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6
Supreme Court 24 February 1999

Regina v J Taousanis

[1999] NSWSC 107

Also reported as (1999) 146 A Crim R 303
Homicide
CRIMINAL LAW PRACTICE & PROCEDURE

Citation: Regina v J Taousanis [1999] NSWSC 107
Court: Supreme Court of New South Wales
Date: 24 February 1999
Judge(s): Sperling J

Background

The accused stood trial for the alleged murder of a man believed to have failed to account for a consignment of illicit drugs. The Crown alleged that the accused had beaten the victim to death and arranged disposal of the body at sea; the defence denied the victim was dead and contended the accused was being framed.

Early in the trial, the Crown prosecutor delivered a conventional opening address outlining the anticipated evidence, and counsel for the accused followed with an opening statement setting out the defence position. Two days into the hearing, with several Crown witnesses still to be called, the jury foreperson submitted a written request for transcripts of both opening addresses, together with a list of witness names.

Sperling J heard submissions from both parties on the request and reserved his decision. He ultimately allowed the request and delivered written reasons explaining his conclusion.

  • Whether the court had power, under section 55C of the Jury Act 1977 or pursuant to its inherent jurisdiction, to provide the jury with a transcript of the Crown's opening address and the accused's opening statement.
  • Whether section 55C, which expressly refers to "transcript of evidence," extended to transcripts of opening addresses and opening statements that do not constitute evidence.
  • Whether any distinction arose from the fact that the request came from an individual juror rather than the jury collectively.

Decision

Sperling J held that the court possessed a discretionary power, independent of section 55C, to make available to the jury any part of the record of proceedings conducted before them. He reasoned that this inherent or implied power to control the court's own processes supported provision of transcripts beyond those strictly captured by the statutory language. He drew support from the New South Wales Law Reform Commission's 1986 report, which treated the discretion to supply transcripts of evidence as pre-existing and in need of statutory confirmation rather than creation.

His Honour also found that, even if section 55C did not directly apply to opening addresses and statements, the same reasoning that animated the provision applied equally. Consistency demanded that, since transcripts of evidence were now routinely provided to assist the jury's accurate recollection, the record of other parts of the proceedings serving the same purpose should be available on the same basis.

Sperling J acknowledged the heightened risk of misuse when a formal typed document is placed before the jury, as compared with a juror's own handwritten notes. However, he observed that both counsel had already incorporated cautions against treating the opening addresses as evidence, and he indicated those cautions could be reinforced by directions from the bench. That risk did not, in his view, outweigh the appropriateness of supplying the transcripts in the circumstances of this case.

On the question of whether the request needed to come from the full jury rather than an individual juror, Sperling J found no meaningful distinction and noted that counsel for the accused agreed no distinction arose.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Supreme Court confirmed that a trial judge possesses an inherent or implied discretionary power to supply the jury with a transcript of any part of the proceedings conducted before them, extending beyond the express terms of section 55C of the Jury Act 1977, which refers only to "transcript of evidence."
  • Section 55C was treated as confirmatory of a pre-existing discretion rather than the sole source of power, a view supported by the NSW Law Reform Commission's 1986 recommendation that preceded the provision's enactment.
  • Consistency with the now-routine practice of providing transcripts of evidence supports supplying transcripts of opening addresses and statements, since both serve the same purpose of accurately reminding the jury of what was said in proceedings before them.
  • A request from an individual juror, including the foreperson, carries the same weight as a request from the jury collectively for these purposes.
  • The risk that a formal transcript of an opening address might be misused does not automatically preclude supply; the court can address that risk through directions reinforcing that opening addresses and statements are not evidence.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), s 55C (inserted by the Jury (Amendment) Act 1987 (NSW))

Cases:
- Lowe (1997) 98 A Crim R 300 (NSW Court of Criminal Appeal, per Hunt CJ at CL, Smart J, and Ireland J)
- Driscoll (1977) 137 CLR 517 (High Court, per Gibbs J at 542)

Other:
- NSW Law Reform Commission, The Jury in a Criminal Trial (LRC 48, 1986), Recommendation 49