Citation: R v J Lucas; R v B Lucas (No 6) [2022] NSWSC 1812
Court: Supreme Court of New South Wales
Date: 1 March 2022
Judge(s): Button J
Background
Two accused were the subject of criminal proceedings in the Supreme Court. During the trial, a question arose before the Crown prosecutor commenced his opening address to the jury.
The Crown sought to provide the jury with a documentary timeline, marked as Crown voir dire exhibit G, setting out what the Crown described as "key events." The document included selected text and images drawn from the evidence the Crown intended to adduce.
The defence apparently took issue with the latest iteration of that document, prompting Button J to rule on whether the Crown could provide it to the jury during the opening.
Legal Issues
- Whether the Crown prosecutor may provide the jury with a documentary timeline of asserted key events during an opening address
- Whether the Crown is required to include in such a timeline all events it relies upon, rather than only those it characterises as "key"
- Whether the court has power to control, in these circumstances, how a party conducts its opening
Decision
Button J found nothing objectionable in the latest version of the timeline document. His Honour accepted that the purpose of a Crown opening is to outline the evidence to be called, but noted that selecting which events are "key" involves an element of judgment and advocacy that falls within the Crown prosecutor's discretion.
The court observed that no one was suggesting the jury should be required to take extensive handwritten notes during the opening. All events depicted in the document, including the images, were to be placed before the jury as evidence in due course.
Button J held that the Crown is not obliged to include in a "timeline of key events" any event it does not itself regard as key. That characterisation is a matter for the Crown's discretion. More broadly, his Honour noted that, except in the most extreme cases, the separation of roles between the bench and the bar table means the court does not ordinarily control how parties choose to open or close their cases.
The court also noted that the case centrally concerned posts and particular words used by different persons, including the two accused. On that basis, Button J considered it appropriate that specific words could be characterised and presented as "key" events in the timeline.
Orders Made
No orders were made in this decision. Button J permitted the Crown to provide the document to the jury during the opening, on the basis that the court would make clear to the jury both before and at the time of the opening that the document, like the opening address itself, does not constitute evidence, but represents only the Crown's expectation of what the evidence would show.
Key Takeaways
- A Crown prosecutor's opening address may be accompanied by a documentary timeline of key events, including selected text and images from foreshadowed evidence, where all such material is to be placed before the jury as evidence during the trial.
- The selection of which events to characterise as "key" in such a document is a matter of advocacy and discretion for the Crown prosecutor, not a determination the court imposes.
- The Crown is not required to include in a "timeline of key events" any event it does not itself regard as key.
- Except in the most extreme cases, the principle of separation of roles between bench and bar table means a trial judge will not ordinarily control how a party chooses to conduct its opening or closing address.
- Where such a document is provided to the jury during an opening, the court retains the responsibility to make clear that neither the opening address nor any accompanying document constitutes evidence.
Legislation and Cases Referenced
No legislation or cases were cited in this decision.