6. The components of the summing-up

Updates and background for this project (Digest)

• The Cussens formula
• Elements of the offence charged and defences
• Summary of the evidence
• Summary of the prosecution and defence cases
• Judicial opinion on the merits of the case

6.1 The trial judge’s summing-up is delivered to the jury after the addresses of counsel and before the jury retires to consider its verdict. Its primary aim is to equip the jury for its task in reaching a verdict. Jurors should, therefore, be able to understand it.¹ This point has been emphasised in numerous judgments. For example, Chief Justice Spigelman has observed:

A summing-up to a jury is an exercise in communication between judge and jury... It is, as has frequently been emphasised, desirable that a judge employs easily understood, unambiguous and non-technical language.²

• the role of the jury;³
• the onus and standard of proof;⁴
• the legal ingredients of each count;
• any defences raised by the accused; and
• any general matters of law which require direction (cautions, comments and warnings).⁵

• an outline of the nature of the prosecution’s case;
• reference to the evidence as it relates to the legal issues and the defences raised; and
• a summary of the arguments of counsel.⁶

6.4 This chapter considers some of the ways in which judges address many of these components.

THE CUSSENS FORMULA

6.5 The guiding principle for approaching the task of summing-up in Australia is said to derive from statements of the Victorian judge, Sir Leo Cussens:

The late Sir Leo Cussens insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.⁷

6.7 The authorities also generally state that a summing-up should provide only so much detail as is necessary and that this will depend on the circumstances of the particular case.⁹

6.8 The general view is that summings-up have failed to achieve the aim of being succinct statements of the law and contain only so much other material as is necessary to explain to the jury its task.¹⁰ The general view also appears to be that the problem has become greater in more recent times. For example, in respect of the summary of the law, one judge of the NSW Court of Criminal Appeal observed in 1990:

It seems to me that it would be regrettable if trial judges have come to feel themselves under pressure to deliver to juries complex lectures on the law. It is my recollection that it used to be the approach of trial judges in very many cases to make no attempt to give the jury lengthy explanations of the law but simply to state for the jury in simple terms the issues which by the application of the law to the evidence given were thrown up for their decision and the consequence, in terms of verdict, of the way in which those issues might be decided.¹¹

6.9 The trial judge must sum up the law as it applies to the case before the court. This includes a summary of the elements of the offence charged and the elements of any defences available. The best practice is generally agreed to be that judges outline no more of the law than is necessary for the jury to come to an understanding of what is required of it.¹²

6.10 The High Court has supported this approach as recently as 2002 when it affirmed that “it is not the function of a trial judge to expound to the jury principles of law going beyond those which the jurors need to understand to resolve the issues that arise for decision in the case”.¹³ In such contexts, model directions can prove helpful in setting out directions on the relevant law for the assistance of the jury.¹⁴ However, there will be cases where model directions may not assist juries in understanding complex points of substantive law.¹⁵

6.11 Even if the judge fails to direct the jury expressly and comprehensively about all the elements of the offence charged, it may not involve a miscarriage of justice. This will depend on the circumstances of the case and the conduct of the trial.¹⁶ So, in one case, the High Court observed that, “while greater elaboration was desirable”, the directions were, “in the context of the particular trial, adequate to discharge the basic responsibility of identifying and communicating to the jury what, ‘in the light of the law’, ‘the real issue’ was”. In support of this position, the High Court pointed to the fact that defence counsel “did not seek any further direction in relation to attempt either at the conclusion of the trial judge’s summing-up or when the jury subsequently returned with a question on that subject” and also to the fact that the specific instances of alleged inadequacy were “either unpersuasive or insignificant”.¹⁷ However, while there may be no miscarriage of justice in such cases, an apparent failure to comply with this requirement will make it highly likely that an unsuccessful defendant will lodge an appeal.

6.12 Lord Justice Auld has argued for a stricter enforcement of the traditional distinction that the judge should be concerned with the law and the jury should be concerned with the facts. Adopting the view that the function of the judge should be “to protect the jury from the law rather than to direct them on it”,¹⁸ he suggested that a “fundamental, and practical review of the structure and necessary content of a summing-up” was required “with a view to shedding rather than incorporating the law and to framing simple factual questions that take [the law] into account”.¹⁹ One way of implementing this might be through “decision trees” and other deliberation aids.²⁰

6.13 A further issue involves consideration of the point at which the judge can best provide the summary of the law to the jury – at the beginning of the trial, or before the addresses, or during the summing-up?²¹

ISSUE 6.1

What can be done to improve juror comprehension of the judge’s summary of the relevant law in the summing-up?

6.14 It has generally been accepted that the best practice is for a judge to summarise the evidence in a way that relates the summary to the issues which the jury must determine,²² and to avoid the tedious and unhelpful practice of reading slabs of transcript of the evidence of each witness in turn.

