Citation: R v J Lucas; R v B Lucas (No 10) [2022] NSWSC 1816
Court: Supreme Court of New South Wales
Date: 31 May 2022
Judge: Button J
Background
This decision arose during deliberations in a lengthy criminal trial involving two accused. During final addresses, counsel for one of the accused (Benjamin Lucas) delivered a hybrid final address, speaking orally while simultaneously displaying a PowerPoint presentation on screen. Counsel did not provide the jury with a copy of the slides, either in paper or digital form, before, during, or after the address.
Once the jury retired and began deliberating, it requested transcripts of all three final addresses. All parties and the judge agreed the transcripts should be provided. The dispute was narrower: how the transcript of the hybrid final address should be supplemented to account for the PowerPoint slides that accompanied the spoken words.
A further complication arose because counsel had not verbally described the contents of the slides during the address itself. This meant the typed transcript of the spoken words did not reflect what was on the screen at any given point, leaving the transcript materially incomplete on its own.
Legal Issues
- Whether the jury should receive, alongside the typed transcript of the hybrid final address, either the paper copy of the PowerPoint slides (MFI 95) or a USB containing the PowerPoint presentation.
- Whether providing the slides in paper or digital form would amount to placing "new" material before the jury during deliberations.
- What directions would be appropriate if the slides were sent into the jury room.
Decision
Button J observed that there is no authority directly addressing this question, which he attributed to the relative novelty of PowerPoint in criminal proceedings and the traditional emphasis on oral delivery in final addresses. The judge also noted that he had himself encouraged counsel to move away from purely oral final addresses, given the length and complexity of the trial.
The court found that the typed transcript of the hybrid final address was genuinely incomplete without the slides. Because counsel had not described the slide contents in words during the address, cross-references to exhibit numbers would not adequately capture what was being communicated at each point. The paper copy of the slides was described as a "pictorial transcript" of what counsel was saying.
Button J accepted that the USB was the best record of the presentation, with the paper copy as the second-best alternative. The court determined that, subject to clear directions, the USB should accompany the typed transcript when delivered to the jury. If the USB proved unworkable for logistical reasons, MFI 95 (the paper copy) should be provided instead.
The court indicated it would give the jury firm directions that neither the USB nor the paper copy constituted evidence, that the material should not be given undue weight, and that it was simply a supplement to the transcript of counsel's final address.
Orders Made
• The jury should receive the paper copy of the PowerPoint presentation (MFI 95) when they receive all three transcripts
• The jury should also receive the USB containing the PowerPoint presentation, provided it is available and logistically workable
• If the USB is not workable, the jury should receive the paper copy of the PowerPoint
• The jury must be strictly directed that the paper copy and/or USB are not evidence, but merely a transcript or supplement to the transcript of Mr Howell's final address
• The jury must be instructed not to give the paper copy or USB undue weight and to bear in mind they are receiving nothing truly new
Key Takeaways
- Where counsel delivers a hybrid final address combining oral submissions with a PowerPoint presentation and does not describe the slide contents in words, the resulting typed transcript is incomplete without the slides.
- A jury that requests final address transcripts is entitled to a complete and accurate record of those addresses; where the address was partly visual, the court held that completeness requires the visual component to accompany the typed transcript.
- Providing the slides does not necessarily amount to placing genuinely new material before the jury, provided the court gives clear directions that the material is a transcript supplement and not evidence.
- The Supreme Court confirmed that the USB recording of the PowerPoint was the preferred format for accuracy and completeness, with the paper copy of slides as an acceptable fallback.
- Where a judge encourages counsel to supplement oral final addresses with visual materials, this can have procedural consequences during deliberations if those materials were not separately provided to the jury at the time of delivery.
Legislation and Cases Referenced
Legislation: None cited.
Cases: No specific cases were cited by name in the judgment, though Button J noted the existence of authorities supporting the proposition that a jury can and should receive final address transcripts upon request.