Ground 5 - failure to sum-up on facts and duplicity
65 It is convenient to deal with this ground first and to consider the two limbs together.
66 The core of the submission of Ms Burgess on behalf of the appellant is that his Honour not only failed to summarise the facts, but failed to relate the directions of law which he gave to the evidence. Ms Burgess, who did not appear at the trial, submitted that s 405AA (now s 99 of the Criminal Procedure Act 1999) did not permit a trial judge to give the jury no guidance as to the way the evidence relates to the directions of law given. It did not relieve the trial judge of the obligation to sum up the respective cases made by the Crown and the accused, R v Condon (1995) 83 A Crim R 335 and R v Zorad (1990) 19 NSWLR 91.
67 Counsel for the appellant is critical of his Honour for not directing the jury as to which act of sexual intercourse was relied on by the Crown in relation to each count, particularly given the confusion which she says is inherent in the evidence. There is, so Ms Burgess submits, a latent ambiguity in both charges in that what was left to the jury was two acts of sexual intercourse in relation to each count. She submits that it is not possible to know whether there was unanimity in the jury in respect to any one of the two acts disclosed in the evidence on both counts, R v Khouzame and Saliba [1999] NSWCCA 173, Walsh v Tattersall (1996) 188 CLR 77 and S v The Queen (1989) 168 CLR 266.
68 In Zorad at 105 the Court said:
A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence.
69 Zorad involved an unrepresented accused person and was decided before the introduction of s 405AA.
70 In Domican v The Queen (1991 - 1992) 173 CLR 555 the High Court had occasion to refer to s 405AA. The joint judgment remarked that matters of fact, and the arguments in relation to them, were in a different category from directions on law. Citing R v Ali Ali (1981) 6 A Crim R 161, the Court said that a trial judge was not bound to discuss all of the evidence or analyse all the conflicts, and by itself, the failure to do so does not mean that there has been a miscarriage of justice. The Court referred to s 405AA, which had come into existence after the trial. The requirement of fairness nonetheless meant that ordinarily the cases for the accused and prosecution must be accurately and fairly put by the trial judge. But this did not oblige the judge to put every argument put forward by defence counsel. Their Honours continued at 561:
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. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. 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.
71 Condon post-dated the enactment of s 405AA. Allen J said that even if it was reasonably open to the trial judge to form the opinion that a summary of the evidence was not necessary, the provision did not relieve the judge of certain duties. These included an explanation of the application of the elements in the offence to the respective cases of the Crown and the accused. Allen J said at 347:
In short, it is his duty to give them assistance so that they understand what the critical issues of fact are upon application of the law to the particular case. The trial judge is not relieved from that duty by the arguments of counsel. Indeed, as Murphy J pointed out in Salvo , it would not be enough even for the trial judge accurately to state what the case for the accused is as it has been presented. He must instruct the jury what the law is in respect of that case and do so in terms which throw up, clearly, what the critical issues of fact are which it raises.
72 The next relevant case is R v Williams (1999) 104 A Crim R 260. Wood CJ in CL considered a submission that the trial judge had failed to sufficiently summarise the key points in the defence case. Noting that the trial was a short one, his Honour said that it was entirely appropriate that the trial judge should have taken the course followed, as permitted by s 405AA. Trial judges should ensure that the jury have sufficient guidance on the issues. The need for guidance depends, of course, on the nature of the trial, its length and its complexity (Domican). Wood J emphasised the need to focus on the critical issues, which was underlined by Allen J in Condon.
73 Wood J added at 269:
In a single issue trial as short as this, when the summing up concluded within a morning and followed immediately upon the address of defence counsel, I am unconvinced that it was necessary for the trial judge to have undertaken a comprehensive analysis of the kind that the appellant now contends for.
74 His Honour added a statement which has particular significance for the present appeal:
The common sense and intelligence of the jury requires respect, as does the experience of trial counsel who, in this case, expressly stated that he did not require any further direction or redirection.
I am unpersuaded that in a short trial, where the focus was on the complainant's credibility, anything would have been achieved by yet another restatement of that issue or of the points made either by the Crown or by the defence. The position is likely to be otherwise in a complex and lengthy trial, to which the observations in Domican are particularly apposite. It would also have been otherwise had the trial judge here undertaken, for example, a detailed analysis of the Crown case and then dismissed the defence case in short terms. What is required is a fair balance when any excursion into the issues and evidence is undertaken. Again I am of the view that leave should be refused to argue this ground under r 4 of the Criminal Appeal Rules . [at 269 - 270]
75 Two days later the Court heard and delivered judgment in R v Davis [1999] NSWCCA 15. In giving judgment Wood CJ at CL 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 ACR 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 NSW CCA 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 of the evidence and of the submissions, than the judge proposes. [paras 21 - 24]
76 In R v RNS [1999] NSWCCA 122 (7 June 1999) Bell J was dealing with a similar submission to the one here made, incidentally involving the same trial judge. Her Honour said:
The trial was a short one. Evidence was taken over three days. At the conclusion of the evidence his Honour invited the jury to give careful attention to the addresses of counsel. He had earlier signalled his intention to both counsel not to summarise the evidence. This course was consented to by both counsel. Provision is made in s.405AA Crimes Act for a trial Judge to dispense with a summary of the evidence. That provision does not permit the trial judge to give the jury no guidance as to the way the evidence relates to the directions of law given. It does not relieve the trial Judge of the obligation to sum up the respective cases made by the Crown and the accused. [para 58]
77 However, her Honour did not decide the case on this ground alone and proceeded to other grounds upon which the appeal was upheld.
78 The most recent authority is RPS v The Queen [2000] HCA 3 (3 February 2000). In the joint judgment, their Honours referred to the task of trial judges in giving instructions to juries (paras 41 - 42). They stated that the trial judge should instruct the jury about the elements of the offence, the burden and standard of proof, the respective functions of judge and jury, the identification of the issues in the case and to relate the law to those issues. The judge should, of course, put the accused's case fairly to the jury.