"[82] Taking account of the circumstances of a trial, a judge may be entitled to form the opinion that a summary of the evidence is unnecessary. As observed by the High Court in Domican, whether the judge is bound to refer to the evidence depends on whether the jury would have sufficient knowledge and understanding of the evidence without assistance. Trials will vary considerably in their length, content and complexity. Allen J observed in Condon (adopted by Wood J in Williams) that guidance for the jury needs to focus on the critical issues.
[83] Williams referred to the short length of the trial as being a factor which would favour the appropriateness of a trial judge's decision not to summarise the facts. Wood J also referred to a single issue trial, when the summing-up follows immediately upon the defence address, as a factor relevant to the decision not to summarise the evidence.
[84] As I have said, Wood J's remarks about respecting the common sense and intelligence of the jury, as well as respecting the decision of counsel in acquiescing in the judge's decision and not seeking any further directions, are important. They are apposite to this trial which was relatively short (4 days), notwithstanding the interposition of other matters and an early adjournment on one day to allow the complainant to receive advice. Moreover, the facts were within a small compass, involving only two counts. The trial was principally a contest of credibility between the complainant and the appellant, with the focus on the complainant's credibility. This must have been patently apparent to the jury and was underlined by his Honour in the summing-up. It is difficult to see what would have been gained (for the jury) by a restatement of the factual matters already the subject of addresses by the Crown and defence.
[85] The strictures of the High Court in RPS are relevant. A judge is not bound to comment on the facts unless her or his other functions require it. In many cases, the safer course to take is to make no comment on the facts except to remind the jury of counsels' arguments. This remark by their Honours in RPS raises the question of the possible dangers which may be inherent in summarising the evidence. The trial judge here was aware of this possibility when he raised the issue with counsel. He referred to the lack of a transcript and the manner in which some witnesses gave their evidence (including the complainant) making note taking almost impossible. There was the clear risk that, in summarising the evidence, his Honour could have misled the jury.
[86] There is also the point made in Davis, another short trial with only six witnesses, that summing up on the evidence may lead to a one-sided appearance being presented to the jury."