Citation: R v Rogerson; R v McNamara (No 46) [2016] NSWSC 454
Court: Supreme Court of New South Wales
Date: 15 April 2016
Judge(s): Bellew J
Background
This decision arose during the criminal trial of two accused, Rogerson and McNamara. The trial had reached the stage at which one of the accused, McNamara, was giving evidence from the witness stand.
During that evidence, the jury foreperson sent a note to the court requesting that the jury be provided with daily transcripts of McNamara's evidence as it was being given. The trial judge dealt with the request on an ex tempore basis after hearing submissions from both the Crown and defence counsel.
Counsel for both accused opposed the request. The Crown generally supported it but acknowledged the force of the defence position after hearing the arguments.
Legal Issues
- Whether the court should exercise its discretion under section 55C of the Jury Act 1977 (NSW) to provide the jury with transcript of a witness's evidence while that evidence was still being given
- Whether, if transcript of McNamara's evidence were provided, the same would need to apply to any evidence given by Rogerson
Decision
Section 55C of the Jury Act 1977 (NSW) confers a discretion on the court to provide a copy of all or part of the trial transcript. Bellew J also noted, relying on R v Lowe (1997) 98 A Crim R 300, that the court has power to provide transcript beyond what the section expressly contemplates if it considers that appropriate.
The primary concern raised by defence counsel was that providing the transcript at this stage, while the witness was still giving evidence, could cause jurors to become less attentive. Knowing a transcript would be available, jurors might pay less attention to the evidence as it unfolded in real time. Bellew J found there was "some force" in that submission.
The judge declined to provide the transcript during the course of McNamara's evidence. Instead, he indicated he would inform the jury that, consistent with his general practice, transcripts would not be provided at that stage. The jury would, however, be at liberty to request specific parts of the transcript once their deliberations commenced, and such requests would ordinarily be met at that time.
The judge also noted that, had transcript been provided, it would have been necessary to treat both accused consistently, meaning Rogerson's evidence would have had to be made available on the same basis as McNamara's.
Orders Made
No orders were made in this decision.
Key Takeaways
- Section 55C of the Jury Act 1977 (NSW) confers a discretion, not an obligation, on the trial court to provide jury members with copies of trial transcript.
- Under R v Lowe (1997) 98 A Crim R 300, the court's power to supply transcript is not limited to section 55C alone and extends more broadly where the court considers it appropriate.
- A legitimate basis for refusing a mid-evidence transcript request is the risk that jurors may become less attentive to live evidence if they know a written record will be provided to them.
- Where transcript is sought for the evidence of one accused in a joint trial, consistency may require that the same approach apply to the evidence of any co-accused.
- Refusing a jury's transcript request during evidence does not foreclose the request entirely: Bellew J indicated the jury remained free to seek specific transcript portions once deliberations began.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), s 55C
Cases:
- R v Lowe (1997) 98 A Crim R 300