R v Perish; R v Lawton; R v Perish [2011] NSWSC 1155

Supreme Court New South Wales

Medium Neutral Citation: R v Perish; R v Lawton; R v Perish [2011] NSWSC 1155 Hearing dates: 14 July 201115 July 2011 Decision date: 18 July 2011 Jurisdiction: Common Law - Criminal Before: Price J Decision: Jury's request to have a copy of "the opening statements of Crown and defence" granted. Catchwords: CRIMINAL LAW - jury trial - whether transcript of Crown's opening address should be supplied to the jury. Legislation Cited: Criminal Procedure Act 1986 Jury Act 1977 Cases Cited: R v Bartle & Ors [2003] NSWCCA 329 R v Taousanis [1999] NSWSC 107; (1999) 146 A Crim R 303 Category: Procedural and other rulings Parties: Crown Anthony John Michael Perish Matthew Robert Lawton Andrew Michael Perish Representation: P A Leask (Crown) C A Davenport SC (Anthony Perish) S Hanley SC (Matthew Lawton) W Terracini SC with J D O'Sullivan (Andrew Perish) Director of Public Prosecutions (Crown) William O'Brien & Ross Hudson Solicitors (Anthony Perish) Matouk Joyner Lawyers (Matthew Lawton) Archbold Legal Solutions (Andrew Perish) File Number(s): 2009/148002 2009/145260 2009/150111

Judgment 1HIS HONOUR: The members of the jury have asked for a copy of the transcript "...of the opening statements of Crown and defence". Counsel for the accused object to the jury's request being met. The Crown, on the other hand, submits that the material requested should be furnished to the jury. 2Section 55C Jury Act 1977 provides: "A copy of all or any part of the transcript of evidence at a trial or inquest may, at the request of the jury, be supplied to the members of the jury if the judge or coroner considers that it is appropriate and practicable to do so." 3It is well established that the court has, apart from the operation of s 55C Jury Act , the discretionary power to make available to the jury a transcript of any part of the record of the proceedings that has been conducted before them. The discretion extends to opening addresses and opening statements: R v Taousanis [1999] NSWSC 107; (1999) 146 A Crim R 303, and to final addresses of the Crown and counsel for the accused: R v Bartle & Ors [2003] NSWCCA 329. 4Ms Davenport SC, in opposing the grant of the jury's request, expressed a concern that the Crown's opening puts the Crown case at its highest. Ms Davenport submitted the jury might use the opening as being the truth of what was said to them. She pointed to the conflict between what was said by Mr Crown in his opening to be the reaction of Andrew Perish when shown the document, Exhibit H, and Mrs Falconer's evidence. Ms Davenport anticipated that there might be other aspects of the evidence, which might fall from a witness in a different way to that upon which the Crown opened. 5Mr Hanley SC submitted that should the jury be provided with a copy of the opening addresses and statements, the jury should be informed of limits imposed by s 159 of the Criminal Procedure Act 1986 upon an opening statement made for an accused. 6I am not persuaded that the jury will misuse the Crown's opening address. Prior to the opening address being delivered, the members of the jury were instructed as follows: "I will now ask Mr Crown to give an outline of the case the Crown anticipates establishing by the evidence. Mr Crown's opening is intended to assist you in understanding the evidence as it is produced. What Mr Crown will say to you is not evidence. It is no more than an outline of what the Crown expects the evidence will establish." 7There is nothing to suggest that the jurors will not accept and conform with these directions. The jury is well aware that the Crown's opening address is merely an outline of what the Crown expects or anticipates the evidence will establish and is not evidence. Should the evidence or part of the evidence fall short of that expectation the jury will have, by the provision of the transcript, an accurate and complete record as to the way in which the Crown's expectation was not fulfilled by the evidence given in the trial. To my mind, this is a consideration that could advantage the accused by the addresses of their counsel that are to come. 8I also agree with the observations of Sperling J in R v Taousanis at 308 [21]: "If the purpose of providing a transcript of evidence is to remind the jury, accurately and in a complete way, of what was said in a part of the proceedings before them - as it is - consistency requires that the record of other parts of the proceedings conducted before the jury should also be provided, at request, for the same purpose." 9The members of the jury would be entitled to be perplexed if their request for the opening addresses and statement is denied whereas other requests are met. 10I consider that it is appropriate and practical to meet the jury's request. 11As to Mr Hanley's concern that the jury should be apprised of the limitations imposed upon defence opening addresses, the members of the jury have been informed that Ms Davenport's and Mr Hanley's openings were intended to assist them in understanding the issues in the trial. I will expand upon this explanation when copies of the transcript are given to the jury.