6.15 The Court of Criminal Appeal has commented that a judge does not comply with these requirements if he or she simply reads the relevant legal provisions to the jury and then:

[reads] out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross-examination and then re-examination of each witness before turning to the next witness and so on. The idea of a summing-up is to present for the jury the issues of fact which they have to determine.²³

The jury should be specifically told of the evidence which they may consider against each individual accused, together with appropriate directions as to the legal principles involved. In this connection it is insufficient to rest such a direction upon the formula that each case must be considered separately, without further explanation.²⁶

Limiting the summing-up of the evidence

6.18 One response to the problem is to impose limits on the extent to which the evidence is referred to in a summing-up. In formulating such an option, it should be considered that, by the time of the summing-up, the jury has heard the evidence, listened to the prosecution and defence addresses³⁰ and may also have access to the transcript of evidence.³¹

6.19 Lord Justice Auld, in his 2001 review of the Courts of England and Wales, supported a limiting of the summing-up, and considered that the judge should not have to remind the jurors of the evidence in any great detail “save in particularly complex or long cases, or where the evidence has not been put before them in a manageable way”.³²

6.20 However, earlier in 1993, the Royal Commission on Criminal Justice in England and Wales had concluded that it would not be sensible to impose limits on a judge’s summing-up on the facts as “the circumstances will vary from case to case”.³³

NSW legislation

6.21 A review of the NSW criminal justice system, in 1989, considered that the invariable practice of summarising the evidence led to some short trials taking longer than necessary. Despite there never having been a requirement that judges provide a chronological summary of the evidence,³⁴ the review suggested that judges should have the express discretion to dispense with an analysis of evidence in cases where the “evidence called in a trial has not been extensive”.³⁵

6.22 Following a positive response to the proposal, an amendment was introduced, in 1990, setting out the trial judge’s discretion not to “summarise” the evidence “if of the opinion that, in all the circumstances of the trial, a summary is not necessary”.³⁶ The second reading speech noted that the new provision was not intended to affect the requirement that the judge relate the evidence to the ingredients of the particular offence.³⁷ A trial judge remains obliged to refer in the summing-up to the evidence or the arguments by counsel, if the reference is necessary to ensure that the jury has an understanding of the relevant facts to be able to determine the matter.³⁸

6.23 The amendment appears to have had some effect, at least with respect to shorter trials. In 1999, the Court of Criminal Appeal observed in relation to one case, where the evidence was concluded within two days, that in light of the new provision it was “entirely appropriate” for the judge to dispense with summarising the evidence.³⁹ In another 1999 trial, which lasted only three days and in which there were only six witnesses, the trial judge summed up without reference to the evidence. The Court of Criminal Appeal observed that this course was properly open to the judge under the new provision and noted:

The need for, and the extent of, any exploration of the evidence and of the issues, in a summing-up, is to be assessed in the context of the trial, its length, its complexity and in light of the way that it has been run. Where the summing-up in a short trial has followed hard on the heels of a defence address, particularly where the appellant has not offered any evidence, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in the closing addresses. To so require would be to credit the jury with little in the way of intelligence or common sense. An exercise of judgment is always required, on the part of the trial judge, to frame the summing-up in a way that is helpful to the jury.⁴⁰

ISSUE 6.2

What limits, if any, should be placed on the judge’s summary of the evidence in the summing-up?

6.25 A question arises as to the extent to which the jurors should be provided with written summaries of the evidence to assist them in their deliberations. This needs to be considered in the context of the existing provisions allowing other types of written material to be given to the jury, including summaries of the law.

6.26 The Court of Criminal Appeal, in the case of R v Petroff, held that a trial judge may provide the jury with a document recording the directions of law applicable to its task, provided that counsel were first given the opportunity to make submissions as to its contents and that it was made clear that the jury was not to substitute the written directions for the oral ones.⁴² In practice, many judges hand such a document to the jury and then go through the directions with the jurors who will have the opportunity of reading the document at the same time, interpolating explanatory material where necessary. This position is now supported by the Jury Act 1977 (NSW) which allows a trial judge to give written directions of law to a jury if he or she “considers that it is appropriate to do so”.⁴³

6.27 In some substantial cases — particularly circumstantial evidence cases — the jury would be assisted by having a document outlining each of the basic facts on which the Crown relies, provided that the document also incorporates the response of the accused (if any) to each such fact. While the courts have not completely closed off the possibility of such assistance^,44 in practice the Court of Criminal Appeal’s decision in Petroff has been interpreted as prohibiting it. In many cases, this denies the jury a form of assistance that could be beneficial, particularly if the facts were marshalled in an orderly way in relation to the issues.⁴⁵

6.28 In the trial of R v Milat, a wholly circumstantial case in which the evidence lasted four months, the Crown relied on a large number of basic factual issues, and the evidence said to establish or refute each of those facts was scattered throughout the evidence. The judge prepared a document for the purposes of the summing-up which set out the basic facts and the evidence said to establish each of them, together with the response of the accused to each item. Once the terms of the document were agreed, counsel for the accused properly objected to the document being given to the jury for its assistance, on the basis of the decision in Petroff. The summing-up lasted four days, in the course of which the document was read to the jury as the judge’s own compilation of the factual issues that arose, both at the commencement of the section dealing with the factual issues and again at the conclusion of that section.

6.29 It has been suggested that Petroff imposes an unnecessary restriction on the assistance a trial judge can give to a jury, particularly in long trials or those with complex facts and multiple issues. Some of the trials of offences under the anti-terrorism legislation are likely to take even longer and have already been identified as posing problems for jury trials.⁴⁶

6.30 There is currently no express provision, such as the provision that deals with summaries of the law, that allows a judge to supply a jury with a written summary of the evidence.⁴⁷ One reason for the absence of such a provision may be the problems that could arise from the inclusion in a written summary of “any elements of doubtful validity”.⁴⁸ The Court of Criminal Appeal of England and Wales has also commented on the “immense care” that needs to be taken to ensure that any such summaries are “free from any miscopying, inaccuracy or false propositions”.⁴⁹

ISSUE 6.3

Under what circumstances should written materials be made available to juries that deal with the factual issues in a summing-up?

