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Supreme Court 27 March 2017

R v Ronald Edward Medich (No. 24)

[2017] NSWSC 293

Other
CRIMINAL LAW PRACTICE AND PROCEDURE JURIES WHETHER REQUEST SHOULD BE MET.

Citation: R v Ronald Edward Medich (No. 24) [2017] NSWSC 293
Court: Supreme Court of New South Wales
Date: 27 March 2017
Judge(s): Bellew J

Background

The accused stood trial in the Supreme Court on a serious criminal matter. After two months of proceedings, a large number of witnesses, and a trial transcript exceeding 2,000 pages, the jury retired to deliberate on 24 March 2017.

Shortly after retiring, the jury foreperson sent a note to the judge requesting two hard copies and one digital copy of the full trial transcript, copies of the Crown address, the defence address, and the judge's summing-up, as well as lists of witnesses and exhibits. The jury also asked whether it could access documents marked for identification (MFIs).

The question before Bellew J was how to respond to that request, and in particular whether the jury should receive copies of counsel's addresses and the summing-up.

  • Whether the court should exercise its discretion under s 55C of the Jury Act 1977 (NSW) to supply the jury with transcripts of the trial
  • Whether the jury should receive a digital copy of the transcript, in addition to hard copies
  • Whether copies of the Crown and defence final addresses should be provided to the jury
  • Whether a copy of the judge's summing-up should be provided
  • Whether the jury could access documents marked for identification (MFIs)

Decision

Bellew J granted the jury's request in substance, exercising his discretion under s 55C of the Jury Act 1977 (NSW) to provide two hard copies of the trial transcript, copies of both counsel's final addresses, and a copy of the summing-up. The digital transcript was declined as unnecessary given the hard copies already being provided, and also because of the practical delay in preparing it. The jury could not receive MFIs, though the judge noted that the content of some MFIs had been read into the transcript and would appear there.

On the question of the addresses and summing-up, the court drew on a line of authority beginning with R v Taousanis [1999] NSWSC 107. Sperling J in that case had reasoned that a jury member could in any event make their own notes or shorthand record of addresses, and that refusing to provide the official transcript was therefore inconsistent and illogical, particularly given the guaranteed accuracy of the official record. Bellew J found that reasoning applicable here.

The court also noted that the Court of Criminal Appeal in R v Bartle [2003] NSWCCA 329 had found a trial judge erred by declining to provide similar material when requested. The risk that addresses might be misused or "elevated" to evidentiary status was acknowledged, but Bellew J considered it adequately managed by reminding the jury that counsel's addresses are not evidence. Similarly, the concern that providing the summing-up might discourage the jury from asking further questions could be addressed by a clear direction that the transcript did not limit their right to seek clarification.

The guiding principle, as Bellew J identified it, is that a jury should be provided with such assistance as is reasonable and appropriate within lawful bounds. Given the length and complexity of the trial, no countervailing factor justified refusing the request.

Orders Made

• The court will provide the jury with the transcript of evidence, counsel's addresses, and the summing-up as requested

Key Takeaways

  • Section 55C of the Jury Act 1977 (NSW) confers a discretion to supply transcripts to a jury on request; the guiding principle in exercising that discretion is that a jury should receive such assistance as is reasonable and appropriate in the circumstances of the particular case.
  • A jury's request for transcripts of counsel's final addresses carries significant weight. The court confirmed that the risk of misuse does not automatically outweigh the benefit of provision, particularly where an appropriate direction can remind the jury that addresses are not evidence.
  • Providing the jury with a transcript of the summing-up does not, without more, undermine the judge's standing invitation to the jury to ask further questions; that concern can be addressed through a supplementary direction.
  • The Court of Criminal Appeal has previously found error where a trial judge refused to exercise the discretion to supply requested material: R v Bartle [2003] NSWCCA 329 reinforces that refusal is not a safe default position.
  • Documents marked for identification remain unavailable to the jury, though content read from an MFI into the record will appear in the transcript the jury receives.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), s 55C

Cases
- R v Taousanis [1999] NSWSC 107
- Williams v The Queen [1982] Tas R 266
- R v Bartle [2003] NSWCCA 329
- R v Sukkar [2005] NSWCCA 54
- R v Qaumi (No. 66) [2016] NSWSC 1403