Written directions

Nagle CJ at CL (with whom Street CJ agreed)

At 102

On 9th April, 1979, the appellant was indicted before Hunt J. and a jury of twelve on three charges of murder. The deaths of the three persons had occurred on 19^th September, 1978. The first charge was of the murder of a woman, Anne Margaret Hansen at Wetherill Park and the second and third charges related to the murders of Graham John Jacoby and Tamara Salwarowski at Hurwood. Graham John Jacoby and Tamara Salwarowski are referred to in the evidence as "Jake" and "Terry" and they will be so referred to in this judgment.

At 105

At the trial the issues raised were clear cut but the stories diverse. The Crown case was that the three deceased had met their deaths as the result of the deliberate intent by the appellant to kill them, his motive being his belief that they had been a party to his "rip-off".

At 110

Counsel for the appellant at the trial, to use his Honour's words in summing up:

" ... put it quite baldly that no case of manslaughter arises. It is either murder or nothing. That is his approach. It certainly has the virtue of simplicity. It may well be the right approach, but you are not bound to take it. It is a matter for you whether in all the circumstances the Crown has satisfied you that all the elements of the more serious crime of murder have been made out".

Of course, such a concession did not relieve his Honour from explaining to the jury the law on "self-defence" and "provocation”. It is for this reason that it has been necessary for the purposes of this appeal to set out the facts and evidence at some length.

After his Honour had completed his main observations in the summing up on the Crown case referable to the killing at Wetherill Park, he handed to the jury twelve copies of a "document". In introducing it to them he said:

"Because these suggestions do arise, you are obliged to consider them and I am obliged to direct you as to the way in which you should do this. In order to help you understand these directions I have had prepared, in summary form, the various alternative verdicts which are available as well as the matters upon which you have to be satisfied before you can decide these verdicts."

In the grounds 1, 2 and a, objection is taken to his Honour's use of "the document" and, lengthy though it is, it is necessary to set it out in this judgment…

…

At 112 and 113

Before the document was handed to the jury, counsel were given copies of it for their perusal and were asked for their comments. Senior counsel for the appellant immediately voiced his objection to the trial judge's proposed use of the document. However, notwithstanding the objection, his Honour handed the document to the jury and proceeded to explain it to them, and relating it to the facts, illustrated the issues with which he said they would be concerned consequent upon the directions in his summing up ....

The first three grounds of appeal relate to the use of "the document" in the summing up. It will be observed that these objections related firstly, to any use at all of "written directions" in a summing up; secondly, using "written directions" without the consent of the appellant and without the appellant having the opportunity of perusing the document before it was used and using it "at the time and in the circumstances existing"; and, thirdly, alleged errors of law in what are termed "the directions" given in the document.

…

At 113

It has been submitted that the introduction of the document by his Honour was a radical departure from practice and as such was a fundamental breach of the proper conduct of a criminal trial. It is submitted that this departure resulted in the denial of a fair trial to the appellant. Indeed the court has been urged, for the guidance of its judges, to express clearly "strong disapproval" of the procedure adopted by the trial judge. Even for the moment assuming that there were no precedents for his Honour's actions and, to use the words of the appellant's counsel, that the procedure adopted was a "grave departure from practice ... " it would offend my common sense to think that in all circumstances a trial judge should not be permitted to assist a jury in his summing up with a document used to encapsulate his oral summing up and as an aide memoire to them.

…

At 113 and 114

However, in my opinion it is not correct to assert that a trial judge is debarred from using a written document in expounding in his summing up matters of law to a jury, or to embody in written form  the questions that it may be pertinent for them to consider, or the possible verdicts at which they may properly arrive. There are readily discernible differences, but it is a well-established practice in civil jury trials that judges formulate issues in writing to the jury and indeed request them to answer particular questions. Obviously entirely different considerations apply to criminal trials, but be this as it may, the use of a written document by a judge in summing up to a criminal jury is by no means novel in this State. I propose to refer to two quite recent illustrations.

…

At 116 at 117

In my view, the course 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.

