Ground 3(b): that there has been a fundamental failure of trial procedure and a consequent miscarriage of justice in that the trial judge failed to explain how the relevant law concerning take for advantage and robbery in company should be applied to the facts of the case and further failed to collect a "resume of the evidence which relates to each of those ingredients (of the offences) and a brief outline of the arguments which have been put in relation to that evidence" per the court: R v Zorad (1990) 19 NSWLR 91 at 105.
26 Although no point was raised at the trial the appellant submitted that the summing up did not contain "a collected resume" of the evidence which related to each ingredient of each offence and an outline of the arguments which had been put in relation to that evidence. For this submission the appellant relies upon the decision of the court in R v Zorad at 105.
27 The trial in Zorad took place before the enactment of s 161 of the Criminal Procedure Act 1986 and its predecessor s 405AA of the Crimes Act 1900. Section 161 provides:
"(1) At the end of a criminal trial before a jury, a Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary.
(2) This section applies despite any rule of law or practice to the contrary.
(3) Nothing in this section affects any aspect of a Judge's summing up function other than the summary of evidence in a trial."
28 Section 405AA was considered by the High Court in Domican v The Queen (1992) 173 CLR 555. When commenting on the section the majority said that a trial judge need not summarise the evidence if he or she was of the opinion that a summary was not necessary. The issue is one of fairness. A trial judge will be obliged to refer to evidentiary matter or argument if the reference is necessary to ensure that the jurors have sufficient knowledge of the law and an understanding of the relevant facts to be able to determine the matter. The need for guidance by the trial judge will depend upon the issues which arise during the course of the trial and may be influenced by the length and complexity of that trial: see R v Williams (1999) 104 A Crim R 260.
29 In R v Davis [1999] NSWCCA 15 Wood CJ at CL (with whom Spigelman CJ and McInerney J agreed) said:
"The trial judge, with the consent of the parties, summed up without reference to the evidence. That was a course properly open to him under s 405AA of the Crimes Act , in a trial that had lasted three days, in which there were only six witnesses in the Crown case and none in the defence case. On one view, that approach worked in favour of the appellant, since it avoided the one-sided appearance that may have been presented by a reiteration of the evidence called by the Crown, and silence in relation to the defence.
Attention was, however, drawn to the observations of this Court in RJC CCA NSW 18 August 1998, unreported, as well as in Zorad (1990) 19 NSWLR 91 at 105 and Condon (1995) 83 AC 335 as to the need for the jury to be instructed as to the issues of fact and law which arise in a trial, and where appropriate, to have the evidence to be related to those issues.
Those requirements are to be understood in the light of the explanation in Domican (1992) 173 CLR 555 at 561, which was discussed as recently as yesterday by this Court in Williams NSWCCA 9, 23 February 1999 unreported.
The need for, and the extent of, any exploration of the evidence and of the issues, in a summing-up, is to be assessed in the context of the trial, its length, its complexity and in the light of the way that it has been run. Where the summing-up in a short trial has followed hard on the heels of a defence address, particularly where the appellant has not offered any evidence, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in their closing addresses. To so require would be to credit the jury with little in the way of intelligence or common sense. An exercise of judgment is always required, on the part of the trial judge, to frame the summing-up in a way that is helpful to the jury. To elevate the observations in RJC and Zorad to a requirement that, in every case, regardless of its length or complexity, the trial judge must identify and repeat the points made by defence counsel, the relevant evidence, would be to go too far. Counsel should be expected to contribute in this regard, and to disclose whether they seek more, by way of summary the evidence and of the submissions, than the judge proposes."
30 The appellant's trial took place over a number of days. However, he did not give evidence which was confined to the Crown case against each of the accused. The trial judge gave the jury written directions in relation to each count and in the usual manner trial counsel were provided with an opportunity to comment on those directions. The trial judge gave oral directions as to the elements of each offence and also directed the jury in relation to the law respecting joint criminal enterprise.
31 In relation to count 1 her Honour gave the following direction:
"Now the elements of that are firstly that the accused took Mr Wardle and this was done without his consent and with the intention of obtaining an advantage to rob him.
Taking a person includes causing him to accompany them against their will. The accused must know that Mr Wardle accompanied them against his will or were recklessly indifferent about that; then they unlawfully took him if that is so. Reckless indifference means that the accused realised that Mr Wardle might not consent to the taking but nonetheless went on and took that risk. The advantage sought by the accused was to rob Mr Wardle. Advantage means a benefit or a desired outcome. It need not be the payment of money. It is not necessary to show that the accused actually received the benefit or desired outcome, just that they intended to receive it. The Crown says that all three accused took Mr Wardle on 14 November 2004 with the intention of robbing him. If you are satisfied beyond reasonable doubt the accused did so then the element would be satisfied."
32 In relation to count 3 her Honour gave the following direction:
"The third charge does not involve Mr Ailua but jointly charges Mr Pritchard and Mr Mohamed with robbery in company in the sum of $400 being the property of Mr Wardle. At the heart of the offence of robbery is the use of force or threats which cause the victim to part with his property. Before you could convict the accused of robbery whilst in company you would have to be satisfied beyond reasonable doubt of each of the following elements or legal ingredients of the offence.
Firstly, the elements of robbery in company are that the accused with an intent to steal took property from Mr Wardle by the use of violence or putting him in fear and at the time of the robbery the accused were in company of others and intended to deprive Mr Wardle of the property permanently. The Crown must prove beyond reasonable doubt that there was a taking and carrying away by the accused of the property of another and that the accused at that time had the intention to permanently deprive Mr Wardle of it. All that is required to establish a taking and carrying away is that the property must be moved by the accused. The Crown must prove that the property was taken without the consent of the owner and that it was taken by putting Mr Wardle in fear."
33 Her Honour also gave the jury a direction about the meaning of the element of being "in company." When she had completed this direction she gave the jury a summary of the evidence in support of the Crown case.
34 The issues in the trial were not complex. The fundamental issue was whether the jury should accept Mr Wardle as a truthful and reliable witness. I am entirely satisfied that the directions which her Honour gave and her references to the evidence in the Crown case were a fair summary. Her Honour also appropriately referred to the arguments of defence counsel.
35 Defence counsel made no complaints at the trial and accordingly leave to argue this ground of appeal is required. I am of the opinion that leave should be refused.