Summing up

The Court (Hunt, Enderby and Sharpe JJ)

At 93

The appellant (Roy Peter Zorad) was found guilty by a jury in the District Court at Gosford of one charge of robbery with striking and one charge of supplying a prohibited drug (cannabis). Walsh DCJ imposed a sentence of twelve years penal servitude on the first charge and seven years imprisonment on the second, to be served concurrently, and he fixed a non-parole period of six and a half years.

At 94

The appellant appeared at the trial unrepresented. His case, so far as it can be ascertained, was that he had attempted to purchase only $500 worth of cannabis, and that it was for his own use, not for the purpose of supply. He was subsequently at Kelly's flat only under duress, and he had no control over what went on there. He played no part in the robbery with striking. He had made no admission to the police, and had been handcuffed by them to a chair, with his hands behind him, until he was prepared to answer their questions.

Such issues should not have been difficult to try. But the trial was made extremely difficult for the judge because of the decision by the appellant to appear unrepresented. No reason for that decision was stated to the judge. Although an invitation was extended by this Court to his counsel to explain why that decision had been taken, no explanation was given. The appellant has had a long experience of the criminal justice system. In these days of almost universal legal aid (at the trial stage), there is therefore available the clear inference (which we draw) that he elected to dispense with legally aided professional representation at the trial in the hope of obtaining tactical advantages.

At 106 and 107

The twelfth ground of appeal complains of the statement by the judge that the jury may not have any difficulty at all in deciding that it was the appellant who was involved in the attack upon the victim Kelly which accompanied the robbery. This was a matter which was in dispute, and it went to a relatively important issue, one upon which the appellant had succeeded in wresting from Kelly in cross-examination the concession that “he [the appellant] was not violent to me; he just wanted his money back”.

It was submitted that a trial judge should always refrain from expressing his view on such an issue (at least where it was contrary to the accused), and that he should be all the more careful not to appear to do so where the accused is unrepresented. We do not accept either of those submissions. A judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he makes it clear that it is the jury's function (and not his) to decide the facts and that it is their duty to disregard the view which he has expressed (or which he may appear to hold) if it does not agree with their own independent assessment of the facts: Hoger v Ellas (1962) 80 WN (NSW) 869 at 875-876; [1963] NSWR 1033 at 1042-1043; cf R v Stranger (Court of Criminal Appeal, 28 June 1989, unreported at 10-12). There is no different rule in relation to the central issues in the case. Nor is there a different rule where the accused is unrepresented.

The judge had given the jury the usual warning about any views which he may express upon the facts. It may have been better if he had added a similar reference to any views which he may have appeared to hold, but that does not affect this ground of appeal. The context in which the judge made this particular statement could perhaps have been understood by the jury as having intended only to assist them in narrowing the issues upon which they might need to look for corroboration. But, if it had in fact been so intended, it could also easily have been misunderstood as a strong expression of the judge's own view. It was certainly unfortunate that the judge did select this particular issue about which to make such a comment when the Crown's principal witness had expressed some doubt upon the issue, and particularly when he also failed to draw the jury's attention to that doubt (a matter which is the subject of the next ground of appeal). But the comment itself cannot lead to a new trial. The ground of appeal is rejected.

Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ (would allow the appeal)

1. The appellant, Thomas Christopher Domican, was convicted by a jury in the Supreme Court of New South Wales of shooting at Christopher Dale Flannery with intent to murder him. The appellant contends that the trial judge misdirected the jury on the issue of the identification of the gunman by failing to give specific warnings concerning various features of the evidence of an eyewitness to the shooting. He also contends that the Court of Criminal Appeal erred in holding that, although the trial judge's directions on identification fell short of the standard required by certain decisions of that Court, the direct and circumstantial evidence identifying the appellant with the crime "remained to remove any concern that the lack of specificity in the judge's warnings about identification evidence was such as to result in a mistrial". This Court has already granted the appellant special leave to appeal against his conviction. In our opinion, the appeal should be allowed.

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9. In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence Ali Ali (1981) 6 A Crim R 161, at p 164., and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. Section 405AA of the Crimes Act 1900 (N.S.W.), which came into force after the trial of the appellant, provides that a judge of the Supreme or District Court need not summarise "the evidence given in the trial" if he or she is of the opinion that in all the circumstances a summary is not necessary. Nevertheless, 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. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it "is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities" Basto v. The Queen [1954] HCA 78; (1954) 91 CLR 628, at p 637. 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 Reg. v. Matthews and Ford [1972] VicRp 1; (1972) VR 3, at pp 15-16. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence R. v. Davies and Cody (No.2) [1937] VicLawRp 47; (1937) VLR 226, at pp 236-237; Reg. v. Melville (1956) 73 WN(NSW) 579. 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.

10. The foregoing statements are applicable to all criminal cases including those where the prosecution relies on identification evidence as the whole or part of the proof of guilt of an offence. Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.

