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Supreme Court 9 April 2021

R v Al Batat & Ors (No 33)

[2021] NSWSC 340

Public order & justice offences
CRIMINAL LAW NO PROVISION IN JURY ACT DISCRETION TO PROVIDE LONG AND COMPLEX TRIAL CAREFUL AND THOROUGH ADDRESSES

Citation: R v Al Batat & Ors (No 33) [2021] NSWSC 340
Court: Supreme Court of New South Wales
Date: 9 April 2021
Judge: Hamill J

Background

This decision arose during the criminal trial of six accused persons. While deliberating, the jury sent a note requesting transcripts of the Crown Prosecutor's closing address and the closing address of Senior Counsel for one of the accused. The jury's stated purpose was to cross-reference the exhibits and evidence cited in those addresses.

The request prompted extended argument among the seven sets of counsel over the course of two days. Some counsel opposed providing only the two requested addresses, expressing concern that the Crown's submissions would reach the jury without the counterbalance of defence addresses. Others shifted position overnight, and ultimately a broad consensus emerged in favour of providing all counsel's closing addresses.

Hamill J delivered reasons explaining why he exercised his discretion to comply with the request, and why he extended that compliance to all seven closing addresses rather than only the two specifically requested.

  • Whether the trial judge had power or discretion to provide the jury with transcripts of counsel's closing addresses during deliberations, given that the Jury Act 1977 (NSW) expressly provides only for transcripts of evidence.
  • How that discretion should be exercised in the circumstances of this long, complex multi-accused trial.
  • Whether the jury should receive only the two addresses it requested, or all seven closing addresses from every party.

Decision

Section 55C of the Jury Act 1977 (NSW) permits a judge to supply transcripts of evidence to the jury on request, but it is silent on transcripts of counsel's addresses or the judge's summing-up. Hamill J confirmed that, in the absence of any express provision, a trial judge retains a general discretion to comply with jury requests for those documents. This position is well established in the authorities.

In exercising that discretion, Hamill J drew heavily on the Court of Criminal Appeal's reasoning in R v Bartle & Ors [2003] NSWCCA 329. In that case, the court held that it was an error to refuse a jury's request for closing address transcripts in a long and complex multi-accused drug importation trial. The court noted that a trial is not a memory test, and that in lengthy, fragmented proceedings with voluminous evidence and multiple lengthy addresses, providing transcripts was not merely permissible but, in that case, compelled.

Hamill J found the same considerations applied here. The trial was lengthy and complex, involved six accused and seven sets of counsel, and the addresses had been detailed and carefully structured by reference to exhibits and evidence. The jury had articulated a precise and legitimate reason for its request. These factors made compliance appropriate.

On the question of scope, Hamill J decided to provide not only the two requested addresses but all seven closing addresses. He reasoned that fairness and balance required the jury to have access to the submissions advanced on behalf of all accused, not merely those of the Crown and one defendant's counsel. Before providing the transcripts, the judge directed the jury that closing addresses are not evidence, that some mistakes in the addresses had not been corrected, and that the jury should cross-check any factual assertions against the actual evidence.

Orders Made

• The transcripts of the closing addresses of the prosecutor and Ms Rigg were to be provided to the jury, subject to minor amendments

• The transcripts of the closing addresses of the barristers for the other five accused men were also to be provided to the jury

Key Takeaways

  • Under the Jury Act 1977 (NSW), s 55C authorises provision of evidence transcripts to a jury on request, but is silent on counsel's addresses. A trial judge holds a general discretion, confirmed by multiple authorities, to provide those address transcripts when asked.
  • The Court of Criminal Appeal's decision in R v Bartle & Ors [2003] NSWCCA 329 establishes that in long, complex, multi-accused trials, reasons for complying with a jury's request for address transcripts will often be cogent and may be compelling. Refusing such a request on an incorrect understanding of the judge's powers can constitute a miscarriage of justice.
  • Hamill J confirmed the principle that a criminal trial is not a memory test for the jury, and that jurors deliberating on voluminous, complex material are entitled to tools that help them accurately recall what was put to them.
  • Where a jury requests transcripts of only some counsel's addresses, considerations of fairness and balance may support extending provision to all parties' addresses, so that submissions on one side are not considered in isolation.
  • Before providing address transcripts, appropriate directions should be given: that the addresses are not evidence, that errors may not have been corrected, and that factual assertions in the addresses should be checked against the evidence actually admitted at trial.

Legislation and Cases Referenced

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

Cases:
- R v Bartle & Ors (2003) 181 FLR 1; [2003] NSWCCA 329
- R v Qaumi & Ors (No 66) [2016] NSWSC 1403
- R v Taousanis [1999] NSWSC 107; 146 A Crim R 303
- Regina v Sukkar [2005] NSWCCA 54