Citation: R v Perish; R v Lawton; R v Perish [2011] NSWSC 1155
Court: Supreme Court of New South Wales
Date: 18 July 2011
Judge(s): Price J
Background
During the course of a jury trial involving multiple accused, the jury requested copies of the transcripts of the opening statements made by both the Crown and defence counsel. The request raised a procedural question about whether such material could and should be provided.
Counsel for the accused opposed the request. The Crown supported it. Price J was required to resolve the dispute and exercise the relevant discretion.
Legal Issues
- Whether the court has power, under s 55C of the Jury Act 1977 or at common law, to provide a jury with transcripts of opening addresses (as distinct from transcripts of evidence)
- Whether the Crown's opening address should be withheld on the basis that the jury might treat it as evidence or misuse it, given potential discrepancies between what the Crown outlined and what witnesses actually said
- Whether the jury should be given additional directions about the statutory limitations on defence opening statements if the transcripts were provided
Decision
Price J confirmed that the court holds a discretionary power, separate from and in addition to s 55C of the Jury Act 1977, to provide the jury with transcripts of any part of the proceedings conducted before them. That power extends to opening addresses and statements, as established in R v Taousanis, and to closing addresses, as confirmed in R v Bartle.
The primary objection raised by senior counsel for one of the accused was that the Crown's opening put the Crown case at its highest, and that the jury might treat the opening as proof of matters that the evidence ultimately did not establish. Price J was not persuaded by this concern. The jury had already been directed, before the opening was delivered, that the Crown's opening was not evidence but merely an outline of what the Crown anticipated the evidence would show.
Price J reasoned that providing the transcript could actually benefit the accused. Where the evidence fell short of the Crown's expectations, the accused's counsel could point to that shortfall precisely by reference to an accurate record of what the Crown had promised to prove. The judge also adopted the observation from R v Taousanis that consistency favours providing transcripts of all parts of the proceedings, not only transcripts of witness evidence, where the jury requests them.
On the question of directions about defence opening statements, Price J noted the jury had already been informed about the purpose of those openings. He indicated he would expand on that explanation when handing over the transcripts, to address the limitations imposed on defence openings under s 159 of the Criminal Procedure Act 1986.
Orders Made
• Grant the jury's request for transcripts of the opening addresses and opening statements
• Provide copies of the transcript to the jury with expanded explanation regarding the limitations imposed upon defence opening addresses
Key Takeaways
- The Supreme Court confirmed that the discretion to supply transcripts to a jury is not confined to transcripts of evidence under s 55C of the Jury Act 1977; it extends to opening and closing addresses as a matter of general common law power.
- A jury's prior directions that an opening address is not evidence, but merely an outline of anticipated proof, are a relevant and weighty consideration when assessing whether to grant such a request.
- Where evidence falls short of what the Crown outlined in its opening, an accurate transcript of that opening may assist rather than prejudice the accused, since counsel can use it to highlight the gap between promise and proof.
- Consistency is a relevant principle: denying a request for opening address transcripts while routinely supplying transcripts of evidence could leave jurors reasonably confused about the limits of their entitlements.
- Under s 159 of the Criminal Procedure Act 1986, limitations apply to what defence counsel may say in an opening statement; where transcripts of those openings are supplied to a jury, supplementary directions addressing those limitations may be appropriate.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), s 55C
- Criminal Procedure Act 1986 (NSW), s 159
Cases:
- R v Taousanis [1999] NSWSC 107; (1999) 146 A Crim R 303
- R v Bartle & Ors [2003] NSWCCA 329