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15. Unfortunately, the learned trial judge's directions were not likely to impress upon the jury that the evidence of identification by Mrs Flannery had a number of weaknesses. His Honour told the jury that "(s)udden and unexpected acts of violence such as Mrs Flannery described in this case, can affect people caught up in the events in different ways." He said that the terror of the occasion "can serve to impress indelibly on the minds of some people the features of anyone they see involved in it. With other people the effect may be to obscure their judgment and their later recollection." He also raised the possibility of honest mistakes being made in identification and the need for caution when dealing with this type of evidence. But apart from these statements, his Honour's directions did not refer to any matters concerning Mrs Flannery's evidence which would bring the attention of the jury to the many weaknesses in her evidence. To the contrary, some parts of his Honour's directions were capable of conveying the impression that her evidence of identification was reliable. After pointing out to the jury that "(w)hat it is important to know is whether the identification was aided by any suggestion made to the witness or any expectation on the part of the witness at the time when it was made", his Honour recited the evidence of Mrs Flannery concerning the steps by which she came to identify the appellant…

…

18. However, as we have already pointed out, mere repetition of counsel's arguments is an insufficient discharge of the trial judge's duty to draw the jury's attention to any weaknesses in the identification evidence. If the matters to which counsel has referred may reasonably be regarded as undermining the reliability of the identification evidence, the trial judge must direct the jury that they are bound to take those matters into consideration in determining whether they will rely on that evidence. Consequently, the learned trial judge's directions on the issue of identification were not adequate and constituted a misdirection.

Brennan J (would allow the appeal)

6. In the circumstances of this case, where the sole question in issue arising from Mrs Flannery's evidence was identification, the experienced trial judge's warning against acting on her identification of the appellant seems to me to have been sufficient to alert the jury to the reasons why there was judicial misgiving about the reliability of her identification of the appellant. However, this is a minority view which turns merely on the particular directions given and the evidence of Mrs Flannery to which it related. There is no purpose to be served in canvassing my appreciation of those directions and evidence.

7. Proceeding then on the view of the majority of this Court that the warning given by the trial judge was inadequate, the question arises whether the Court of Criminal Appeal was right to apply the proviso to s.6 of the Criminal Appeal Act 1912 (N.S.W.) and to dismiss the appeal. I respectfully agree that the Court of Criminal Appeal was in error in applying the proviso. The evidence in this case fell into three distinct categories: the direct evidence of Mr Patience as to the appellant's involvement in the shooting of Mr Flannery; the confessional statements attributed to the appellant by Messrs Many and Heuston, who were fellow prisoners of the appellant; and the evidence of Mrs Flannery identifying the appellant as the person in the green car who shot and wounded her husband. The jury might have reached a guilty verdict by acting on any of those three categories of evidence. Each category of evidence, without reference to the evidence in any other category, was sufficient to found a guilty verdict. The defect in the warning would vitiate only a conviction based on the identification evidence given by Mrs Flannery, but it is impossible to determine the basis on which the jury founded their verdict.

Gaudron ACJ, Gummow, Kirby and Hayne JJ (would allow the appeal)

1. The appellant was charged, in the District Court of New South Wales, with two counts alleging that he had had carnal knowledge of his daughter and six counts alleging that he had had sexual intercourse with her. The offences were alleged to have occurred between various dates, the earliest of which was 6 February 1983 (when the complainant was four years old) and the latest of which was 31 July 1993 (by which time the complainant was 14 years old). He pleaded not guilty. The trial judge directed the jury to acquit the appellant of one of the charges of sexual intercourse; the jury returned verdicts of guilty to four of the remaining five counts of sexual intercourse and verdicts of not guilty to the other count of sexual intercourse and the counts of carnal knowledge.

2. The appellant appealed to the Court of Criminal Appeal of New South Wales against his convictions but that appeal, and his application for leave to appeal against sentence, were dismissed. By special leave, he now appeals to this Court.

3. The determinative issue in this appeal is what comments or directions a trial judge can make or give to a jury when an accused person does not give evidence. In order to understand the context in which that issue arises in this matter, it is necessary to say something about the course of the appellant's trial. It is convenient, while describing what happened at the trial, to notice briefly some of the other issues that were argued in the appeal.

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41. 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.

42. But none of this must be permitted to obscure the division of 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.

43. To attempt to instruct the jury about how they may reason towards a verdict of guilt (as distinct from warning the jury about impermissible forms of reasoning) leads only to difficulties of the kind that have arisen in the present case. Had the judge's instructions about the significance of the appellant not giving evidence stopped at pointing out that he was not bound to do so, that there may have been many reasons why he did not do so (and the jury should not speculate about those reasons), that it was for the prosecution to prove its case beyond reasonable doubt, and that the jury should draw no inference from the appellant not having given evidence, no complaint could be made. Because the charge in this case went beyond these matters, the jury were misdirected.

McHugh J (would allow the appeal)

64. However, the learned judge's directions to the jury in the present case went further than inviting the jury to use a legitimate form of reasoning with respect to the lack of denial or explanation of facts within the appellant's knowledge. The judge's directions invited the jurors to use a train of reasoning from which they might conclude that the appellant had not given evidence because he was guilty of the offences charged, a course which s 20 of the Act forbids. As I have already indicated, it was the use of the words "would not have assisted him in this trial", in the context of the passage in the summing up which I have emphasised, that resulted in the directions infringing s 20 of the Act. Because that is so, the convictions must be quashed. The misdirection was too significant to hold that there has been no miscarriage of justice.

Callinan J

113. I should also say that I agree with the observations of the other members of this Court with respect to judicial instructions in criminal trials, and their observations about any continued application of OGD in New South Wales.

