McKell v The Queen

[2018] HCATrans 257

[2018] HCATrans 257

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S223 of 2018

B e t w e e n -

JASON TROY McKELL

Appellant

and

THE QUEEN

Respondent

BELL J
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 DECEMBER 2018, AT 9.45 AM

Copyright in the High Court of Australia

MR D. JORDAN, SC:   May it please the Court, I appear for the appellant with MS A.L. BONNOR.  (instructed by Elie Rahme & Associates Pty Ltd)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR L.K. CROWLEY, QC, for the respondent.  (instructed by Director of Public Prosecutions (Cth))

BELL J:   Yes, Mr Jordan.  Mr Jordan, just as a preliminary matter, can I raise this with you?

MR JORDAN:   Yes, your Honour.

BELL J:   I saw the estimate of three and a half hours and I thought I might just indicate, not only have we read your submissions, Mr Jordan, but we have read his Honour’s summing‑up.

MR JORDAN:   I can indicate, your Honour, that we are at cross‑purposes.  We thought by that we were indicating the total estimate ‑ ‑ ‑

BELL J:   I understand.

MR JORDAN:   ‑ ‑ ‑ and that is our mistake.

BELL J:   Not at all.  Yes, thank you, Mr Jordan.

MR JORDAN:   Your Honours, the issue for determination on this appeal is whether or not expressions of opinion which were made by the trial judge during summing‑up to the jury and which went to the determination of facts in dispute at the trial resulted in a miscarriage of justice.  The majority of the Court of Criminal Appeal were critical of several of the comments made by the trial judge but were not persuaded that overall the summing‑up was so unfairly lacking in balance as to result in a miscarriage of justice.  In dissent, Justice Beech‑Jones came to a firmly different view which his Honour explained, and we will come to that.  In summary and overall we seek to advance five essential contentions which we have identified by italics in the written outline of argument.

First, the summing‑up was unfair because it did not exhibit a judicial balance, such that it deprived the jury of an adequate opportunity to understand and give effect to the appellant’s defence and the matters relied upon in support of the defence.  Secondly, the summing‑up resulted in a miscarriage of justice which, on established principles, requires that the appellant’s convictions be set aside.  Thirdly, and it follows from the second, the majority of the Court of Criminal Appeal erred in failing to find that the summing‑up resulted in a miscarriage of justice.

Fourthly, it should be made clear that, as a general rule, a judge should not indicate to the jury any opinion on the determination of a question of fact that is in dispute.  Finally, such clarification by this Court would be confined and incremental as it would only limit the expression of a judge’s opinion on the determination of disputed facts and would also be consistent with developments in recent authority.

BELL J:   Your first three italicised points are really one and the same, are they not?  If it is accepted that the summing‑up is unfair and failed to display judicial balance, such that it deprived the jury of an opportunity to properly understand the defence case, two and three follow as night day, do they not?

MR JORDAN:   They do, your Honour.  It is really just a convenient way to break up the various points.  We can take your Honours to the materials.

BELL J:   Yes.

MR JORDAN:   So, first, if we go to the summing‑up; secondly, to the established principles, particularly from this Court; and then more directly to how we say the errors are exposed in the Court of Criminal Appeal’s reasons by majority.

BELL J:   So we have, as it were, as your first point a consideration of whether the majority were right to conclude that understood in its context and read as a whole the summing‑up did not transgress permissible bounds of comment.

MR JORDAN:   Yes.

BELL J:   Then, secondly, your point of principle which is, as I understand your submissions, an authority such as Tsigos is no longer consistent with the conduct of a contemporary adversarial criminal trial.  So you do seek to have the Court move from the statement in Tsigos to some more circumscribed concept of the scope of comment?

MR JORDAN:   Yes.  Your Honour is astute obviously to refer to Tsigos.  Tsigos, as your Honours may be aware, was the quoted authority in paragraph 41 of RPS for the proposition that a judge may comment – and comment strongly – footnote Tsigos.  The way we put it in relation to what we are really trying to characterise I think more as a clarification is that what was said in RPS in those paragraphs 40, 41 and 42, in particular 41 – and I will come to these in detail – it was, strictly speaking, obiter dicta.

There is a general comment in relation to although judges may comment on factual issues - that is the way is put in RPS.  We say, essentially, that is quite a broad statement and accepted on its terms we do not have any difficulty with that.  The problem is that what seems to have occurred is that that has now become, it would seem, the source for what the judge asserted in this particular summing‑up as an entitlement to express opinion on disputed facts and convey those opinions in a persuasive way to the jury. 

Now, if, and we stress if, RPS is authority for that then that does need to be reconsidered.  We do not think we need to go quite so far because we do not think it is quite clear that it is authority for that precise proposition.  It is essentially how we seek to invite the Court to perhaps clarify where we stand now in 2018 on this discrete topic and it is quite a small topic when one considers what trial judges really need to do - expressions of opinion from a trial judge as to the determination of a disputed fact. 

Perhaps if I could take your Honours in relation to our first larger topic, as Justice Bell has put it, to the summing‑up and may I invite your Honours at any point if you have already got across this material, please let me know, but what I would seek to do if it is not going to be too burdensome is to demonstrate by reference to the summing‑up in its sequence to try and give your Honours some sense as to how it may have unfolded before the jury because that really is the critical way that this needs to be determined.

So moving, if I may, to the core appeal book, summing‑up commences at page 8 of the core appeal book.  And if I may take your Honours to pages 10 through to 12, and by this – these are the early parts of the summing‑up, and these are what we have characterised as what may be said to be relatively conventional remarks, at this point, in a trial by a trial judge as to the respective roles of judge and jury.

His Honour sets that out on page 10, about line 51, going over to page 11, about line 11, and towards the bottom of page 11, in the last paragraph, the last three lines, his Honour comes back to it and then on the very last line, says:

I am, of course, entitled to express a view.  I do not, however, propose to try to persuade you one way or the other in the case.  That is not my task. 

Now, firstly, that is an immediate statement of what is characterised as an entitlement to express a view.  And, secondly, what his Honour says there, with respect, that he is not going to try to persuade you one way or the other, is not right, because what ultimately happened, we say, with respect to the trial judge, is that is precisely what he did. 

Moving then, if I may take your Honours to the core appeal book page 44, and at about line 35 his Honour says:

I said to you yesterday that I did not propose to spend a day repeating the Crown’s case and that I would try and do so in, in effect, a common sense overview.

We draw your Honour’s attention to that because by this his Honour is already essentially identifying himself with the jury being exhorted to employ their own common sense, as distinct from the parties in the case. 

That takes us to what is the first of several discrete errors, noting, as we accept, it is the overall effect of these discrete errors in the context of the summing‑up as a whole that is really the determining factor. 

The first error was an error in relation to the first consignment, being the consignment of the precursor, which raised for the first time in the trial a suggestion that this first consignment may have contained drugs or precursor, which may have been successfully removed before this could be stopped by the authorities.  This commences at page 45.  If I may take your Honours to just above line 40, the trial judge says:

There is no evidence that any drug was contained in consignment 1, but you do know that it was removed from the Wymap truck, taken to the underground garage and opened; you do not know, in fact, whether anything was taken out of it unless you accept what Mr McKell said ‑

Moving over to page 46, just below line 10:

You really have, depending on what you make of the evidence, the possibility that there was something in it which was taken out but, of course, never discovered because the police authorities at that stage were still playing catch‑up.  They did not know that the delivery had been made until some later time. 

What you have is the possibility in respect of that consignment that there was something in it that was removed.  You would think there would be little point in arranging for this to happen unless there was something in it, but, as I say, there is actually no evidence that there was anything in it.  Nonetheless, what you have is an organisation of great sophistication.

