R v Rogers (No 8)

On 22 May 2019 just after completion of the summing up, the jury sent a note (MFI 27) in the following terms:

The jury were provided at their request with the transcript of the evidence of the expert psychiatrists, Dr Martin and Dr Allnutt and expert psychologist Dr Hepner. They have also been given copies of documents setting out the elements of the offence of murder and the elements of the substantial impairment defence early in the trial. Also, on 21 May the jury requested and was provided with a transcript of counsels’ addresses.

The Jury Act 1977 (NSW) states:

It will be seen that there is no reference to the jury being provided with transcripts of either counsels’ address or the summing up. However, it has been held that a trial Judge has a discretion to comply with a request from the jury such as this.

In R v Bartle & Ors [2003] NSWCCA 329, the Court considered a case in which a trial judge had refused a request for a transcript of two of the addresses made by counsel in a multiple accused trial. The following extract from the judgment is relevant:

Whilst the evidence in the present case was succinct and was led or tendered over the space of only nine hearing days, the partial impairment defence is technical. Counsels’ addresses provided assistance to the jury on the evidence directed to this issue. The summing up contained some specific additional matters salient to the legal test of substantial impairment, including definitions of “abnormality”, “substantial” and “impairment”.

The Crown correctly pointed out that it was a discretionary matter, but the discretionary factors relied upon in other cases to provide the transcript of the summing up do not apply here, for example, long trial, multiple or complex charges, multiple defendants.

It was held in R v Sukkar [2005] NSWCCA 54, upon request in an appropriate case, a trial judge may provide the jury with a copy of a transcript of the summing up (or, as happened in that case, arrange for an audio recording to be played). Wood CJ at CL (with whom Hidden J and Smart AJ agreed) said:

While the jury has been provided with written directions as a reminder of the elements of murder and the substantial impairment defence, the oral directions I gave in the summing up were more detailed, and included a reference to definitions to assist, which the written direction and earlier oral direction did not.

There is intellectual complexity associated with the substantial impairment defence and the lay and expert evidence led to support and to raise doubt about it. If the jury take the view that a transcript of the summing up will assist, I am of the view that that assistance should be given, and I consider it to be, within the terms of s 55C of the Jury Act, appropriate and practicable to do so in this case.