R v Newson (No 3) [2021] NSWSC 1166

Supreme Court New South Wales

Medium Neutral Citation: R v Newson (No 3) [2021] NSWSC 1166 Hearing dates: 17 June 2021 Date of orders: 17 June 2021 Decision date: 17 June 2021 Jurisdiction: Common Law Before: Ierace J Decision: Application by defence refused. Catchwords: CRIMINAL PROCEDURE – Trial – Directions to jury – Application by accused for jury to be reminded of directions concerning proof and circumstantial evidence – Where jury in deliberations for 25 hours over seven days – Where substantial volume of material adduced at trial Category: Procedural rulings Parties: Regina Sayle Kenneth Newson (Accused) Representation: Counsel: L Carr SC (Crown) C Watson (Accused)

Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Ramsland Laidler Solicitors (Accused) File Number(s): 2017/183274

JUDGMENT 1. HIS HONOUR: The defence has submitted that it is appropriate for the jury to be reminded of directions which they received on 7 and 8 June 2021 as to the onus and standard of proof, as well as in relation to circumstantial evidence. 2. The application is made on the basis that the jury have been deliberating for 25 hours over a period of seven days. The jury retired to deliberate on 8 June 2021, being eight weeks and two days since the trial commenced on 29 March 2021, making an allowance for a two week period in which counsel for the defence prepared for the trial following the necessary retirement of Mr Massey, who originally appeared for the accused. 3. Counsel for the defence submitted that it is a matter of concern that the Court has not heard from the jury at all since they retired and, in light of the period of time that has passed without any indication from them and having regard to the complexity of the evidence, it would be appropriate that their understanding of the fundamental concepts of the onus and standard of proof and how they approach the circumstantial nature of the evidence effectively be refreshed. 4. The application is opposed by the Crown on the basis that the jury has demonstrably been attentive to the evidence and to the directions that they have received throughout the course of the trial. The Crown submitted that, having regard to the value of the evidence and, as I understand it, the circumstantial nature of the case, it is unsurprising that the jury would not yet have reached a conclusion. 5. The Crown notes that there have been 61 witnesses called, 100 exhibits tendered by the prosecution and 10 by the defence, and 23 jury notes over the course of the trial. Taking into account all of those circumstances, the Crown submitted that the period for which the jury has thus far been deliberating, which totals some 25 hours and 44 minutes as of the beginning of the hearing of this application, is not a period of time that would cause any concern. 6. Having considered the submissions of both parties, I am inclined to the view of the Crown. Having regard to the volume of material and the two-day view, it is indeed unsurprising that the jury have not yet arrived at their unanimous verdict. It is appropriate, in my view, that the jury be left undisturbed unless and until they indicate that they require some assistance or that they have reached a point where they feel they cannot achieve unanimity. 7. As I have indicated on an earlier occasion when this issue was first raised on Tuesday of this week, being 15 May 2021, the impression I have of the jury is that they are very capable and attentive and that inspires in me a degree of confidence that if they need assistance they will not hesitate to seek it. 8. For all of these reasons, I refuse the application.