Now, these comments clearly, even on the transcript, raise for the jury a possibility that some other illicit substance was in the first consignment that was successfully removed before it could be detected.

KEANE J:   And a suggestion that the Crown Prosecutor had not made.

MR JORDAN:   Yes, for the first time, and, your Honour, in circumstances where it was contrary to the ruling made pre‑trial by a different District Court judge, Judge Baly, by which the Crown confirmed that it would not assert that the first consignment contained drugs and would not seek to use this in any way as tendency evidence.  That was critical to her Honour’s decision to allow evidence of the first consignment to be before the jury.  There is no criticism of the Crown. 

Both parties conducted the trial well in accordance with the pre‑trial ruling of Judge Baly.  But here at the end of six weeks of trial in the course of this, what appears to be perhaps something of improvisation during the summing‑up, the trial judge has raised this speculative possibility for the first time in a way that was completely contrary to the way the trial had been conducted.

Now, I interpolate that the impermissible speculative tendency reasoning that was by these passages planted in the minds of the jury was precisely the kind of reasoning that Judge Baly was satisfied would not be a problem because of the careful way the Crown had confined its use of the evidence.  It was accepted even by the majority in the Court of Criminal Appeal that this was inappropriate, and that is at paragraphs 76 and 141 of the Court of Criminal Appeal judgment.

Moving on, and keeping the sequence, because as your Honours will have apprised we contend that the sequence is important.  His Honour then picked up upon this notion of what he described in the last line that I just took your Honours to as a drug organisation of “great sophistication”.  This takes us to page ‑ ‑ ‑

GORDON J:   It gets repeated at the foot of 46, does it not?

MR JORDAN:   It does, your Honour.

GORDON J:   In the same context.

MR JORDAN:   Yes.  His Honour continues the theme at page 49 of the core appeal book at about line 11:

You would need to ensure that Mr McKell, since he was the man who took the consignments off the Wymap truck, you would need to know he was not going to be on holiday, he was not going to be in hospital, and that if he was available he would do it.  You need to know in advance how you might do it:  that is, you might think you would need to know from someone intimately involved in the industry –

that is, the freight industry:

how this might be accomplished.  The object, obviously, you might think, was to intercept the cargo before it got to the in‑bond warehouse and might be later checked by Customs, and before it was cleared, to get the substance out of the consignment to either send it on without replacing it or to substitute something else for it so that when it got to the DHL warehouse, if it was checked, everything would be – to use Mr McKell’s phrase – kosher:  that is, nothing would be detected.

Of course, that does not necessarily mean that Mr McKell was the person who came up with the scheme for how it could be gotten in, but certainly, the system needed to have someone like Mr McKell to actually intercept the cargo and do what did happen.

As noted in Justice Payne’s judgment, paragraphs 80 to 81, the idea that this organisation had, in a generic way, some sophistication was not new ‑ it was part of the Crown’s address ‑ but it was the trial judge who coined the phrase “an organisation of great sophistication”.  It was the trial judge who used this phrase repeatedly in such a persuasive manner.  In particular, in that context it was the trial judge who put it specifically in terms that such a sophisticated organisation would need to know from someone intimately involved in the industry how this might be accomplished, being someone like the appellant, Mr McKell.

As such, at the very least, by this stage of the summing‑up these comments had the effect of reinforcing the overall imbalance already, we would say, present, and the increasing impression of a judge’s opinion as to the merits of the case; namely, that the appellant was guilty.

That takes us in sequence to the next discrete error, which we do place some particular emphasis on because, with respect to the trial judge, it is quite extraordinary, and these are the particularly extreme remarks in relation to the evidence of a text message, “Don’t forget to tape trial”, which was sent by the appellant to the co‑accused shortly before the issue in relation to the second consignment.  These comments arise out of pages 60 through to 61. 

GORDON J:   So this has now moved into defence counsel’s consideration of what was put in the summing‑up about the defence case, is not that right, at page 50, he then moves?

MR JORDAN:   That is right, your Honour.  That is absolutely right.  The trial judge has worked his way – there is some confusion as to how many propositions defence counsel has put forward, and that is precisely where this arises.  Thank you, your Honour.

On page 60, in that context, at line 20 you have reference to the co‑accused, Mr McGlone.  He was there with 80 kilos of substance in pails, and his Honour says:

Was he somehow going to accomplish this with all those pails in the absence of Mr McKell, without Mr McKell being aware of it.

You might think that would be unlikely. 

Then, reading down to line 50, in that context:

You have, of course, on Monday 20 May 2013 as part of Exhibit 17, a message from Mr McKell using the 655 phone in the false name to Mr McGlone, using the 687 line in the false name, a message you might think which is very revealing in relation to what Mr McKell expected to happen.  He says to him, “Don’t forget to tape trial”.  What was that in relation to, ladies and gentlemen?

Mr McKell, when he was asked about this when he gave his evidence, said he had no idea; he did not know why, “I talk in horses; I don’t know why”.  That may not be a precise quote of what he said.  Is not that, I suggest to you, a very revealing text, “Don’t forget to tape trial”?  What is it that Mr McGlone did that day at Kennards?  He bought cardboard boxes and, as you can see in the CCTV, he bought tape, clear tape this time, not brown tape that might show up or, perhaps, be more obvious, but clear tapes.  What was the tape for?  Why did he say, “Don’t forget to tape trial”?  He is obviously not talking about horses, you might think, despite the fact that that is what he said.  Why did he say he had no idea; he did not know why he had said that?

Because it is so obvious, ladies and gentlemen, you might think that it is a reference to making sure that Mr McGlone gets tape for the repackaging so that the substitution can be made and the cargo delivered back to the Wymap truck and onto the DHL warehouse under bond and so that no one will realise, in fact, the drugs have been removed.

Now, by these comments, the trial judge used the technique and language of forceful persuasion such as would be employed by a very capable and robust prosecutor.  Such language of persuasion from a trial judge was extreme and inappropriate because the jury were entitled to assume that the trial judge was objectively independent and above the adversarial contest.  This caused serious injustice because it clearly conveyed to the jury that a trial judge considered that the applicant was, in his words, obviously knowingly involved in the importation of the drugs that were the subject of the trial.

Particularly in the context of the previous remarks, the effect of these quite extraordinary comments from a trial judge was to clearly convey to the jury the trial judge’s opinion that the applicant was lying in his evidence on a central issue as to his knowledge and, therefore, was guilty.  Yet these comments were endorsed by the majority in the Court of Criminal Appeal as:

a typical and permissible comment by the trial judge about a finding of fact that he carefully explained was a matter for the jury. 

That is at paragraph 99.  At the risk of being blunt, such endorsement of this kind of language and persuasive technique by a trial judge – such endorsement by an intermediate Court of Appeal as typical and permissible should not be allowed.

EDELMAN J:   What was the dispute about this in closing submissions?

MR JORDAN:   In relation to the text?

EDELMAN J:   Yes.

MR JORDAN:   Look, the reality is, your Honour, that Mr McKell, the appellant, gave evidence, he was asked questions about the text message and he was unable to provide any particularly compelling answer.  He was not able to explain why he had put that.  He said he did not really know why he had said it.  That is really where the evidence landed.

EDELMAN J:   What about in closing submissions?  Presumably, the Crown put something similar to what the trial judge directed about the expression “don’t forget to tape [the] trial”.  What was the defence response to that?

