Domican v The Queen

Domican v The Queen - [1992] HCA 13 - HCA 1985 case summary — Zoe

[13]

In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence [4] , and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. Section 405AA of the Crimes Act 1900 N.S.W., which came into force after the trial of the appellant, provides that a judge of the Supreme or District Court need not summarize "the evidence given in the trial" if he or she is of the opinion that in all the circumstances a summary is not necessary. Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused [5] . This Court has said that it "is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities" [6] . Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence [7] . Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence [8] . Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.

[39]

If a warning is necessary, the duty to give it will not be satisfactorily discharged by the perfunctory or half-hearted repetition of a formula, and a warning in general terms will not alone be sufficient; the jury should be given careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence. I do not understand the last sentence in this passage to mean that every argument which defence counsel could reasonably urge to impugn the reliability of identification evidence must be put by the trial judge to the jury as a weakness in the evidence which makes it dangerous to act on that evidence without corroboration. Provided a warning is, in the circumstances of the particular case, sufficient to alert the jury to the dangers of acting on the particular identification evidence given in the case [24] , the trial judge has performed his or her duty. To require a trial judge to do more is, in my respectful view, to require the judge to trespass upon the function of the jury and to impose upon the judge a burden which will seldom be capable of discharge. A trial judge is not required to identify and to point out to the jury all the weaknesses which time, reflection and remoteness from the trial reveal to the collective mind of the Court of Criminal Appeal. Trial judges can give a warning sufficient to alert the jury to the dangers without teasing out of the evidence all the weaknesses which may appear on subsequent reflection. I would respectfully adopt what Young C.J. said in Reg. v. Haidley and Alford [25] : To require trial judges to recite or refer to numerous propositions which could by the application of ingenuity be thought to be possibly relevant to the consideration of evidence of identification, tends not only to underestimate the intelligence of the average jury but also to make a judge's charge appear absurd and thereby to operate against the fair and proper administration of justice.

[41]

This approach accords with the criticism by Street C.J. in De-Cressac [26] of the notion "that there is a series of individual items that a trial judge is obliged to refer to, almost as if they provided a check-list of matters to be covered in a summing-up where an issue of visual identification arises". His Honour stated his approach to the appeal in that case [27] : The present detailed ground of appeal is accordingly to be read as involving the proposition that in the particular circumstances of the case in hand the summing-up was defective in the sixteen aspects that are crystallized in its terms. Whilst, in respect of some of the sixteen aspects, this is a useful analysis for the purpose of evaluating the adequacy of the summing-up, I prefer to address myself to what I conceive to be the global question, that is to say, whether in the circumstances of this case the summing-up contained a warning which was appropriate and thorough, as well as containing sufficient discussion of the way in which the warning and the need for caution should be taken into account by the jury in the particular circumstances of the case they were called upon to consider. In so doing I would not wish to be taken to acquiesce in or assent to the validity in law of all of the sixteen heads of particulars. 1. The People (Attorney-General) v. Casey [No. 2], [1963] I.R. 33, at pp. 39-40; Reg. v. Sutton , [1970] 3 C.C.C. 152, at pp. 162-163; Davies and Cody v. The King (1937), 57 C.L.R. 170, at p. 182; Reg. v. Turnbull , [1977] Q.B. 224, at p. 228B; Kelleher v. The Queen (1974), 131 C.L.R. 534, at pp. 550-551. 2. Reg. v. De-Cressac (1985), 1 N.S.W.L.R. 381, at p. 385, per Street C.J. See also Reg. v. Turnbull, [1977] Q.B., at p. 228C, cited in Reid (Junior) v. The Queen , [1990] 1 A.C. 363, at p. 379. 3. (1974) 131 C.L.R., at p. 551. 4. Reg. v. Easom (1981), 28 S.A.S.R. 134, at p. 145, followed in Reg. v. Manh (1983), 33 S.A.S.R. 563, at pp. 568-569; see also Reg. v. Allen (1984), 16 A. Crim. R. 441, at p. 445. 5. [1984] V.R. 229, at p. 230. See also Reg. v. Vincec (1990), 50 A. Crim. R. 203, at p. 207. 6. (1985) 1 N.S.W.L.R., at p. 384. 7. ibid., at p. 385.

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Judgment (48 paragraphs)

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