Citation: R v Nguyen [2021] NSWDC 332
Court: District Court of New South Wales
Date: 11 June 2021
Judge(s): Coleman SC DCJ
Background
The accused stood trial on an indictment containing four counts (including one alternate count and a further statutory alternative). The trial commenced on 3 June 2021 and featured 12 Crown witnesses and two defence witnesses, many of whom gave brief unchallenged evidence. Closing addresses concluded on 9 June 2021, and the trial judge's summing-up spanned the afternoon of 9 June and the morning of 10 June 2021.
After retiring to deliberate, the jury sent a note requesting copies of the transcripts of counsel's closing addresses and the summing-up. The trial judge reconvened the court, informed the parties of the request, and stood the matter over to allow submissions on whether that material should be provided.
Both the Crown and defence were given the opportunity to make submissions. The Crown accepted that authority supported a discretion to provide the material. Defence counsel submitted that the ready availability of the transcripts weighed in favour of providing them, since no delay would result.
Legal Issues
- Whether section 55C of the Jury Act 1977 (NSW) extends to transcripts of closing addresses and the summing-up, or is limited to transcripts of evidence
- Whether the District Court has an inherent or implied discretion to provide the jury, upon request, with transcripts of counsel's closing addresses and the trial judge's summing-up
- How that discretion should be exercised in a trial that was neither lengthy nor complex
Decision
Issue 1: Scope of section 55C
The court observed that section 55C of the Jury Act 1977 (NSW), on its plain terms, confers a discretion to provide "the transcript of evidence at a trial." The provision does not expressly address transcripts of opening or closing addresses, or of the summing-up (at [7]).
Issue 2: Existence of a broader discretion
Independently of section 55C, both the Supreme and District Courts possess a discretion to control their own processes, which extends to providing a jury with transcripts of closing addresses and the summing-up when requested (at [9]). The court drew on Bellew J's review of the authorities in R v Medich (No 24) [2017] NSWSC 293, which confirmed that a fundamental guiding principle is that juries should receive such assistance as is reasonable and appropriate, because those addresses and directions are delivered for the jury's benefit (at [10]).
Issue 3: Exercise of the discretion in this case
The court acknowledged that the cases in which the discretion had previously been exercised involved lengthy and complex trials, unlike the present matter (at [14]-[15]). Nevertheless, it concluded that the absence of length or complexity is not, of itself, a sufficient reason to refuse the material (at [16]). Consistent with the reasoning in Taousanis, there is a strong presumption in favour of providing requested material, and that presumption could not be displaced here because any risk of misuse could be addressed by a suitable warning to the jury (at [17]-[18]). The court noted that the transcript was already available and required no delay to produce (at [5], [19]).
Orders Made
- The jury is to be provided with copies of the transcript of counsel's closing addresses and the trial judge's summing-up.
Key Takeaways
- Section 55C of the Jury Act 1977 (NSW) governs provision of evidence transcripts only; it does not confer or restrict any discretion regarding transcripts of closing addresses or a trial judge's summing-up (at [7]).
- Both the Supreme and District Courts hold an inherent discretion to provide a jury with transcripts of closing addresses and the summing-up upon request, derived from their general power to control proceedings (at [9]).
- The District Court confirmed that the guiding principle, drawn from Medich and Taousanis, is that a jury should receive reasonable and appropriate assistance, creating a strong presumption in favour of providing requested material where any risk of misuse can be cured by a warning (at [10], [17]).
- A trial's relative brevity or lack of complexity does not automatically justify withholding the transcript; the court must assess all circumstances of the particular case (at [16]-[17]).
- Where transcripts are immediately available and a specific jury request has been made after hours of deliberation, the weight of principle favours provision, accompanied by a reminder that addresses and the summing-up do not constitute evidence (at [18]-[19]).
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW) s 55
Cases
- R v Bartle [2003] NSWCCA 329
- R v Medich (No 24) [2017] NSWSC 293
- R v Quami (No 66) [2016] NSWSC 1403
- R v Sukkar [2005] NSWCCA
- R v Taousanis [1999] NSWSC 107
- Williams v R [1982] Tas R 266