114. For these reasons the appeal should be allowed, the order of the Court of Criminal Appeal set aside, the convictions quashed and a new trial ordered on counts 4, 6, 7 and 8 of the indictment.

115. There is only one other matter which I would mention. Nothing that I have said should be taken as precluding a trial judge from commenting when appropriate on inconsistencies in, or omissions from a statement, or statements made by an accused person out of court, or upon the differences (whether by way of additions, inconsistencies or omissions) between evidence given by an accused person in court and statements made out of court.

Wood CJ at CL

1. On 12 August 2003 the Appellant was convicted by a District Court jury of four offences arising from events that occurred at the Sikh Temple at Revesby, on the evening of 22 June 2002, namely that he had:

• Wounded his ex wife Baldev Kaur with intent to murder her (s 27 Crimes Act 1900) – Count 1;
• Used a pistol without being authorised to do so by a licence or permit (s 7(1) Firearms Act 1996) – Count 5;
• Assaulted his son Amar Preet Singh (s 61 Crimes Act 1900) – Count 6;
• Possessed a pistol without being authorised by a licence or permit (s 7(1) Firearms Act 1996) – Count 7.

2. He was acquitted of Count 4. Verdicts were not required for Counts 2 and 3, which had been proffered in the alternative to Count 1.

3. The Appellant appeals against his conviction, asserting that his trial miscarried by reason of the trial judge’s unbalanced summing up to the jury, and by reason of a comment made by the Crown Prosecutor in his address. The Appellant also seeks the leave of the Court to appeal against the non-parole period of 12 years imprisonment with a balance of term of 4 years.

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Ground 1:           The trial miscarried because the learned trial judge’s summing up was unbalanced;

Ground 2:           The trial miscarried because his Honour included factual arguments in favour of the Crown not addressed on by either the Crown Prosecutor or Counsel for the Appellant;

Ground 3:           The trial miscarried by reason of his Honour’s frequent references to the Appellant as a liar and that as a result his testimony might be unreliable

75. These are related grounds which fall within a general submission that the summing up was unfairly balanced in favour of the Prosecution, and did not adequately present the defence case. They need to be considered together since, while individual complaints concerning aspects of a summing up may not give rise to appellable error, a different result might arise when the summing up is viewed as a whole.

76. It is trite law that the fundamental task of a trial judge is to ensure a fair trial. That will involve not only instructing the jury about the law. It extends 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, or of any alternative offence open upon that indictment. It also requires the judge to explain why it is that the accused asserts that his guilt has not been established beyond reasonable doubt and to give any directions which, in accordance with the Evidence Act or established case law, call for a particular explanation or caution. So far as the accused is concerned, it is the case which the defence makes that the jury must be given to understand, including any matter that is properly open upon which they might find for the accused: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107.

77. There is no obligation to go beyond those matters that are of direct relevance for the trial, nor is there a need for a judge to painstakingly read all of the evidence to the jury, or even to analyse all of the conflicts in it: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 at 560-561. What is required is a fair and balanced summary of the law, the issues, and the respective cases for the prosecution and the defence.

78. This does not preclude judicial comment on factual issues, even strong comment, so long as it is fair and appropriate: Tsigos v The Queen (1965) 39 ALJR 76n, B v The Queen [1992] HCA 68; (1992) 175 CLR 599, RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, and R v Inamata [2003] NSWCCA 19; (2003) 137 A Crim R 510 at para 38.

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82. It is essential, if a summing up is to be fair and balanced, that the defence case be put to the jury.

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86. Whether there has been a balance in the summing up, or not, does not however depend upon a comparison between the time that was spent on the prosecution and defence cases, respectively. Almost inevitably the bulk of the evidence is led in the prosecution case, and more often than not more time will need to be spent on it: see R v Courtney-Smith (No 2) where the Court (Gleeson CJ, Kirby P and Lusher AJ) said at 56:

“...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.”

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.

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111. More importantly, however, so far as the defence argument on appeal is concerned, is that his Honour placed considerable emphasis on the argument that if the shots had occurred before any yelling or shouting, then that assisted the Crown on the central issues in the case, namely, whether it was the Appellant or Amar Preet Singh who took the gun to the Temple and commenced the incident, and whether the gun was discharged accidentally in the course of a struggle over it.

112. What this submission involved was the proposition that the shouting must have accompanied the wrestle for the gun, so that if the shots preceded the shouting, then the gun must have been discharged before there was any fight over it, thereby suggesting that Amar Preet Singh’s version was correct, while that given by Ms Kaur in cross-examination was incorrect.

113. There are a number of problems with this. First, and most obviously, it was not an argument that the Crown Prosecutor advanced, and the defence had no opportunity of meeting it. Secondly it did not confront the possibility that when the struggle over the gun commenced, none of those involved, or any bystanders yelled out, leaving open the possibility that there had been a struggle before the first shot was fired.

114. Thirdly, there was no clear evidence, except perhaps from Amar Preet Singh, dealing with the precise time that the shouting began in relation the commencement of the struggle, yet it was in support of his account that this argument was developed by his Honour. While his Honour suggested that Usha Singh also placed the shot as preceding the wrestle, in fact she said that she had been walking down the driveway when she heard the shots followed by the yelling. She had not been in a position to see when the wrestle began.

