7 In response to his Honour's enquiry, counsel informed the Court that there were no exceptions.
The Trial
8 The charge against the applicant was laid following an investigation into the drug trafficking activities of three persons who lived at 17 Beverley Street, St Albans: William Do, his wife Jenny Williamson and his son Quan Manh Nguyen. In the course of the investigation, telephone calls were intercepted which led to the charging of two more persons, Van Thi Nguyen and the applicant. In the event, each of these, except the applicant, pleaded guilty to one count of trafficking in heroin although the dates in the counts varied within the period commencing 9 November 2000 and 22 March 2001. The presentment against the applicant alleged trafficking in heroin between 22 November 2000 and 11 March 2001. The applicant at all times denied the charge and, at his trial, gave sworn evidence to that effect.
9 At the commencement of the evidence, the jury was provided, as Exhibit A, with a bundle of translated transcripts of telephone conversations intercepted between 1 December 2000 and 11 March 2001. It was agreed that these transcripts were accurate in the sense that the persons engaged in the conversations were correctly identified, that the dates and times of the calls were correct and that the translations were accurate. We have not counted the number of pages in this exhibit but it appears to be of the order of 150. In all of them, or nearly all, the applicant was a participant. There is in the transcript of these intercepts no mention of drugs; the Crown case was that the participants were using code.
10 The evidence of the Crown witnesses was short and of small compass. It was not really challenged on behalf of the applicant. Essentially, it was that an undercover agent, who gave his name as Donald Golding, made purchases of heroin from Do and Quan on 9 November, 14 November, 22 November 1 December and 6 December at the Beverley Street address.
11 There were, too, five police surveillance officers who spoke of their observations on 22 November and 6 December 2000. The jury was provided, as Exhibits D and E, with summaries of that surveillance evidence on those two dates. Finally, there was the evidence of Detective Senior Constable Rainey who spoke of attending the home of the applicant at Sunshine North on 2 July 2001 and there seizing his mobile phone sim card. This witness also gave what appeared to be uncontradicted formal evidence of certain matters such as the analysis of the material purchased by the undercover agent and he produced the tapes of the records of interview of the applicant both on 2 July 2001. The applicant, as I have mentioned, denied any involvement in the trafficking.
12 The Crown case was then closed on the fifth day. In all, the Crown evidence occupied some 38 pages plus 60 pages of the evidence of the Vietnamese interpreter in relation to the telephone intercepts. The relatively few pages of transcript, however, belies the fact that a considerable time was occupied in reading aloud to the jury the transcript of the telephone intercepts.
13 A very significant part of the Crown case related to the events of 6 December 2000 when the undercover witness spoke of making two purchases of heroin from Quan. The surveillance witnesses observed his movements and those of the applicant and Do and the telephone intercepts which recorded seven conversations involving the applicant. Moreover, the significance of this evidence would easily be apparent to the jury if they were to recall the evidence of the undercover witness that he made a purchase at Beverley Street from Quan at 11.20 am, that he telephoned Quan for some more heroin at 11.58 am and took delivery at Beverley Street at 3.05 pm on the same day, together with the summary of surveillance evidence, Exhibit D, and the seven pages of telephone intercept transcripts of the same day. Without some explanation, this evidence strongly suggests that, following the request by the undercover witness prior to 11.20 am and his payment to Quan of $6,000 at 11.20 am, Do called the applicant saying "I'll go over for a big one, right" and saying that he would be there in 10 minutes to collect it. At 11.29 the applicant instructed Do to go, not to the house, but to the factory. The reference to the factory was identified in the chart given to the jury as Exhibit C, as being an address at 30 Imperial Avenue, Sunshine North. There was no evidence of Do leaving Beverley Street. At 11.41 and 11.44 respectively, Quan and the applicant were seen to arrive at Imperial Avenue. At 11.52 am Quan left Imperial Avenue and at 11.58 Do delivered the drugs to the waiting undercover witness at Beverley Street. The events which follow the undercover witness's request for another ounce of heroin shortly after this are similarly consistent with the applicant delivering the drugs to Quan at Imperial Avenue and receiving the $6,000 payment at the car park of the Kealba Hotel.
14 The applicant gave evidence over five days and approximately 200 pages of transcript. He denied that he engaged in trafficking in heroin on 22 November, on 6 December or generally. He did not dispute the observations of the surveillance witnesses nor the telephone conversations. He maintained, for example, that the reference to the "big one" in the 6 December telephone conversation of about 11.20 am was a reference to his elder daughter who was then a little less than nine years old, who babysat Do's grandchildren. The applicant denied in cross-examination that he delivered heroin or received money on 6 December.
