Seo v R [2025] NSWCCA 131

Seo v R [2025] NSWCCA 131 · Read the judgment on AustLII

Catchwords: Trial procedure – Jury transcripts

In this decision, the Court of Criminal Appeal has held that the process of providing a jury the transcript in a trial must be attended with a degree of formality, including involving the Court itself in the process.

The applicant faced a jury trial in the District Court for sexual assault offences. The jury retired to deliberate. The jury eventually provided two jury notes which included observations about the trial transcript that they had been provided. Relevantly, the notes observed that the transcript contained discussions between the trial judge and trial counsel that had occurred in the absence of the jury. The jury asked whether they should have received that material. No application was made by either party for a discharge of the jury. The trial judge directed the jury the relevant transcript was given to them by mistake, and directed them to put it out of their minds. However, relevantly, some of the material in the jury’s absence discussed charges for which the accused had been found not guilty at an earlier trial. Following his conviction the applicant appealed on grounds including that this and other jury irregularities (not discussed in this summary) led to a miscarriage of justice.

The Court (Price AJA, Cavanagh and Yehia JJ agreeing) observed that it was unfortunate that the checking of the transcript had been conducted informally, resulting in unfairly prejudicial portions of the transcript being given to the jury.

Where a trial judge accedes to a jury’s request for a transcript, the Crown and the accused’s counsel, together with their instructing solicitors, must assiduously ensure that material which occurred in the absence of the jury is removed. The Court should be reconvened in the absence of the jury to enable counsel to take the trial judge through those parts of the transcript which have been removed and should not be before the jury. This degree of formality ensures that an accused’s right to fair trial is not put at risk (at [66]). In the particular circumstances of this case, there should also have been a direction that the jury give full effect to the acquittal; a miscarriage of justice was established and the appeal was allowed (at [72]-[79]).

Practitioner might immediately wonder about the practicality of this formal exercise being carried out at the conclusion of a lengthy trial on the scale of weeks or months. It seems very likely that the result will be a shift to daily or weekly removal rituals, along with errata. It also seems likely that the formal notification to the judge of removed portions, in a lengthy trial, will need to be carried out in some kind of documentary form. All this, and the transcript can only be provided if the jury actually requests it, potentially rendering it wasted effort; the burden of trial practice continues to rise.