115. Fourthly, these observations to the jury effectively blurred the issue whether the gun went off while Amar Preet Singh and the appellant were struggling over it, with the issue whether there was any shouting before the shots were fired.

116. In substance, his Honour was advancing an argument based on a gap between the shots and the shouting, as circumstantial proof in support of the critical issues in the case, without having given consideration to any other rational inference that was open, and in a situation where neither counsel had addressed it. It had also followed upon his criticism of Ms Kaur as an unsatisfactory witness, an observation that did not assist the defence since her description of the manner in which the gun discharged accorded with its case; as well as upon his observation to the jury that they might think that Amar Preet Singh’s evidence had been unshaken in cross-examination.

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147. It is undeniable that the Prosecution case was a potentially strong one. There were however critical issues for the jury to decide, concerning who it was that had taken the weapon to the Temple; and if it had been the Appellant who had done so, whether it was discharged accidentally in the course of a wrestle between him and Amar Preet Singh and/or his wife, to gain control of it.

148. Each of those issues went directly to the proof of each of the counts upon which the Appellant was convicted. There were some associated issues of self defence.

149. The Crown case depended very substantially upon the jury accepting Amar Preet Singh’s evidence, and a good deal of that given by Ms Kaur, and rejecting that of the Appellant. There were no other witnesses who gave evidence going directly to the shooting, or to the commencement of any wrestle over the gun, or to the identity of the person who first produced the weapon.

150. It was important that there be a balance in the summing up, and that the defence case be properly put. While his Honour carefully and correctly identified the issues and gave impeccable directions on the law, including those that went to the onus and standard of proof, and to the elements of the offences charged, I have reached the conclusion that the summing up was unbalanced, and that a miscarriage of justice occurred.

151. I have come to this conclusion in the light of an evaluation of the summing up as a whole, rather than by reference to any single complaint. Taken alone these individual complaints would not have been enough. In combination, the summing up was so heavily directed in favour of the Crown, and so little attention was given to the defence case, that, in my view, the conviction should be set aside.

Buddin J

154. I agree with Wood CJ at CL.

Shaw J

155. I agree with Wood CJ at CL.

Wood CJ at CL

1. The Appellant stood trial, together with his brother Paul Tony Sukkar, on a charge of being knowingly concerned in the importation of narcotic goods, consisting of not less than a commercial quantity of 3,4 methylenedioxymethamphetamine (“Ecstasy”) tablets. To that charge he entered a plea of not guilty. After a trial lasting two months he was found to be guilty of that offence. He was sentenced on 19 December 2003 to imprisonment for 14 years with a non-parole period of 9 years, each to date from the time of his arrest, namely 5 December 2001.

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Additional ground of appeal – the summing up of the learned trial Judge was not balanced and leant too far towards the Crown

88. This ground depends upon the proposition that twice as much attention was paid by his Honour, in the summing up, to the Crown case as to the defence case. In support of that proposition the Appellant relied upon an argument that a lack of balance was demonstrated by the fact that his Honour devoted 21 pages of the summing up to an outline of the prosecution case and only 10 pages to the defence case. Reference was also made to the fact that his Honour, when dealing with the Crown case, made several references to the observations in the course of the conversation between Louis and Joseph Sukkar concerning the Appellant eating some of the tablets on 24 November, and then made only brief mention of it when outlining the defence case.

89. The replaying of the summing up, it was contended, doubled the imbalance, although it is to be noted, no objection was taken to the summing up when first given.

90. 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. Any attempt to measure the balance by reference to a mere numerical comparison of the pages devoted to the Crown and to the defence respectively, is valueless and has been held to be such. In R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49 the Court (Gleeson CJ, Kirby P and Lusher J) said at 56:

“It is not the length of the time devoted to the cases 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 or safeguard.”

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93. This does not necessarily require an exhaustive reiteration or analysis of the entirety of the evidence which has been led, or even an analysis of all of the conflicts in the evidence (R v Meher, Supra at [77]), so long as the critical evidence is identified, and the cases of the Crown and the defence in relation to the issues are identified and summarised in a fair and meaningful way. As Brennan J observed in B v The Queen [1992] HCA 68; (1992) 63 A Crim R 225 at 229, citing Stokes v The Queen [1960] HCA 95; (1960) 105 CLR 279 at 284, a summing up must exhibit a judicial balance so that the jury is not deprived “of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence”. See also Green v The Queen [1971] HCA 55; (1971) 126 CLR 28 at 34; Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 at 117-118 per Barwick CJ; R v Schmahl [1965] VicRp 95; [1965] VR 745 at 748 cited with approval in Regina v Tomazos NSWCCA 6 August 1971 and Regina v Malone NSWCCA 20 April 1994, where Blanch J said:

“What is of paramount significance in assessing a summing up is to determine whether the defence has been fairly put thus allowing a jury properly to consider the issues raised on the accused’s side. If a jury is not given the opportunity fairly to consider the defence case, then there has been a miscarriage of justice.”

94. If a judge does refer to the evidence in relation to a crucial issue, then there will be an imbalance in the summing up unless there is reference to the competing versions, and the competing considerations, including inferences arising therefrom: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 at 560-561, R v Zorad (1990) 19 NSWLR 91 at 105 and R v Hannes [2000] NSWCCA 503; (2000) 158 FLR 359 at 377.

