Riley v Tasmania [2020] TASCCA 1 (21 February 2020)

[2020] TASCCA 1

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Riley v Tasmania [2020] TASCCA 1

Criminal Law - Adequacy of summing-up - Trial judge's duty to put defence case - Extent of obligation when summarising evidence - Summing-up adequate - No miscarriage of justice - Appeal dismissed.

Domican v The Queen (1992) 173 CLR 555; Huynh v The Queen [2013] HCA 6, 295 ALR 624; Castle v The Queen [2016] HCA 46, 259 CLR 449, applied.

R v Meher [2004] NSWCCA 355; Majok v The Queen [2015] NSWCCA 160, referred to.

Judgment Number: [2020] TASCCA 1

1. This appeal concerns the adequacy of a trial judge's summing-up to a jury and in particular, the summary of the defence case. I agree with Geason J, that the summing-up by Pearce J was fair and balanced and that his Honour's references to the case for the defence were sufficient in light of the issues on the trial.
2. At the conclusion of the summing-up, just before the jury retired to deliberate, the learned trial judge asked counsel (not the same defence counsel representing the appellant on the appeal) whether there was anything that they wished his Honour to raise with the jury. Counsel expressly stated that there was not. Defence counsel was well positioned to assess the fairness and adequacy of his Honour's summary of the defence case and the overall impartiality of the summing-up. Of course, if there is any deficiency or misdirection in a summing-up to the jury, counsel should point that out to the trial judge before the jury retires to deliberate so that it may be rectified there and then. The response of defence counsel in seeking or declining to seek further directions at the conclusion of a trial judge's summing-up is a factor that an appellate court may take into account. It may be regarded as a cogent consideration in determining whether the summing-up is defective as asserted on appeal or whether some inadequacy or misdirection in a summing-up is so significant that there has been a miscarriage of justice: La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62 per Barwick CJ at 72; Lambert & Stokes v Tasmania [2007] TASSC 76 at [114]- [116]; Lee v Tasmania [2006] TASSC 92 at [38]- . As to these questions, it is considered that counsel's response in the prevailing circumstances of a trial can be a useful gauge. Here, for the reasons expressed by Geason J, it has not been shown that the summing-up was deficient or fell short of what was required. I agree with the reasons of Geason J which dispose of the appeal. Moreover, defence counsel's response at the closing stages of the trial provides a sound indication that it seemed then from the defence perspective the summing-up was fair, the reference to the defence contentions were adequate, and that it was unnecessary for the learned trial judge to add anything further.

1. The appellant contends that his trial for rape and sexual intercourse with a young person miscarried because the trial judge:

1 Did not sufficiently summarise the defence case for the jury.

2 Did not fully, clearly, fairly or adequately put the defence case to the jury.

3 Did not adequately relate the defence case to the evidence adduced on the trial.

1. The trial did not miscarry on any of those bases (if there is any real difference between them) and the appeal should be dismissed. These are my reasons:

