Ground 2: "That His Honour's summing up to the jury was unbalanced in that it failed to give sufficient weight to the discrepancies between the evidence of each of the two complainants, particularly as to the issue of consent of the complainants or either of them in relation to certain conduct of the appellant"
- The applicant's submissions in support of this ground are brief. They complain of a lack of balance in the summing up because of the trial judge's "failure" to "give sufficient weight" to the inconsistencies between the evidence of the two complainants about matters common to the testimony of each. The only example of this imbalance selected by the applicant to highlight in submissions concerns the kiss between the applicant and Ms V that is summarised in brief at [16].
- It is not clear to me what is meant by the applicant in contending that the trial judge did not give "sufficient weight" to evidence given by each of the two complainants that was or may have been perceived to be inconsistent with that of the other. Of itself, the ground suggests that at least some reference was made in the course of the summing up to asserted inconsistencies in the evidence. How his Honour was to "give weight" to the evidence is not articulated.
- It must firstly be noted that there is no obligation on a trial judge to slavishly summarise all of the evidence given at trial. Section 161 of the Criminal Procedure Act 1986 (NSW) relieves a trial judge of that burden "if of the opinion that, in all the circumstances of the trial, a summary is not necessary".
- The trial judge made it plain to the parties and to the jury that he did not intend to summarise all of the evidence, but would touch upon aspects of it in giving directions of law, and in referring to the closing addresses for the Crown and the applicant. He told the jury that a transcript of the evidence could be provided, and the jury in fact asked for, and was supplied with, the transcript. Arguably, the provision of the transcript is a more efficient means of reminding the jury of the testimony of individual witnesses than is an oral summary. The former is complete, ordinarily entirely accurate, and it does not weary the jury with the weight of the spoken word. It provides a ready resource in the jury room to which the jurors can return, and from which they can extract those aspects of the oral evidence that is of most relevance to their deliberations.
- This was a relatively short trial. The issues were narrow and the addresses from the parties had highlighted the evidence most salient to the respective cases. There was no need for the trial judge to detain the jury as he went through the evidence at length.
- That there was no obligation on his Honour to "give weight" to one aspect of the evidence over another should not need to be stated. It is not the role of the trial judge to advocate for either party. Even in an era when the transcript of a trial judge's summing up may be pored over in search of error through which to impugn a jury's verdict, it is not permitted for a trial judge to argue an accused person's case for him or her.
- In summing up to a jury, the role of a trial judge is to provide the jury with the legal principles necessary to determine the issues to be decided, referring to the evidence where necessary to explain those principles in the context of the trial. Further, the trial judge must put the respective cases for the Crown and the accused fairly and accurately: Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 (at 561). That need not be done at length, or by repeating every argument made by counsel, and referring to every piece of evidence to which counsel drew the jury's attention.
- As any trial lawyer will appreciate, it can be an arduous task for jurors to sit confined in the jury box, often for what might seem like endless hours, listening to first addresses and then the trial judge's summing up. Lest the jury be wearied beyond the capacity of concentration, it is generally sensible for the summing up to be as concise as is possible. As Wood J (as he then was) observed in R v Williams (Court of Criminal Appeal (NSW), 10 October 1990, unrep):
"Simple and concise summing up which leave the jury in a position to come to a verdict upon a proper basis should be the aim. Two things should not be overlooked. The first is that by the time of the summing up the jury has had the benefit of addresses from the Crown and Counsel for the accused which can be assumed to have focused on the factual issues, and advanced reasons for the jury concluding that the guilt of the accused either has or has not been proved beyond reasonable doubt. The second is that jurors are expected to apply their common sense and experience of life in assessing the evidence and deciding the factual issues. It should therefore not be necessary, certainly in routine cases, for there to be extensive reference to the evidence or the arguments advanced by Counsel. Nor should there be any need to emphasise the obvious or to underline what really are matters of common sense. The aim of Judges should be to identify and summarise simply and concisely for the jury the issues which arise in the trial, the legal principles to be applied to those and no other issues, and the relevant evidence, so as to ensure that the jurors direct their minds to the true questions to be decided before a verdict is reached."
- In this case, the trial judge discharged his obligation. In doing so, he did not omit reference to the inconsistencies in some aspects of the evidence of the two complainants; indeed, on one view, his Honour took some trouble to refer the jury to those matters which were relevant to its assessment of the reliability of the two complainants. Specific reference was made to the kiss involving the applicant and Ms V which prompted Ms Y to ask Ms V if she, or it, "was okay". His Honour noted the differing versions of that event given by the witnesses, concluding with a summary comment:
"[…] it is important that the clear evidence of [Ms V] was that she did not say that it was okay in the way that [Ms Y] said she did." (Tcpt, 2 April 2019, p 19)
- The following day, on 3 April 2019, his Honour returned to that subject, in referring to the case relevant to count 2. He again pointed out the inconsistency between the evidence of the complainants, and specifically highlighted the submissions of the applicant's counsel on that point.
- Reference was also made to inconsistencies between the testimony of Ms Y and Ms V as to chronology, with the trial judge noting that the differences were sufficiently marked that "it is difficult to strictly compare them". His Honour also pointed out other inconsistencies, such as differences between what each woman had said about other acts of kissing between Ms V and the applicant.
- As to the arguments of the parties, the trial judge gave a comprehensive summary immediately before asking the jury to retire to consider its verdicts, in which he reminded the jury of the applicant's case, and of his contention that the accounts given by each complainant of the evening in question were so different as to point conclusively to the unreliability of each. His Honour pointed to some of the evidence that had been highlighted by the applicant in that regard.
- Considering the whole of the summing up, I do not conclude other than that his Honour put the applicant's case fully and fairly. There was no lack of balance of which the applicant can legitimately complain.
- It is reasonable to conclude that this was also the view of the applicant's counsel at trial, since there was no application to the trial judge for anything further to be said to the jury on the subject. Rule 4 applies; I would not grant leave to the applicant to advance this ground.