R v Rogers (No 8) - [2019] NSWSC 690

Supreme Court

New South Wales

Medium Neutral Citation: R v Rogers (No 8) [2019] NSWSC 690
Hearing dates: 23-23 May 2019
Date of orders: 23 May 2019
Decision date: 23 May 2019
Jurisdiction: Common Law - Criminal
Before: Lonergan J
Decision:
Jury provided with a transcript of the summing up

Catchwords: CRIMINAL LAW – jury request for transcripts of summing up – transcript of closing addresses already provided – no provision in Jury Act – discretion to provide – not long trial but precision regarding legal tests for substantial impairment - careful and thorough addresses – where summing up canvassed definitions of “abnormal”, “substantial” and “impairment” in case where substantial impairment is the issue – discretion exercised to comply with jury request
Legislation Cited: Jury Act 1977 (NSW), s 55C
Cases Cited: R v Bartle & Ors [2003] NSWCCA 329
R v Sukkar [2005] NSWCCA 54
R v Taousanis [1999] NSWSC 107
Category: Procedural and other rulings
Parties: Regina (Crown)
Warren Rogers (Accused)
Representation:
Counsel:
C Young (Crown)
R Pontello (Accused)
Solicitors:
NSW Director of Public Prosecutions (Crown)
Ross Hill & Associates (Accused)

File Number(s): 2016/276529
Publication restriction: Nil

Judgment

On 22 May 2019 just after completion of the summing up, the jury sent a note (MFI 27) in the following terms:

“Once completed, requesting a transcript of her Honour’s summary.”

The jury were provided at their request with the transcript of the evidence of the expert psychiatrists, Dr Martin and Dr Allnutt and expert psychologist Dr Hepner. They have also been given copies of documents setting out the elements of the offence of murder and the elements of the substantial impairment defence early in the trial. Also, on 21 May the jury requested and was provided with a transcript of counsels’ addresses.
The Jury Act 1977 (NSW) states:

“55C Supply of transcripts to jury
A copy of all or any part of the transcript of evidence at a trial or inquest may, at the request of the jury, be supplied to the members of the jury if the judge or coroner considers that it is appropriate and practicable to do so.”

It will be seen that there is no reference to the jury being provided with transcripts of either counsels’ address or the summing up. However, it has been held that a trial Judge has a discretion to comply with a request from the jury such as this.
In R v Bartle & Ors [2003] NSWCCA 329, the Court considered a case in which a trial judge had refused a request for a transcript of two of the addresses made by counsel in a multiple accused trial. The following extract from the judgment is relevant:

“655. During the morning of Tuesday, 11 September 2001 the jury asked this question:
‘Your Honour could we have the transcript relating to the examination and cross-examination of WAV file PF518. Could we also have the transcript of Mr Buscombe’s and Mr Dailly’s final arguments.’

656. Mr Buscombe appeared for Fox. There was…

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 Rogers (No 8)

Details

AGLC: R v Rogers (No 8) [2019] NSWSC 690
Case: [2019] NSWSC 690
Decision Date: 23 May 2019

CaseChat Overview and Summary

In the case of R v Rogers (No 8), the respondents sought a transcript of the summing up by the trial judge, which was provided to the jury in a transcript of the closing addresses. The respondents argued that the trial judge had been required to consider the definitions of "abnormal" and "substantial" in the context of a case involving substantial impairment. The issue was whether the trial judge's discretion under the Jury Act should be exercised to provide the additional transcript to the jury.

The court considered the issue of whether it was appropriate to exercise its discretion to provide the transcript of the summing up in addition to the transcript of the closing addresses. The court noted that while there was no statutory provision mandating the provision of a summing up transcript, the trial judge had already provided the closing addresses transcript. The court examined the nature of the trial, which, while not lengthy, required careful and thorough addresses regarding the legal tests for substantial impairment. The court acknowledged the importance of precision in the definitions of "abnormal", "substantial" and "impairment" in the context of the case.

The court concluded that it was appropriate to exercise its discretion to provide the transcript of the summing up to the jury. The court found that the trial judge had carefully and thoroughly addressed the definitions of the relevant terms in the summing up, and that this was an important part of the jury's deliberations. The court noted that the trial judge had taken care to ensure that the jury understood the legal tests for substantial impairment, and that the transcript of the summing up would assist the jury in this regard. The court also noted that the trial had not been lengthy, and that the additional burden on the court in providing the transcript would be minimal.

The court made an order that the transcript of the summing up be provided to the jury, in addition to the transcript of the closing addresses. The court emphasised that this decision was made on the specific facts of the case, and that it did not establish a general precedent for the provision of summing up transcripts. The court also noted that the decision should not be seen as setting a new legal test for the provision of such transcripts, but rather as an exercise of discretion in the circumstances of the case.

Orders