MR JORDAN:   Excuse me, your Honour.  I think I can summarise it this way.  Certainly, the Crown made submissions about this in closing, although, I would say nowhere near as forcefully as the trial judge.  The overall defence was, I think, essentially pointing to a number of propositions and effectively not being able to say terribly much about the tape text trial except to remind the jury that he had given evidence that he did not know why he was giving that particular message.  But the point is, your Honour, the defence did involve quite a lot more than just this particular issue.  There may be debate as to the strength or not of the defence but there were a number of features to the defence which did not depend at all on this particular part of the Crown case and which stood alone from it.

BELL J:   Your contention is the treatment in the summing‑up, when taking the jury through the 10 or however many points defence counsel made – you contend to make comments suggestive that some of that evidence was risible exceeds the bounds of proper comment?

MR JORDAN:   Yes, your Honour, and, as is clear from these particular parts of the summing‑up, this is delivered as it is directly from his Honour the trial judge.  There is no attempt even to say, perhaps, well, this is the Crown’s argument and perhaps to embellish that a little bit.  This is directly coming from the trial judge as far as the perception of a jury is concerned.  With respect, the way that his Honour puts it is, frankly, more forceful than the way it was put by the Crown.

We say that by this point in the summing‑up, by these remarks in context, the summing‑up is already so unfair and unbalanced that it really could not from this point on be safely remedied.  However, and in any event, the trial judge then went on to make further comments which enhanced the impression we say has already been well conveyed that the judge had the view that this accused was guilty.  These are the points of which his Honour used rhetorical flourish to belittle submissions by defence counsel in relation to the existence of the $400,000 or so that had been found in the appellant’s home.

Now, essentially defence counsel had put that the appellant had been a successful gambler and that the $400,000 was cash from gambling winnings in circumstances where the appellant kept cash from gambling winnings separate from other betting that he did online on online betting accounts.  In the course of making those arguments to the jury, defence counsel said that two documentary exhibits in relation to the online betting accounts were evidence that the appellant was a successful gambler. 

We accept that at this point of the defence counsel’s address there is some inaccuracy because there is – although what defence counsel was trying to do was to say, “Look, we’re talking about online betting.  Let’s go to the two documentary exhibits, 71 and 72.  Looking at those you can see that there is a lot of winning, not in a net sense but in a sense that punts are made.  Sometimes he wins.  He puts that back into the account and if you actually do the calculations you can show that, over a period of time, there has been a significant amount of gambling winnings, even on the online account” - so far, so good.

The problem is – and we accept – it is something of a stretch to say in relation to the online betting itself, overall he was a successful gambler because the net position is that over a period of time he had lost a significant amount of money.

BELL J:   So, you accept, bearing in mind the order of addresses, that it was appropriate for the judge to make a comment designed to correct the arguably misleading submission that defence counsel made about gambling?

MR JORDAN:   With respect, your Honour, to some extent, which I can explain by reference to what his Honour actually did.  But could I just make this observation.  I think we would certainly accept that the extent that his Honour, in a neutral way, just referred to the relevant evidence and, perhaps, reminded the jury of the Crown’s address as to this being a net loss position.  Sure, that would be okay.  Another option which would be open to a trial judge, would be, if necessary, to invite the Crown to make a short reply address dealing with the inaccuracy.  Or, even better, invite defence counsel ‑ ‑ ‑

EDELMAN J:   Is there power under the rules to do that?

MR JORDAN:   Yes, section 160(2) of the Criminal Procedure Act which is in the joint book of authorities.  I can take your Honour to it if need be.  But the better course, and the course in practise of many experienced trial judges would, of course, have been at the end of the defence address, to raise the issue in the absence of the jury with defence counsel, and invite defence counsel to clarify and correct.  And, I can tell your Honours, that is a very common practise of experienced trial judges in New South Wales. 

So, with those qualifications, may I take your Honours to what his Honour did which, we say, was entirely unnecessary and, indeed, just further perpetuated the increasing intensity of the expression of opinion that was being conveyed to the jury, and this at pages 66 and 67 of the appeal book. 

At about line 15 there is reference to defence counsel, that is Mr Howell, putting to you that the online accounts indicated that Mr McKell was a successful gambler and then at about line 23, his Honour says:

But you have to take into account what the net effect on the account was. 

And then his Honour goes onto explain the figures in relation to the net effect.  Now, in answer to your Honour Justice Bell’s question, we would say that is really all that needed to be done, if anything, by the trial judge.  But then his Honour goes on and again picks up the tools of persuasion:

The difficulty with that, you might find, is that he had in fact lost –

that is at about line 40, and then around about line 53, there is the rhetorical flourish – sorry, he refers to the total net loss being around a quarter of million dollars and then we have:

If that is an indication, as put to you by Mr Howell that he was a successful gambler, having lost over a quarter of a million dollars, then, you certainly would not want to be an unsuccessful gambler, would you?  When you think about it, to have lost that much and to still have the $400,000 in cash and to have been able to deposit approximately $50,000 in cash over time into his bank account, those are the cash deposits as referred to by the Crown, not his salary and so on, he would seem to have to have made something in the vicinity of $700,000 in order to have sustained that loss and still have that much left in the tin box and the $50,000 actually put into his account. 

Of course, the Crown’s point in relation to those two accounts is that they indicate that in fact he was not a successful gambler at all ‑

Now, firstly, the effect of that flourish, particularly in the context in which it has occurred at this point in the summing‑up, is really, in a most acute way to belittle the standing of defence counsel and the submissions of defence counsel before the jury.  It was entirely unnecessary and ultimately again it is something that comes to you directly from the trial judge ‑ rather, it comes to the jury directly from the trial judge – and his Honour then immediately aligns that with the Crown’s argument in a context which basically contextually underlines the overarching part of the Crown case that this is drug money.

EDELMAN J:   Have the Crown made any submission in closing that he would need to have made $700,000 in order to sustain the loss and also have the cash left over?

MR JORDAN:   I will have to check that, your Honour.  We did not have any dispute as to the accuracy of those figures as conveyed by the judge in that part of those remarks.  So it was accepted, even in the context that there was perhaps some need to clarify and correct a slight overstep, even by the majority, that this use of flourish was inappropriate, and that is at paragraph 92 of Justice Payne’s judgment, and it yet further reinforced the impression, we say, that the trial judge held the view that the defence case was entirely lacking in merit.

The point is, although there was an error to some extent by defence counsel in relation to the characterisation of the online betting as successful gambling, there was always a coherent separate part of the argument which was that cash winnings were dealt with separately and the defence case was clearly that the money in the box was the cash winnings from betting on the horses on the weekends.

Now, it was following this last section from page 68 of the appeal book moving on that both defence counsel – that is, of the appellant and of the co‑accused – sought a discharge of the jury.  In particular, your Honours will note at pages 72 to 73 ‑ and I will not take your Honours to all of these, but your Honours will see from about line 20 on page 72 right through to about line 35 on page 73 where his Honour refuses the discharge application, defence counsel directly and specifically raised concerns essentially consistent with the concerns we have raised both in the Court of Criminal Appeal and in this Court.

That takes us, your Honours, to the remarks after the discharge of the jury was refused where his Honour did make some further directions, which he was obviously intending would remedy the problem.  We, of course, say at this stage the problem could not be remedied, but we also have some particular concerns in relation to the way that it was done.

So, after the jury returns – and this is now taking your Honours to page 75 – at line 20 his Honour goes again to the function of the jury in finding facts and in the second sentence he says:

While I am entitled to express a view about the facts, that is a view that you should ignore unless it happens to accord with your own independently arrived‑at view.  I have not been endeavouring to express any particular view of the facts.  If you think that is so, then please ignore what you think I have expressed in relation to any facts.