I turn to consider the second ground of appeal. The complaint made is that the document was handed to the jury without obtaining the prior consent of the appellant's counsel and, in the alternative, that he was not permitted the opportunity of seeing it and commenting on it before it was supplied to the jury. Complaint is also made that having regard to the time at which it was handed to the jury and the manner in which it was used that their attention was distracted from his Honour's oral directions with the result that although there was no challenge to these directions as such, they were tainted because of the use of the document. I paraphrase the relevant portions of the second ground of appeal.

It is unfortunate that counsel for the appellant in this appeal was not his counsel at the trial for it now transpires from the report furnished to this Court by the trial judge that after preparing the document he showed it to counsel for the appellant and invited comments as to its contents. There can be no doubt that this is correct if one refers to the transcript. However, this does not obviate the objection taken that the document was used against the wishes of the appellant.

It is clear that at the very outset, the appellant's counsel objected to the judge adopting the procedure that he proposed and although counsel later commented on the document he made it quite clear that in making such comments he did not resile from the initial objection he had taken to its use.

It could not be suggested that a trial judge must seek the consent of counsel as to the directions he proposes to give in his summing up, nor do I think that it is incumbent on him to seek counsel's consent as to the manner in which he proposes to sum up. The summing up is the judge's responsibility and his alone. If he falls into error in his summing up that can be corrected, but he is not under any duty to discuss with counsel for either side how he shall sum up to the jury. At times it may be of advantage before the judge delivers his summing up to hold a discussion with counsel as to it, but it is not necessary to do so. Just as it is the judge's responsibility to exercise his own judgment in ruling on evidence, with or without the benefit of hearing the submissions of counsel, so also in regard to his summing up. I know of no basis for the view that a trial judge is limited in directing a jury in the manner which he feels would be most appropriate by any necessity to consult counsel beforehand. This is not to be thought to be suggesting that there are no limits to the manner in which a trial judge sums up to a jury. For instance, he would not be at liberty to substitute for an oral summing up a written one. Nothing like that occurred in the present case.

It has been suggested in argument that the attention of the jury was distracted during his Honour's summing up because it is said they had the document in front of them and referred to it from time to time during the summing up, thus distracting them from his Honour's directions.

On a close reading of the summing up and the references in the course of it to the document I would be surprised if the jury did not at times refer to the document. If they had not done so they would have been disregarding his Honour's remarks to them as to the use they should make of the  document and obviously not attending properly to the summing up. It could be said that this assumption on my part is mere speculation, but there can be no doubt from his Honour's remarks in the transcript in the trial and in his report to this Court that he was confident that the jury listened to him and paid proper attention to his summing up. Appellant's counsel certainly took a different view to his Honour and he stated that the clerk instructing him was of the same mind as himself. But to the contrary the Crown Prosecutor thought, as his Honour did, that the jury throughout paid proper attention to the summing up. In these circumstances, I think the court should accept as accurate his Honour's observations made during the trial and what he has stated in his report to this Court.

Roden J

At 123

It is convenient to consider separately the three grounds of appeal

relating to the use made of the document.

"1. His Honour erred in law in supplying to the jury written directions."

I believe that this ground can be disposed of without it being necessary to refer in detail to the manner in which the document is dealt with later in the summing up. For present purposes it is sufficient to state that each principle of law set forth in the document is also to be found in the oral summing up, so that no question arises of a complete substitution of written, for oral, directions.

This ground, as I understand it, is based upon the proposition, stated in absolute terms, that the use of a document as a means of assisting in the communication of matters of law by judge to jury in the course of a summing up is contrary to law. The proposition is stated without authority, and I would not wish to be a party to "creating" a principle of law, the effect of which would be so to fetter the discretion of trial judges.

"2. (a) His Honour erred in law in supplying to the jury written directions without the consent of the appellant and or his counsel."

Having decided the first ground as I have, little requires to be said with regard to this. If I am right in concluding that a trial judge has a discretion in the matter, it seems to me to follow that, although he may be expected to hear counsel and to have regard to their submissions, the exercise of that discretion must remain a matter for the judge, and it would be wrong to confer upon counsel (or the accused) what would in effect be a power of veto.

That is not to say that great weight ought not to be given to a defence objection to any substantial departure from normal practice.

