R v Crockett [2001] VSCA 95

6. The judge's charge to the jury, which forms the basis of this application for leave to appeal against conviction, is riddled with so many errors and deficiencies that the verdicts cannot be allowed to stand. The errors are so manifold and, one may hope, so unlikely to be repeated by another judge, that it is unnecessary to examine all of them in detail before disposing of the application. They arise out of convictions on three counts on a five-count presentment, the first for aggravated burglary (count 1), the second for recklessly causing serious injury (count 3) and the third for recklessly causing injury (count 5). After hearing a plea during which the applicant admitted to one prior court appearance for a minor offence for which he was released on a good behaviour bond, the judge sentenced him to a term of nine months' imprisonment on the first count, which was wholly suspended for 18 months, and on the two injury counts the applicant was released on a community-based order for a period of 18 months with various conditions including 75 hours of unpaid work.

9. For present purposes one may briefly describe the circumstances leading to the laying of the various charges against the applicant, which also included at the trial counts of intentionally causing serious injury (count 2) and intentionally causing injury (count 4), on each of which he was acquitted. The incidents arose out of what might seem to have been a minor dispute between the applicant and his parents-in-law over a debt of no more than $42, although, remarkable to say, the trial extended over eight sitting days. On the day in question, 14 February 1999, the applicant had spoken to his mother-in-law, Mrs Scifleet, on the telephone, demanding, so it was said, the return of the money. She denied owing the full amount and indicated that

she in fact owed only $10, as she had spent some $30 or so on household items for the applicant's wife, her daughter. Mrs Scifleet put the phone down during the conversation, so the applicant decided to go to his parents-in-law's residence to resolve the dispute. As he came to the front door, according to Mr Scifleet, the applicant was told by his father-in-law not to come in. Mrs Scifleet retreated to her bedroom to avoid any confrontation. Nevertheless the applicant, so it was said, entered the premises and forcefully renewed his demand for the full sum (the basis for count 1). Thereupon a scuffle ensued during which the applicant wrestled with Mr Scifleet and bit the latter's nose, all but severing it (counts 2 and 3). Mrs Scifleet ran out the front door seeking assistance from their neighbours. When she was approached by the applicant, so it was said, she again retreated into her home in order to escape from him. Before she was able to lock the front door behind her, the applicant grabbed hold of it and repeatedly opened and closed it, causing Mrs Scifleet injuries and bruising to her arms (counts 4 and 5).

13. It was not disputed by the applicant that he had gone to the Scifleets' house to discuss the money he claimed was owed to him and an argument developed. However, it was put on his behalf that it was Mr Scifleet who was in fact the aggressor and that there was no attack on Mrs Scifleet. The basis for the claim that Mr Scifleet was the aggressor appeared in the record of interview which had been conducted with the applicant when he was arrested and which was read in evidence. It was said on his behalf that it was Mr Scifleet who grabbed the applicant in a bear-hug, lifted him off the ground and kneed him in the groin. The applicant, so it was said, in a panic response bit Mr Scifleet to secure his release from the grip. It was further put on the applicant's behalf that he had left the premises directly and did not approach Mrs Scifleet on the veranda or go near the door. He denied having caused the bruising, contending that the bruises arose from an earlier occasion.

16. The six amended grounds of appeal made a range of complaints all directed to the judge's directions to the jury. As has become the habit, several, indeed the majority of them, raised matters which were not the subject of exception during the trial, but on this occasion that might be excused as the charge had so many unsatisfactory features that counsel might be forgiven for overlooking at least some of them at the time.

19. Having regard to its many deficiencies I shall refer to only a few of the more obvious errors in the judge's charge to the jury. On the two counts alleging the causing of serious injury, the principal issue was whether the Crown had negatived the applicant's clearly asserted claim of self-defence, albeit his version appeared only in his record of interview. In his primary directions to the jury, his Honour referred merely to the term "self-defence" on one occasion without any directions on the subject. This provoked the prosecutor immediately at the end of the charge to assert, correctly, that there was a failure to direct the jury at all on the subject, which was supported by counsel for the applicant. His Honour conceded the "oversight" and in a redirection went through the bare elements of self-defence. He referred to the facts alleged on each side, but his real failure was in not relating the arguments put on each side to the legal elements and, in particular, in his failing to make clear that the onus rested on the Crown to negative the applicant's claim. On the prosecution's again intervening, the judge attempted to overcome the defect by simply stating in five slightly different ways that "the issue of self-defence has to be negatived by the Crown". Again this disembodied set of instructions was not related by his Honour to the cases put on each side, nor to what he had said in his first redirection. Nor were any directions at all given as to the proportionality of the applicant's response, in particular that a detached or precise response is not to be expected in the face of a threat of personal danger.

