the typed transcript should be annotated by way of an exhibit reference, referring to what was on the slide that was shown at the time. The fallback position of the Crown was that, if the concern is to have the most accurate record of what Mr Howell was saying in context, provided to the jury, then in truth it should be the USB.

3. Mr Howell's position was that MFI 95, which is a paper copy of the slides, and which was kept on the Court file, should be provided to the jury. He also was content, as I understood it, subject to logistical concerns, if the USB were to go into the jury room.

4. His position simply was that, having delivered a hybrid final address, if the jury were not given in a readily practicable and complete form the other half, as it were, of his final address, in truth the jury would not have a complete transcript.

5. In other words, the dispute between the Crown and the legal team for Mr Benjamin Lucas is not really about subject matter, in terms of providing the other “half” of the hybrid final address. It is really about the mode of presentation, and the degree of specificity or clarify with which the other half of the hybrid address should go into the jury room.

6. The complication - and in using that term, I am not being critical - is that Mr Howell did not refer in words during his final address to what was on the screen as he spoke. That was for, with respect, understandable rhetorical reasons, because that would have entailed more or less endless interruptions to his substantive submissions. But the result is that the transcript itself, in terms of being a record of his spoken words, does not show what was present on the screen.

7. It is also not the case that counsel for Benjamin Lucas provided the jury previously, either at the time he delivered his final address or before or after, with a copy of the PowerPoint presentation, either in paper form or in digital form. Again, with respect, for soundly understandable rhetorical reasons, that means that, in one sense, if the paper copy, which is a thick folder, or the USB were to go into the jury room now, in one sense, the jury would be receiving material that is "new”.

8. The other important aspects of context with regard to this dispute are that it was I who invited counsel to reflect, in the circumstances of this lengthy trial that has featured a great deal of oral, documentary and other evidence, of avoiding bare orality in their final addresses. The transcript refence is 2858-2859. And to a greater or lesser extent, since the start of the trial, all three leading counsel have adopted that course.

9. The final aspect of context that I think is worth recording is that the trial transcript shows that Mr Howell reserved his position with regard to this very question. In other words, when he made it clear that he did not propose to have the USB or the paper MFI 95 to go into the jury room at an earlier stage, he did reserve his position as to what should happen if the jury requested something to do with his final address. That is to be found at TT 3054.09 and following.

10. Mr Howell also submitted that the original Crown approach, in terms of a cross reference to the exhibit that had been on the screen as opposed to the slide, would inevitably be more logistically demanding, in terms of documents that have already been prepared. But I respectfully give little weight to that. I believe that the jury would be content with the delay, and that the legal terms would be able to place such a document for cross-reference in order by tomorrow at 9.30am.

11. Turning to my determination of this circumscribed question, there are certainly authorities to say that a jury can and should have the final addresses if they seek them. To repeat: we are all agreed that the jury should have them. It is merely a question of mode.

12. There is no authority on this precise question, which perhaps is understandable, because of the relative modernity in the context of the criminal justice system of PowerPoint: I believe it has only existed for 25 or 30 years; as well as that, the ongoing focus on orality in terms of how final addresses are often presented.

13. To repeat, we are all agreed that there should be a complete record of the final address of Mr Howell that goes into the jury room, in accordance with their request. The question really is, how best to do it, and how to do it in a way that is appropriate and fair to all the parties?

14. I think it is undeniable that, so long as it works and is accessible and is appropriately cross‑referenced, the USB is indeed the best record of the PowerPoint presentation, and the paper copy is the second best record.

15. The paper copy, in my opinion, would really be a pictorial transcript of what Mr Howell was saying to the jury.

16. On reflection I think that the jury should at least have the paper copy, subject to them being strictly directed about it by me. I think that without it, in a real sense, some aspects of what Mr Howell was saying would not and could not be captured simply by way of cross‑references.

17. In similar vein, if the fallback position, or indeed perhaps even in a sense the ultimate position, of both parties is that the USB should go into the jury, I do think that, so long as it is used properly by the jury and it is absolutely clearly understood by them, that it is really absolutely nothing more than a transcript of Mr Howell's final address, I believe that that should be able to go into the jury room as well. To repeat myself: to do otherwise, I think on reflection, would render the transcript of Mr Howell's final address that the jury has requested incomplete.

18. I certainly propose to make it absolutely clear that, whether it be the paper copy or the USB, the jury must not regard it as evidence. It is merely a transcript, or a supplement to the transcript, of what Mr Howell was saying.

19. I would also explain to the jury that whether it be the paper copy or the USB, they would not give it undue weight, and bear in mind that they are receiving, in truth, nothing truly new. It would simply be, in the case of Mr Howell's final address transcript, a transcript with pictures that would permit them to understand fully the typed transcript of what Mr Howell was saying to them.

20. For those reasons then, on the assumption that the USB is available and otherwise logistically workable, I accept the proposition that when the jury receives all three transcripts, they should also receive the USB.

21. If the USB, for whatever reason, is not workable, I would accept the proposition that the jury should receive MFI 95, that is the paper copy of the PowerPoint.

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Decision last updated: 09 November 2023