R v Thomas Sam; R v Manju Sam (No. 14)

[2009] NSWSC 561

CITATION:	R v Thomas Sam; R v Manju Sam (No. 14) [2009] NSWSC 561
HEARING DATE(S):	28 May 2009
JUDGMENT DATE :	29 May 2009
JUDGMENT OF:	Johnson J at 1
EX TEMPORE JUDGMENT DATE:	29 May 2009
DECISION:	Crown permitted to provide lists of references to topics in the record of interview of each Accused to the jury during the Crown closing address.
CATCHWORDS:	CRIMINAL LAW - jury trial - lengthy records of interview between accused and police - Crown application to provide jury during closing address with documents containing topics and cross-references to answers in interviews - objection by accused to provision of document - relevant discretionary considerations - whether any unfairness to accused - jury entitled to practical assistance - no unfairness to accused - application allowed
LEGISLATION CITED:	Evidence Act 1995
CATEGORY:	Procedural and other rulings
CASES CITED:	Gately v The Queen [2007] 232 CLR 208 Smith v The Queen (1970) 121 CLR 572 Butera v Director of Public Prosecutions (Vic) [1987] 164 CLR 180 R (Cth) v Petroulias (No. 34) [2007] NSWSC 1462 R v Collins (1986) 44 SASR 214
PARTIES:	Regina (Crown) Thomas Sam (Accused) Manju Sam (Accused)
FILE NUMBER(S):	SC 2008/19298; 2008/12927
COUNSEL:	Mr M Tedeschi QC; Ms G O'Rourke (Crown) Ms C Davenport SC (Accused/Thomas Sam) Mr T Molomby SC (Accused/Manju Sam)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Karp O'Neill (Accused/Thomas Sam) Legal Aid NSW (Accused/Manju Sam)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

29 May 2009

2008/19298 Regina v Thomas Sam
2008/12927 Regina v Manju Sam

JUDGMENT (No. 14) (On objection to provision to jury during Crown closing address of list of references to topics in record of interview - see T896)

1 JOHNSON J: The Crown has foreshadowed provision to the jury, during the Crown closing address, of a list of references by topic to the record of interview of each Accused (MFI57). Objection is taken by Mr Molomby SC, for Manju Sam, to the provision of this list to the jury. No objection is made by Ms Davenport SC, for Thomas Sam, in this respect.

2 Following submissions on this issue on 28 May 2009 (T877-880), I ruled that the Crown would be permitted to provide such a list to the jury concerning each Accused. These are my reasons for that ruling.

3 On 9 May 2002, the Accused, Thomas Sam, took part in an electronically recorded interview with police concerning the death of the baby, Gloria, on the previous day. An edited version of that interview is in evidence (Exhibit N) together with a transcript of the edited interview (Exhibit O). On 9 May 2002, the Accused, Manju Sam, took part in a recorded interview with police, an edited version of which is in evidence (Exhibit P) together with a transcript of the edited interview (Exhibit Q).

4 The transcript of the interview with Manju Sam extends to 181 pages and contains 1,268 questions and answers. The transcript relating to Thomas Sam is 189 pages in length and contains 2,045 questions and answers.

5 In the case of Manju Sam, there is both a video and audio recording of the interview. In the case of Thomas Sam, there is only an audio recording given technical difficulties relating to video recording.

6 The document which is subject to the present objection contains, with respect to Manju Sam, seven categories of questions with cross-references to the numbered answers in the interview which relate to that topic. The seven topics are:

(a) Gloria’s condition (eczema, weight loss, developmental delay) had been long standing;

(b) she believed that Gloria’s weight loss and developmental delay was as a result of the eczema;

(c) Gloria’s condition in India up until Thomas Sam’s arrival;

(d) Gloria’s condition during the last three weeks in India;

(e) Gloria’s skin condition prior to her admission to hospital;

(f) Gloria’s condition during the last eight days in Australia before her admission to hospital;

(g) her observations of Gloria over the last few days.

7 Mr Molomby SC submits that it would be prejudicial to his client to place this document in the hands of the jury, as it will serve to emphasise aspects of the Crown case which are said to be adverse to the Accused in a documentary form which will remain with the jury. Although acknowledging that the Crown could simply read out each of these topics, at the same time providing the jury with the references to numbered answers in the record of interview, Mr Molomby SC submits that the provision of the document itself is prejudicial and gives undue emphasis to these matters in this form and ought not be permitted.

8 The Crown submits that the provision of such a document to the jury is consistent with the contemporary approach which emphasises assisting the jury in its function, including the provision of documents which serve that purpose. The Crown submits that it would be open to the defence to provide an equivalent document with references to parts of the record of interview to which reference was to be made in the defence closing address. The Crown submits that there is no prejudice to the Accused in the provision of this document. The Crown points to s.48(1)(e)(ii) Evidence Act 1995 which permits the tender of a document that summarises another document or other documents.

9 It has been said that a criminal trial in Australia is essentially an oral process: Gately v The Queen [2007] 232 CLR 208 at 235 [88]. Nevertheless, the Courts have recognised the assistance which a jury may derive from the provision of appropriate summary documents, including charts and chronologies: Smith v The Queen (1970) 121 CLR 572 at 577; Butera v Director of Public Prosecutions (Vic) [1987] 164 CLR 180 at 190; R (Cth) v Petroulias (No. 34) [2007] NSWSC 1462 at [64]. Where objection has been taken to the provision of a chronology to a jury upon the basis that it is likely to be selective and thus prejudicial, it has been observed that it is important not to underestimate the intelligence and commonsense of juries in assessing whether such material is likely to have an undue or inappropriate impact upon the jury’s thought processes: R v Collins (1986) 44 SASR 214 at 249; R (Cth) v Petroulias (No. 34) at [65], [73].

10 The question whether the Crown is permitted to provide the list of topics to the jury is a discretionary matter for the trial Judge. I do not think s.48(1)(e)(ii) Evidence Act 1995 bears upon the question as the issue is not one of admissibility of a summary document in place of the primary document. Rather, the question is whether the Crown ought be permitted to provide the list to the jury as an aide memoire for the purpose of closing submissions.

11 As the recital of topics set out at [6] above demonstrates, the Crown document is expressed in balanced terms. It would be open to the Crown, during the closing address, to invite the jury to write down each of these seven topics and the various cross-references to answers in the record of interview. That process would take some time and may involve the risk of error on the part of jurors.

12 The provision of the Crown document will assist the jury in following the address, without possible distraction to take notes. The document will assist the jury as an aide memoire for later consideration in the jury room, when the recorded interview itself is being considered. There is no unfairness to the Accused arising from the provision of this document. In principle, it is open to the Accused to prepare a similar document referring to parts of the interview to which the jury is to be taken during the defence closing address. Subject to any particular area of objection, such a step may assist the jury in following the defence address in the same way as the Crown document will assist the jury in following the Crown address.

13 I bear in mind as well the length of the recorded interview with Manju Sam, and the particular assistance which the jury will receive from grouping of references in an extended interview which contains a large number of questions and answers.

14 I am satisfied that the Crown document will assist the jury in its deliberations, and that the jury would utilise it in an intelligent and commonsense way. I am conscious of the responsibility of the trial Judge to exercise discretion to ensure that such a document does not give rise to unfairness to the Accused: R (Cth) v Petroulias (No. 34) at [73]. I am satisfied that the provision of this document to the jury will not operate in a manner which is unfair to the Accused.

15 It was for these reasons that I ruled that the Crown ought be permitted to provide this document to the jury during the Crown closing address.

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