R v Ambrosius (No 2)

[2017] NSWSC 1846

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Ambrosius (No 2) [2017] NSWSC 1846
Hearing dates:	6-10, 13-17, 20-24 November 2017
Date of orders:	21 November 2017
Decision date:	21 November 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	It is not appropriate for the transcript of closing addresses of counsel to be supplied to the jury.
Catchwords:	EVIDENCE – Transcript of evidence – Consideration of “transcript of evidence” in s 55C Jury Act 1977 – Whether “evidence” extends to closing addresses of counsel – R v Sukkar [2005] NSWCCA 54 applied – Held that not appropriate to supply transcript of closing addresses to jury
Legislation Cited:	Jury Act 1977 (NSW)
Cases Cited:	R v Bartle [2003] NSWCCA 329 R v Sukkar [2005] NSWCCA 54 R v Taousanis [1999] NSWSC 107
Category:	Procedural rulings
Parties:	Regina (Crown) Mr Rodney Rees Ambrosius (Accused)
Representation:	Counsel: P Rosser QC (Crown Prosecutor) P Young SC (Public Defender)   Solicitors: Director of Public Prosecutions (Crown) Legal Aid (Accused)
File Number(s):	2016/0075590
Publication restriction:	Publication restriction lifted

EX TEMPORE Judgment (REVISED)

1. I am in Port Macquarie for the trial of Mr Rodney Rees Ambrosius, now in its third week. A jury was empanelled on 8 November 2017 and evidence in the Crown case commenced the following day. The jury retired to consider its verdict on the afternoon of 16 November 2017 and is now in its fourth day of deliberations.

2. Having reflected on a matter this morning and raised it with counsel in chambers before coming in to Court, I have reached the view that I misdirected the jury as to a question of law yesterday.

3. The jury, by a note (marked Jury Note No 8), requested copies of the transcript of counsels' addresses. I took the view, which I thought at the time was an uncontroversial view and one that I was presumptuous enough to think that counsel would share, that the transcript of counsels' closing addresses was not covered by the provisions of s 55C Jury Act 1977 (NSW).

4. I have, however, in the course of researching other matters this morning in chambers, come across the decision of R v Sukkar [2005] NSWCCA 54 where at [83] – [84] Wood CJ at CL referred to various authorities and said, “in an appropriate case, where requested, the trial judge could properly provide the jury with a copy of a transcript of the summing up or arrange for it to be replayed to them”. That was the issue in that case.

5. In coming to that conclusion, his Honour had referred, with approval, to a decision at first instance of Sperling J in R v Taousanis [1999] NSWSC 107 where that learned judge had said that a judge had a discretionary power to make available to a jury a copy of the transcript of any part of the record of the proceedings conducted in their presence including a transcript of Crown and defence opening addresses.

6. Wood CJ at CL also referred to R v Bartle [2003] NSWCCA 329, where it was held to be an error of law for the trial judge to have failed to comply with the jury's request for a copy of the transcript of the closing address of two of the defence counsel.

7. I must say, I had always thought the word "evidence" in s 55C meant evidence, and juries are instructed every day of the week that they shouldn't confuse counsels' addresses for the evidence in the trial, suggesting there is a distinction between the two.

8. However, given that two of those three decisions I've referred to are decisions of the Court of Criminal Appeal, I am obviously bound by the expression of view that evidence in s 55C extends to a transcript of counsels' addresses, whether by way of opening or closing.

9. Having corrected my error and redirected myself in accordance with the law about which I am now better informed, I direct myself that a question in a given case whether the transcripts should be made available is a discretionary matter for the judge. It is a question of whether the judge thinks it appropriate.

10. When directing the jury, erroneously, yesterday that I was precluded by law from giving it to them, I also made some observations and directions about, in any event, the use which might be made of those addresses.

11. I informed the jury that if there was a particular issue arising out of counsels' arguments of which they wished to be reminded, after consultation with counsel I would remind them of that matter in a balanced way, including reminding them of what the Crown said, what the defence said, and what I might have said about it in my summing up.

12. Having invited the jury to direct a specific question, or questions, to me about the content of counsels' addresses, I record that I have not received any such question during the course of today and the jury have been deliberating today since half past nine. The only question I have received from the jury today related to the elements of manslaughter by unlawful and dangerous act.

13. There are other reasons why I think it inappropriate to make the transcripts of addresses available to the jury in this case. Those reasons are that the jury have been out since 2.35pm on Thursday and, allowing for the conventional early rising each Friday, they had at the time the request was made, at about 3.30pm yesterday, been deliberating for about eight hours.

14. The issues in the case are not very complex, although there are a number of them given that this is a case involving murder with an alternative of manslaughter on three possible different bases; however, the facts are not complex, they are within, as it is put, a narrow compass, with the substantial issue of disputed fact being whether a voluntary act of the accused caused the deceased to fall from the balcony. And if so, what his intention was at the time that act was performed. These are of course essential questions going to the elements of murder. But as I have said, they are not complex.

15. The case of R v Bartle, where it was decided it was an error in the circumstances for the judge not to make the addresses of two defence counsel available to the jury, involved a relatively long trial. This trial all up, from empanelment to retirement, took less than a week. In Bartle the exculpatory arguments of defence counsel on behalf of a particular accused involved a very intricate examination of complex facts. In my judgment, this case is quite unlike that.

16. Although the Crown case in relation to the actus reus of the alleged offence depends upon certain circumstantial evidence, that circumstantial evidence was clearly set out in the Crown's address and was fully summarised by me in my summing up, as was the reply of Mr Young SC to those propositions.

17. I repeat that despite an invitation, no question has been raised about that aspect of the addresses or any other aspect of the addresses.

18. I feel at the stage which the deliberations have reached it is not appropriate to introduce that material into the jury room. I decline to exercise my discretion in that regard; I decline to exercise my discretion to make that transcript available.

19. For the reasons I've given, although I did make that legal error, I gave substantial reasons as to why I was against the idea of the jury having the transcript, which are the reasons I have given today for exercising my discretion to deny them access to the transcript of counsels' arguments

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Amendments

30 May 2024 - Publication Restriction lifted due to completion of legal process