6.31 Generally, it is accepted that judges should provide a brief outline of the arguments put by counsel in relation to the different issues in the case,⁵⁰ even though there is, strictly speaking, no “rule of law or of practice” which obliges them to do so.⁵¹ It should also be noted that the judge does not need to provide the summary of the prosecution and defence cases in isolation from the summaries of each of the relevant legal elements and the related evidence.

6.32 The High Court has 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”.⁵² However, it has also stated that this requirement “does not oblige the judge to put to the jury every argument put forward by counsel for the accused”.⁵³ What a judge must do in presenting the arguments of counsel will vary according to the circumstances of the case and the conduct of the trial.⁵⁴ According to the High Court, the inclusion of a particular argument depends upon whether it 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”.⁵⁵

6.33 The NSW Court of Criminal Appeal has further observed that the judge in summing-up is not relieved from the duty to assist the jury in understanding “what the critical issues of fact are upon application of the law to the particular case” by reason of counsel having already put their arguments in relation to it.⁵⁶

Outlining the defence case

6.34 The trial judge, in summing up, must adequately present the defence case. Failure to do so, with respect to an important aspect of the defence case, will provide grounds for a successful appeal.⁵⁷ The trial judge in summing up must present the defence case sufficiently for the jury to understand what it is.⁵⁸ The judge’s summing-up must also “hold an even balance” between the cases of the prosecution and the defence and present the defence case fairly.⁵⁹

6.35 A simple defence case may require only a concise explanation.⁶⁰ In some cases, it may be appropriate to summarise the defence case as a “single and self-contained portion of the summing-up”; in other cases, it may be appropriate to deal with the defence points as they arise in relation to the prosecution’s case.⁶¹

6.36 It has been suggested that the judge’s duty to assist the jury in understanding the critical issues in the case (discussed above) should not be elevated to a “requirement that, in every case, regardless of its length or complexity, the trial judge must identify and repeat the points made by defence counsel”.⁶² In some cases, it may even be appropriate for the judge to refer the jury to the submissions that defence counsel have already made on the relevant points.⁶³

6.37 The NSW Court of Criminal Appeal has also observed that a balanced summing-up cannot be achieved by attempting to strengthen a weak defence case at the expense of a strong prosecution case:

If one case is strong and the other weak, then a balanced account inevitably will reflect the strength of one and the weakness of the other.⁶⁴

6.38 A question also arises in the context of the summing-up as to whether the trial judge is under an obligation to include matters that the parties have not raised, such as alternative or lesser charges, or arguments in support of acquittal, or in support of defences. This raises the issue of the extent to which the judge is bound to include such matters in order to achieve a fair trial, and whether the inclusion of too much additional information will merely make the jury’s task of coming to a verdict more difficult.

The defence case

It is trite to observe that a judge is required to direct the jury on the issues as they have emerged in the trial.⁶⁵

6.40 Putting to the jury defences or alternative offences that appear reasonably open upon the evidence, but have not been raised by defence counsel, is said to be “no more and no less than a recognition of the obligation of the trial judge to ensure that the accused person has a fair trial according to law”.⁶⁶ Chief Justice Barwick observed:

Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law.⁶⁷

6.41 Even where a defence that is reasonably open on the evidence is explicitly rejected by the defence counsel, as diminished responsibility was in R v Cheatham, the trial judge must leave the defence to the jury, in the interests of avoiding a miscarriage of justice.⁶⁸

6.42 The best practice is for the trial judge to discuss with counsel, in the absence of the jury, what issues or “defences” should be put to the jury.⁶⁹ However, one consequence of the judge directing the jury on alternative “defences” which neither the prosecution or defence have dealt with in their addresses is that the judge has to take the running without the benefit of reminding the jury of the respective cases of the prosecution or defence on those matters.

6.43 The Court of Criminal Appeal has emphasised that the matters put to the jury must be open upon the evidence and that “it is not the judge’s function to put to the jury unreal or fantastic possibilities”:

The criminal law should not be complicated by refined dissections of issues that must ultimately be presented to twelve laymen for their decision.⁷⁰

6.44 Where a defence is raised on the evidence, the trial judge should proceed on a view of the evidence most favourable to the accused. No matter how “weak and tenuous” it may seem to the trial judge, where an alternative defence is reasonably open on the evidence, the trial judge in a criminal trial is required to direct the jury on the alternative defence, even in situations where defence counsel has expressly abandoned it.⁷²

6.45 If there is any doubt about the availability of a defence, the leading view is that the trial judge should allow the defence to go to the jury, and ask whether “there may be constructed a realistic hypothesis concerning the facts provided in evidence and available inferences which would give rise to the possibility for the defence being one for consideration”.⁷³

The prosecution case

6.46 Slightly different issues arise in the context of matters not raised by the prosecution as opposed to those matters that have not been relied upon by the defence.

6.47 While a trial judge’s task of directing the jury as to the relevant law cannot be limited by what the prosecution raises,⁷⁴ it has been suggested that the better course in such circumstances is for the judge to raise the matters with counsel prior to final addresses, so that counsel from both sides may have the opportunity of addressing the jury on them.⁷⁵ This ensures that all the issues will be dealt with in the summing-up however counsel may wish to address the jury.