…

At 124

It is the third ground of appeal which gives rise to a consideration of the question with which we are really concerned, i.e., whether in this particular case the procedure adopted over objection resulted in a miscarriage of justice, or may have so resulted, by reason of the relevant principles of law not having been effectively communicated to the jury. I turn now to that ground.

"2. (c) His Honour erred in law in supplying to the jury written directions at the time and in the circumstances existing."

It is for the purpose of considering this ground that it is necessary to refer to that time, to those circumstances, and to the use to which the document was put as the summing up proceeded.

At 126 and 127

I accept the Crown's submission that most jurors these days can safely be assumed to be literate. But it is a far cry from literacy to any degree of familiarity with the type of language, or the type of concept, to be found in this document. It would be unsafe in my view to assume that the jurors absorbed the meaning of the words as they were read to them, or that at each appropriate stage they were able to tum their attention back from the document to his Honour's oral directions without "losing" some part of what followed.

I am accordingly of the view that there is some substance in the submission that the timing of the handing out of the copies, and the use made of them thereafter, could have caused or contributed to some of the oral directions not being clearly received or understood.

A second fear expressed on behalf oil the appellant, both at the trial and before us, was that the inclusion of some, but not all, of the relevant directions of law in the document, may have led to greater weight being given by the jury to the written directions, and less than was called for to those which were given orally only. It was put that it was even possible that the degree of concentration required to master the difficult concepts set forth in the document could have led the jury to overlook altogether the oral directions as to standard of proof. There can be (and indeed was) no quarrel with the accuracy of those oral directions, or the emphasis given to the standard of proof in respect of matters as to which the Crown bore the onus. But the same word "satisfied" is used in the document, both for matters as to which the Crown bore the onus and for matters where the onus was upon the defence. The document makes no reference to the different standards of proof relevant to the two situations.

At 128 and 129

The summing up is an exercise in communication. It is designed to instruct and inform. Sometimes the directions to be given will be so simple and readily comprehensible as to require no more than mere statement. Sometimes they will be more difficult; as here, both more complex and more complicated. Sometimes repetition, sometimes restatement, sometimes explanation, sometimes illustration, will be required. The language chosen will always be calculated to be readily understood. If principles have to be stated in terms not familiar or readily comprehensible to people not trained in semantic skills and not accustomed to drawing fine lines of distinction, such devices as paraphrasing, expanding, and illustrating, seem to be necessary if understanding is to be secured.

In this case the learned trial judge was alive to the difficulty confronting him .... The solution he sought to the difficulty was to supply the document to the jury, relying heavily upon it to bring to the minds of the jurors the principles they were called upon to apply. That procedure may well have helped overcome the problem of retaining or recalling the many directions necessarily given. But with respect to the learned trial judge, and to his right to hold a different view, I entertain grave doubt as to the document's capacity to impart to the jury the necessary understanding of those directions, or to contribute to such understanding. Indeed, it could be said to have further complicated their task, as it added to what was already required of them the special skill of construing a legal, and legalistic, document. In my judgment it is unrealistic to expect a jury to appreciate the full implications of the directions given, with all their nuances and subtleties, by simply having those directions stated to them whether orally or in writing.

The oral summing up purported to do little by way of explanation of the meaning of the terms used, and I am left unsatisfied that the method of directing the jury chosen in this case was either appropriate or effective.

Yeldham J

At 184

The appellants, Carmelo Tripodina and Bruno Morabito, were jointly indicted with Bruno Brizzi and Eugenio Zaccaria before his Honour Judge Court in the District Court on 21st May 1987 upon a charge which asserted that they, between 21st August 1981 and 5th July 1983, at Byrock and other places in the State of New South Wales, did conspire together and amongst themselves to cultivate a prohibited plant, to wit, cannabis sativa. Zaccaria was charged also with supplying Indian hemp between 2nd and 5th July 1983 and during the trial he pleaded guilty to that charge. Subsequently he was acquitted by direction of the trial judge on the charge of conspiracy. On 26th June 1987, after a long trial in which the transcript of evidence amounted to some 660 pages, over sixty witnesses were called, and there were over one hundred exhibits, the remaining three accused, including the two appellants, were convicted. Subsequently they were sentenced to imprisonment for eight years, with a non-parole period of five years. The accused Brizzi later abandoned the appeal against conviction and sentence which he had lodged.