22. Though there was no further exception after the second redirection, I cannot accept that as an answer to the present ground, nor that it did not lead to any miscarriage of justice. Counsel may well have concluded that reformation was impossible. Indeed the directions on self-defence were so broken up as to have made them almost incomprehensible to the ordinary juror. This ground is clearly made out and necessarily requires the setting aside of the conviction on count 3 for recklessly causing serious injury.

25. The second ground which it is necessary to deal with is the complaint that the judge failed to describe the applicant's version of events (in the record of interview) in the charge and that he failed to put the defence case on each count. Sometimes a failure to summarise evidence may be excused having regard to the conduct of the trial, but in this case most of the Crown case, together with some cross-examination, was recounted to the jury in inordinate detail, largely by a mere reading of the transcript, and no attempt was made to summarise the applicant's version contained in the record of interview. This was clearly unbalanced and manifestly unfair. It is no answer to say, as the respondent somewhat unenthusiastically contended, that the jury would have had a copy of the record available during their deliberations.

28. The arguments on neither side were summarised by the judge in his charge. Again the conduct of a trial, especially a short trial, may mean that no miscarriage results, but the problem in the present case was that none of the directions on the law were explained in terms of the competing contentions. The manifest injustice of failing to relate the facts in issue to the elements of each count and to any other legal directions given has been emphasised on numerous occasions: see, e.g., R. v. Anderson[1]. This was merely a very obvious failure to comply with the basic rules for charging a jury, inasmuch as the law and the facts were largely dealt with separately and there was no attempt to summarise the contentions, especially those of the accused. These defects affected the conduct of the whole of the trial and vitiated the verdicts of guilty brought in by the jury.

31. The applicant raised a number of other grounds especially as to the count of aggravated burglary. It is sufficient to say that, not untypically, there was a failure to direct the jury at all as to the element of aggravation and no real attempt to deal with the opposing contentions on the issue of the applicant's intent to assault at the time of his entry. It is, however, unnecessary to examine the charge (and the other

grounds) further, as it seems unlikely to me that a judge at any further trial would make the same kinds of error.

35. In truth, the directions given by the judge to the jury in this case were quite inadequate to ensure a fair trial. I would grant the application, allow the appeal, set aside the three verdicts and direct a retrial on the relevant three counts.

39. I agree. A fair trial cannot occur without the jury being properly instructed as to the law relevant to the issues in the case and, just as importantly, without relating the relevant law to the issues which arise in the case. Unfortunately that did not happen in this trial. The law, at least on counts 1, 2 and 3, was inaccurately given. Such directions as were given were followed by the reading of what the judge himself called "large slabs" of evidence; those "slabs" are comprised in about 110 pages of transcript; and no proper attempt was made to relate the law to the evidence. If such attempt had been made it might have drawn the judge's attention to the deficiencies in the directions of law which he had given to the jury. The prosecutor sought to draw the judge's attention to the deficiencies, but the redirections were themselves inappropriate, and by that time, in my view, it was too late to secure a fair trial.

42. I cannot accept that in these circumstances there has been a fair trial of the applicant, and the verdicts recorded must be quashed. There was sufficient evidence to support the counts on the presentment, and unfortunately there will have to be a new trial.

50. The formal order of the Court is that the application is allowed. The appeal is treated as having been heard instanter and it too will be allowed.

The verdicts recorded by the jury on counts 1, 3 and 5 on the presentment are quashed and the Court directs that there be a new trial in relation to those counts.

[1] [1996] VICSC 17; [1996] 2 V.R. 663 at 666-667.