R v Qaumi & Ors (No 66)

On 26 September 2016, on the second day of the summing up, the jury sent a note (MFI 239) in the following terms:

The jury were provided with the transcript of the evidence of the witness and with further copies of the document setting out the elements of the offences. There was no contrversy surrounding those requests. The jury has already been provided with a good deal of transcript. The request for provision of the addresses and summing up created more controversy.

Ultimately, all parties, except Mohammad Zarshoy, supported the supply of the transcripts to the jury. [1] In opposition to providing the transcripts, counsel for Mr Zarshoy submitted:

The reference to the Jury Act is a reference to s 55C which provides:

It will be seen that there is no reference to the jury being provided with transcripts of either counsels’ addresses 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 to the situation in the present trial:

The evidence in the present case was elicited over more than four months and a transcript of well over 5,000 pages has been produced. While the summing up summarised the cases for and against each of the accused and referred to parts of counsel’s addresses, it did not purport to do those addresses any true justice. The addresses provided detailed reference to the evidence, including transcript references. Counsel’s submissions were careful and thorough, and analysed the evidence in a way that the summing up did not. In any event, having requested it in such a long and complicated case, the jury would be better served to review the arguments of the parties as put by their legal representatives, rather than as summarised by the trial Judge.

Like the case of Bartles, the factors in favour of exercising the discretion to provide the transcripts requested by the jury are compelling.

As to the summing up, Senior Counsel for Farhad Qaumi referred me to the case of R v Sukkar [2005] NSWCCA 54 where it was held that, 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:

The present case involves five accused men charged, in various combinations, with 24 offences. The case against each is cast is different ways by the prosectuion and different defences are being conducted by, and on behalf of, the accused. The jury was instructed on a substantial number of legal issues. While the jury has been provided with a number of written directions as a reminder and summary of the summing up, the oral directions were more detailed and tailored to the specifics of the various cases. It included more detailed legal directions and provided examples of the operation of various legal principles. The jury was reminded on a number of occasions that the written directions were meant as an aid and were not a substitute for the summing up itself. The summing up was delivered over four days and generated over 300 pages of transcript. As with the addresses, I have no doubt that the proper exercise of the discretion is to accede to the jury’s request.

For those reasons, on 28 September 2016 (the fourth and final day of the summing up) I advised the jury that transcripts of the summing up and addresses would be provided once they had been checked by counsel and myself for errors. On 4 October 2016, the third full day of deliberations, the transcripts were provided.