The Crown case, which was wholly circumstantial, may shortly be summarised as follows…

…

At 187

From the foregoing it will be seen that there was a considerable body of evidence linking the accused men with each other, and with the property, and establishing that Indian hemp plants had been cultivated there in substantial quantities. It is against this background that the various grounds of appeal of the two appellants fall for consideration.

I shall deal first of all with the appeal of Tripodina and with his grounds of appeal in the order they were argued. Some grounds were common to both appellants and in those cases I shall consider them together. In the case of Tripodina grounds 2(a), 6 and 8 (the latter being in relation to sentence) were abandoned. Morabito also abandoned his appeal against sentence.

The first, and substantial, ground of appeal, which was ground 3 of Tripodina and ground 3 also of Morabito, was that his Honour erred in himself preparing a list of matters relied on by the Crown in its case against the appellants, and directing that each juror have a copy in the jury room.

…

At 190 and 191

In the course of his summing up the trial judge said this: "Members of the jury, those various items which the Crown relies upon in relation to each accused I have put in writing. Rather than require you to endeavour to recall each of them and specifically which of them are relied upon against which accused, I have put them in a short summary form, accused by accused, and I will have that document marked for identification 54 and each of you will have a copy of it in the jury room. I want to stress this to you in relation to that document. The document firstly is not evidence. That is why it is being marked for identification and not given an exhibit number. You would not - and I am quite sure even without me saying this, you would not do so but nonetheless - you would not be entitled to use the document itself as evidence. Secondly, the document is intended as no more than an aid to your memory of the arguments addressed by the Crown Prosecutor in his closing address. It is in effect some kind of index for you to refresh your memory as to precisely what matters are relied upon in relation to the accused. You should not treat it as any more than that. Being a summary it is somewhat cryptical, if I may put it that way, and certainly does not elaborate upon all the various aspects of the various matters that have been canvassed in some considerable detail during the addresses of counsel".

…

At 196

Senior counsel for the appellant Tripodina submitted that, because the case presented by the Crown was wholly circumstantial and was necessarily based upon certain alleged overt acts, any document going to the jury, setting out only the Crown allegations as to those overt acts, and omitting any reference to the case of the accused, especially a document prepared by the presiding judge, had a special weight and a significance which gave rise to an injustice to the appellants. An analogy was drawn between such a document and an unsigned record of interview which, as the High Court pointed out in Driscoll v The Queen 137 CLR 517 and this Court affirmed in Regina v SA Smith (unreported 12th May 1988), may tend to have an undue influence upon the jury in their consideration of the evidence. However, I do not regard the analogy as being an apt one. The reasons for declining to permit an unsigned record of interview, which an accused person denies making, to be tendered in evidence, are perhaps too clear to require restatement. The present document was expressly described as, and intended to be, an aide memoire and a summary only of what the Crown, rightly or wrongly, alleged were the overt acts established by the evidence, and which proved the conspiracy alleged against the various accused. The two are fundamentally different. In some respects it was favourable to the appellants, as it separated out the cases sought to be made against them individually and provided particulars of the charges - see R v Moore [1988] Qd R 252.

In a number of cases Courts of Appeal have upheld the furnishing to a jury of a document setting out a summary of the relevant principles of law, or the questions to be considered and answered by them - R v Petroff (1980) 2 ACR 101; R v Hughes (1981) 7 ACR 51 and the cases there referred to.

…

At 197 to 199

It is apparent that that case is quite different from the present. Here, although senior counsel for the appellant Tripodina, supported by counsel for Morabito, argued that elements of doubtful validity were put in the documents, in particular in relation to the use of a false name on various occasions, I am quite satisfied that, because the judge made it abundantly clear to the jury that he was merely summarising what the Crown alleged, and because in his summing up he reminded them of the reasons advanced by the appellant Tripodina for using a false name, and read to them the relevant portion of his statement from the dock, there was not here the vice which obliged the court in Vincent's case to order a new trial. The fact that a document being a summary of the Crown assertions, which was in effect a list of particulars of the overt acts alleged against each accused, contained within it some allegations which were the subject of challenge and were not therefore necessary and unequivocally referable to a conspiracy, did not preclude the jury from considering whether or not they were satisfied that that act if established by the evidence did demonstrate that the relevant accused was a party to an agreement to cultivate an illegal drug and, if not established, from discarding such allegation from consideration. Any argument to the contrary overlooks the fact that jurors are composed of persons of ordinary common sense and have, over a great many years, demonstrated a capacity to determine relevant issues in criminal cases (even complex ones) in a manner which has given almost universal satisfaction. They are not to be treated as persons of low mentality, lacking common sense or general understanding. It is, of course, highly relevant that no counsel complained of the final form of the document.