6.48 It has also been suggested that the trial judge should “normally refrain from advancing an argument in support of the Crown case that was not put by the Crown”.⁷⁶ The reasons given for this are that such an action is “inconsistent with judicial impartiality” and it denies the parties the opportunity to address the argument.⁷⁷

6.49 Even where the trial judge takes the view that, on the evidence, it was reasonably open to the jury to make an alternative finding, he or she may advance matters not opened or argued by the prosecution only where to introduce them would not amount to unfairness to the accused. Such unfairness may arise because the defence was not given the opportunity to test the evidence in relation to the matters during the course of the trial or to deal with the matters in its final submissions. Whether or not the raising of such matters amounts to unfairness to the accused will depend on the facts in each case.⁷⁸

6.50 Likewise, it may amount to injustice to the accused if the trial judge raises an alternative verdict (where available⁷⁹ ) at the conclusion of the prosecution’s case,⁸⁰ or in the summing-up.⁸¹ Where the raising of an alternative verdict is permitted, the judge ought to direct the jury adequately as to the basis for such an alternative verdict.⁸²

6.51 A particular instance where the authorities suggest that the trial judge should give directions, even though the defence expressly objects to that occurring, is in the case of an accused charged with murder where the various circumstances and partial defences could give rise to a manslaughter verdict.⁸³ It may be that some trial judges will be anxious to include such directions, on the most tenuous of bases, in order to appeal-proof the summing-up.⁸⁴ The question that arises is whether it should still be necessary in an adversarial justice system for trial judges to give these directions, particularly in cases where the defence prefers to go to the jury on the substantive count alone.

6.52 The second issue concerns whether it is either appropriate or necessary for judges, in an adversarial system of justice, to outline arguments or to direct the jury on the possible availability of defences or verdicts for lesser offences where they have not been raised by counsel. Such a consideration is significant, since it adds to the complexity of the trial in circumstances where counsel in the closing addresses have given no assistance to the jury on the alternatives. Perhaps greater attention in this respect should be given to the adversarial context in which criminal trials are conducted,⁸⁵ leaving it to the parties to settle the issues for determination.

6.53 However, in considering such questions, attention should be given to the High Court’s position that the trial judge’s duty to give appropriate directions on alternative verdicts “cannot be controlled by the tactics or manoeuvring” of the accused or his or representatives, at least where there is a possibility on the evidence of a finding of manslaughter ^.86

ISSUE 6.4

(1) To what extent should a trial judge be able to put matters of law or arguments relevant to the defence that have not been raised or relied on by counsel for the defence?

(2) In what circumstances, if any, should a judge be able to put alternative charges even if the prosecution has not raised them?

6.54 The question arises whether it is appropriate or necessary for the trial judge to repeat or summarise the arguments of trial counsel in circumstances where the jury has just had the benefit of their detailed and considered addresses. For example, in England and Wales, Lord Justice Auld proposed that, while a judge should always be required to give the jury an “adequate account” of the defence, the account should be “in more summary form than is now common”.⁸⁷

ISSUE 6.5

(1) In what circumstances, if any, should judges repeat or summarise the arguments of trial counsel?

(2) Should the judge’s summary of the arguments of trial counsel be limited in any way?

6.55 Another possible approach to the question of the judge’s summing-up of the arguments of counsel might be to change the timing of its delivery so that it occurs before counsel’s addresses. This would have the beneficial effect of shortening the judge’s summing-up because he or she would not need to repeat the arguments of counsel in however summary a form. It would also reduce opportunities for the judge to provide comments on the merits of the case.⁸⁸ Other beneficial outcomes would include the fact that the summing-up would provide a structure for the addresses of counsel and encourage them to stay on point.

6.56 A proposal of this sort goes beyond the support expressed by some commentators for the trial judge conferring with counsel before the closing addresses and the summing-up so that legal issues can be clarified and the final addresses proceed on the basis of some common understanding. For example, Lord Justice Auld’s proposals in England and Wales assumed the traditional order of speeches would be preserved. However, in proposing that counsel and the trial judge should confer before the final speeches and summing-up, he observed that “it is vital that [counsel] should be able to fashion their speeches knowing how [the judge] is going to put the matter to the jury”.⁸⁹ Chief Justice Gleeson has similarly observed:

It is important, for the orderly conduct of the trial, for counsel, before they address, to have a clear and common understanding of the way in which the case will ultimately be left to the jury. That, of course, may be influenced by the line of argument adopted in address, but it will also be influenced by the trial judge’s view of the law to be applied.⁹⁰

6.58 Concerns about the need for counsel to be aware of what the judge will raise in the summing-up can be met not only by requiring the judge to confer with the parties before the final addresses, but also by a model that allows the judge to deliver the summing-up before the final addresses of counsel.

6.59 Such a change would have a number of effects, including the fact that shorter and less repetitious summings-up will reduce the cognitive load on jurors. It may, by allowing the judge to set the framework for the closing speeches, invite jurors to give greater scrutiny of the arguments of counsel. It may also reduce the possibility that jurors see the judge as an arbitrator of the arguments of counsel and try to discern the judge’s view of what the outcome of the trial should be.

6.60 Such a change would obviously require adjustments. For example, the judge would need to consult with counsel in advance about the content of the summing-up, and the judge would also require the opportunity, if necessary, to correct any errors made by counsel during their addresses.

ISSUE 6.6

(1) Should the judge’s summing-up be delivered before the addresses of counsel?

(2) If so, under what conditions?

