R v Rogerson; R v McNamara (No 46)

Earlier today I received a note from the foreperson of the jury (MFI 168) in the following terms:

I have had the opportunity of discussing that request with counsel. The Crown, generally speaking supported the request being met.

Mr Wendler and Mr Thomas, counsel for McNamara and Rogerson respectively, opposed it. The basis of that opposition essentially was that provision of the transcript to the members of the jury at this stage may have the capacity to cause them to be less attentive to the evidence as it is being given, in the knowledge that they would have the transcript anyway.

The Crown, whilst maintaining his support for the request, appeared to acknowledge the force of the position put on behalf of each of the accused.

Section 55C of the Jury Act 1977 (NSW) confers a discretion on the Court to provide a copy of all, or part, of the trial transcript. If I conclude that it is appropriate to do so, I am provide other transcript as well: R v Lowe (1997) 98 A Crim R 300. As far as the latter issue is concerned, it seems to me that if the transcript of McNamara’s evidence were to be provided, the position would have to be the same in the case of a transcript of any evidence given by Rogerson.

In my view, there is some force in the submissions made by Mr Wendler and Mr Thomas as to the propensity for the jury to be distracted in the event that the transcript was provided at this stage.

Accordingly, I propose to tell the jury that in accordance with my general practice the transcript will not be provided at this stage, but that when their deliberations commence they will be at liberty to request provision of such part(s) of the transcript as they wish and that, all things being equal, any such request(s) will be met at that time.