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99. In my view, the summing up was comprehensive, and correct, and reflected a proper balance, a circumstance which is only confirmed by the fact that experienced trial counsel did not make any complaint about it or seek any redirection.

100. This ground is not made good.

Hidden J

155. I agree with Wood CJ at CL.

Smart AJ

207. I agree with what the Chief Judge has written on Grounds 3, 4 and 5 and the additional ground of appeal and his rejection of those Grounds. As to Ground 6, while I agree with the Chief Judge's conclusion I have done so on a narrower basis. The appeal against conviction should be dismissed.

Spigleman CJ

1. In this matter I have had the advantage of reading the judgment of Johnson J in draft. I agree with his Honour’s reasons and orders. I wish to add a few observations with respect to Ground 4.

Simpson J

20. I agree with the orders proposed by Johnson J and with his Honour's reasons therefor. I also agree with the additional observations of the Chief Justice.

Johnson J

21. On 17 September 1998, John Thomas Kennett was a sentenced prisoner detained at the Junee Correctional Centre (“the Centre”). He had been sentenced to a term of imprisonment for child sexual assault offences. On the evening of 17 September 1998, Mr Kennett was beaten severely in his cell. He died within minutes as a consequence of injuries sustained in the beating.

22. The Appellant, Harry Robinson, was a prisoner detained in the Centre. He was charged with the murder of Mr Kennett. Following a trial before Barr J and a jury, he was convicted of murder on 20 April 2000 and sentenced to imprisonment for a term of 22 years with a non-parole period of 15 years: R v Robinson [2000] NSWSC 541. This trial followed an earlier trial in the preceding March which culminated in the discharge of the jury.

23. Following an appeal against conviction to this Court, the appeal was allowed, the conviction quashed and a new trial was ordered: R v Robinson [2003] NSWCCA 188. Following a trial before Greg James J and a jury, the Appellant was convicted of murder on 12 March 2004 and sentenced to a term of imprisonment of 22 years with a non-parole period of 14 years: R v Robinson [2004] NSWSC 465. That sentence commenced on 12 December 1999 and will expire on 11 December 2021. The Appellant will be eligible for release on parole on 11 December 2013.

24 The Appellant appeals to this Court against his conviction for murder. No challenge is made to the sentence imposed by Greg James J.

Grounds of Appeal

25 Six grounds of appeal were contained in a document filed on the Appellant’s behalf. They were:

• The learned trial judge erred in leaving to the jury, as a possible basis of conviction, a case not relied on by the Crown at trial and not supported by the evidence.

(2) The learned trial judge erred in his directions to the jury on the meaning of grievous bodily harm.

(3) The learned trial judge erred in that his directions on manslaughter were not in accordance with Wilson v The Queen [1992] HCA 31; (1991-1992) 174 CLR 313.

(4) The directions to the jury as to the manner in which the evidence of the various prisoners should be treated were inadequate.

(5) The learned trial judge erred in declining to direct that a view be held.

(6) The verdict of the jury is unreasonable.

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29. As will be seen, it was the Crown case at trial that the Appellant and another prisoner, Mark Brazel, were seen to enter the deceased’s cell and to attack him.

30. The Crown opened and closed the case to the jury on the basis that the Crown’s eyewitness evidence ought be accepted and that the evidence was that the Appellant and Mark Brazel had entered the deceased’s cell and attacked him. The trial judge instructed the jury that it was open to them to convict on one of several scenarios, including one where the jury was satisfied that the Appellant alone entered the deceased’s cell and attacked him. The Crown had not advanced this alternative argument in opening or closing addresses. The Appellant now submits that the course taken by the trial judge was unfair and that a miscarriage of justice has resulted.

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The Summing Up

99. At the conclusion of addresses, the trial judge discussed with Counsel a number of factual and legal issues which were relevant to the summing up. At no stage during this discussion did the trial judge indicate to Counsel that he proposed to leave to the jury in the summing up a scenario that it was open to the jury to convict the Appellant upon the basis that he alone entered the deceased’s cell and inflicted injuries upon him.

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Ground 1 - The Learned Trial Judge Erred in Leaving to the Jury, as a Possible Basis of Conviction, a Case not Relied on by the Crown at Trial and Not Supported by the Evidence

Appellant’s Submissions

Senior Counsel for the Appellant submitted that the Crown opened its case upon the basis that two men had entered the deceased’s cell and beaten him to death. It was submitted expressly to the jury that “the Crown case [is] that those two figures seen entering the cell are, in fact, the accused and the man Brazel” (T36.15). Defence counsel had opened, following the Crown address, and submitted that the Crown could not exclude the reasonable possibility that only one man had entered the cell and the reasonable possibility that the man who did so was Terry Johnson (T39-41).

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125. At no time during the Crown closing address was an alternative scenario submitted whereby the jury ought find that the Appellant alone entered the deceased’s cell and beat him to death.

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140. Secondly, the 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.