6.61 Some judges, when outlining the arguments put by counsel, add to that outline additional factual material which may be relevant to the particular issue. This additional material is often referred to as the judges’ own “comment” on the evidence. There is a reasonable discretion available to the trial judge to express his or her views on the evidence. For example, in a recent High Court case, it was said that the trial judge may comment when appropriate on inconsistencies in, or omissions from a statement, or statements that an accused person has made out of court, or upon the differences (whether by way of additions, inconsistencies or omissions) between evidence that an accused person has given in court and statements that he or she has made out of court.⁹¹

6.62 Commentators have acknowledged that there is sometimes a fine line between setting out the evidence as it applies to the issues in the case and expressing an opinion on the facts of the case. For example, Sir James Stephen, writing in 1883, said:

nor do I see how it is possible for [a judge to conceal his opinion from the jury] if he arranges the evidence in the order in which it strikes his mind. The mere effort to see what is essential to a story, in what order the important events happened, and in what relation they stand to each other must of necessity point to a conclusion. The act of stating for the jury the questions which they have to answer and of stating the evidence bearing on those questions and showing in what respects it is important generally goes a considerable way towards suggesting an answer to them, and if a judge does not do as much at least as this he does almost nothing.⁹²

6.63 Judicial comment on the evidence is generally a matter well within the judge’s discretion, provided that it does not make the summing-up unbalanced. It has, therefore, generally been accepted that judges may express their own views on the evidence in a case,⁹⁴ and may even do so strongly,⁹⁵ subject to the condition that they make it clear that the evidence is a matter for the jury and that the jury should not be influenced by the expression of judicial opinion.⁹⁶ However, there are limits to judicial comment on the evidence, so that a trial judge cannot be too unbalanced in providing adverse comments, even where he or she directs the jury that they may ignore those comments.⁹⁷ The risk with any form of judicial “comment” is that the jury will see it as a binding direction of law,⁹⁸ or even mistakenly as a direction to convict.⁹⁹ Alternatively, if taken too far, or made too obvious, such comment may even be counterproductive, as Serjeant Sullivan suggested in the 1930s, when he said foremen of juries at the Old Bailey should be asked whether “they found for his Lordship or against him?”¹⁰⁰

6.64 The illogicality and absurdity of the practice of judges directing the jury to ignore judicial comments on the evidence has been pointed out on numerous occasions.¹⁰¹ In a recent NSW case,¹⁰² Justice Handley, while preserving the existing rule, contended that, “as a matter of rationality”, it was difficult to dispute the point of view once expressed by the British Columbia Court of Appeal that:

It seems an absurdity for a judge after telling the jury the facts are for them and not for him, then to volunteer his opinions of facts followed then or later by another caution to the jury that his own opinion cannot govern them and ought not to influence them. If his opinion ought not to govern or influence the jury then why give his opinion to the jury.¹⁰³

6.66 In recent times, there has been some indication that the High Court is taking a more cautious approach to the traditional position on judicial commentary. In one case, four judges observed:

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.¹⁰⁶

Unnecessary or extensive comments on the facts carry well-recognised risks of misstatements or other errors and of blurring the respective functions of the judge and the jury.¹⁰⁷

6.68 The practice of judges giving directions or making comments on the significance that the jury should, or should not, attach to the evidence has received some criticism.¹⁰⁹ Commentators have called for a review of the practice of judges commenting on the evidence. One such commentator has questioned the reasons for allowing such a practice and has called for “a principled account of when such comments should be made”.¹¹⁰ Another commentator has suggested that the only way to avoid bias in the summing-up of evidence may be to prevent judges from summing up on the evidence at all.¹¹¹ Some have suggested that the most convincing reason for allowing judicial comment on the evidence is that the trial judge has expertise in some matters and can assist the jury to appreciate a point which may not be obvious to them because of their lack of experience in criminal trials.¹¹²

6.69 Has the time come when modern jurors can be trusted to deal with the evidence upon the basis of their own experience and common sense, and with the assistance of the arguments of counsel, without the need for any additional input from the judge?

ISSUE 6.7

In what circumstances, if any, should a judge comment on the merits of the case in the summing-up to the jury?

1. Jenkins v The Queen (2004) 79 ALJR 252, 257, citing Alford v Magee (1952) 85 CLR 437, [28]. See also A M Gleeson, “The State of the Judicature” (35th Australian Legal Convention, Sydney, 25 March 2007) 10. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1997) vol 3, [2.200]; Law Reform Commission of Canada, The Jury, Report 16 (1982) 84; R v Adomako [1995] 1 AC 171, 189 (Lord Mackay); R v Landy (1981) 72 Cr App R 237; R v McGreevy (1973) 57 Cr App R 424, 430, quoting Lord Lowry of NI; “Principles of Summing-up” (1999) 63 Journal of Criminal Law 422, 424; Zoneff v The Queen (2000) 200 CLR 234, [55], [65].

2. R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377, [79]. See also Re Attorney-General’s Reference (No 3 of 1994) [1998] AC 245, 272; R v Adomako [1995] 1 AC 171, 189.

3. See para 4.14-4.16.

4. See para 4.21-4.37.

5. See ch 7 and ch 8.

6. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [7-000].

7. Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ).

8. R v Zorad (1990) 19 NSWLR 91, 105. See also Alford v Magee (1952) 85 CLR 437, 466; and Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VLR 497, 522-523 (Cussens J).

9. Alford v Magee (1952) 85 CLR 437, 466; Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VLR 497, 522-523 (Cussens J); Mohamed v R [2008] NSWCCA 45, [26]-[35].

10. See, eg, R v Lawrence [1982] AC 510, 519 (Lord Hailsham LC); R v Zorad (1990) 19 NSWLR 91, 105; A M Gleeson, “The State of the Judicature” (35th Australian Legal Convention, Sydney, 25 March 2007) 9; F H Vincent, “The High Court v The Trial Judge” in 28th Australian Legal Convention (1993) vol 2, 265; Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1997) vol 3, [2.202]-[2.205].

