Citation: R v Rogers (No 8) [2019] NSWSC 690
Court: Supreme Court of New South Wales
Date: 23 May 2019
Judge(s): Lonergan J
Background
The accused stood trial for murder, with substantial impairment by abnormality of mind raised as a partial defence. The trial involved expert psychiatric and psychological evidence, and ran for approximately nine hearing days. The jury had already been provided with transcripts of expert evidence, written directions on the elements of murder and the substantial impairment defence, and transcripts of closing addresses.
The day after the summing-up was completed, the jury sent a note requesting a transcript of the summing-up itself. The Crown accepted the matter was discretionary but submitted that the usual factors justifying such provision, such as length of trial, multiple defendants, or complex charges, were not present here.
The question before Lonergan J was whether to exercise the court's discretion to provide the jury with the requested transcript.
Legal Issues
- Whether the court had power to provide the jury with a transcript of the summing-up, given that section 55C of the Jury Act 1977 (NSW) refers only to transcripts of evidence.
- Whether, if such a discretion existed, it should be exercised in the circumstances of this case.
Decision
Section 55C of the Jury Act 1977 (NSW) authorises the supply of evidence transcripts to a jury on request, but makes no reference to transcripts of counsel's addresses or the summing-up. Despite this silence, the court confirmed that a trial judge holds an inherent or implied discretion, separate from the statutory provision, to provide the jury with transcripts of any part of the proceedings conducted before them, including the summing-up.
This principle was drawn from R v Taousanis [1999] NSWSC 107 and confirmed in R v Bartle & Ors [2003] NSWCCA 329, where the Court of Criminal Appeal found that a trial judge who declined to provide addresses on the mistaken basis that no power existed had erred in law. The power exists; the question is always whether exercising it is appropriate and practicable on the facts.
Lonergan J acknowledged that several factors commonly cited in favour of providing a summing-up transcript, including a lengthy trial, multiple defendants, or complex charges, were not present here. However, the substantial impairment defence involves genuine intellectual complexity. The summing-up went beyond the earlier written directions and included specific definitions of "abnormality", "substantial", and "impairment" that were directly relevant to the central issue the jury had to determine.
Weighing those considerations, Lonergan J concluded that providing the transcript would give proper assistance to the jury and that doing so was both appropriate and practicable within the meaning of section 55C. The request was granted.
Orders Made
• The jury is to be provided with a transcript of the summing up
Key Takeaways
- A trial judge holds an inherent or implied discretion to provide a jury with a transcript of the summing-up, even though section 55C of the Jury Act 1977 (NSW) refers only to transcripts of evidence. This principle was affirmed in R v Taousanis and R v Bartle & Ors.
- Declining to provide a transcript on the mistaken basis that no power exists is an error of law, as the Court of Criminal Appeal confirmed in R v Bartle & Ors [2003] NSWCCA 329.
- The discretion does not require the presence of conventional justifying factors such as a long trial or multiple defendants. Intellectual or technical complexity in a key legal defence can, of itself, support the exercise of the discretion.
- Where the summing-up contains additional or more detailed directions not reflected in earlier written materials, that distinction strengthens the case for providing the transcript to the jury.
- Under section 55C, the applicable standard is whether providing the transcript is "appropriate and practicable" in the circumstances of the particular trial.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), s 55C
Cases
- R v Bartle & Ors [2003] NSWCCA 329
- R v Sukkar [2005] NSWCCA 54
- R v Taousanis [1999] NSWSC 107