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143. Fourthly, a trial judge is obliged to leave to the jury defences which appear to the judge to be reasonably open, notwithstanding that they have not been canvassed by defence counsel. This forms part of the obligation of the trial judge to ensure that the accused person has a fair trial according to law. There is, however, no corresponding obligation on the judge to give directions upon matters tending towards conviction: Solomon at 327. However, where the Crown has elected to formulate and present its case in a particular way, a question may arise as to whether there are other matters of fact or law which the trial judge, in the discharge of the duty to ensure a fair trial according to law, considers it necessary to put to the jury even though the matter was not propounded or developed by the Crown. The fairness or unfairness of travelling beyond the ground covered by the Crown will be evaluated by the trial judge and will be to the forefront in the decision as to how far, if at all, new considerations will be put to the jury: Solomon at 327-328, 336.

144. A trial judge who is considering instructing the jury concerning a basis for conviction which is not relied upon by the Crown must consider the fairness of such a course and, in particular, any tactical disadvantage which it may create for the accused: Solomon at 328, 333-334, 336; R v Pureau (1990) 19 NSWLR 372 at 377.

145. Relevant unfairness will ordinarily be looked for in procedural considerations. The judge will be appreciative of the tactical considerations which have governed counsel in the conduct of the case for the accused, including objections to evidence, lines of cross-examination, decisions concerning the tender of material and the content of the final address to the jury on behalf of the accused: Solomon at 328. Where it appears to a presiding judge that the evidence in the case leaves open a finding of guilt on a basis not opened by the Crown, the better course is to raise the matter with counsel prior to final addresses and then, according to the responses of counsel, a decision can be made whether it is appropriate that the direction be given. If it is to be given, the jury will have the benefit of the submissions of both counsel upon the question: Solomon at 336. The accused then will not be deprived of the opportunity of having submissions made on his behalf on that issue: Solomon at 336; GAS at 863, 877-8; R v King at 187; King v The Queen at 432-3; Carr at 285 [49]; R v Whitfield [2002] NSWCCA 501 at paragraph 67.

146. Unfairness to the accused in the conduct of the trial resulting from the trial judge’s direction to the jury upon a basis for conviction not relied upon by the Crown may arise from a range of tactical disadvantages, including an inability to cross-examine Crown witnesses, adduce evidence in the defence case and make closing submissions to the jury on the matter: Solomon at 328, 336; GAS at 863; Carr at 285 [49]. Even if the prejudice to the accused was confined to the inability to address the jury upon the question, that itself is capable of being a most significant area of prejudice: R v RTB [2002] NSWCCA 104 at paragraphs 55-61; Meher at paragraphs 113-116, 130; Carr at 285 [49].

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148. Fifthly, where the trial judge raises in the summing up a basis for conviction which was not relied upon by the Crown, there is the added difficulty that the direction carries particular force because it is coming from the judge and not the Crown: RTB at paragraphs 57, 60. It may produce positive mischief if the judge raises arguments which could have been, but which were not put or requested by counsel: R v Heuston (1995) 81 A Crim R 387 at 393.

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155. For such a scenario to be advanced, for the first time, by the trial judge in the summing up had a real and substantial tendency to cause unfairness to the Appellant. The jury had not heard the Crown advance these various (and inconsistent scenarios) in its opening or closing addresses. Trial Counsel for the Appellant did not have the opportunity to address the jury upon the basis that the Crown was advancing different and fundamentally inconsistent scenarios in support of its case. The scenarios emerged for the first time through the trial judge in summing up with the added weight and authority attaching to this intervention by a judicial officer.

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158. The Appellant has demonstrated unfairness in the conduct of the trial and that a miscarriage of justice occurred in this case. The first ground of appeal ought be upheld.

Bell, Keane, Gordon and Edelman JJ (would allow the appeal)

1. In RPS v The Queen, Gaudron A-CJ, Gummow, Kirby and Hayne JJ, while discussing "the difficult task trial judges have in giving juries proper instructions", adverted to the view that "has long been held that a trial judge may comment (and comment strongly) on factual issues". Their Honours went on to say that:

"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." (emphasis in original)

2. This statement in favour of judicial circumspection was made after their Honours had acknowledged that

"[t]he fundamental task of a trial judge is ... to ensure a fair trial of the accused". This fundamental task falls to be performed within a framework in which it is "for the jury, and the jury alone, to decide the facts".

3. A trial judge's "broad discretion" to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put "accurately and fairly" to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judge's summing-up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment.

4. In the present case, statements by the trial judge during the course of his summing-up were so lacking in balance as to be seen as an exercise in persuading the jury of the appellant's guilt. The statements were unfair to the appellant and gave rise to a miscarriage of justice. As a result, the appeal must be allowed and the appellant's conviction quashed.

5. In addition, it should be clearly understood that the risk of such unfairness is such that a trial judge should refrain from comments which convey his or her opinion as to the proper determination of a disputed issue of fact to be determined by the jury.

The trial

6. The appellant was tried with a co-accused, Mr McGlone, in the District Court of New South Wales on an indictment charging him with: importing a commercial quantity of a border-controlled precursor intended or believed to be for manufacture of a border-controlled drug contrary to s 307.11(1) of the Criminal Code (Cth); conspiring to import a commercial quantity of a border-controlled drug contrary to ss 307.1(1) and 11.5(1) of the Criminal Code; and dealing with proceeds of crime contrary to s 400.4(1) of the Criminal Code.

7. The appellant was convicted upon the verdict of the jury and was subsequently sentenced to imprisonment for 18 years and nine months, with a non-parole period of 11 years and nine months.