Here the trial was a complex one, the evidence was voluminous and there were three accused. Obviously it was of assistance to them to have, in summary form, a document which was an aide memoire in relation to the matters relied upon by the Crown as against each of the three accused separately, as being overt acts said to involve them in the conspiracy charged. In many ways this was (as I have said) favourable to each accused because it would preclude the jury from falling into the error of taking into consideration, as against one accused, matters which the Crown asserted were relevant only as against another. It is no doubt true to say that it is only in exceptional cases that a document summarising the allegations of the Crown will be sent out to the jury. It is an unusual course to take. As was observed by Ashworth J (giving the judgment of the Court of Criminal Appeal in R v Healey [1965] 1 All ER 365 at p 371:

"Before parting with this part of the case, it is necessary now to refer to another matter. In the course of his summing up, and, indeed, at the end, there were handed to the jury pieces of paper, and for quite a considerable time, none of it excessive, in this court has been taken up with an effort to ascertain precisely what was on those pieces of paper and when they reached the jury. Before going further, it is, perhaps, desirable to state this. On many occasions it is no doubt exceedingly helpful to a jury if a judge does summarise and hand to them a separate piece of paper, if not the indictment itself, in which the charge is set out, but such a course is one which, in the view of this court, is apt to be dangerous. This case is a remarkable illustration of that danger. Care, immense care, is necessary to ensure that what does reach the jury on pieces of paper are free from any miscopying, inaccuracy or false propositions. Moreover, if that course is taken, it is in the view of this court, desirable and, certainly in the experience of this court, it is the practice, that such documents should be shown to counsel engaged in the case before they reach the jury".

For my part I would endorse what was there said, and I would reiterate that it is only in an exceptional case that such a document should be given to the jury dealing with matters of fact, and dealing only with the Crown case. See now, however, s55B and s55C of the Jury Act 1977. Here, of course, it was the Crown which had to establish the various overt acts giving rise to the conspiracy. The accused in his case simply sought to put an innocent complexion upon them, to the extent that he admitted that such acts had taken place. But the factor which weighs considerably with me in determining, as I do, that no injustice occurred from the procedure adopted, is the fact that not one of the three counsel who appeared at the trial raised any objection to the document going to the jury. There was discussion as to its form, but ultimately, in a form consented to by all counsel, it was sent out, and in my view that means that none of the three counsel formed the view that any injustice would be likely to result from the course which had been adopted at the end of a complex trial, with a large number of overt acts alleged, many of them different, as against each accused. In my opinion, this ground of appeal has not been made out in the case of either appellant.

Each appellant relied also upon the fact that his Honour permitted a document headed "Sydney Surveillance" to be taken by the jury into the jury room after they had retired to deliberate. This is the fourth ground of appeal by Tripodina and the fourth ground also by Morabito.

After the jury had retired they sent a note to his Honour which read: "We were told on day 6 of the trial we would get a chronological list of the surveillance dates and sightings by police. We have not yet seen this and feel it would be beneficial to us in our deliberations".