Now, the first observation we make, and in particular we take this from Justice Beech‑Jones’ dissenting judgment, it is just simply not correct to characterise what has happened previously as not endeavouring to express any particular view of the facts.  I do not think it can be reasonably said that the jury by this stage have been left with anything other than an impression that the judge has been expressing an opinion.

EDELMAN J:   It does not matter, does it, whether the judge was endeavouring to do so or not?  The question is how those remarks would be understood.

MR JORDAN:   Well, I think that is right, your Honour.  I think it matters only to this extent, that it would have been much better, for example, in terms of the redirection being more capable perhaps of remedying the problem if, rather than perhaps leaving it ambiguous and suggesting, which we think is inaccurately, “Well, I actually haven’t been trying to help you in terms of view of the facts”, if his Honour had said, “Look, ladies and gentlemen, I did make some remarks in which it may have appeared to you that I conveyed an opinion.  Disregard those remarks.  That has nothing to do with my role”.

What he is doing here is almost sort of having to try a bit of a bet both ways, we would submit.  I accept your Honour’s observation that in terms of overall it is not a critical issue but it is, we would submit, correct, as Justice Beech‑Jones said, that what he is saying here, with respect, is not accurate and certainly would leave the jury even more confused as to what is actually going on here.

GORDON J:   Perhaps if you go to the next paragraph.

MR JORDAN:   Yes:

In relation to the first consignment, I should remind you, and I think I did refer to there being a possibility of it having had drugs in it, that there is in fact no evidence of any drugs in relation to consignment 1.

Then his Honour goes on to explain the way in which the Crown had in accordance with the pre‑trial ruling used the evidence.  But we would make this observation – and we will come to this perhaps when we get to the Court of Criminal Appeal majority judgment – what his Honour has done here is to provide a general redirection in relation to the role of the jury and then gives a specific redirection in relation to what has been characterised generally as the first error concerning the possibility of drugs in the first consignment.

This occurs after we have the issues in relation to sophisticated organisation, particularly the tape text message, closing address from his Honour, and also the belittling comments in relation to gambling.  In a context where there is a specific correction in relation to one of the problems but absolutely nothing said in relation to the other three which had immediately preceded this, that redirection is frankly incapable of curing the problem that was already present.

Finally, we should bring your Honours’ attention to the final concluding comment made in the summing‑up which is relevant, we would say, at pages 90 to 91.  This is really just to try and give your Honours a fair impression of the overall summing‑up.  It is the section at the bottom of page 90, going over to page 91:

I remind you that it is your duty to determine the facts in this trial, not my duty.  If you believe that I have expressed any opinion about the facts in this trial, then you should ignore that opinion.  You need to come to your own independent assessment of what are the facts and what inferences you might draw from any facts in relation to each of the accused. 

We say this is just way too late; it cannot be fixed at this point in time.

So what overall impression would that summing‑up have made upon the jury?  Even just reading the transcript, the clear impression, we say, left for the jury is that the trial judge, with all his assumed wisdom and experience, is of the view that the case involved a drug organisation of great sophistication.  Somebody like the appellant who was intimately involved in the freight consignment industry was essential to this sophisticated drug importation operation. 

The trial judge raised the possibility that there were drugs in the first consignment, the appellant’s evidence and the defence case were laughable and should be firmly rejected - in particular on that, it was obvious from the text message that the appellant was guilty and was lying in his evidence.  That is just on the transcript.  When you take into account the impression that would have been made in the theatre of a jury trial, from a jury’s perspective, we submit that those impressions would have been even stronger in the way that it was presented by the trial judge.

Your Honours, we say that the summing‑up, even on established principles, was so extreme and so unfairly lacking in balance that it did result in a miscarriage of justice that requires that the appellant’s convictions be set aside.  The sustained endeavours by the trial judge to persuade the jury of his Honour’s views resulted in a summing‑up that was unfair, lacking in judicial balance and so partaking impartiality that on established principles it rendered the trial a miscarriage of justice.

May we take your Honours to some of the authorities on this, just on this issue of established principles?  Firstly, in volume 1 of the authorities book, at tab 9, Green v The Queen.In particular, we have taken your Honours to page 142 using the authorities book references.  We draw your Honours’ attention on 142 to that section of the judgment around about point 6 on the page which commences:

But so far from doing so, the trial judge himself betrayed an emotional approach to the facts which reflected itself in the language he employed.  He presented his own view which was frequently, though not always, unfavourable to the accused. 

Then, this is in accordance with established principles:

He was of course entitled to express his opinion of the facts as long as he made it clear to the jury that they were not bound by his views.  But, although at several points the jury were reminded that the facts were for them, we have come to the conclusion that this summing up transcends anything that a trial judge was entitled to do in the circumstances.  In reading and re‑reading the whole summing up we have been driven to conclude it is unfair, lacking in judicial balance and so partaking of partiality as to render this trial a miscarriage of justice.

We say those comments are immediately pertinent to the appellant’s trial.  There is also in the first volume, Justice Brennan’s judgment, in particular, in B v The Queen which your Honours will find at tab 5.  At page 36 his Honour Justice Brennan expounds existing principle in this way, and this is in the last paragraph:

A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury.  It must exhibit a judicial balance –

His Honour then goes on to agree further down the paragraph with the observations of the Full Court of the Supreme Court of South Australia in R v Hulse which speaks to:

a danger of the jury being overawed by the judge’s views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide –

Again, we say that is directly pertinent.

KEANE J:   Is the discretion to comment like any judicial discretion that it has to be exercised judicially for a proper purpose?

MR JORDAN:   Yes, your Honour.

KEANE J:   That would seem to suggest it is to correct imperfections that otherwise might affect adversely the jury’s ability to decide the case fairly.

MR JORDAN:   The overarching context – the overarching objective would be what has been regularly described as the fundamental task of a trial judge in a criminal trial which is to ensure a fair trial.

KEANE J:   And that the case for each side is put fairly and accurately.

MR JORDAN:   Yes, your Honour.

KEANE J:   I notice Justice Payne referred to the Crown case as being strong ‑ ‑ ‑

MR JORDAN:   Yes, I was going to come to that.

KEANE J:   ‑ ‑ ‑ and he regarded that as a significant matter.  Are there not observations in the authorities that in a strong Crown case the need for moderation on the part of the judges all the stronger?

MR JORDAN:   Yes, your Honour.  I can take your Honour to one now if it assists, and that is the decision in Meher, at tab 18 in the second volume, I think, of the authorities, in particular at page 475, paragraph 84.  I am just checking, I think this is the judgment of Chief Justice at Common Law Wood.  At paragraph 84 his Honour refers to Regina v Tomazos, an older decision involving Justice Isaacs.  And then over the page there is a reference at about point 3:

The weaker the defence the more essential it is for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof.

Now, I might observe those are pertinent and astute comments made in 1971 which echo a more recent emphasis in this Court as to the accusatorial process that is inherent in a criminal trial.  It might be convenient just in terms of Justice Keane’s question to deal with what we say in relation to that comment made by Justice Payne:  “This was a very strong Crown case” and that is at paragraph 101 of the CCA decision.  We have characterised this as a third error, affecting the majority’s decision in the CCA.  Firstly, for the reason that Justice Keane has pointed out that, if anything, if they were of the view that the defence case was weak, then it was even more important that the summing‑up be fairly balanced.

But it is a curious point in his Honour’s Justice Payne’s judgment, with respect.  The majority did not seek to invoke the proviso and we would say that is correct.  The proviso cannot apply in circumstances where you have a defect that goes to the fairness of the trial in such a fundamental way.  But, nonetheless, his Honour concludes and gets to the end of his judgment with this somewhat stentorian sentence:

This was a very strong Crown case.

And the question arises:  why?  What is the significance of that, other than really to require more caution?  And it may be ‑ ‑ ‑

KEANE J:   Well, it might be said that in a strong Crown case, if the judge is merely putting to the jury what that case is, it is going to sound adverse to the accused.

MR JORDAN:   Your Honour, that is certainly conceptually an explanation, although with respect to Justice Payne and the majority, it is a little difficult to reconcile with the observations that they have made throughout on a number of comments that they were critical of.  Maybe that is what his Honour had in mind.  If there was some sort of proviso‑type reasoning being applied – if there was – then that would be a further error affecting the approach of the majority.

BELL J:   It is in that respect notable that Mr Howell, appearing for your client, at core appeal book 73, line 29, made the very submission:

this is a strong Crown case and it’s for that reason in particular that it’s all the more important that the summing up –

is balanced.

MR JORDAN:   Yes, your Honour.  I think I might move on in terms of established principle because I will – the established principle also more recently derives from the decisions of this Court in RPS and Castle, but I think it might be more convenient to come to those when we are talking about our suggestion that there be some clarification.

BELL J:   Can I raise this with you, Mr Jordan?  In Castle the Court notes that, consistently with RPS, a judge has an entitlement to comment but then, again consistently with RPS, cautions that, unless it is to serve a corrective function, a judge is well advised not to.  It does rather raise an issue about the circumstances in which in the appropriate exercise of discretion with respect to a disputed area of evidence that does not require correction, the judge may comment.

MR JORDAN:   Well, two observations.  Firstly, we say Castle, which is quite recent, we read it as perhaps even more cautious than RPS.  It is put in terms of usually the wisest course would be to say nothing and we endorse that observation, respectfully.  It comes to a query that arises – and perhaps if we go to RPS, it is the best way to explain it – but it does come to a query – and I think RPS is at tab 21 of volume 2.  As your Honours are well aware, there are these important passages under the heading “Judicial instructions in criminal trials”.  This is at page 534 in paragraphs 41 through to 43.  It is in that context that their Honours in the first paragraph in 41 emphasise:

The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused . . . It will require the judge to put fairly before the jury the case which the accused makes . . . 

But none of this must be permitted to obscure the division of function between judge and jury.  It is for the jury, and the jury alone, to decide the facts.

It is in that context that this passage arises.  There is reference to jury warnings which must be given, and then this sentence:

And, of course, it has long been held that a trial judge may comment (and comment strongly) –

footnote Tsigos:

on factual issues.  But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it.  Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.

GORDON J:   Is not the next bit also important about process of reasoning?

MR JORDAN:   Yes, your Honour, absolutely.  In that paragraph 42 it is put in terms of

it has long been held that a trial judge may comment (and comment strongly) on factual issues.

Now, we say, particularly in the context in which these observations are being made it is being put much more broadly than the precise problem in this case and a precise problem which has pre‑existed in older authorities, such as Green and B, which is a judge becoming a persuading force.

What is occurring, we say, is if, as what appears to have been taken in this case, a trial judge reads this, perhaps by reference to the standard directions in the New South Wales Bench Book, to be understood to entitling this kind of expression of opinion on the determination of disputed facts, then this case presents an opportunity to clarify that.

We do not read these general observations, important as they are in RPS, to be focused on the particular and relatively small area of concern in terms of how often it occurs as arises in this case, but it does appear that it is open perhaps to a misinterpretation which allows trial judges to do things in a way that perhaps should not be allowed.

It is quite clear, and I have taken your Honours to the passages at 11 and I think at 75.  What the trial judge said in this case was in terms of an entitlement to comment on the facts, an entitlement to express a view of the way that his Honour put it.  It is in that context it would appear that the trial judge understood that it was permissible to do what his Honour did.

BELL J:   If you come back to Tsigos, there were very emphatic directions to the jury but they were in this context.  As I understand from the short report of the decision, it may have been that, when one speaks of comment on the facts, I am not sure there was a great deal of controversy about the facts and what had happened was there had been an issue about the voluntariness of the conduct and the Chief Justice considered the judge was right to conclude that there was no issue as to voluntariness raised and, secondly, that provocation simply did not arise.

So the emphatic direction was a direction respecting the inappropriateness of the jury returning a verdict of outright acquittal on an indictment charging murder when the partial defence was not raised and it does not appear to have been an issue about the facts relating to the getting out of a gun and whatever it was, and the only issue was voluntariness.

That does rather put Tsigos in a particular category.  It is rather distinct from the complaint that you make here which is that in the way the summing up unfolded it took in part the semblance of a further Crown Prosecutor’s address.

MR JORDAN:   Yes, your Honour, and indeed it is one way of characterising the need for clarification.  The comment is put in broad terms in RPS ‑ the observation rather, is put in broad terms.  There is a reference to Tsigos, but unless you have gone back and read Tsigos, it could very well be misunderstood to be much broader in scope than was intended. 

EDELMAN J:   Your submissions would inevitably lead, would they not, to the conclusion that the comment in Tsigos as quoted in the special leave disposition, would necessarily have been such as to lead to an unfair trial.

MR JORDAN:   We put it this way, your Honour.  I think the answer is yes.  We think when ‑ and I will come to this ‑ Tsigos is, I think, 1964, so it is the middle of the 20th century.  What we are going to seek to try and show your Honours is there has been a consistent evolving trend away from this level of judicial intervention.  Tsigos, to a great extent, is a product of its time.  There are other authorities which we will take your Honours to if need be around about the same time where similarly strong language is held to be appropriate or acceptable. 

EDELMAN J:   Well, Tsigos is strictly not an authority on this point for anything ‑ ‑ ‑

MR JORDAN:   Exactly.  Yes. 

EDELMAN J:   ‑ ‑ ‑ because it is a special leave disposition about a point that was not raised in the Court of Criminal Appeal. 

MR JORDAN:   No doubt, your Honour.  But, it is referred to in RPS and in that context it does require some attention.

BELL J:   But the issue with which the Chief Justice was concerned was correctly understood did his Honour’s comment amount to a direction that the jury were not permitted to return a verdict of acquittal which plainly, no matter what the facts would have been wrong in law.  And that was the issue to which his Honour was directing his attention.

MR JORDAN:   Yes.  Your Honours will have noted that Justice Kitto did dissent on that and, as I understand what his Honour Justice Kitto said was, it was still open.  A general verdict of acquittal was still open to the jury and should have been left.  And the effect of that very strong direction by the trial judge in Tsigos was to overrule them.  So, even at that point in time, there is room for differences of opinion and, indeed, that is another reason that we would submit it is appropriate to provide some further clarification. 

If your Honours – if it was made clear ‑ and we are only putting it – it can only be put in the abstract as a general proposition because vicissitudes of litigation, particular issues in trial, there may well be unforeseen circumstances where it is necessary in a particular trial, in particular circumstances for a trial judge to express an opinion on a question of disputed fact.

What we are asking for is clarification that, as a general rule, that should not be happening.  So the trial judges, if they are going to go there, have to start rather from a presumption of an entitlement to do it.  They start from a presumption of this is not something I should usually be doing.  Do I really need to do this?

KEANE J:   Well, is it required in order to ensure a fair trial.

MR JORDAN:   Yes.  And that would be a very significant development.  It would also be, I can say – and again I am just speaking of my own experience in trials ‑ it would be of real assistance to counsel, both prosecuting and defence.

EDELMAN J:   It may be, but there may be one other ambiguity, even if all of those submissions were accepted, which is what one would really mean by an expression of opinion in relation to a disputed fact.  Obviously, some facts are undisputed and there is no contention about them.  There may be a hinterland where there is not much that is said and what is said does not really amount to any substantial dispute.  It is possible – it may be possible – that the example about “Don’t forget to tape trial” might arguably fall on one or the other side of the line.

MR JORDAN:   With respect, your Honour, we would disagree with that characterisation because where his Honour took those remarks went much further than just the text message.

EDELMAN J:   I appreciate that part of your argument.  At this stage I am just raising a question about whether or not a bright‑line rule can be drawn which says it is not permissible to comment in relation to disputed facts unless to do so is necessary to ensure a fair trial.  The difficulty with that bright‑line rule is there are some circumstances and some facts that may not clearly fall on one side of the line or the other.

MR JORDAN:   Generally we agree with that.  We have given it quite a lot of thought.  I would accept it has taken a while to get to the way we are characterising it now.  Your Honour has put it in terms of the general rule that a judge should not express an opinion in relation to a disputed fact.  We have characterised it in this way, which is, as a general rule, a trial judge should not indicate to the jury any opinion on the determination of a question of fact.  The real point at which the line would be drawn, as a general rule, is expressing to a jury the answer to the question ‑ the answer to the question as to how that issue of fact should be resolved.  That is where it would need to go.

BELL J:   One would not wish to prevent a trial judge from assisting the jury in distilling the issues in the trial by pointing out, as commonly occurs, there is no dispute about the following facts.

MR JORDAN:   Absolutely, your Honour.

BELL J:   It is not so much a question of a rule in relation to not commenting on disputed facts; it is that the rule recognises that the judge may remind the jury of matters of fact which are not in dispute.

MR JORDAN:   Precisely, your Honour.  That is one example.  There are a number of examples where we accept, in the proper discharge of a trial judge’s function in a criminal trial, there will – probably in most trials – be a need at some stage or another to refer to evidence which goes to questions of disputed fact.  It can arise in any number of ways. 

Some examples ‑ I will make this observation first of all.  For the most part they involve a necessary contextual basis for the judge’s primary role of giving directions of law as to permissible modes of reasoning.  For example, if there is in a particular trial tendency evidence, one would expect the trial judge will have to discuss the disputed facts in relation to the tendency evidence as a contextual basis for the directions as to how the evidence might be used.  But that is not expressing an opinion as to which side of the dispute is right or should be accepted.

The same arises in relation to directions in relation to indispensible facts in circumstantial cases.  Section 165 of the Evidence Act has characterised in statute now various bodies of evidence that experience has shown require caution, and again that is not the judge expressing his or her personal view, that is the judge conveying established modes of reasoning from the common law generally.

We have spent quite a bit of time trying to think of examples where outside the general rule it would be necessary, a judge would be left with no real alternative but to go to the jury and say, “This is the disputed evidence and you might think that the answer is this”.

It is very hard to come up with examples where that is really necessary.  One which we have hypothesised is take, for example –and this does come up in the authorities.  It is referred to in Castle as an extravagant submission.  So let us say during defence counsel’s address there are “outrageous arguments not founded in the evidence”, perhaps even unethical in the way that they are put.  In terms of a fair trial, which includes a fair trial for the Crown, that needs to be sorted out.

GORDON J:   But your proposition earlier is that is not sorted out by comment; that is sorted out by other mechanisms.

MR JORDAN:   Yes, but there is one example, very extreme – although I do know of one case where it actually happened – would be where there are a number of measures a trial judge could use to try and sort it out without him or herself becoming involved and what would happen is, first of all, you go to defence counsel and you say, in the absence of the jury, “You have to fix this.  It’s wrong and I’m inviting you to correct it and if you don’t, I’ll invite the Crown to correct it”.  Defence counsel says no, the Crown says no.

BELL J:   But even without either defence counsel saying no or the Crown saying no, surely a judge might, in a case that you posit of extreme submissions made by defence counsel in the closing address, take the view that the only way to redress the inappropriate conduct of defence counsel is for the judge, lending the weight of his or her authority, to say these submissions were made and you put those out of your mind.  That might be done consistently with a fair trial to both parties.

MR JORDAN:   It could be and it does not involve the judge expressing his or her personal opinion as to the correct answer.  All it is is the judge, in that role of umpire in a trial, saying to the jury, “This is what defence counsel said.  I have to tell you that is not the evidence” – remind the jury of the evidence, if need be, remind the jury of the Crown’s arguments and it is solved.  But once again, it does not require the judge to do what this judge did in this case.

It is very difficult to come up with examples where it really would be absolutely necessary where a trial judge would be bound with no other alternative but to get into the fray in that way.  It is for those reasons – and this is, I guess, a roundabout way of trying to address Justice Edelman’s observation as to the difficulties of drawing what your Honour has described as a bright line.

EDELMAN J:   It is the emphasis on determination that avoids the bright line – that avoids the hinterland of uncertainty. 

MR JORDAN:   That is how we seek to put it as you would see from the outline.  Your Honours, I am conscious of the time.  What I think I might – I will try to move reasonably efficiently if I can through some other observations which I think generally go to this – the broader, second point which is our invitation that some further clarification be provided on the topic.  We do observe more broadly that the expression of judicial opinion to the jury serves no purpose in furtherance of a judge’s fundamental task of ensuring a fair trial except in those very extreme examples of which we can only come up with one. 

As a matter of principle and jurisdictional function, such expression of judicial opinion on the determination of disputed facts is irrelevant and at the least creates a risk that the jury’s independent function will be compromised and undermined and we do observe that the potential for the jury’s independent function to be compromised is not cured by standard directions currently in New South Wales that, on the one hand, acknowledge an entitlement while on the other hand exhorting the jury to still maintain independence. 

Your Honour, this is the point that comes from the Court of Criminal Appeal’s decision in Zorad.  Look, to be fair to his Honour, when he did the redirection where he said you are to ignore my views unless they happen to accord with your own independently formed views, his Honour was just taking that directly from the Bench Book.  Indeed, I think he was provided it by Mr Howell of defence counsel. 

BELL J:   I think it would be hard to imagine a summing‑up in New South Wales in which a judge did not, at some point, give a direction in those terms and that is to deal with the situation that the jury might infer that the judge holds an opinion and so it is important for the judge to make clear if the jury do have that perception they are to put it out of their minds unless the perceived opinion coincides with their own.  That is really quite far removed from the point that you are making, Mr Jordan, which is if the judge does, in fact, make a comment about the way a factual issue is to be determined, one wonders for what reason if in truth the jury is being then told to put it to one side.  That is your point.

MR JORDAN:   Yes.  I agree with your Honour that the issue in terms of the standard direction does not flow as directly to our particular problem for the reasons your Honour has outlined but we make this observation.  It is not our reservation, quite frankly.  It derives from a Canadian decision called Pavlukoff which your Honours may have seen.  It was picked up by Justice Simpson in Taleb which is at tab 23 of the joint book of authorities.

I will just give your Honours the reference.  At paragraph 84 her Honour refers to this passage from Pavlukoff and essentially what is said is that there is an inherent absurdity in telling a jury “Well, look, if you think I have formed a view disregard it, unless it happens to accord with what you have already worked out”.  It is that last part that creates some potential for confusion.  Really, no sensible purpose is served by a direction where a judge is entitled to express an opinion coupled with a requirement to then neutralise that opinion if the jury disagrees or reinforce it if it happens to accord with the jury’s own independent view.

The correct direction, we would submit respectfully, would be simply to say, “If you think I’ve formed any opinion, you should just disregard it”.  There is also comment to this extent in a number of other authorities.  At paragraphs 200 to 201 of Justice Hamill’s dissenting judgment in Odisho at tab 13 you will see another, we would say, astute observation as to the problem it has created, but I accept Justice Bell’s observation in this case it is not directly in the frame.

The final overarching proposition is our suggestion that the clarification we suggest would only be confined and incremental as would only limit the expression of a judge’s opinion on the determination of disputed facts and would be consistent with developments in recent authority.  We have already covered sufficiently, I expect, the first point that it is confined to a relatively small area of discourse, determination of disputed facts.  But we do observe on the authorities – and it might assist if I just give your Honours some references perhaps in the circumstances, given the time.

BELL J:   Yes.

MR JORDAN:   We also say that it is an incremental development in the context of history.  So, going right back, it does appear that the practice of judges expressing views on disputed facts initially derives from historic felony trial procedure which is from the end of the Middle Ages to about the early 17th century and has gradually diminished as the role of defence counsel has expanded, and we have set that out in some detail in our first submissions at paragraph 49. 

MS ABRAHAM:   Your Honour, his Honour clearly did not take the caution that was stated in Castle.  But the comment has not been made - this Court can say the language ought not to have been said, it ought not to have occurred, but nonetheless say that no miscarriage actually occurred.  In terms of - your Honour Justice Gordon asked me about the typical – as I said, I am not quite sure what the typical ‑ ‑ ‑

GORDON J:   No, I do not seek to have you characterise what is typical.  It is just that I think you have now as a result of questions from across the Bench accepted that it probably should not have been said and the question is what is the effect of it and I understand the way in which you put it.

MS ABRAHAM:   In my submission, one needs to be a bit careful about the terminology used by Justice Payne, because “typical” might simply be typical that an issue has been raised, because he is not referring necessarily to the last sentence alone of the direction.  It is typical that a judge will raise an issue that was an important issue and it would be, with respect, rather unusual that this piece of evidence was not referred to in a summing‑up in respect to this.  The court was obviously of the view that by doing it as he did, you might think has left it to them to make. 

But whether or not it would have been preferable that the last – just…..to the last sentence or two, I think it is, there can be no question that you can raise the tactics, message, his evidence, raise for critical consideration.  What does that mean?  In my submission, there is nothing wrong with asking a jury what does it mean because they have to think about what it means.

BELL J:   The appellant gave evidence when he was asked what he meant by that comment – he is said by the trial judge to have said, “I talk in horses.  I don’t know why” and the judge goes on to say he is obviously not talking about horses.  Then his Honour says “Because it is so obvious, ladies and gentlemen, you might think” and so forth.  What is that doing?  It is more than a comment on this particular item of evidence.  This is saying effectively you might reject the appellant’s evidence.

In a case where the appellant’s credibility is an important matter, you may point out, Ms Abrahams, that the jury was very likely to reject the appellant in any event.  But this was a very clear indication from the trial judge that that is exactly what they should do.

MS ABRAHAM:   In my submission, at its highest it relates to this piece of evidence.  He has given seven, eight points before this and he has asked the rhetorical question without any criticism because there is no reference to the Crown case.  In my submission, accept for the moment that this ought not to have been done – very bad – but that does not get us anywhere, with respect, because it has to result in a miscarriage.  So it has to look at the effect of it.  In my submission, that is where my friend’s argument comes unstuck.  It cannot simply be “It is not a good comment”.

Assume for the moment for the purposes of argument it ought not be said.  That does not necessarily by itself mean that the summing‑up is unbalanced.  One needs only to look at Bachra, the case I referred to earlier, and the analysis of Chief Justice Doyle as to how he approached that and his consideration, and Justice Gray’s, that the use of the rhetorical question actually invites the jury to think about it, making sure they know it is for them. 

That is in fact what the majority said in this case, that is, that the use of that terminology is appropriate.  If the judge had said all those words and added, “It is the Crown case, you might think” then there could not be an argument.  It would have been perfectly permissible because that was, with respect, the Crown case. 

One needs to be careful, in my submission, because the principles in respect to being able to comment, as they currently exist, can include in respect to important matters, critical issues.  Zorad says that.  They can specifically reject a suggestion that there are different principles in respect to a central issue of fact. 

As I said, if it is accepted that a judge is entitled to express an opinion, provided that the proper directions in respect to it being for the jury, then in my submission ‑ one just needs to look at the cases that have occurred over the years – it follows that those opinions in a number of those cases reflected adversely on the accused’s case either as to credit or perhaps in respect to – Castle is a good example – bolstering the evidence of a principal witness in the case.

So whilst the comment made is different in that case, it is an interesting example because that comment that was made about the witness in Castle – a positive one in her favour, as to her credit – in a context where matters were not put to the jury in respect of the defence case which should have been put to the jury, according to this Court, was not enough to say ultimately it was unbalanced or unfair.  I caution against focusing on this one piece of evidence and the last sentence or two in that one piece of evidence.

There is then, if one proceeds through the comments in respect to the gambling which follow, and your Honours have been taken to that in the summing‑up ‑ ‑ ‑

BELL J:   Yes. 

MS ABRAHAM:   I do not propose to take your Honours again to that.  So, in our submission, when one stands back and looks at the summing‑up in the context of the whole of the summing‑up and the conduct of the trial, the issues raised at trial, there is no error established in the majority judgment.  There have been some specific criticisms made at least in writing and indeed in the three‑page outline in respect of the majority judgment.  Can I make just a couple observations about them? 

First, the suggestion is they did not look at the summing‑up as a whole.  In my submission, that is incorrect and the suggestion that because they dealt with the two matters, the tape and the gambling out of sequence, the other way around, does not alter the fact that they had addressed it, the individual, the cumulative, it is made clear in their judgment, they know they are looking at the whole of the material.

I might add, as we have in our written submissions, in the discussion part or the submission part of the written submissions by the appellant below, it is in fact in the order the court did it in.  In respect to the question of the strength of the Crown case, in my submission, his Honour was not, as my friend appeared to suggest today, somehow applying a proviso.  What his Honour was doing is no more than, it was a strong Crown case.  In that context, one is considering the unbalance because there is a lot of evidence for the Crown, not much of which as I have indicated, is actually summed up on.

We say that there are errors in the reasoning of Justice Beech‑Jones.  One I have pointed to before, that is paragraph 118, where his Honour says that there is only one occasion in the summary of the Crown case that it is referred to as a Crown case.  In my submission, that is incorrect and if that is incorrect, that founded his Honour’s reasoning thereafter that therefore this is personal and is a sustained persuasive approach.  If he is incorrect about that, in my submission, that undermines the validity of his reasoning. 

His comments also about alternative scenarios again, not borne out by a proper reading of the judgment.  Indeed, I tried to work out, and, your Honours, I said it was obviously counted how many times various things have been said during the summing‑up.  There are things that were put, like rhetorical questions that do not have “You might think” in them.  I could not actually match what Justice Beech‑Jones said in respect to the defence case because, in my submission, they do not fit, with respect.  But what is clear, is in the defence case there are questions raised, whether they used the words “You might think”, there are questions raised that are rhetorical questions that would fit within the same category as that complained of. 

In terms of the authorities I do not propose to take, I am sure your Honours are aware of them.  I do invite your Honours to read Bachra in more detail in due course because of the nature of the complaints in that case.  B is obviously a leading authority.  I simply point out that this case is nowhere near factually what occurred in B where one has a situation of a direction given as to corroboration of a child witness of a sexual offence at a time when you required a direction about corroboration for a sexual offence, where the judge raised something, that was not relied on by the Crown and you say that there is basically no reason not to accept that piece of evidence as strong corroboration.  So, it is a vastly different case than one is dealing with here. 