1. The appellant was convicted by a jury of rape and three counts of sexual intercourse with a young person under the age of 17 years. He pleaded guilty to two charges of supplying a controlled drug to a child. He was sentenced to 6 years' imprisonment, with a non-parole period of 3 years and 6 months.
2. The Crown case relied substantially upon the evidence of the complainant. Her evidence was presented to the jury by way of video statement, which had been recorded in November 2017. She gave some additional evidence at the trial.
3. Her evidence was that rape occurred while she was staying at the appellant's home. She was 14 years old. At the time she had "been up for eight days, and was pretty fried". She said that she had declined the appellant's invitation to have sex not long before he had given her a drug known as Serepax. Serapax is a sleeping tablet. The appellant then said he was going out, but she woke to find him on top of her engaged in sexual intercourse. She said that under the influence of the sleeping pill she shut her eyes and went back to sleep.
4. The offences alleging sexual intercourse with a young person occurred after the complainant had been released on bail from a youth detention centre. Her evidence was that upon her release she contacted the appellant in order to obtain some methylamphetamine. She took a taxi to his home. She was "paralytic" when she arrived. The appellant injected her with methylamphetamine. He then directed her to have oral sex with him, which she did. An act of vaginal sexual intercourse followed, and then she was told to have a bath. A further act of vaginal sexual intercourse occurred. The episode lasted about four hours. She told police the appellant had taken Viagra.
5. At the trial the complainant added to her video evidence. She said the appellant had been providing her with methylamphetamine for about a year and that she had been using the drug heavily since about the age of 13. She said she injected herself with it three or four times a day. In cross-examination, she agreed her drug use could have affected her perception as to place and time.
6. She said that about a week after the rape she told her father what had occurred. This conversation was at a third person's house, KR. In cross-examination she said KR was in the room when she told her father. The complainant's father gave evidence that the allegation was made to him later than the complainant had suggested, perhaps some months later. Otherwise he does not appear to have contradicted her evidence. He confirmed her methylamphetamine use. KR's evidence was that the complainant had told her she was drugged and raped. Her recollection was that she was alone in the lounge room when the complainant had told her about this, but she conceded in cross-examination that there could have been others in the house.

1. The summing-up of the defence case was as follows:

"The defence case is that you cannot accept the evidence of [the complainant], even taken with all of the other evidence as truthful and reliable because on the defence argument she was strongly affected by alcohol and drugs during the relevant period. You have particular evidence from her about the amount of alcohol she had consumed in the October incident. After the - well, on the Crown case after the taxi ride or at the time of the taxi ride. It's a matter for you to assess how and if that affects your assessment of the reliability and truthfulness of [the complainant]. Take into account what she told you about her use of drugs and alcohol at the time and you would factor in in your deliberations whether you think that you cannot rely on her truthfulness and reliability about any of the events that she related to you."

1. The judge reminded the jury about the onus of proof, the standard of proof and the need for caution in convicting on the evidence of a single witness (in accordance with R v Murray (1987) 11 NSWLR 12).

1. The appellant complains that the trial judge adverted only to drug consumption and intoxication when he referred to the reliability of the complainant. It is put that the summing-up did not advert to the actual inconsistencies between the complainant's evidence and the recent complaint witnesses, or the contradicted evidence of the complainant about the duration of her stay with the appellant, with the result that the trial judge failed to lend his full judicial authority to the arguments raised by the defence as manifestations of the complainant's unreliability.
2. The Court is invited to contrast this with the trial judge's much longer treatment of the prosecution case. It is submitted that there is a risk that the jury may have given inadequate attention to the matters raised on the defence case, causing the trial process to miscarry.

1. Analysis should commence with a discussion of the trial judge's duty in summing up to a jury. I will begin with a general statement of that duty. In RPS v The Queen [2000] HCA 3, 199 CLR 620, the High Court described the fundamental task of a trial judge as ensuring a fair trial for the accused. It said this would 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, instructions about the elements of the offence, the burden and standard of proof, and the functions of judge and jury.
2. An accused is entitled to have the case presented on his or her behalf fairly put to the jury, together with any other matter upon which the jury might properly return a verdict in the accused's favour: Castle v The Queen [2016] HCA 46, 259 CLR 449 at 470 per Keifel, Bell, Keane and Nettle JJ.
3. More specifically, the way in which a judge structures the summing-up and the extent to which he or she reminds the jury of the evidence is a matter for individual judgment which will reflect the complexity of the issues raised in the case, the length of it, and the way in which it is conducted: Castle (above) at 470. Each charge to a jury must be tailored to the circumstances of the case: Huynh v The Queen [2013] HCA 6, 295 ALR 624. As to the identification of issues in the trial, the obligation is limited to the matters that are actually in dispute in the trial: RR v The Queen [2011] NSWCCA 235, 216 A Crim R 489. Relevantly, the duty does not extend to reading out all of the evidence or an analysis of all the conflicts which arise from it: The obligation is to provide a fair and balanced explanation of the law and the issues and the respective cases of prosecution and defence.