…

At 204 and 205

It will be observed that it is an unusual document in that it purports to be a fairly full summary of matters given in evidence by various police officers. By way of example, on 26th October 1982 at 1315 hours a somewhat graphic description is given of men who were observed to be "all unshaven and tired; in clothes 'lived in'." It is a document, one would have thought, which, had objection been taken, his Honour may, certainly at that stage of the trial, have rejected. But because all counsel expressly agreed to it being given to the jury at their request, and because it does no more than summarise evidence which had earlier been given by police officers, I am of the opinion that we should not now hold that any injustice has occurred by reason of it being sent into the jury room. Although, because the document was sought by and, with the consent of all parties, furnished to the jury after they had retired following the conclusion of the summing up, his Honour did not give them any directions as would usually be done as to the use which they might make of it, it should be emphasised that the material which it contained was in no way the subject of challenge at the hearing. By way of example, Detective Constable Aust is noted as the source of many of the entries in the document. He was not cross-examined by any witness for any accused and indeed, by consent, he read the details of his surveillance from his statement. Detective Senior Constable Finch, whose evidence is nominated as a source for some of the other entries, also read from his statement, and was cross-examined briefly by counsel for Tripodina only, not to show that his observations did not occur or that they were erroneous, but in an endeavour to explain and put an innocent complex upon what he observed. In the case of surveillance by Detective Senior Constable Brett, there was a discussion in the absence of the jury at the outset of his evidence as to what parts of his statement should and should not be led (see pp 167-8). He was cross-examined, essentially as to matters of detail, but the matter recorded in the summary in relation to 26th October 1982 does not appear to have been the subject of any significant dispute. Detective Sergeant Sweeney, another police officer who undertook surveillance as recorded in the document, also read from his statement and the brief cross-examination of him was not directed to establishing any inaccuracy in what he observed. Detective Sergeant Harvey, who read from his statement, was not cross-examined, nor was Detective Sergeant Beaumont. Thus it can be said that the document, although containing matters of detail, which in my view should normally be excluded from such a summary if given to the jury, but which nonetheless was not the subject of any objection by counsel, was obviously almost entirely non-controversial.

Carruthers and McInerney JJ

At 212

We agree with the judgment of Yeldham, J and with the orders proposed.

Hoeben CJ at CL

1. I agree with Bellew J and with the orders which his Honour proposes.

Bellew J

2. Ryan Trevascus (the applicant) stood trial in the District Court before his Honour Judge Colefax SC and a jury, having pleaded not guilty to the following offences:

on 26 June 2018, at Woodbine in the State of New South Wales, being in company with another person, robbed David Melia of a set of keys, the property of David Melia (count 1).

on 26 June 2018, at Woodbine in the State of New South Wales, being in company with another person, attempted to take and drive a vehicle, namely an Audi (Registration CZF 88E), without the consent of David Melia and whilst David Melia was in the vehicle (count 2).

…

THE GROUNDS OF APPEAL

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

33. At the commencement of his summing-up to the jury the trial judge said the following:

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.

34. 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.

35. His Honour then said:

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.

36. 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. His Honour then adjourned for a short period during which the jury retired to read both documents in the jury room.

37. The question trail in respect of count 1 was in the following terms:

…

38. The question trail in respect of count 2 was in the following terms:

…

39. When the jury returned following the adjournment, his Honour said:

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.

40. 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:

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.

41. The second was made in the context of directing the jury as to the onus and standard of proof:

What has to be proved beyond reasonable doubt are the questions on the jury question trail.

42. When given the opportunity to do so at the conclusion of the summing-up, 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.

…

Consideration

49. 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.

50. The Second Reading Speech to the Amendment Act made no specific reference to s 55B, although it included the following:

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.

51. The Explanatory Memorandum to the Amendment Act included the following:

Proposed section 55B confirms the discretionary power of a judge or coroner to give the jury directions of law in writing.

52. 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…

…

55. 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.

…

64. 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.

65. 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.

66. 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.

67. 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). 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.

68. 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:

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.

Hidden AJ

93. I agree with Bellew J.

Garling J

1. The applicant seeking leave to appeal, Mr Bourke, a pseudonym given to him by Colefax SC DCJ, who presided over the trial (“the Judge”), to protect the identity of the victims, was found guilty by a jury on 19 September 2019 of 11 offences.

…

2. The applicant's initial Notice of Appeal, which was filed on 16 November 2020, contained three grounds expressed in the following way:

“Conviction

The jury directions reversed the onus of proof and diminished the burden of proof by utilising a question trail that compelled ‘Yes/No’ answers to essential questions, imposing a burden on the appellant to positively persuade the jury that the answer to the essential question was “no” to obtain an acquittal.

