R v Cranston (No 12)

PAYNE JA: On 26 April 2022, the accused Adam Michael Cranston, Lauren Anne Cranston, Dev Menon, Jason Cornell Onley and Patrick John Willmott pleaded not guilty to the following two counts in an indictment presented on that day:

A jury of 15 were empanelled and on the afternoon of 26 April the Crown’s opening address commenced. There was an adjournment of some days by reason of juror illness. On the afternoon of 3 May 2022, the jury provided a note (jury note #5), which said:

Counsel for each of the accused opposed the jury being given the transcript of the opening. On 5 May 2022, I determined that the jury should be provided with a copy of the transcripts of all opening addresses, marked “submission, not evidence”. On 6 May 2022 a copy of the openings marked “submission, not evidence” was given to the jury together with further instructions. These are my reasons for providing the jury with the transcript of the opening addresses in accordance with their request.

It eventually became common ground that I had implied or inherent power to give the jury a transcript of the opening addresses: R v Taousanis [1999] NSWSC 107; (1999) 146 A Crim R 303; R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1 at [661]-[662]; R v Sukkar [2005] NSWCCA 54 at [82]-[84]; R v Perish; R v Lawton; R v Perish [2011] NSWSC 1155; Parhizkar v R (2014) 88 NSWLR 647; [2014] NSWCCA 240 at [60]; R v BB (No 5) [2019] NSWSC 1393.

The issue in this case was whether I should exercise my discretion to grant the jury’s request to be provided with a copy of the transcript of the opening addresses.

Mr Anderson SC, who made submissions adopted by all accused, identified the principal basis of the opposition to providing the transcript in the “sharp imbalance” between the parties at this point in the trial. Mr Anderson drew attention to s 159(2) of the Criminal Procedure Act 1986 (NSW), the effect of which is to limit the matters that a defence opening address may raise. Mr Anderson contrasted this restraint with the Crown opening, which he submitted was extraordinary in its detailed reference to evidence expected to be led at the trial. It was submitted that an unfairness to the accused would be occasioned by permitting the jury to use the transcript of the Crown opening as a “constant reference for the next six months” in circumstances where defence counsel had not been entitled to set out their case in an equivalent level of detail.

Mr Brasch, appearing for Mr Willmott, emphasised the potential unfairness in the jury having recourse to a Crown opening which refers to the evidence that the Crown anticipates will be given, but which ultimately may not be given. He submitted that providing the transcript generated a risk that the jury might revert to it as the evidence in the trial, notwithstanding that the evidence actually given may be substantially altered under cross-examination or fail to meet the Crown’s burden of proof. Mr Brasch further submitted that, given the detail with which the Crown’s opening referred to the evidence of some witnesses, providing the jury with a transcript of the opening would be akin to providing a copy of witness statements.

Both contended, in the alternative, that the defence openings should be provided at the same time as the Crown opening and warnings given as to the use which may properly made of it.

The Crown submitted that the transcript of all openings should be made available to the jury and highlighted the length and complexity of the trial and the fact that the transcript had been specifically requested by the jury as reasons favouring the exercise of the discretion.

In considering whether to exercise my discretion to provide the transcript of the openings I proceed on the basis that the jury will follow my legal directions: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13] (Gleeson CJ and Gummow J). The jury were given directions by me about the role of the openings before the openings commenced, again during the Crown opening, again at the outset of the defence openings, and were given even more specific directions at the time the transcript of the openings was provided to them. I said:

Jury trials, which are recognised in and mandated by s 80 of the Constitution in federal law, are predicated on the jury following judicial directions of law. In exercising my discretion, I proceeded on the basis that the jury will follow those directions.

I was persuaded that this is a case where it is appropriate that the jury be provided the transcript of the Crown and defence opening addresses. This, of course, was subject to redaction of relevant portions of the transcript, and the directions I have set out above about the use which may properly be made of the transcripts.

As to Mr Anderson’s principal point, that providing the transcript would unfairly highlight the “sharp imbalance” between the parties at this point in the trial, I agree with Sperling J in Taousanis at [19] that to provide the transcript to the jury in response to their request would be to “do no more than the jury are entitled to provide for themselves”. Jurors may take notes of the opening. I observed several members of the jury apparently taking very detailed notes during the opening addresses. The present jury are obviously very interested in understanding what it is they were being told in the openings; the request for the transcript demonstrates that interest.

Accepting for present purposes that the effect of s 159 of the Criminal Procedure Act is to create a “sharp imbalance” between the parties at this point in the trial, that is the effect of the statute. If I were to deny the jury’s request for the transcript it was not suggested that I could or should direct the jury that they were not to have regard to their notes of what was said by any party in opening. The jury would, in those circumstances, have regard to their own notes. I do not suggest that they would do so for any impermissible purpose. The jury are, however, entitled to have regard to the openings to understand how the Crown and each of the accused submit they should approach the issues. In a lengthy and potentially complex trial, that is a perfectly understandable approach by the jury to the diligent discharge of their duties. It is far preferable in those circumstances to give the jury an accurate and complete record of what was said in opening rather than have the jury rely on what may be imperfectly recorded notes. I agree with Sperling J in Taousanis at [18] that what has been said by the Crown in opening address is said for a purpose. If the jury wish to be reminded of what was said, that will facilitate the purpose for which it was said in the first place. That is a strong reason for making the transcript available if the jury requests it.

I do not regard the fact that a transcript of the Crown opening has been made available gives rise to the risk that the jury will use the opening for any impermissible purpose. To the extent that there is any risk that the transcript as a formal typed record of the opening address may be given a greater status than it warrants or that it may otherwise be misused, that risk is sufficiently ameliorated by judicial directions, which I gave and repeated as set out at [10] above.

I do not accept Mr Brasch’s submission that there is any relevant unfairness in this case by reason of the Crown opening referring to the evidence that the Crown anticipates will be given, but which ultimately may not be given. The jury have been directed 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. In any event, I agree with Price J in Perish (at [7]) that:

I reject Mr Brasch’s submission that providing a transcript of the Crown’s opening is equivalent to providing a copy of witness statements. The Crown’s opening did not mention the existence of witness statements and did not purport to encompass material which may be understood to comprise a witness statement.

The context in which this request was made by the jury is also important. This a trial estimated to last for 6 months. There are numerous issues the jury is being asked to address. The evidence is already and will be voluminous. The Crown’s opening was a lengthy one. The jury were entitled to have regard to it. That being the case, and a request having been made, I determined that in the exercise of my undoubted discretion the transcript of the openings clearly marked “submission, not evidence” should be provided to the jury with the directions I have set out at [10] above.