Castle provides the other interesting view on it.  As I said, there are deficiencies in the putting of the defence case there.  That does not occur here and that was not considered a problem.  Can I make a couple of comments, then, about the suggested change of the law?

BELL J:   Yes.

MS ABRAHAM:   Your Honours, the law, in my submission, is clear and made clear in Castle that a judge might have chosen to make more comment or phrase things in a way that others might not or did not exercise the caution that might have been advisable is not a reason, in our submission, to reconsider.  It does become an interesting situation because, assume for the moment that one has – you cannot comment on any disputed fact then, with respect, what you have probably done is shifted the debate and this case is a good example.

My friend says, “In respect to the Crown case summary, that is an opinion of the trial judge”.  We say, and the majority say no, it is not; that is a summary of the Crown case.  So the arguments will become what is, in effect in issue, is that an opinion, is it the Crown case?  With respect, it is not going to make life any easier, quite to the contrary.  This Court could reconfirm the principles in Castle.  We say we are dismissing the appeal and can deprecate if the Court is of the view that certain language ought not to have been used because, in our submission, no miscarriage has occurred.  When one has a principle that tries to define a bright line it is always, with respect, problematic.  That, in our submission, is unnecessary.

Can I make a comment about a couple of overseas cases my friend has referred to, because the suggestion has been that it is different elsewhere.  No doubt the Irish case has gone a step away.  The New Zealand and the UK approach seems, on our submission, on a proper reading of the authorities, to be fairly much akin to ours.

Can I take the Court just to one case – it is on my friend’s submissions, not ours – of MJ.  It is referred to in paragraph 54 of their submissions.  We have copies – we did not put it in the book.  It is cited at paragraph 54 of their written submissions as authority for the proposition that, in effect, the summaries should be “neutral”.  That is, in effect, the way that the English courts are going.

So this is a 2018 case.  In this case - the foot of the pages do not have numbers.  The bottom of the second page is where the impugned passage is set out.  There are a number of rhetorical questions posed and that continues over the page with the directions given, similar to what one would have here, thereafter.  The ground of appeal is the ground that this Court is considering.

It is obvious that the appellant in this case relied on a case of Spencer, and there are passages from Spencer which appears to have been an extreme case although as is obvious on – sorry, there are no page numbers, the page that has all the quotes from Spencer.  The court in Spencer had talked about juries are more robust than people give them credit for but ultimately ‑ ‑ ‑

GORDON J:   What is the proposition we get from this, Ms Abrahams? 

MS ABRAHAM:   What I am trying to establish is that really they are the same as us.  The issue in this case – because this is the case referred to – relied on by my friend as reflecting that the approach is neutral.  The critical question the court says, as we have been submitting here, is the effect – so each case must turn on its own facts, perfectly correct.  The critical question is it seems to us is not precisely what form does the comment or question take, rather it is the impact on the fairness of the trial.  It is the same as one has here.  They came to the conclusion that there was no miscarriage.  Now, at the end of the judgment is what my friend relies on for the question of neutrality, and that is on the last page, the third comment:

Thirdly, it is not unusual for a summing‑up to begin before any directions of law have been given as to the respective functions of the judge and jury with a brief narrative of the facts of the case, essentially to introduce what the case is about and the central issue or issues which the jury will have to decide.  What we would emphasise in that context is that such a factual narrative . . . should be . . . neutral.

That is not what we are dealing with in this case.  That is not how summings‑up occur in this country.  Indeed, the legal directions are given before the effect.  So, one cannot pull out from that, and if one reads out of interest the first point – again different styles, it seems that in the UK, some juries – some judges do the directions of law before the addresses of counsel and then do the factual part thereafter.  But that is an interesting aside. 

So, in my submission, the position, in particular in the UK and in respect to New Zealand – we have the case and I will go to it.  I think it is T - in the book of authorities, is basically the same as Australia.  It does turn on the facts.  It does turn on what effect the case had.  The case my friend referred to of Bentley in the UK, the same thing.  It does provide a nice summary of the history of some of the English cases.

So, in our submission, there was nothing about this case that alters the position, or alters the position of the law as said in Castle and, in my submission, it is unnecessary to draw this bright line.  Those are my submissions.

BELL J:   Thank you, Ms Abrahams.  Anything in reply, Mr Jordan?

MR JORDAN:   If I may, but briefly.  Firstly, a large effect of the respondent’s submissions is that too little credence has been given to the robustness of the jury.  It was put as high as you could not be satisfied that the jury was, in fact, overawed.  If I could just remind your Honours, in the quoted passage from Hulse referring to Broadhurst - this is in Justice Brennan’s judgment in B, tab 5, page 36 - the test is whether there is a danger of the jury being overawed and that, we would say, is generally in accordance with the observations made by Justice Edelman in relation to that point. 

Secondly, at various points, the respondent referred to the Queensland decision of Dee.  We just observed in relation to that – and I am just going to give your Honours the reference ‑ ‑ ‑

BELL J:   Yes.

MR JORDAN:   In Popovic, which is at tab 14, at page 333, your Honours will see that in that passage, Justice Adamson refers to comments made by a trial judge to defend his use of persuasive techniques and he refers directly to Tsigos and Dee in support of the position taken which ultimately in Popovic was found to be unfair and unbalanced. 

Thirdly, and I am sure my friend did not intend to put it as broadly as she did, but she did say at one point it is not in issue that a comment was necessary.  I am sure what she meant to say was “only in relation to the limited requirement arising from the overstep in the gambling winnings issue by defence counsel”.  To be clear it is not accepted generally that comment was necessary in the way that it was done.  That is essential to our position.

It is in the Crown’s written outline and it is throughout my friends’ submissions effectively said that the use of that phrase “You might think” is somehow acceptable and in this particular case ameliorated the problem.  If I could just draw your Honours’ attention, without going to it directly, to criticisms of this technique by Justice Simpson in Taleb, tab 23, page 581, paragraphs 69 to 71, which are entirely consistent with the observations made by Justice Beech‑Jones in his dissenting judgment which was also to do some arithmetic.  The bottom line, as identified by his Honour, is that

the vast majority of the use of this technique was in a way that was adverse to the accused.

In relation to the text message and the discussions that arose during my friend’s address as to what Justice Payne meant at paragraph 99, referring to it as “typical and permissible”, could I just note for your Honours that the context of that really arises from paragraph 93 of Justice Payne’s judgment, which commences:

So far as the “tape trial” text message is concerned, there was no error in the trial judge addressing this issue with the jury in the way he did.

That is the context for the statement made in paragraph 39 and paragraph 39 speaks specifically to the third matter being in relation to the text message – comprised no more than a typical and permissible comment.

Given that this is all in the context of our complaint, which I can tell your Honours is put in, effectively, the same way to the Court of Criminal Appeal about those comments, even on the most fair reading I think it is tolerably clear that his Honour is endorsing all of those remarks despite our complaints. 

Finally, in relation to the suggested clarification, we just observe, respectfully, that our friend’s submissions do not engage with the very limited basis upon which we are suggesting this clarification might be considered.  Thank you.

BELL J:   Thank you, Mr Jordan.

MR JORDAN:   I might have made a mistake.  I withdraw the reply in relation to Dee.  My friend was referring to D – capital D – and that is my mistake.

BELL J:   Thank you, Mr Jordan.  The Court will reserve its decision in this matter. 

The Court adjourns to 9.00 am on Friday, 14 December in Sydney for the pronouncement of orders and otherwise to 9.30 am on that day.

AT 12:37 PM THE MATTER WAS ADJOURNED