11. R v Williams (1990) 50 A Crim R 213, 226-227 (Badgery-Parker J). See also R v Flesch (1987) 7 NSWLR 554, 558 (Street CJ).

12. Directors of the Prudential Assurance Company v Edmonds (1877) 2 App Cas 487, 507. See also Swadling v Cooper [1931] AC 1, 10; R v Lawrence [1982] AC 510, 519 (Lord Hailsham LC); Mowlds v Fergusson (1939) 40 SR (NSW) 311, 323. The question of the comprehensibility of directions relating to particular offences and defences and the elements thereof is discussed in ch 9.

13. R v Chai (2002) 76 ALJR 628, [18]. See also Alford v Magee (1952) 85 CLR 437, 466; Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, [75]; R v Mueller (2005) 62 NSWLR 476, [4], [42]; Matusevich v The Queen (1977) 137 CLR 633, 638 (Gibbs J).

14. See ch 3.

15. Examples of these are discussed in ch 9.

16. Holland v The Queen (1993) 67 ALJR 946, 950-952; R v Cao (2006) 65 NSWLR 552; [2006] NSWCCA 89, [56].

17. Holland v The Queen (1993) 67 ALJR 946, 952.

18. E Griew, “Summing Up the Law” [1989] Criminal Law Review 768, 779.

19. R E Auld, Review of the Criminal Courts of England and Wales, Report (2001) 535.

20. See para 10.36-10.41.

21. See para 6.55-6.59; para 9.90-9.103.

22. Alford v Magee (1952) 85 CLR 437, 466. See also A M Gleeson, “The Role of a Judge in a Criminal Trial” (Lawasia Conference, Hong Kong, 6 June 2007) 11; P Devlin, Trial by Jury (Stevens and Sons, 1956) 117-118.

23. R v Zorad, (1990) 19 NSWLR 91, 105.

24. See para 8.48-8.53.

25. R v Towle (1955) 72 WN (NSW) 338, 340.

26. R v Towle (1955) 72 WN (NSW) 338, 340.

27. See, eg, J F Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) vol 1, 455; R v Lawrence [1982] AC 510, 519 (Lord Hailsham LC); R v Zorad (1990) 19 NSWLR 91, 105.

28. NSW, Attorney General’s Department, Discussion Paper on Reforms to the Criminal Justice System (1989) 62.

29. See also A M Gleeson, “The Role of a Judge in a Criminal Trial” (Lawasia Conference, Hong Kong, 6 June 2007) 12.

30. See the comments of Spigelman CJ in R v Hannes (2000) 158 FLR 359; [2000] NSWCCA 503, [106]: “It has long been established that it is not appropriate to subject a summing-up to an excessively fine analysis. In particular, it is not appropriate to do so without reference to the context of the trial, including the detailed submissions that have been made by the Crown and the representative of the accused immediately before the summing-up.”

31. When they have requested it and the judge “considers that it is appropriate and practicable” to make it available: Jury Act 1977 (NSW) s 55C.

32. R E Auld, Review of the Criminal Courts of England and Wales, Report (2001) 533.

33. England and Wales, The Royal Commission on Criminal Justice, Cm 2263 (1993) 124.

34. See R v Smart [1963] NSWR 706, 713; R v Piazza (1997) 94 A Crim R 459, 460 (Hunt CJ at CL).

35. NSW, Attorney General’s Department, Discussion Paper on Reforms to the Criminal Justice System (1989) 63.

36. Criminal Procedure Act 1986 (NSW) s 161, originally inserted as Crimes Act 1900 (NSW) s 405AA by Criminal Procedure Legislation (Amendment) Act 1990 (NSW) Sch 2.

37. NSW, Parliamentary Debates (Hansard), Legislative Assembly, 24 October 1990, 9160, referring to R v Zorad (1990) 19 NSWLR 91, 105. See also R v Piazza (1997) 94 A Crim R 459, 460.

38. Mohamed v R [2008] NSWCCA 45, [28].

39. R v Williams (1999) 104 A Crim R 260; [1999] NSWCCA 9, [37].

40. R v Davis [1999] NSWCCA 15, [24].

41. See, eg, Mohamed v R [2008] NSWCCA 45, [26]-[35]; Thorne v R [2007] NSWCCA 10, [49]-[59]; R v MacLeod (2001) 52 NSWLR 389; [2001] NSWCCA 357, [124]-[129]; R v Hannes (2000) 158 FLR 359; [2000] NSWCCA 503, [104]-[117].

42. R v Petroff (1980) 2 A Crim R 101, 113-116.

43. Jury Act 1977 (NSW) s 55B.

44. In Tripodina v R (1988) 35 A Crim R 183, 198 it was observed 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 also R v Healey [1965] 1 All ER 365, 371. In R v Vincent (NSW CCA, No 353/1986, 19 November 1987, unreported), 11, Campbell J reserved for consideration the question whether “it is ever appropriate for the jury to be given as an aid to recollection a written summary prepared by the trial judge of the contentions of the Crown on any particular point”.

45. See the comments of Street CJ in R v Vincent (NSW CCA, No 353/1986, 19 November 1987, unreported), 9, where he says that “in a complex case one can understand the degree of assistance that a jury may have from such a document”.