"26 The overarching principle is that 'the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury': Domican v The Queen [1992] HCA 13; 173 CLR 555 at 560-561.

1. In Robinson v R [2006] NSWCCA 192; 162 A Crim R 88, Johnson J stated (at [140]) the following as to the need for impartiality and balance in a summing up:

'[T]he judge's role in a criminal trial is to hold the balance between the contending parties without himself taking part in their disputations; the judge does not exercise an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side, nor is it part of the function of the trial judge to don the mantle of prosecution or defence counsel: Whitehorn at 682. The fundamental task of a trial judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at paragraph 76. Trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Crown case - first, it is inconsistent with judicial impartiality and secondly, to do so denies the prosecution and the defence the opportunity either to disavow, or to meet the argument: R v Meher at paragraphs 87-93.'

1. As to the ability of a judge to express a view about the facts, in R v Zorad (1990) 19 NSWLR 91, the Court stated (at 106-7):

'A judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he [or she] makes it clear that it is the jury's function (and not his [or hers]) to decide the facts and that it is their duty to disregard the view which he [or she] has expressed (or which he [or she] may appear to hold) if it does not agree with their own independent assessment of the facts.' (Citations omitted)

1. In RPS v The Queen [2000] HCA 3; 199 CLR 620 it was stated by Gaudron ACJ, Gummow, Kirby and Hayne JJ at [42]:

'... 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'.

1. As to a judge going beyond the arguments that were presented by the Crown, Wood CJ at CL said in R v Meher [2004] NSWCCA 355:

'[87] Finally, it may be observed that trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. It is one thing to bring to the attention of a jury an alternative lesser count, that is fairly open on the evidence, or an available defence, even though it was not mentioned by the Crown Prosecutor and defence counsel, in their closing addresses, for example manslaughter in a case where the accused was indicted on a count for murder. It is quite another thing for a judge to advance an argument, on behalf of the Crown in support of the Prosecution case, which the judge considers was available, but was either overlooked, or not used by the Prosecution.

[88] There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Prosecution case. First it is inconsistent with judicial impartiality. Secondly, to do so denies the Prosecution and the defence the opportunity either to disavow, or to meet the argument.

[89] The observations of this Court in a joint judgment (Spigelman CJ, Wood CJ at CL, and Kirby J) in R v RTB [2002] NSWCCA 104 are apposite:

"[55] In the present case, both of the issues that have arisen were of a character that could have been put by the Crown as a suggestion to the jury. In neither case was there any necessity for the trial judge to say anything to the jury. There was no suggestion of any unfairness to the Crown in the way the case was conducted. Nor was there any other reason for the trial judge to put an argument not advanced by counsel. (see eg R v Heuston (1995) 81 A Crim R 387 at 393).

[59] In each of the two respects of which complaint is now made, the intervention of the trial judge urged upon the jury a particular mode of thought. His Honour suggested that there could have been an explanation for the deficiency in the complainant's evidence, of a character which was not of itself based on any evidence but which, to a legal mind, would appear to be in each case a logical possibility. Juries are not required to think like that.

[60] The fact that each of these 'possibilities' was put to the jury by the trial judge, rather than by the Crown, may have directed that the jury's collective mind in assessing credibility in a particular way. Specifically, the thrust of the trial judge's directions, on each of the two occasions, was that, notwithstanding the appearance of inconsistency in each of the two respects, there was a possible explanation. Such matters of speculation, whilst perhaps appropriate for counsel, should not receive the added weight of the intervention of the judicial officer. In each respect the jury could have understood the trial judge to be suggesting that, because there may have been an explanation as a matter of logic, they should not take these matters into account in determining the credibility of the complainant.

[61] In the event, in our opinion, the directions to the jury were, in a critical respect, lacking in the appropriate balance."

[90] The permissible area within which a trial judge may draw to the jury's attention an argument that was not put by Counsel, was conveniently noted by Hunt CJ at CL in R v Heuston (1995) 81 A Crim R 387 at 393:

"Sometimes, of course, a judge is obliged - even in what might be described as the ordinary case to draw the attention of the jury to an argument which has not been put by counsel, if it is necessary to do so in order to ensure that the jury has sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Some such occasions are obvious - where, for example, the principal 'defence' is one of alibi, yet there is clear evidence of intoxication which would be relevant to specific intention in the event that the alibi fails. Everyone realises that, from a tactical point of view, if counsel were to address upon such an issue of intoxication it would weaken the strength of his client's case on alibi, and trial judges should usually discuss the need to give directions as to such matters with counsel (in the absence of the jury) before the summing up commences. Other such occasions are not always so obvious, and - again, stated in very general terms in relation to the ordinary case - there will be no miscarriage of justice if arguments which may have been available on the evidence are not put by the judge in the summing up if they had not already been put by counsel. Sometimes, indeed, it may produce positive mischief if the judge raises arguments which could have been but which were not put or requested by counsel."

[91] Additionally, occasion might arise for the judge to draw attention to some matter which had not been dealt with by the Crown, where that is necessary to restore a balance to the trial, and where the Crown Prosecutor had no reason to foresee it, or any opportunity to deal with it.

"In this case it is clear that the remarks complained of were made by the trial judge in the context of criticisms made of the Crown case not foreshadowed during the course of the trial and not anticipated by the Crown Prosecutor in his address. This Court has drawn attention before to the fact that judges may find it necessary to become involved in forensic argument insofar as it is necessary to deal with matters raised by defence counsel who make the last address to the jury - see for example R v O'Donoghue (1988) 34 A. Crim. R. 397, R v William Booth, (CCA (NSW) unreported 29 September, 1993 and R v Gluscheski (1987) 33 A Crim R 193."

1. It is important to bear in mind as well that 'in order to determine whether a summing up is unfairly balanced, it is necessary for it to be considered in its entirety and in the context of the issues and the evidence led in the trial': R v Sukkar [2005] NSWCCA 54 at [90] (Wood CJ at CL)."

1. The trial judge's articulation of the appellant's case was brief, but the measure of its compliance with the requirements reposed in a trial judge is not determined by its length, but its content. The question is whether the issues raised in the defence case have been identified sufficiently clearly to draw the jury's attention to them in a way which ensured a fair trial. Some disparity is an inevitable consequence of the difference in the volume of evidence placed before the jury by the prosecution and the defence (which led none). "It is not the length of the time devoted to the case of the Crown or the accused which is in issue. It is the fairness, balance and impartiality of the summing up which the appellate court must review and safeguard": R v Courtney-Smith (1990) 48 A Crim R 49 per Gleeson CJ, Kirby P and Lusher AJ) at 56.
2. The trial judge reminded the jury that the defence case was based upon the unreliability of the complainant. He went further than that to identify the matters said by the defence to affect her reliability: intoxication and drug use. It is true that he did not repeat the instances of apparent inconsistency identified by counsel, but in my judgment it was not necessary to do so in this case. There will be cases where reminding a jury of evidence, even a defence argument about evidence, will be required, consistently with the duty to ensure a fair trial. This is not such a case. That is because the instances of inconsistency were few; the evidence generally was of narrow compass; and the trial was short.
3. The trial judge's restatement of the core proposition advanced by the defence was sufficient to remind the jury of the defence case. His reference to intoxication as the basis for the challenge to the complainant's reliability was enough to focus the jury's attention on that issue. It was not necessary for the trial judge to restate counsel's argument, including the particular instances referred to in making that argument. The summing-up accords with what is required: a fair and balanced summary of the law, the issues, and the respective cases for the prosecution and the defence: (above) at [77].

1. I agree the appeal should be dismissed for the reasons given by Geason J.