Sentence

…

6. The hearing of the appeal took place on 19 May 2021.

7. In the course of the applicant’s submissions, counsel sought an adjournment in order to enable her to supplement the Grounds of Appeal, and to provide further submissions in writing.

8. The Court, without opposition from the Crown, adjourned the hearing of the appeal to enable the applicant to file and serve any amended Grounds of Appeal together with any submissions upon which he wished to rely. The Crown was given an opportunity to file and serve submissions in response. The Court noted that it would consider whether, upon receipt of all of the submissions, it was necessary to restore the matter to the list for further oral argument, or whether it was appropriate to then proceed to judgment.

9. On 27 May 2021, the applicant filed Amended Grounds of Appeal which added a further five grounds to the appeal against his conviction. Those grounds, which I have renumbered to avoid confusion with the existing grounds are as follows:

“A2.   His [H]onour erred in inviting the jury to retire and consider the question trail in the jury room during the course of the summing up.

A3.   His [H]onour erred in the way in which he invited use of the question trail and by not identifying the evidence that supported each count on the Indictment.

A4.   His [H]onour erred by inviting the jury to rely upon the question trail without further explanation or oral directions as to its use in circumstances which diverted the jury from the real issues in the trial.

A5.   His [H]onour erred by giving a direction inviting the jury to consider that all of the counts on the indictment were based upon the evidence of the complainant and that their verdict should be consistent with one another.

A6.   His [H]onour failed to sum up the case of the accused in a meaningful way.”

10. The Court received the written submissions of both the applicant and the Crown. The Crown’s submissions included an express concession that the additional ground A4 was established which constituted an error of law such that leave to appeal ought be granted, the appeal upheld and a re-trial ordered.

11. In those circumstances, the Court determined that it did not need to relist the matter but would proceed to judgment.

12. For the reasons which follow, I am of the view that leave to appeal ought be granted, the appeal be upheld and consequential orders made.

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Summing Up

20. The trial commenced on Monday 16 September 2019. Addresses commenced on the morning of the fourth day of the trial, Thursday 19 September 2019. They were relatively brief and concluded at about 11:35am. Counsel for the applicant conceded that the jury ought return verdicts of guilty on Counts 1 and 6 on the Indictment which were constituted by a common assault and intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

21. At the commencement of his summing up, his Honour said that he had prepared for distribution to the jury a document to which he had made earlier reference in the course of the trial. He then said this:

“For each count on the indictment, I have put the count, and then I have listed underneath it a series of questions, and it is the subject matter of those questions which you must be satisfied of beyond reasonable doubt before you could convict. In other words, I have turned what Mr Crown has called the elements into a series of questions.

But this document is in fact to be regarded by you as part of my summing up.

…

The jury question [trail] which is distributed to you is marked for identification 7 [MFI 7], and I will allow you at least 25 minutes to read it. It may be, because of the number of counts, you might need longer. If you need longer, just ask the court officer … and let me know when you are ready for me to resume.”

22. The question trail document, MFI 7 was then distributed to the jury.

23. There was then a short discussion about the availability of copies of the transcript and his Honour indicated that a short adjournment would be taken.

24. When the trial resumed, his Honour then informed the jury that he was going to continue the summing up by giving them some oral directions. He then added:

“…you should understand that the jury question trail contains written directions. I'm going to come back that document towards the end of the summing-up.”

25. His Honour then gave a series of oral directions about which no specific complaint is made as to their content or legal correctness. None of these directions touched on MFI 7 or any of its contents. In the course of giving those directions, his Honour indicated to the jury that he would not be summarising the evidence which had been given in the trial or referring to much of it at all.

26. His Honour later returned to MFI 7 saying:

“Let me come back to the jury question trail just briefly, because I do not want to say too much in addition to what I have written there. Hopefully it is clear enough. No doubt if it is not I will get a note. I said I would come back to the jury question trail in relation to counts 1 and 6.”

27. His Honour then went on to inform the jury that counsel for the applicant had invited them to convict on those counts, but it was necessary for them to be satisfied of the matters set out with respect to them in the document MFI 7.

28. His Honour did not in fact return in any detail to MFI 7. He informed the jury how they went through the question trail was a matter for them. This was a comment made to emphasise that it was a matter for the jury as to whether it wished to start at the beginning and proceed numerically, or whether they wished to conduct their deliberations in some other way. The Judge informed the jury that the question trail was structured chronologically to match up with the Indictment but that they did not have to work through it in that way.