46. M Clayfield, “Modern Trials Too Difficult for Juries” The Australian (10 October 2008), 6.

47. Even though a trial judge may allow the jury to receive transcripts of all or part of the evidence in certain circumstances: Jury Act 1977 (NSW) s 55C.

48. R v Vincent (NSW CCA, No 353/1986, 19 November 1987, unreported), 9 (Street CJ); Tripodina v R (1988) 35 A Crim R 183, 197.

49. R v Healey [1965] 1 All ER 365, 371.

50. R v Zorad (1990) 19 NSWLR 91, 105; R v Lawrence [1982] AC 510, 519 (Lord Hailsham LC).

51. R v Smart [1963] NSWR 706, 713.

52. Domican v The Queen (1992) 173 CLR 555, 561. See also R v Checconi (1988) 34 A Crim R 160, 173.

53. Domican v The Queen (1992) 173 CLR 555, 561. See also King v R [2008] NSWCCA 101, [80]-[86].

54. R v Smart [1963] NSWR 706, 713. See also R v Checconi (1988) 34 A Crim R 160, 173; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49, 56; R v Lowery (No 3) [1972] VR 939, 948; R v Melville (1956) 73 WN (NSW) 579, 581.

55. Domican v The Queen (1992) 173 CLR 555, 561.

56. R v Condon (1995) 83 A Crim R 335, 347.

57. R v Veverka [1978] 1 NSWLR 478, 480.

58. Dominguez v The Queen (1985) 63 ALR 181, 187; Domican v The Queen (1992) 173 CLR 555, 561; R v Veverka [1978] 1 NSWLR 478, 482.

59. Cleland v The Queen (1982) 151 CLR 1, 10.

60. Dominguez v The Queen (1985) 63 ALR 181, 187.

61. Dominguez v The Queen (1985) 63 ALR 181, 187. See also R v Veverka [1978] 1 NSWLR 478, 481.

62. R v Davis [1999] NSWCCA 15, [24]. See also Domican v The Queen (1992) 173 CLR 555, 561.

63. Cleland v The Queen (1982) 151 CLR 1, 10; R v Matthews [1972] VR 3, 15.

64. R v Ali Ali (1981) 6 A Crim R 161, 164.

65. Douglas v R [2005] NSWCCA 419, [84] (Simpson J) citing Alford v Magee (1952) 85 CLR 437, 466.

66. R v Solomon [1980] 1 NSWLR 321, 327.

67. Pemble v The Queen (1971) 124 CLR 107, 117. See also R v Veverka [1978] 1 NSWLR 478, 481. The issue has been considered more recently in Gillard v The Queen (2003) 219 CLR 1; Gilbert v The Queen (2000) 201 CLR 414; and Fingleton v The Queen (2005) 227 CLR 166, [81]-[84]. See also the recent decision of the House of Lords in R v Coutts (2006) 1 WLR 2154; but compare the approach taken in Scotland since Johnston v HM Advocate [1998] SLT 788 where the court considered that the “trial judge can be expected to deal with live issues, not with possible circumstances which are never raised in the trial”, at 794. See also R v Saad (2005) 156 A Crim R 533, [88]-[110].

68. R v Cheatham [2000] NSWCCA 282, [63] (Spigelman CJ).

69. See, eg, R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385, [88]-[89].

70. R v Holden [1974] 2 NSWLR 548, 551. See also R v Clarke (1995) 78 A Crim R 266, 230-231 and Douglas v R [2005] NSWCCA 419 (Simpson J).

71. R v Brown (1987) 32 A Crim R 162, 175.

72. Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, 665 (Wilson, Dawson and Toohey JJ).

73. R v Peisley (1990) 54 A Crim R 42, 51 (Wood J). See also R v PRFN [2000] NSWCCA 230, [22] (James J).

74. R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385, [46], [59], [61], [71]-[76].

75. R v Solomon [1980] 1 NSWLR 321, 336. See also R v Tangye (1997) 92 A Crim R 545, 556-559.

76. R v Meher [2004] NSWCCA 355, [87].

77. R v Meher [2004] NSWCCA 355, [88]. See also King v The Queen (1986) 161 CLR 423, 432.

78. See R v Solomon [1980] 1 NSWLR 321. See also R v Wong (1988) 37 A Crim R 385, 392, 393 re the necessity of the defendant knowing precisely the grounds upon which he or she is standing trial.

79. Where permitted by common law or statute, eg, Criminal Procedure Act 1986 (NSW) s 162, Drug Misuse and Trafficking Act 1985 (NSW) s 24(3), and Crimes Act 1900 (NSW) s 34.

80. R v Cameron [1983] 2 NSWLR 66, 71.

81. R v Pureau (1990) 19 NSWLR 372, 376, 380.

82. R v Pureau (1990) 19 NSWLR 372, 374, 379; R v Crisologo (1997) 99 A Crim R 178, 187; R v LJG (2004) 148 A Crim R 558, [95].

83. In R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385, [75] the NSW Court of Criminal Appeal summarised the requirements of the law in this regard.

84. Observations about the “appeal-proofing” of jury directions have also been made in relation to sexual assault trials: J Courtin, “Judging the Judges: How the Victorian Court of Appeal is Dealing with Appeals Against Conviction in Child Sexual Assault Matters” (2006) 18 Current Issues in Criminal Justice 266, 278.

85. The relevance of which, for example, in relation to warnings concerning identification evidence and lies was noted in Dhanhoa v The Queen (2003) 217 CLR 1, [20]-[22], [53].