8. The appellant appealed against his conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales ("the CCA"). The sole ground of appeal was that "[t]he Judge's summing up to the jury caused a miscarriage of justice". The CCA (Payne JA, Fagan J agreeing and Beech-Jones J dissenting) dismissed his appeal.

9. The appellant now appeals to this Court, pursuant to a grant of special leave to appeal by Bell and Keane JJ, on the ground that "[t]he CCA erred in finding that the summing up to the jury by the trial judge did not give rise to a miscarriage of justice".

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The Summing-up

21. The trial judge commenced his summing-up with the conventional direction that "[i]f I happen to express any views upon questions of fact you must ignore those views". His Honour referred to his "entitle[ment] to express a view" but noted that he did not propose to try to persuade the jury one way or the other. The trial judge went on to make a number of statements that the appellant contends were distinctly apt to do just that.

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27. Counsel for both the appellant and Mr McGlone applied (in the absence of the jury) for the discharge of the jury. In making his application, counsel for the appellant stressed that the prosecution case was a strong one, counsel's point being that, in such a case, fairness requires moderation on the part of the trial judge in summing-up to the jury. The trial judge refused the applications for the discharge of the jury. His Honour did, however, remind the jury of their role as the deciders of fact, and instructed them to disregard any particular view the judge had expressed with respect to the facts.

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Was the summing-up unfair?

35. A trial judge must sum up for the jury the case presented by each of the prosecution and the accused after each side has addressed the jury. In Domican v The Queen, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ observed 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"[18]. In carrying out this task, it is no part of the trial judge's role to "don[] the mantle of prosecution or defence counsel"[19]. As Gibbs CJ said in Cleland v The Queen, "[i]t is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused"[20].

36. Payne JA concluded that "[i]t would have been far preferable if the trial judge did not make the remarks" suggesting the possible presence of illicit substances in the first consignment, and that it would "have been far preferable if the trial judge had not engaged in the rhetorical flourish about the [appellant's] gambling losses" given that it "could have been understood by the jury as belittling defence counsel's submissions". Although Payne JA did not articulate why it would have been "far preferable" for the trial judge to have maintained a neutral reticence in relation to these matters, reticence would have been the better course because the remarks in question were quite unnecessary for a fair and accurate summary of the case presented by each of the parties. In addition, the remarks were distinctly apt to persuade the jury of the appellant's guilt.

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38. In relation to the trial judge's comments concerning the appellant's online gambling losses, Payne JA concluded that "[f]airness dictated that the trial judge correct" the impression left by the appellant's counsel in his address that the online accounts were evidence of successful gambling, and that this evidence had been presented to the jury in a way that was misleading. If the trial judge had contented himself with an endorsement of the point made by the prosecutor that the online accounts did not show that the appellant was a successful gambler, there could have been no basis for the complaint by the appellant. But the trial judge's observations went beyond necessary correction and were such as gratuitously to belittle the appellant's counsel and, incidentally, to distract from the point that the appellant's evidence was that the cash in the tin box represented proceeds from gambling that did not take place online.

39. Payne JA also observed that "[o]ne unfortunate remark, in a [long and detailed] summing up such as this, did not give rise to a miscarriage of justice". There might have been some force in that observation had the summing-up not exhibited the other features of concern. But the summing-up must be read as a whole, and this was not one "unfortunate" remark.

40. Payne JA characterised the trial judge's comments in relation to the tape trial text message as a "typical and permissible comment by the trial judge about a finding of fact that he carefully explained was a matter for the jury". It is difficult to accept that characterisation. It would not be a cause for satisfaction if these remarks were "typical" of the daily work of trial judges. The content and tone of the trial judge's remarks in relation to the tape trial text message would not have been out of place in a powerful address by counsel for the prosecution. The circumstance that the trial judge had directed the jury that they were the "sole arbiters of the facts" affords no answer to that concern. The vice of these remarks is not so much that the jury may have been confused as to their role as the sole arbiters of the facts, but that the prosecution was being given the advantage of a second address. As Beech-Jones J correctly observed:

"[A] recognition that the jury were the trier of facts does not address a complaint about an unbalanced summing up, specifically one that seeks to persuade a jury as to what facts they should find".

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42. It was submitted for the respondent that there is nothing in the record on which to base a conclusion that the jury were overawed by the trial judge's comments to the extent that they must necessarily have disregarded their duty independently to consider the evidence and decide the facts. To put the issue in this way is to misstate it. The issue is not whether the appellant is able to demonstrate that the jury were, in fact, overawed by the trial judge's comments. Speculation as to how the jury reacted in fact to the trial judge's comments is idle. That cannot be known one way or the other. The issue is whether the trial judge's comments were apt to create a "danger" or a substantial risk that the jury might actually be persuaded of the appellant's guilt by comments in favour of the prosecution case made with the authority of the judge.

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44. In concluding that the trial judge's summing-up did not give rise to a miscarriage of justice, Payne JA observed that "[t]his was a very strong Crown case". It may be accepted that the prosecution case here was indeed a strong one, but the lack of balance in the comments by the trial judge cannot be justified as no more than a reflection of the relative strengths of the arguments made by each side. In some cases where the prosecution case is strong even a neutral summary of that case by the trial judge may sound adverse to the accused, but there is a real and well-recognised difference between the statement of a case and the advocacy of that case. The observations of which the appellant complains were couched in the forceful language of persuasion. Further, the circumstance that a case against an accused person appears a strong one in no way diminishes the obligation of those conducting the trial to ensure that it is a fair one.

