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Supreme Court 2 April 2020

R v WE (No.17)

[2020] NSWSC 342

Public order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE JURIES SELF REPRESENTED ACCUSED WHETHER REQUEST SHOULD BE MET

Citation: R v WE (No.17) [2020] NSWSC 342
Court: Supreme Court of NSW
Date: 2 April 2020
Judge: Bellew J

Background

This decision arose during an extended criminal trial in which the accused had elected to represent himself after withdrawing instructions from his solicitor and senior counsel. By the fourth day of jury deliberations, the jury had already received the vast majority of the trial transcript (which ran to more than 1,650 pages from a trial exceeding six weeks). The jury then sent a note requesting transcripts of the closing addresses of both the Crown and the accused.

The Crown supported providing both transcripts to the jury, subject to one qualification: the accused's address should be edited to remove passages that were inflammatory, scandalous, or unsupported by the evidence, and which had required the trial judge to intervene during the address itself.

The accused opposed any redaction, arguing that removing portions of his address amounted to a "double standard" because the Crown's address was not being edited in the same way.

  • Whether the court should exercise its discretion to provide the jury with transcripts of the closing addresses of both the Crown and the accused
  • Whether, if provided, the accused's address should be redacted to remove passages that were inflammatory, scandalous, or not supported by the evidence
  • Whether any difference in treatment between the Crown's address and the accused's address constituted an unfair double standard

Decision

Bellew J identified that section 55C of the Jury Act 1977 (NSW), which confers a discretionary power to provide transcripts of evidence, did not directly apply to closing addresses. However, his Honour accepted that the court's inherent powers extend to a discretionary power to provide transcripts of addresses and summing-ups. The guiding principle, drawn from earlier authority, is that a jury should be provided with such assistance as is reasonable and appropriate.

Given the length and complexity of the trial, the volume of the transcript already provided to the jury, and the limited utility of simply repeating the summaries already given in the summing-up, his Honour exercised the discretion in favour of providing both transcripts.

On the question of redaction, Bellew J rejected the accused's "double standard" argument. The reason the Crown's address required no editing was straightforward: the Crown had not made objectionable submissions of the kind that had required judicial intervention. There was one matter in the Crown's address that was ultimately withdrawn, but no passage equivalent to those in the accused's address that necessitated removal. Providing the jury with the unedited accused's address would have the effect of reminding jurors of matters they should never have heard in the first place.

His Honour reviewed the transcript and compared proposed redactions with those independently identified by the Crown, accepting the Crown's proposals with one additional redaction identified by the judge himself. Bellew J also indicated that when providing the material to the jury, he would remind them that addresses are not evidence, that further questions remained open, and that any redacted passages should not give rise to any adverse inference against the accused.

Orders Made

• Certain passages from the accused's address to be redacted from the transcript provided to the jury
• Redactions to include passages from "like the search" to "for hours" plus passages identified by the Crown (with minor modifications)
• Redacted transcript to be marked for identification
• Jury to be reminded that addresses are not evidence, that they may ask questions for further assistance, and that they should not draw any adverse inference from the redactions

Key Takeaways

  • The Supreme Court confirmed that, while section 55C of the Jury Act 1977 (NSW) applies only to transcripts of evidence, a court's inherent powers extend to providing transcripts of closing addresses and summing-ups to a jury upon request.
  • The fundamental principle governing the exercise of that discretion is that a jury should receive such assistance as is reasonable and appropriate in the circumstances of the particular trial.
  • A self-represented accused does not acquire any immunity from having objectionable portions of their address removed before the transcript is provided to the jury. The relevant question is whether the content of the address was appropriate, not the identity or status of the person who delivered it.
  • Differential treatment of the Crown's and the accused's transcripts does not constitute a "double standard" where the difference in treatment directly reflects a difference in the conduct of the respective addresses.
  • Where a jury receives a redacted transcript of an accused's address, the trial judge should direct the jury not to draw any adverse inference against the accused from the fact of the redaction.

Legislation and Cases Referenced

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

Cases:
- Parhizkar v R (2014) 88 NSWLR 647; [2014] NSWCCA 240
- R v Ronald Edward Medich (No 24) [2017] NSWSC 293