R v Cranston (No 24)

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:

A jury of 15 were empanelled. There is now a jury of 12. As I informed the jury panel at the start, the trial was originally estimated to last between five and six months. It has now lasted almost nine months. That has been for a variety of reasons, including COVID-19 delays and some very lengthy examinations in chief and cross examinations of key Crown witnesses.

Addresses by counsel commenced on 30 November 2022 and were completed immediately prior to Christmas Eve 2022. My summing up took place over 5 days, 10, 12, 16, 17 and 18 January 2023 (as the jury were unable to sit for a variety of reasons on 9, 11, and 13 January). The jury were given final directions and invited to retire and consider their verdicts on the morning of 18 January 2023 (the 141st day of the trial).

On the afternoon of 18 January 2023, a note was received from the jury:

In the first instance I was persuaded by Mr Stratton SC to enquire of the jury if there was any part of the summing up they did not understand and would like me to repeat. I asked the jury the following question:

The jury provided the following note in response:

It eventually became common ground that I had implied or inherent power to give the jury a transcript of the summing up: R v Taousanis (1999) 146 A Crim R 303; [1999] NSWSC 107; R v Bartle (2003) 181 FLR 1; [2003] NSWCCA 329 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 Medich (No 24) [2017] NSWSC 293; R v Rogers (No 8) [2019] NSWSC 690; R v BB (No 5) [2019] NSWSC 1393.

The Crown submitted that the transcript of the summing up 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.

After initially submitting that I should first ask the question of the jury at [5] above, and receiving the jury’s answer at [6] above, counsel for four of the accused did not oppose the Crown’s application that a copy of my summing up be provided to the jury.

Mr Anderson SC opposed my giving the summing up to the jury but advanced no submission in support of that opposition. Mr Anderson did not suggest any prejudice to Ms Cranston in my providing a transcript of the summing up to the jury.

In considering whether to exercise my discretion to provide the transcript of the summing up 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 have been given directions by me about the role of the summing up, which I will repeat:

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 summing up. 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 summing up.

To give effect to relevant redactions and to ensure as far as possible the accuracy of the transcript of the summing up I circulated a draft of the summing up, as initially corrected by me, to the parties in the late morning of 19 January 2023. I record my gratitude that all parties considered that draft and made generally helpful suggestions for corrections. The Crown’s suggested corrections were so lengthy that I determined to consider them after court hours on 19 January and accepted perhaps two thirds of them. I again circulated the draft summing up on the evening of 19 January. I received a few additional suggested changes to the summing up from Mr Bruckner, which I made. I distributed the final version of the summing up to the jury on the morning of 20 January 2023: MFI 142.

The context in which this request was made by the jury is important. This a trial which had been going for almost 9 months. There are numerous issues the jury is being asked to address. The evidence was voluminous. The addresses were lengthy and took place before Christmas 2022. My summing up was delivered over 5 days in January 2023 and was punctuated by unavoidable breaks. That being the case, and a jury request having been made, I determined that in the exercise of my undoubted discretion the transcript of the summing up should be provided to the jury. My principal reasons for permitting the distribution of a transcript of the summing up are:

I agree with Sperling J in Taousanis at [19] that to provide the transcript of the summing up to the jury in response to their request would be to “do no more than the jury are entitled to provide for themselves”. I observed several members of the jury apparently taking very detailed notes during the summing up. The present jury are obviously very interested in understanding what it is they were being told in the summing up. 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 in the summing up. The jury would, in those circumstances, have regard to their own notes. It was not suggested that they would do so for any impermissible purpose. In a lengthy and complex trial, as this undoubtedly is, 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 my summing up rather than have the jury rely on what may be imperfectly recorded notes.