45. What has sometimes been described as the "right" of the trial judge to comment on the facts of a case is not some form of entitlement standing free of constraints imposed by the judge's duty to give the jury accurate and fair instruction to enable them to arrive at a just determination of the matters of which they are the sole arbiters. Where a trial judge's summing-up so favours the prosecution as to deny the accused a fair trial, the miscarriage of justice that results cannot be justified or excused by invoking the judge's "right" to comment on the facts. Accordingly, in the present case, Beech-Jones J was right to conclude that the trial judge's summing-up was so unfair in its lack of balance that a miscarriage of justice occurred. In consequence, the appeal must be allowed, the conviction quashed and a new trial had.

The scope for comment

46. What has been said thus far is sufficient to dispose of the appeal. It is desirable, however, to deal with the appellant's further submission because the issue raised in that submission was fully argued, and it is timely to clarify the position. It should be made clear that the risk of unfairness, to either side, involved in the exercise by a trial judge of a "right" to comment that goes so far as to suggest how a disputed question of fact should be resolved is such that that risk should not be courted by trial judges. Further, there may be cases where a trial judge's comments suggest that questions of disputed fact should be resolved by the jury in favour of the defence. Because there is, generally speaking, no appeal from a verdict of acquittal by the jury, the unfairness to the prosecution in such a case could not be remedied. It is desirable to clarify the position with a view to ensuring that injustice of this kind does not occur. The appellant's submission in this respect should be accepted.

47. It is well settled that a trial judge's discretion to comment on the facts should be exercised with circumspection. The need for circumspection is not merely a matter of prudence or politeness. Recently, in I, Kiefel, Bell, Keane and Nettle JJ, with whom Gageler J relevantly agreed, said, referring to the passages from RIPS with which these reasons commenced:

"[U]nless there is a need for comment – as, for example, in dealing with an extravagant submission by counsel – the wise course will often be not to do so. Where the judge chooses to comment, the following statement of Brennan J in B v The Queen is to be kept in mind:

'[The comment] must exhibit a judicial balance so that the jury is not deprived "of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence."'" (footnotes omitted)

48. In RPS and Castle, the discretion of the trial judge to comment on the facts was located squarely within the duty of a trial judge to assist the jury with a fair and accurate statement of the case presented by each party. That being so, little would be gained by a review of the practice of trial judges in earlier times, when the trial judge occupied a more dominant position in the conduct of criminal trials. The point made in the observations of the plurality in each of RPS and Castle is that there is a risk that comments that are unnecessary for the performance of the duty to give fair and accurate instructions to the jury may occasion a miscarriage of justice, and so a trial judge should be astute to avoid that risk by refraining from comment that is not so required. These points are most compelling in relation to expressions of opinion by a trial judge as to the determination of disputed issues of fact.

49. In the first place, given that the jury is the "constitutional tribunal for deciding issues of fact", expressions of opinion by a trial judge as to the determination of a disputed issue of fact are hardly consistent with the function of the trial judge as it is now understood. It is difficult to conceive of a situation in which the performance of the trial judge's fundamental task of instructing the jury would be advanced, consistently with the role of the jury, by suggesting the determination of a disputed question of fact, the resolution of such questions being the exclusive province of the jury. Once, perhaps because of disparities in educational opportunities and attainment within the community, it might have been thought that juries would welcome judicial guidance as to the performance of their function that included indications of the judge's view of disputed facts, but it cannot be assumed that today's juries welcome such gratuitous solicitude on the part of the judiciary. Certainly, insofar as today's judiciary is concerned, the respect due to juries as the constitutional tribunal of fact strongly supports judicial reticence as to the determination of questions of fact.

50. Secondly, there is no little tension between suggesting to the jury what they "might think" about an aspect of the facts of a case and then directing them that they should feel free to ignore the suggestion if they think differently. There is a risk that the jury may actually be swayed by the trial judge's suggested determination. It would be to maintain an altogether hollow and unconvincing distinction to say that, while a trial judge may not go so far in his or her comments as to create a risk that the jury may be "overawed", it is nevertheless permissible for a judge to use language that "makes him [or her] appear a decided partisan".

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54. The present case affords another example of an appropriate occasion for judicial comment, in that fairness required that the trial judge correct the impression mistakenly left by the plainly untenable suggestion by the appellant's counsel to the jury that the appellant's online accounts were evidence that the appellant was a successful gambler. A correction of this kind, to correct errors of expression or errors that might otherwise adversely affect the jury's ability to decide the case fairly on the merits, is plainly not objectionable.

Gageler J (would allow the appeal)

58. I agree with Bell, Keane, Gordon and Edelman JJ that the tone and content of the trial judge's comments on summing up so much favoured the prosecution as to have given rise to a substantial risk of those comments having persuaded the jury of the appellant's guilt. That conclusion is sufficient to require that the appellant's conviction be set aside on the ground that there has been a miscarriage of justice.

59. It being unnecessary to do so in order to dispose of the appeal, I refrain from addressing the general question of when a trial judge may or may not express an opinion on a disputed question of fact consistently with the due administration of justice.