86. Varley v The Queen (1976) 51 ALJR 243, 245 (Barwick CJ). See, generally, R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385, [75]. However, the situation in relation to non-murder cases has been left open: R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385, [85]-[89].

87. R E Auld, Review of the Criminal Courts of England and Wales, Report (2001) 537.

88. See para 6.61-6.69.

89. R E Auld, Review of the Criminal Courts of England and Wales, Report (2001) 529.

90. A M Gleeson, “The Role of a Judge in a Criminal Trial” (Lawasia Conference, Hong Kong, 6 June 2007) 9-10.

91. RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, [115] (Callinan J) but compare the joint judgment, at [42]. Sometimes, such statements can be quite strongly worded. See, for example, McKinney v The Queen (1991) 171 CLR 468, in which the High Court (at 476) directed that, in the absence of audiovisual recording of police interviews, the jury should be informed that it is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to challenge police evidence of confessional statements than it is for such police evidence to be fabricated, and that they should give careful consideration to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding guilt beyond reasonable doubt is a confessional statement allegedly made in police custody, the making of which is not reliably corroborated (This was before the law was changed to require all such interviews to be recorded: Criminal Procedure Act 1986 (NSW) s 281.)

92. J F Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) vol 1, 455.

93. W R Cornish, The Jury (Pelican, 1970), 123. See also P Devlin, Trial by Jury (Stevens and Sons, 1956) 117.

94. R v Zorad (1990) 19 NSWLR 91, 106-107.

95. Taleb v The Queen [2006] NSWCCA 119, [73]; RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, [42].

96. Green v The Queen (1971) 126 CLR 28, 34. See also N Madge, “Summing Up – A Judge’s Perspective” [2006] Criminal Law Review 817, 824-826.

97. R v Nation (1994) 78 A Crim R 125; Taleb v The Queen [2006] NSWCCA 119.

98. For an example where error arose in this respect, see R v Rajakaruna (No 2) (2006) 15 VR 592.

99. Whether the decision in Yager v The Queen (1977) 139 CLR 28, which accepted the regularity of a directed verdict to convict, would withstand scrutiny today is questionable: see P Gillies and A Dahdal, “Directions to Convict” (2007) 31(5) Criminal Law Journal 295.

100. A M Sullivan, The Last Serjeant: The Memoirs of Serjeant A M Sullivan, QC (1952) 288.

101. See, eg, G Taylor, “Judicial Reflections on the Defence Case in the Summing up” (2005) 26 Australian Bar Review 70, 74; R J Farley, “Instructions to Juries – Their Role in the Judicial Process” (1932) 42 Yale Law Journal 194, 212.

102. R v Heron [2000] NSWCCA 312, [79]-[80].

103. R v Pavlukoff (1953) 106 CCC 249, 266 (British Columbia Court of Appeal).

104. See G Taylor, “Judicial Reflections on the Defence Case in the Summing Up” (2005) 26 Australian Bar Review 70, 74-76; N Madge, “Summing Up – A Judge’s Perspective” [2006] Criminal Law Review 817, 823-824; D Wolchover, “Should Judges Sum Up on the Facts?” [1989] Criminal Law Review 781, 784-786. England and Wales, The Royal Commission on Criminal Justice, Cm 2263 (1993) 123. For the US historical background in this area, see: K A Krasity, “The Role of the Judge in Jury Trials: The Elimination of Judicial Evaluation of Fact in American State Courts from 1795 to 1913” (1985) 62 University of Detroit Law Review 595.

105. W R Cornish, The Jury (Pelican, 1970), 125-126. See also G Taylor, “Judicial Reflections on the Defence Case in the Summing Up” (2005) 26 Australian Bar Review 70, 74; D Wolchover, “Should Judges Sum Up on the Facts?” [1989] Criminal Law Review 781, 786; E R Sullivan and A R Amar, “Jury Reform in America – A Return to the Old Country” (1995) 33 American Criminal Law Review 1141, 1142-1144, 1157, 1160; W W Steele and E R Thornburg, “Jury Instructions: A Persistent Failure to Communicate” (1991) 74 Judicature 249, 252 which states that the ban on commentary on evidence “make the instructions extremely awkward and difficult for jurors to comprehend”.

106. RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, [42] (Gaudron ACJ, Gummow, Kirby and Hayne JJ). See also Domican v The Queen (1992) 173 CLR 555, 560.

107. Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, 70.

108. Taleb v The Queen [2006] NSWCCA 119, [78]-[84]; and see also Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, [52].

109. N A Phillips, “Trusting the Jury” (The Criminal Bar Association Kalisher Lecture, London, 23 October 2007), 14; N A Phillips, “Constitutional Reform: One Year On” (Judicial Studies Board, Annual Lecture, Inner Temple, 22 March 2007), 13; G Taylor, “Judicial Reflections on the Defence Case in the Summing Up” (2005) 26 Australian Bar Review 70, 83-87; and D Wolchover, “Should Judges Sum Up on the Facts?” [1989] Criminal Law Review 781, 787-788.

110. G Taylor, “Judicial Reflections on the Defence Case in the Summing Up” (2005) 26 Australian Bar Review 70, 83.

111. D Wolchover, “Should Judges Sum Up on the Facts?” [1989] Criminal Law Review 781, 787; England and Wales, The Royal Commission on Criminal Justice, Cm 2263 (1993) 123.

112. G Taylor, “Judicial Reflections on the Defence Case in the Summing Up” (2005) 26 Australian Bar Review 70, 84-87; D Wolchover, “Should Judges Sum up on the Facts?” [1989] Criminal Law Review 781, 788.