R v. ZREIKA [2001] NSWCCA 373

R v. ZREIKA [2001] NSWCCA 373 - NSWCCA 2001 case summary — Zoe

[52]

53 Mr. Patch submitted that, at several points during the summing up, the trial judge made sarcastic and unfairly prejudicial remarks that made it patently obvious that he did not believe the accused. He submitted that the cumulative effect of these remarks must have been very strong. The remarks included the following four excerpts from the summing up: SU85: "Your may think ladies and gentlemen - it is a matter entirely for yourselves - that this was a very sophisticated and a very clever operation and not by someone who was the unsuspecting, ignorant person whom you might think it was the intention of the accused to put himself forward as. But this is a matter for you to determine." SU100: "As to the accused saying that he did not know anything about the cars you might think, ladies and gentlemen, that he knew a hell of a lot about how to buy them, how to have them cheaply repaired, how to re-register them, how to advertise them cleverly, how to sell them cleverly by even telling the prospective purchaser "I'll just go and check with my wife" to make the purchaser think that he really was fair dinkum and bona fide and genuine, You might think that he was very clever in those respects. He certainly seemed to have fooled four not unintelligent purchasers. It is a matter for you to determine whether this was a clever and highly sophisticated theft operation and "re-birth" operation. That is a matter which you have to decide." SU102: (in reference to the fact that no car remains were found at the accused's premises) "You might think, ladies and gentlemen, that this is just an indicator of the man's efficiency and that an efficient operator in that type of field would get rid of incriminating evidence as soon as he possibly could." SU104: "There is one particular question you might think was significant that was asked shortly half way through his evidence. He was asked in chief by Mr. D'Arbon...."When you took possession of the repaired car on the day you went to the registry did you know that the car was in fact a re-birthed stolen car?" Answer, "No, not at all." You might ask yourselves is that the sort of answer you would get from someone who knew nothing about these sort of procedures. You might think would he not have said what does "re-birthing" mean, but he did not do that, he just said straight away "no, not at all." It is one of the matters you might take into account." 54 Mr. Patch submitted that the last comment was also illogical, because, by the time of the trial, the accused would have been well aware of the meaning "re-birthing", because it was part of the Crown case.

[78]

84 The question of how far judges may go in expressing views regarding the evidence during the course of a criminal trial is probably as old as the judicial process itself. It is now some 400 years since Sir Francis Bacon uttered the well known aphorism that "an overspeaking judge is no well-tuned cymbal". But, as McReynolds J pointed out in his dissenting judgment in Berger v United States (1921) 255 U.S. 22 at 43: - And while 'an overspeaking judge is not well-tuned cymbal' neither is an amorphous dummy unspotted by human emotions a becoming receptacle for judicial power. 85 In Peter George Sparrow (1973) 57 Cr App R 352, the Court of Appeal (Criminal Division) was concerned with, on appeal of a murder case, whether the trial judge's comment on the failure of the accused to give evidence (which comment was made in one form or another on 6 occasions) exceeded the grounds of what was permissible such as to create a miscarriage of justice. In rejecting the appeal, Lawton LJ, speaking on behalf of the Court, said (at 362-363): - In the judgment of this Court, if the trial Judge had not commented in strong terms upon the appellant's absence from the witness-box, he would have been failing in his duty. The object of a summing-up is to help the jury and in our experience a jury is not helped by a colourless reading out of the evidence as recorded by the judge in his notebook. The Judge is more than a mere referee who takes no part in the trial save to intervene when a rule of procedure or evidence is broken. He and the jury try the case together and it is his duty to give them the benefit of his knowledge of the law and to advise them in the light of his experience as to the significance of the evidence ; and when an accused person elects not to give evidence, in most cases, but not all, the Judge should explain to the jury what the consequences of his absence from the witness-box are and if, in his discretion, he thinks that he should do so more than once, he may; but he must keep in mind always his duty to be fair. [my emphasis] 86 The passage in bold above is important. It rightly stresses the complementary role which the judge and jury play in the criminal trial process, and a judge's need to assist the jury (based on his or her experience) with regard to the significance of the evidence where such assistance is necessary.

[79]

87 The general problem under consideration was adverted to by the majority of the High Court (Gaudron ACJ, Gummow, Kirby and Hayne JJ) in RPS v The Queen (2000) 74 ALJR 449 at 458, where their Honours said when dealing with judicial instructions in criminal trials: - Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence. But none of this must be permitted to obscure the division of the functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel. (my emphasis) 88 Some judges take the view that they should never comment in relation to the facts irrespective of how the matter is ultimately left for consideration by the jury. Other judges take a different view, and at times conclude that assistance by them would be appreciated by the jury in dealing with factual issues. The High Court still allows for that position consistently with well established authority.

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