15 And so, when his Honour came to charge the jury, the issue was essentially one of the factual inference to be drawn from the undisputed evidence of the Crown witnesses, having regard to the explanations offered by the applicant in his evidence. And this inference was whether the applicant was, to the criminal standard, shown to have been involved in the admitted trafficking by the other three persons. His Honour directed the jury as to the law which they were obliged to apply and no complaint was made of this, at the time or upon appeal. His Honour pointed out to the jury, with examples, what were the positions of the parties. He reminded them of the good character of the applicant and of the burden of proof as it applied to a circumstantial case. It was contended on behalf of the prosecution that, in the circumstances of this case, the charge satisfied the minimal requirements of the law.
16 We turn now to the proposed grounds of appeal. The first ground alleges that the judge failed to put the defence case to the jury in his charge. We think there is no substance in this ground. It is clear to the jury from his Honour's charge what the defence was and how it was put.
17 The same may be said of the third ground, that the judge erred in failing to summarise sufficiently or at all the arguments put in aid of the defence case. These arguments can be shortly put and were shortly put by counsel on the afternoon before his Honour's charge. We are satisfied that the jury would have no doubt from his Honour's charge what it was that the defence was putting forward by way of defence.
18 Likewise we consider that there is no substance in the proposed fourth ground of appeal, namely, that the judge erred in not explaining to the jury how the relevant law applied to the facts of the case. It will be apparent from the summary given above that his Honour did explain how the relevant law applied in this case.
19 Ground 5, that the trial judge gave insufficient directions on the effect of the applicant's evidence and on the method or approach to be taken in evaluating that evidence, was not developed in argument and we think there is no substance in it.
20 The remaining proposed ground of appeal was founded upon the trial judge's failure to summarise the evidence in the course of his charge. It is true that his Honour did not do so. Such a failure which would ordinarily mean that the resultant conviction could not stand This is a matter to which we shall return. But this was no ordinary case. The evidence was of short compass and the issues clearly drawn. The exhibits before the jury contained, in effect, a summary of the oral evidence given, at least on behalf of the Crown. We note that no exception was taken to the charge. This may have been in deference to his Honour's known disposition not to summarise the evidence, but nevertheless, it would appear to us that the acquiescence of counsel in his Honour's charge cannot be ignored. We infer from this and from the manner in which counsel themselves dealt with the evidence that they shared his Honour's perception that the case was a straight-forward conflict of the inferences to be drawn from a simple matrix of fact - one which the jury would no difficulty in recalling, understanding and evaluating. In the rather unusual circumstances of this case we do not think that his Honour's failure on this occasion has led to a miscarriage of the trial. We would not wish to leave this matter without making some general observations on this topic.
21 The duty of a trial judge in charging a criminal jury arises from their respective roles at trial. In its most basic form, this duty requires the judge to define the legal principles necessary for the determination of the case and to communicate them to the jury in a manner which will assist them in carrying out their role. The role of the jury is, of course, to determine issues of fact and to apply the facts to the principles communicated to them so as to return a verdict. The judge, also, has an important role in assisting the jury in its fact-finding function. The judge in the charge must identify the issues and relate them to the evidence in the case;[2] the judge must direct the jury as to the manner in which they must or may or may not use certain evidence; the judge, in the appropriate case, must or may warn the jury to approach certain evidence with caution or not to act upon it without corroboration; and the judge in performing these tasks must do so in a fair and even-handed way. Finally, the judge must put the defence fairly to the jury so that upon their retirement to consider the verdict, they have a clear understanding of what is the position of the accused.[3]
22 It has been accepted, in this jurisdiction at least, that the proper performance of these tasks requires the judge, in any but the most straight-forward of cases, to remind the jury of the evidence which has been placed before them,[4] which is, after all, the material with which they must undertake their task, and to relate the facts and issues raised by counsel to the charges upon which they are required to return a verdict.[5] It will be recalled that, of all persons involved in a criminal trial, it is only the jury who do not have a transcript of this evidence. In these circumstances, such an even-handed summary, relating the evidence to the issues, will be of invaluable assistance to them. The importance of this judicial function has led Ormiston JA to deplore the practice of failing to provide a summary of evidence in these terms: