Trevascus v R

The requirement for leave

1. The appeal against conviction is based upon the two grounds which are considered below. The issues raised by those grounds were not the subject of any objection or application by counsel for the applicant at trial and accordingly, leave to rely upon those grounds is required. [15]
2. In Obeid v R, Bathurst CJ (with whom the other members of the Court agreed) formulated a number of propositions in relation to the operation of rule 4, including the following: [16] 1. if a necessary element of a fair trial according to law has been overlooked, leave should generally be granted; 2. the giving of proper directions by the trial judge to the jury as to the elements of the offence(s) is a necessary element of a fair trial; and 3. the discretion conferred by rule 4 will be exercised in an applicant's favour where there has been a miscarriage of justice, such that the applicant has lost a real chance of acquittal.

GROUND 1(a) - The Trial Judge erred in his directions to the jury as to the elements of each offence

The directions of the trial judge

1. At the commencement of his summing-up to the jury the trial judge said the following: [17] The summing-up will consist, in part, of me talking to you; but it is also going to consist of you being given a document, which is called a 'jury question trail' - I shall give you the opportunity of reading the document in the privacy of the jury room. The jury question trail sets out the questions about which you must be satisfied beyond reasonable doubt before you could convict [the applicant]. I will not say anything more about it just yet. I want to do something I do not ordinarily do. Ordinarily, I give the jury question trail out first and then let you read it (as it is part of my directions). You have to follow what I have said in the question trail. Usually, I would give you a direction about the meaning of a joint criminal enterprise later in the summing-up. But because it is so prominent in this trial, I am going to move that section of the summing-up to the beginning. Then I will give you the jury question trail and give you an opportunity to read it in the jury room. I will then bring you back and talk to you some more.
2. Consistent with the approach outlined in that passage, his Honour then directed the jury as to what constitutes a joint criminal enterprise in terms which are uncontroversial. [18]
3. His Honour then said: [19] At this point, I am now going to have distributed to you the jury question trail, which has been marked for identification 8 in your absence. Then I will take a short adjournment to let you read it in your jury room. When I started using jury question trails (which is a technique which judges in Australia have learned from our colleagues in New Zealand) I used to get the jury to read them in the jury box; but I could tell that many of them felt uncomfortable with all eyes being on them as they were trying to absorb what was in the document. So I will let you have about ten or so minutes to read it to yourselves in the jury room. Thank you.
4. Two separate documents, each headed "Jury Question Trail", were then distributed to each member of the jury, one in respect of each count in the Indictment. [20] His Honour then adjourned for a short period during which the jury retired to read both documents in the jury room.
5. The question trail in respect of count 1 was in the following terms: [21] Count 1: On 26 June 2018, at Woodbine in the State of New South Wales, being in company of another person, [Ryan Trevascus] robbed David Melia of a set of keys the property of David Melia. 1. Are you satisfied beyond reasonable doubt that on 26 June 2018, Ryan Trevascus ('the accused') robbed David Melia? • "Beyond reasonable doubt" are ordinary, everyday words and that is how you understand them for this and all other questions. • Note the joint criminal enterprise direction. * the existence of the agreement may be inferred if it is the only rational inference in the circumstances. • "Robbery" means: (a) the accused took property which belonged to somebody else; (b) the property was taken without the consent of the owner of the property, in that it was taken by force or by putting the owner in fear. * "consent" obtained by force or threat of violence is not consent; (c) at the time he took the property, the accused had the intention of permanently depriving the owner of it. * "intention" can be inferred if it is the only rational inference in the circumstances; (d) at the time he took the property, the accused had no legitimate claim to it; and (e) the property was taken dishonestly. NOTE: You must be satisfied beyond reasonable doubt of each of (a) to (e) inclusive before you can answer "yes" to [1]. 2. If "No" to [1], you must find the accused not guilty and proceed no further. 3. If "yes" to [1], are you satisfied be [sic] beyond reasonable doubt that the accused was in company with another person? (a) "in company" means the accused must have been in the immediate vicinity of David Melia when Frank McGuiness took the property of David Melia - and David Melia must have known that the accused was present and able to assist in the taking of the property if called upon to do so. (b) The accused and Frank McGuiness must have shared a common purpose in the taking of the property. • Note the joint criminal enterprise direction. * The existence of the agreement may be inferred if it is the only rational inference in the circumstances. (c) Both (a) and (b) must be proved beyond reasonable doubt. 4. If "No" to [3], you must find the accused not guilty. 5. If "Yes" to [3], you can find the accused guilty. NOTE: If you answer "No" to [1] or [3] you must find the accused not guilty.
6. The question trail in respect of count 2 was in the following terms: Count 2: On 26 June 2018, at Woodbine in the State of New South Wales, being in company with another person, [Ryan Trevascus], attempted to take and drive a vehicle, namely an Audi (registration CZF88E), without the consent of David Melia and whilst David Melia was in the vehicle. [1] Are you satisfied beyond reasonable doubt that on 26 June 2018 Ryan Trevascus attempted to take and drive a motor vehicle? • "Beyond reasonable doubt" are ordinary, everyday words and that is how you should understand them for this and all other questions. • Note the joint criminal enterprise direction. * The existence of the agreement may be inferred if it is the only rational inference in the circumstances. [2] If "No" to [1], you must find the accused not guilty and proceed no further. [3] If "Yes" to [1], are you satisfied beyond reasonable doubt that David Melia was not consenting to the attempted taking and driving of the vehicle? * "consent" obtained by force or threat of violence is not consent. [4] If "No" to [3], you must find the accused not guilty and proceed no further. [5] If "Yes" to [3], are you satisfied beyond reasonable doubt that at the time of the attempted taking and driving of the vehicle, David Melia was in the vehicle? [6] If "No" to [5], you must find the accused not guilty and proceed no further. [7] If "Yes" to [5], are you satisfied beyond reasonable doubt that the accused was in company with another person? (a) "In company" means that the accused must have been in the immediate vicinity of David Melia when Frank McGuinness [sic] attempted to take and drive the vehicle - and David Melia must have known that the accused was present and able to assist in the attempted taking of the vehicle if called upon to doso [sic]; (b) The accused and Frank McGuinness [sic] must have shared a common purpose in the attempted taking of the vehicle; * Note the joint criminal enterprise direction. (c) Both (a) and (b) must be proved beyond reasonable doubt. [8] If "No" to [7], you must find the accused not guilty. [9] If "Yes" to [7], you can find the accused guilty. NOTE: If you answer "No" to any of [1], [3], [5] or [7], you must find the accused not guilty.
7. When the jury returned following the adjournment, his Honour said: [22] I am going to continue the oral part of the summing-up now. Can I indicate to you that if you have any questions about the legal directions I am giving you this afternoon, please do not hesitate to send me a note. You can ask as often as you like. If I have not made clear to you what I'm trying to say, it is much better that you tell me that and I will try to lift my game. One of the things I said to you at the very beginning of the trial was that it is your obligation to apply the law as I tell you what the law is, even if you think I or the law are wrong. But the other side of that is that I have nothing to do with your decision. I direct you as to what the law is - and I started to do that in the jury question trail. Although it is in the form of questions, you can see that there are directions in the way it is expressed.
8. Notwithstanding his Honour's reference to having "started" to direct the jury as to law, his Honour did not, at any stage thereafter, read, further explain, or indeed make any substantive reference to, the contents of either question trail. There were only two further references to the question trails in the summing-up. The first was made in the context of reminding the jury of the necessity to give separate consideration to each count in the Indictment: [23] There are two charges on the indictment. You have to consider each one separately. That is why I have given you two question trails to sort of physically remind you that there are two charges and that each one must be looked at separately.
9. The second was made in the context of directing the jury as to the onus and standard of proof: [24] What has to be proved beyond reasonable doubt are the questions on the jury question trail.
10. When given the opportunity to do so at the conclusion of the summing-up, [25] neither the Crown nor counsel for the applicant sought any further directions, nor was any issue taken by either of them with any of the directions which had been given.

Submissions of the Applicant

1. In advancing this ground, counsel for the applicant before this Court conceded that the provision of documents setting out directions of law as to the elements of the offence(s) was potentially beneficial to a jury, and was a course which was expressly permitted by s 55B of the Jury Act 1977 (NSW) (the Act). Counsel also conceded that all of the directions of law contained in each of the question trails provided to the jury were correct.
2. The precise error relied upon by counsel in support of this ground was articulated as the failure of the trial judge to read each question trail to the jury. Counsel submitted that s 55B of the Act did not displace the common law requirement to give oral directions as to elements of the offence. It was submitted that the requirement to give oral directions was consistent with criminal proceedings being, as counsel described them, "primarily oral in character". Counsel submitted that in the circumstances of the present case, such directions should have included, at the very least, a recitation of the contents of each of the question trails which had been provided.
3. It was further submitted that the proposition that the obligation to give directions of law to the jury could be discharged merely by the provision of a document would, if taken to its logical conclusion, mean that a summing-up could consist entirely of a document being handed to the jury without anything further being said. It was submitted that such a proposition was at odds with obligations which are imposed on a trial judge by the common law, the most fundamental of which is to ensure the fairness of the trial.
4. In these respects, counsel referred the Court to a number of authorities which, he submitted, recognised the primacy of oral directions, and supported the proposition that the absence of such directions amounted to error. In terms of the application of rule 4, counsel submitted that the error for which he contended was a fundamental one which went to the root of the trial, and gave rise to a substantial miscarriage of justice. It was submitted that in those circumstances, and notwithstanding the absence of any objection by trial counsel, leave should be granted to allow ground 1(a) as a ground of appeal.

Submissions of the Crown

1. To the extent that the submissions advanced on behalf the applicant involved an assertion that there had been a lack of transparency by allowing the jury to retire to the jury room to read the documents, the Crown submitted that there had been no indication of any irregularity. It was submitted that the jury should be presumed to have followed and understood the contents of each of the question trails when they retired to the jury room to read them.
2. The Crown submitted that the directions contained in the question trails were straightforward. The Crown also pointed out that such directions were accepted to be legally correct. The Crown emphasised that the contents of the question trails had been settled in consultation with both the Crown and counsel for the applicant, and had been provided to the jury with the consent of both parties. The Crown submitted that in circumstances where the course taken by the trial judge was expressly permitted by s 55B of the Act, and where no issue had been taken by trial counsel, leave under rule 4 should be refused.

Consideration

1. There is no issue that s 55B of the Act permitted the trial judge to provide the question trails to the jury. Section 55B was introduced by the Jury (Amendment) Act 1987 (the Amendment Act) and is in the following terms: 55B Judge or coroner may give directions to jury in writing Any direction of law to a jury by a judge or coroner may be given in writing if the judge or coroner considers that it is appropriate to do so.
2. The Second Reading Speech to the Amendment Act made no specific reference to s 55B, although it included the following: [26] In recent years, lengthy and complex trials have become more common, with the result that the jury's task is becoming increasingly difficult and the administration of justice more costly and cumbersome. Reforms contained in this bill, and complementary new administrative and practice measures which will be introduced, are primarily designed to streamline jury trials and make the jury's task easier.
3. The Explanatory Memorandum to the Amendment Act included the following: [27] Proposed section 55B confirms the discretionary power of a judge or coroner to give the jury directions of law in writing.
4. The practice of providing written directions to assist a jury in a criminal trial had been endorsed by this Court long before the enactment of s 55B in Petroff v R. [28] In that case, the trial judge had provided the jury with a document containing (inter alia) a summary of relevant matters of law to which he made reference in the course of his summing-up, and had allowed the jury to retain the document in the course of their deliberations. Importantly however, the trial judge had emphasised that the document was not to be used as a substitute for the detailed oral directions that he had given, and was at all times to be interpreted in the light of those oral directions. The applicant argued that a miscarriage of justice had arisen as a consequence of what was described as a "grave departure from practice" by the trial judge providing the document to the jury.
5. By majority, this Court dismissed the appeal. [29] Nagle CJ at CL (with whom Street CJ agreed) said: [30] At the outset I think it proper to call attention to the fact that it is incorrect to describe what his Honour did by the use of the document was to substitute written directions to the jury for oral ones. In my opinion what his Honour, in this very difficult and complex branch of the criminal law, in fact did, was to use a document in his oral summing up as an aid to explaining that oral summing up to the jury (emphasis added).
6. His Honour went on to say: [31] [I] have reached the conclusion that the jury would have been under no misapprehension that the document was ….. in lieu of the oral directions that they had been given. In his directions his Honour was at pains to disabuse the jury of any such idea. ….. In my view, the course that the trial judge pursued in the present case was not only permissible but so far as one can judge from a reading of the transcript it would have assisted the jury faced with the obvious complexities of this trial. I would not suggest that there could be no dangers attendant upon adopting the procedure that his Honour did, but, if care is exercised in the use of such a document; that counsel are fully aware of it and what is in it; and the judge makes sure that the jury are not distracted by, or over-emphasise the use of the document, then the practice is likely to be a much more useful way of assisting a jury than merely reading to them an abstract essay of law; difficult not only for a lawyer to comprehend but possibly incomprehensible to a layman.
7. It is evident from those passages that although the approach which had been taken by the trial judge was endorsed, the Court emphasised that a document of the kind which had been provided to the jury was not to be regarded as a substitute for oral directions. That emphasis necessarily assumed that oral directions were required.
8. The practice of assisting a jury by providing written directions has also been endorsed in other jurisdictions, in the absence of any statutory equivalent of s 55B. However once again, that endorsement has been accompanied by clear statements supporting the necessity for a trial judge to make it plain to the jury that any document which might be provided for their assistance is not to be used as a substitute for oral directions.
9. For example, in R v Bourke [32] (a decision of the Queensland Court of Appeal) the trial judge had provided written directions to the jury setting out the elements of each offence and also setting out some of the questions that the jury would be required to consider. In rejecting a submission that the written directions were inconsistent with the oral directions which had been given, Williams JA (with whom McMurdo P and Philippides J (as her Honour then was) agreed) cited the decision of Nagle CJ at CL in Petroff as authority for the proposition that a written document cannot be used in substitution for oral directions. [33] His Honour went on to say: [34] Whilst it is clearly desirable that some express words to the effect that the document is not to be used in substitution for oral directions should be used, the real question will always be whether the jury were left under a misapprehension that the document was in addition to or in lieu of oral directions.
10. In agreeing with Williams JA, and again referring to the judgment of Nagle CJ at CL in Petroff, McMurdo P said: [35] Supplementary written material can be of great assistance to jurors, at least in those cases where oral judicial directions are necessarily complex. This appeal highlights the great care that must be taken by trial judges when providing such written material to jurors. The material here was handed in its final form to the jury after effectively being "settled" by counsel and with counsel's consent. Unfortunately, in setting out the elements of all but count 5, the written material referred to "assistance" instead of "knowing assistance". It is also regrettable that the learned primary judge did not clearly emphasise that the written material was only to assist the jury in understanding the oral judicial directions and not as a substitute (emphasis added).
11. In R v Dunn [36] (a decision of the Court of Criminal Appeal of South Australia) the trial judge had provided the jury with a document setting out the elements of the offences of murder and the alternative verdict of manslaughter, but no oral directions were given to the jury as to the basis on which they might arrive at that alternative verdict. Bleby J (with whom Sulan and White JJ agreed) said: [37] The use of written directions as an aid to a judge's oral summing up is now commonplace. It is particularly helpful where a direction on the law is complicated, such as a direction of self-defence, or where there are a number of possible alternative verdicts to be considered by the jury. Although they are commonplace, appellate courts have stressed the limitations associated with their use. No court has held that they can be used as a substitute for oral directions. They are to be used in conjunction with and by way of supplement to oral directions (emphasis added).
12. In reaching that conclusion, and by reference to the judgment of Nagle CJ at CL in Petroff, his Honour observed that "[c]ourts have been at pains to point out the need for such written directions to be supplementary to and not in substitution for oral directions". [38] Having referred to the decision in Bourke his Honour then said: [39] Judges are becoming increasingly aware of the benefit of written and technological aids in effective communication of their message to juries. I would not wish to discourage the wise and sensitive use of such aids. It may be that for a particular direction of some complexity a trial Judge will wish to rely solely on the words written in an aide-memoire without further elaboration. However, it would be an error merely to hand the written direction to the jury without more, without reading and perhaps repeating the words written down (emphasis added).
13. The circumstances postulated in the italicised portion of that passage of his Honour's judgment reflect what occurred in the present case.
14. In R v Burns [40] (also a decision of the Court of Criminal Appeal of South Australia) the trial judge had provided a document to the jury which was not dissimilar in some respects to the question trails provided by the trial judge in the present case. The document was supplemented with oral directions by the trial judge (with which the Court found error, the nature of which is not relevant for present purposes). Gray and Sulan JJ accepted that there were likely to be advantages in providing written directions to a jury as an aid to the summing-up of a trial judge. However, their Honours stressed that the use of such documents was subject to an important qualification which (having referred to the observations of Nagle CJ at CL in Petroff) they explained in the following passage: [41] [T]he written document is not in lieu of the oral directions a judge is required to give to a jury. The document is not to be used as a substitute for the detailed oral directions. It is to be used as an aide memoire which may assist the jury to recall the various steps which they might follow in arriving at a proper verdict (emphasis added).
15. In a separate judgment, Kourakis J (as his Honour the Chief Justice then was) having noted that the practice of providing written directions to a jury had become an accepted one, [42] said: [43] Nonetheless, it is a rule of common law that in a criminal trial the trial judge must give the jury oral directions. That rule has not been modified by judicial authority, nor has it been abrogated by statute (emphasis added).
16. As I have noted, there is no doubt that the course followed by the trial judge in the present case of providing the question trails to the jury was expressly permitted by s 55B of the Act. That section serves a statutory confirmation of the accepted position at common law, namely that a trial judge has a discretion to provide such material to a jury for their assistance.
17. However in my view, there is nothing in the terms of s 55B of the Act which provides any support for the conclusion that in enacting that provision, the Parliament intended to abrogate the clear obligation imposed by the common law on a trial judge to give oral directions to the jury. In particular, s 55B does not permit a trial judge, having reduced directions of law to writing, to provide them to the jury, have the jury read them for themselves, and then say nothing more about them. Quite apart from not being sanctioned by statute, that is a course which runs entirely contrary to the proposition, supported by the authorities to which I have referred, that oral directions are always necessary. It follows that the failure on the part of the trial judge to give oral directions to the jury regarding the contents of each of the question trials was an error.
18. Whether written directions should be provided to a jury at all will always be a matter for the exercise of the discretion of the trial judge. A fundamental factor which will inform the exercise of that discretion will be whether the provision of written directions is likely to assist the jury in their understanding of the issues in the trial. If a determination is made that written directions should be provided, both the Crown and counsel for the accused should obviously be given the opportunity to be heard in relation to the content of such directions, as well as in relation to the form of any document which is to be provided to the jury.
19. However, for the reasons already explained, and even if written directions are provided, there remains an obligation on the trial judge to give oral directions as well. It is not possible to prescribe the content of such oral directions. That will necessarily be a matter for the determination of the trial judge and will depend upon all of the circumstances of the case, including its nature and complexity. However, in any case where written directions are provided, and irrespective of whether such directions go to the elements of the offence or to substantive issues of law such as self-defence, intoxication or provocation, the obligation of the trial judge to give oral directions will require, at the very least, that such directions be read and explained to the jury in their entirety. The obligation to give oral directions is also likely to encompass the necessity to differentiate, for the jury's assistance, between those elements which are in issue from those which are not. In terms of the element(s) which are in issue, the obligation to give oral directions will generally require the trial judge to identify the evidence which is relevant to such element(s). [44] Finally, and importantly, it will always be necessary, in any case where written directions are provided, for the trial judge to emphasise to the jury that such directions are not a substitute for the oral directions which are given. A reiteration of that proposition in any written document provided to the jury would be prudent.
20. Further in my view, the obligation to give oral directions emphasises that the practice of allowing the jury to retire in the course of the summing-up and read written directions to themselves in the jury room is not one to be encouraged. Such a practice runs contrary to the fundamental obligation on a trial judge to assist the jury. It also largely deprives a trial judge of the important advantage of assessing whether or not the members of the jury comprehend the directions which are being given. In this regard Bleby J made the following relevant observations in Dunn: [45] One cannot assume, even in our relatively well-educated society, that all jurors are literate, and judges should ever be alive to the reaction of members of the jury to a difficult direction and to the possible need for further explanation or repetition of it. More importantly, however, when a direction on the law of the nature of that in question is given, it is incumbent on the Judge to ensure that the jury understands how that direction on the law relates to the facts, and to identify the evidence that is relevant to the application of that particular direction. That cannot be done merely by supplying the jury with a particular set of words comprising a direction on the law without relating that to the facts.
21. In R v Thompson [46] (a decision of the Victorian Court of Appeal) Redlich JA took a similar view: [47] Oral directions enable the trial judge to observe the jury and make some assessment as to whether they have followed and comprehended particular directions. It is not uncommon for a trial judge to appreciate during the course of giving a more difficult direction or from observing the jury's reaction to it, that it requires further elucidation. For some jurors it may be the only means by which they can comprehend their instructions. I have in mind not only the literacy of jurors, which as Bleby J recently said, cannot be assumed, but the significant differences there are in the cognitive skills of individual jurors to absorb the written word.
22. A further reason why the practice of allowing the jury to retire and read written directions for themselves is inappropriate stems from the fact that it is a practice which is completely lacking in transparency. Subject obviously to the exercise of any power to close the court, the common law requires that a criminal trial take place in public, and that directions of the trial judge be given "in the full light of publicity". [48] In this regard, the further observations of Redlich JA in Thompson are apposite: [49] The trial process is essentially an oral one. The provision of transcript or written directions cannot take the place of the oral directions which the law requires. The criminal trial proceeds upon the assumption that oral directions are an appropriate and effective means by which the jury's task is communicated to them. Oral directions are given and listened to by all of the jury in the presence of the judge and the parties in a public hearing. The parties are assured that all aspects of the jury's task have been explained to each member of the jury. The process provides transparency that would be absent if the jury were directed to act upon written instructions which they were to consider in the privacy of the jury room. Uncertainty would arise as to whether all jurors read all written material provided to them. The concept of justice being 'manifestly seen to be done' has contributed to the requirement 'that the whole direction must be by the judge in the full light of publicity' (emphasis added).
23. Why, in all of these circumstances, trial counsel raised no issue concerning the absence of oral directions is unclear. However, as Bathurst CJ pointed out in Obeid, a necessary ingredient of a fair trial is that proper directions be given as to the elements of the offence. If such an ingredient is overlooked, leave should generally be granted pursuant to rule 4. [50] In my view, for the reasons expressed, there was a failure on the part of the trial judge to provide proper directions as to the elements of each of the offences. That failure resulted in a miscarriage of justice and I am satisfied that leave should be granted pursuant to rule 4.
24. This ground of appeal is made out.

GROUND 1(b) - His Honour erred in the directions given to the jury in that he failed to summarise at all the defence case including the submissions made on behalf of the applicant

The directions of the Trial Judge

1. The trial judge correctly recognised that a primary issue in the trial was whether the Crown had established that the applicant was party to a joint criminal enterprise. [51] Having given the jury a lengthy direction as to what constituted a joint criminal enterprise, [52] his Honour later returned to this issue and said: [53] In this case, the crucial matter that you have to consider is whether or not the Crown has proved the existence of an agreement, or an understanding, between the accused and Mr McGuiness. I emphasise the importance of the agreement at the heart of the concept of joint criminal enterprise (emphasis added).
2. His Honour then directed the jury as to the drawing of inferences before giving a Murray direction in respect of the evidence of the complainant. [54] In the course of giving that latter direction, his Honour said: [55] In considering the complainant's evidence, and whether it does satisfy you of the accused's guilt, you should, of course, look to see if it is supported by other evidence. Mr Crown says to you that, standing alone, the complainant's evidence was credible and believable. He said to you that, in addition to that, his evidence was supported by the CCTV footage. [Counsel for the applicant] said to you that the evidence of the complainant, if you look at it, was not honest or credible - and he says that the CCTV footage supports his propositions. The battleline is clear. You will want to look very carefully, I would think, at the CCTV footage before coming to your conclusion, and you can watch it as many times you like. Both counsel have invited you to, and I invite you to, because you really did not get a very fair opportunity to look at it in this trial because there are no individual screens in the jury box; and the only screen was on the other side of the Court room (emphasis added).
3. His Honour then directed the jury as to the way in which the evidence of the applicant was to be assessed. [56] However in doing so, his Honour made no specific reference to anything which had been said by the applicant, be it in his evidence or in the course of his interview with police.
4. Before this Court, the Crown relied solely upon the italicised parts of those passages from the summing-up as discharging the obligation of the trial judge to put the defence case.

Submissions of the applicant

1. Counsel for the applicant submitted that the summing-up was bereft of any, or at least any substantive, reference to the defence case. It was submitted, in particular, that the trial judge had made no substantive reference to any specific proposition which had been put to the jury on behalf of the applicant, notwithstanding the numerous and detailed submissions which had been made by counsel in the course of his closing address. It was submitted that this failure constituted a fundamental error which went to the root of the proceedings and which gave rise to a substantial miscarriage of justice, thus justifying a grant of leave pursuant to rule 4.

Submissions of the Crown

1. The Crown expressly acknowledged that the reference to the defence case in summing-up was "brief" but submitted that there was no obligation on the trial judge to summarise the evidence. It was submitted that when the summing-up was read as a whole, it was evident that the trial judge had put the defence case adequately, and that the primary issues which had been the focus of counsel's final address to the jury had been properly addressed.

Consideration

1. Accepting that s 161 of the Criminal Procedure Act 1986 (NSW) (the CPA) alleviated the need for the trial judge to summarise the evidence, one of the factors which is of paramount significance in assessing a summing-up is to determine whether the defence has been fairly put, thus allowing the jury to properly consider the issues raised on the accused's behalf. If, when the summing-up is viewed as a whole, the jury has not been given the opportunity fairly to consider the defence case, then there has been a miscarriage of justice. [57] The principles which centre upon the obligation of a trial judge in that regard include the following.
2. Firstly, the fundamental task of the trial judge is to ensure a fair trial which will involve not only instructing the jury about the law, but which will extend to identifying the issues, relating the law to those issues, and assisting the jury to understand how it is that the accused may be guilty of the offence charged in the indictment. It is the case which the accused makes that the jury must be given to understand, and it is not sufficient for the trial judge to simply say to the jury that they should give consideration to the arguments which have been put by counsel. [58]
3. Secondly, fairness and balance will ordinarily require that the respective cases for the prosecution and the accused be accurately and fairly put to the jury, although that requirement does not oblige the trial judge to put to the jury every argument put forward by counsel for the accused. [59]
4. Thirdly, the adequacy of a summing-up will depend, at least in part, upon the circumstances of the particular case. [60] 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. [61]
5. Fourthly, the need for, and extent of, any exploration of the evidence and the issues is to be assessed in the context of the trial, its length, its complexity and the way in which it has been conducted. Where the summing-up in a short trial has followed hard on the heels of a defence address, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in the closing addresses. To so require would be to credit the jury with little in the way of intelligence and common sense. However, 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 suggest that in every case, regardless of its length or complexity, the trial judge must identify and repeat the points made by defence counsel, and 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. [62]
6. Fifthly, whilst s 161 of the CPA relieves the trial judge of the positive obligation to summarise the evidence if the circumstances of the particular trial render that unnecessary, it does not relieve the trial judge of the obligation to put the case of the accused to the jury, and instruct the jury about how the law applies to the case. The way in which the accused's case is put to the jury must make it clear that the onus of proof remains on the prosecution, but the case must still be put. [63]
7. I accept that the applicant's trial was a short one which, in relative terms, was not complex. I also accept that it was made clear by counsel for the applicant in his opening address that the principal issue was whether or not the Crown had established the applicant's participation in the joint criminal enterprise which was alleged. That remained the case throughout the trial. The proposition that the Crown could not establish the applicant's involvement in the joint criminal enterprise formed a fundamental foundation of counsel's closing address which, I acknowledge, took place immediately prior to the summing-up of the trial judge. However, it remains the case that by reference to two specific matters, counsel for the applicant advanced a number of detailed submissions in support of the overarching submission that the applicant's participation in the joint criminal enterprise had not been established.
8. The first matter involved a significant attack on the credibility of the complainant, in circumstances where that evidence was relied upon largely, if not exclusively, by the Crown to prove its case. The only reference made by the trial judge to this aspect of counsel's address was to remind the jury of his submission that the complainant's evidence was not credible. That was not said in the distinct context of putting the defence case, but was somewhat "buried" in the Murray direction.
9. The second matter centred upon the CCTV footage, which counsel submitted contradicted the evidence of the complainant in several respects. The submissions as to that issue occupied a significant part of counsel's final address. Although the trial judge made reference to the necessity for the jury to look at the CCTV footage carefully, nothing at all was said about the defence position in relation to it. In particular, nothing was said about the bases on which counsel for the applicant had put that it further eroded the complainant's credibility.
10. Even giving full weight to the fact that the trial was short and that the summing-up followed immediately upon the final address of counsel for the applicant, an obligation remained on the trial judge to put the defence case. The passages of the summing-up relied upon by the Crown did not discharge that obligation. Simply directing the jury that the "battleline [was] clear" was largely meaningless without some elucidation of how and where such battleline was drawn.
11. Taken as a whole, what was said by the trial judge fell short of putting the defence case to the jury. I consider it surprising, to say the least, that counsel for the applicant did not raise these issues when given the opportunity to do so. Notwithstanding that, the failure to put the defence case resulted in the jury not having a fair opportunity to properly consider that case and resulted in a miscarriage of justice. For those reasons, leave under rule 4 should be granted.
12. This ground of appeal is made out.
13. It is unnecessary for me to consider the application for leave to appeal against sentence in light of the views that I have reached on the conviction appeal.

ORDERS:

1. I propose the following orders: 1. Leave to rely upon ground 1(a) in support of the appeal against conviction is granted. 2. Leave to rely upon ground 1(b) in support of the appeal against conviction is granted. 3. The appeal against conviction is allowed. 4. The convictions and sentences imposed in the District Court are quashed. 5. The proceedings are remitted to the District Court for a new trial. 6. The proceedings are listed in the District Court Arraignments List at 9.30am on 28 May 2021.
2. HIDDEN AJ: I agree with Bellew J.

Endnotes

1. R v McGuiness; R v Trevascus [2020] NSWDC 90.
2. Exh. C.
3. At [21].
4. McGuiness v R [2021] NSWCCA 80.
5. AB 224.1 - AB 224.16.
6. AB 387.21 - AB 387.27.
7. AB 388.13 - AB 388.17.
8. AB 388.19 - AB 391.21.
9. AB 388.49 - AB 389.11.
10. AB 391.23 - AB 391.31.
11. AB 392.1 - AB 393.3.
12. AB 393.3 - AB 395.29; AB 397.7 - AB 397.37.
13. AB 397.39 - AB 399.16.
14. AB 399.18 - AB 399.33.
15. At the time of the hearing of this appeal, Rule 4 of the Criminal Appeal Rules was in force. The Supreme Court (Criminal Appeal) Rules 2021 commenced on 1 May 2021, rule 4.15 of which is in the same terms as the previous rule 4.
16. (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24]-[25].
17. AB 400.
18. AB 400 - AB 403.
19. AB 403.
20. MFI 8; AB 86 - 91.
21. In the case of both documents the various emphases are in the original.
22. AB 404.
23. AB 413.
24. AB 407.
25. AB 415.
26. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 November 1987 at 16523.
27. Explanatory memorandum, Jury (Amendment) Bill 1987(NSW) at 2.
28. (1980) 2 A Crim R 101.
29. Street CJ and Nagle CJ at CL; Roden J dissenting.
30. At 113.
31. At 115-116.
32. [2003] QCA 113.
33. At [21].
34. At [22].
35. At [2].
36. (2006) 94 SASR 177; [2006] SASC 58.
37. [2006] SASC 58 at [36].
38. At [38].
39. At [41]
40. (2009) 103 SASR 514;[2009] SASC 105.
41. [2009] SASC 105 at [20].
42. At [72].
43. At [73].
44. As to which see the judgment of Bleby J in Dunn at [42].
45. At [42].
46. (2008) 21 VR 123; [2008] VSCA 144.
47. At [147].
48. Willmont v R (1914) 10 Cr App R 173 at 175; R v Kerr (No. 2) [1951] VLR 239 at 241.
49. At [146] citations omitted.
50. See also Greenhalgh v R [2017] NSWCCA 94 at [14].
51. AB 400; 408.
52. AB 401 - AB 403.
53. AB 408 - 409.
54. AB 409 - 410.
55. AB 410 - 411.
56. AB 411 - 412.
57. R v Malone (Court of Criminal Appeal (NSW)), 20 April 1994, unrep).
58. El-Jalkh v R [2009] NSWCCA139 at [147] per James J, Spielman CJ and Simpson J (as her Honour then was) agreeing.
59. Domican v The Queen (1992) 173 CLR 555 at 560 - 561; [1992] HCA 13 at [9]; RPS v R (2000) 199 CLR 620; [2000] HCA 3 at [41] per Gaudron ACJ, Gummow, Kirby and Hayne JJ; Meher at [77] and [82] per Wood CJ at CL.
60. Van Leeuwen v The Queen (1981) 55 ALJR 726 at 728 per Gibbs CJ.
61. Domican v The Queen (1992) 173 CLR 555 at 561; [1992] HCA 13 at [9] per Mason CJ; Deane, Dawson, Toohey, Gaudron and McHugh JJ.
62. R v Davis [1999] NSWCCA 15 at [24] per Wood CJ, Spielman CJ and McInerney J agreeing, cited with approval in RR v R [2011] NSWCCA 235 at [86] - [87]; see also Dixon at [120]; R v Williams [1999] NSWCCA 9 at [43] - [44]; (1999) 104 A Crim R 260; per Wood CJ at CL, Spielman CJ and McInerney J agreeing, cited with approval in RR at [86] - [87] per Bathurst CJ, James and Johnson JJ agreeing; see also Dixon v R [2017] NSWCCA 299 at [120] per McCallum J (as her Honour then was) Basten JA and Wilson J agreeing.
63. Wong v R [2009] NSWCCA 101 at [141] per Campbell JA (Grove and Howie JJ agreeing) citing Condon v R (1995) 83 A Crim R 335 at 347 - 348 per Allen J (Newman J and Simpson J (as her Honour then was) agreeing).

Amendments 25 May 2021 - Typographical error in para [17] within the quote. Typographical error in para [20] within the quote. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2021