29. However, his Honour did not read MFI 7 to the jury. He did not in any way attempt to provide the jury with a summary of the facts as they related to the different counts on the Indictment, nor as to the elements of those counts which were set out in MFI 7. He did not enter upon any summary of counsels’ addresses, save that he did emphasise to the jury that the principal submission made by counsel for the applicant was that there was a reasonable possibility that the complainant was not telling the truth to the jury. At the conclusion of his summing up, which was before the luncheon adjournment, the jury retired and his Honour asked if there were any exceptions to his summing up. Counsel for the applicant raised a particular matter which his Honour clarified when the jury returned. After that clarification, the jury retired shortly before 1pm.

30. The jury returned with a verdict of guilty to all charges at 2.31pm.

…

35. The question trail for each of these counts was in identical terms. None of the counts had attached to them, in the question trail, any indication of what it was that was said by the Crown to constitute the particular act of sexual intercourse without consent. No reference was made in the question trail as to which incident it was in the course of the overnight period during which the complainant was subject to the conduct of the applicant. Reading the question trail, the jury could not have known from the contents of it, or from anything said to them by the Judge orally, which event of sexual intercourse was covered by which count. The same position applies for the indecent assaults which were charged.

36. Counsel in their addresses did not have MFI 7 in the form in which it was to be given to the jury, and so could not have addressed the jury by reference to it.

37. In all of these circumstances, ground A3 is made out. The summing-up of the Judge, which provided MFI 7 to the jury, on its own, and without any reference either in it, or else, by way of oral directions from the judge, to any of the facts referable to each count fell well short of the requirements for an adequate summing-up by the Judge.

38. Ground A2 raises the procedure adopted by the Judge of inviting the jury to retire to the jury room to read MFI 7 during the course of the summing up. It is best understood and considered in combination with the lack of oral directions to which ground A4 is directed. As the decision of this Court in Trevascus shows at [68] and [70], a practice of this kind is to be discouraged because it runs contrary to the fundamental obligation on a trial Judge to assist the jury. The factual circumstances raised by this ground do not touch upon the appropriateness of the jury having a question trail document in the jury room during their deliberations, but rather are concerned with the way in which the Judge’s summing up was delivered to the jury in this case by inviting the jury to read the document out of Court, and then, providing no oral explanation, or other directions, to the jury about it..

39. As the decision in Trevascus and the earlier authorities to which it referred makes plain, a question trail, or any other document of a similar kind used to provide the jury with assistance, does not replace the need for oral directions to be given by the Judge as to the law, the relevant facts and the cases articulated by each party.

40. Ground A4 raises the failure of the Judge to give oral directions with respect to the matters covered in MFI 7. The Crown concedes that this ground has been made out. In my opinion, that concession is soundly based, and error has been demonstrated.

41. Here, following upon essentially the same practice which he followed in Trevascus, the Judge handed the question trail to the jury; he invited them to read it by themselves in the jury room; he did not take the jury through the question trail; he did not attempt to relate the evidence in the trial to each of the counts set out in MFI 7 which were in identical terms; he did not include any reference at all to any of the facts upon which the Crown case relied; he did not give any oral directions as to the elements of the offences, either by reading through the question trail or otherwise; he did not summarise the cases for the Crown or the accused, save that he reminded the jury of the submissions on behalf of the accused as to the truthfulness of the evidence given by the complainant; he did not identify, by reference to MFI 7, which elements of the offences were or were not in dispute; nor did he assist the jury to identify what the evidence was in relation to each disputed element.

42. The content of MFI 7 was legally correct. However, that content, devoid of the facts, meant that it was essential for the Judge to give oral directions that related to the facts which the Crown relied upon to constitute each count and the extent of dispute about these facts. The Judge did not do this.

43. In my view each of grounds A2, A3 and A4 when taken to be understood as raising connected issues are made out.

Beech-Jones J

49. I agree with Garling J and with the orders his Honour proposes.

N Adams J

50. I agree with the orders proposed by Garling J for the reasons provided.