R v Bachra

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BACHRA
[2010] SASCFC 42
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)
19 October 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EXPRESSION OF JUDGE'S OWN OPINION - PARTICULAR CASES
CRIMINAL LAW - PROCEDURE - SUMMING UP
Application for permission to appeal against conviction - Judge made comments and posed rhetorical questions in relation to aspects of the defence case during summing up - whether real risk Judge overawed jury - whether defence case not put fairly to jury - whether comments or questions caused a miscarriage of justice - application for permission to appeal granted - appeal dismissed.
R v D (1997) 68 SASR 571, applied.
Gassy v The Queen (2008) 236 CLR 293; The Queen v Joyce [1970] SASR 184; Green v The Queen (1971) 126 CLR 28; RPS v The Queen (2000) 199 CLR 620, discussed.
R v Hulse (1971) 1 SASR 327; R v MacBeth [2008] SASC 71; Tsigos v The Queen (1965) 114 CLR 671, considered.

R v BACHRA
[2010] SASCFC 42
Court of Criminal Appeal: Doyle CJ, Gray and White JJ

DOYLE CJ: Mr Bachra was found guilty by a jury on one count of assault, one count of aggravated assault, two counts of aggravated robbery, three counts of robbery, and one count of blackmail. In each case the victim was an acquaintance of his.
Mr Boucaut, counsel for Mr Bachra on appeal, submits that there has been a miscarriage of justice. He submits that in the course of the summing up to the jury the trial Judge made comments, and posed rhetorical questions, which conveyed an implication that in the Judge’s opinion the defence case on the facts was untenable and should be disregarded. Put another way, the trial Judge “carved up” submissions put by defence counsel on the facts.
Mr Boucaut does not submit that the trial Judge was not entitled to comment on the facts, nor that he was not entitled to indicate an opinion. His complaint is that the trial Judge went too far. He submits that when the summing up is considered as a whole, it is apparent from the number of comments and rhetorical questions relating to the defence case, and from the absence of any similar criticisms of the prosecution case, that the trial Judge has not allowed the defence case to be put fairly before the jury. He submits there is a real risk that the jury were overawed, or were deterred from exercising their function.
The issue is whether the manner in which the trial Judge dealt with the defence case has given rise to a miscarriage of justice.
A Judge of this Court refused permission to appeal. The application for permission was renewed to this Court. The hearing of the application was treated as the hearing of the appeal, were permission to appeal be granted.
The law
In R v D (1997) 68 SASR 571 Cox J summarised two opposing positions in relation to the permissible approach by a trial judge. He said at 579:
The traditional position, as I understand it, has always been that a trial judge is entitled to comment on the evidence, whether favourably to the prosecution or the defence, as long as the effect of his remarks is not to overbear the jury. The jury has heard addresses from two partisans, and the judge’s experience will often enable him to draw the jury’s attention to weaknesses or strengths that might otherwise escape their notice or be given too little weight. A mere recounting of the evidence might suggest that the case is balanced when it may be nothing of the sort. The opposing position is that, if the jury is to decide the facts, the judge should leave them to do it and not try to influence their decision. It is no use saying that the jury is entitled to ignore the judge’s comments when the whole purpose of them is to ensure that the jury takes them into account. Coming from the judge, his remarks are liable to be given considerable weight. There is a danger, therefore, that any such judicial intervention, if it is critical of the defence, will make the trial unfair.
Cox J went on to consider previous decisions, and to adhere to what he described as the “traditional position”.
He went on to say that the limit on what a trial judge might say was conveniently indicated in the joint reasons of the Court in R v Hulse (1971) 1 SASR 327 (Bray CJ, Mitchell and Wells JJ). Their Honours (at 335) referred 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 or that they would be fatuous or disrespectful if they disagreed with the judge's views.
There are various ways in which a trial judge’s comments might give rise to a miscarriage of justice, but for present purposes the passage set out identifies the danger in question.
The “traditional position” outlined by Cox J continues to be the approach taken in this State. It suffices to refer to what I said in R v MacBeth [2008] SASC 71 at [78]:
[78]The law and practice in this State has been summarised fairly, I consider, by Cox J in R v D (1997) 68 SASR 571 at 578-585. I agree with the approach taken by Cox J. It may be that these days judges are less inclined to express a view about the facts or about an issue than they were in the past. No doubt, there are variations from judge to judge. But I consider that the approach taken by Cox J is soundly based.
Bleby and Gray JJ agreed with my reasons.
It is necessary to consider the summing up as a whole. The issue is not whether the trial Judge indicated an opinion about the facts. Nor is the issue whether that opinion or particular comments made by the Judge were adverse to the defence case. The issue is whether there is a real risk that the Judge overawed the jurors, or deterred them from making their own decision. This could be because of a risk that he left them thinking there was nothing for them to decide. It could be because his comments were made in a way that left the jury thinking they would be doing wrong in differing from the Judge. There are various ways of putting the matter, but they all come down to a question of that kind.
Facts
I turn now to the facts of this case.
The offences were committed between 10 October 2006 and 16 October 2006. The victim in respect of all counts was Mr Khare. The prosecution case was that Mr Bachra had used deception, force and threats to “extract” over $3,000 and a laptop computer from Mr Khare.
Mr Khare is an international student. He moved to Adelaide in July 2005 to study. Initially he lived with three other students in a house in Clearview. They were later joined by a fifth housemate; first Mr Singh and then Mr Puri. Mr Singh moved into the house about April 2006, but moved out shortly after. Mr Puri moved in sometime between June and August 2006.
Mr Bachra was a friend of Mr Puri. Mr Khare gave evidence that he first met Mr Bachra on 26 August 2006. On 27 August 2006 Mr Khare and his housemates threw a party at their house in Clearview. Mr Bachra and some of his friends were present. Mr Bachra heard that Mr Khare was interested in buying a car and approached him at the party. A conversation took place between the two. Mr Bachra offered to sell Mr Khare a car for $600.
The following day, 28 August, Mr Bachra brought the car around to Mr Khare’s house so that he could inspect it. At that time Mr Bachra did not own the car. He had been using it as a loan car while his own car was being repaired by Mr Butler at his workshop. The car belonged to Mr Butler’s company.
On 29 August 2006 Mr Bachra purchased the car from Mr Butler. He was given the disposal notice to transfer the registration of the vehicle into his name. The purchase price was $800 and Mr Bachra paid a deposit of $150. According to Mr Khare, Mr Bachra returned to his house on 29 August with the car. Mr Khare agreed to buy the car from Mr Bachra for $600. Mr Khare gave Mr Bachra the money and took possession of the car. He asked for the registration papers. They were not produced by Mr Bachra.
There was a question at trial as to whether Mr Bachra intended to relinquish ownership of the car. Ms Demertzis, counsel for Mr Bachra at the trial, pointed out that if Mr Bachra had agreed to sell the car to Mr Khare for $600, this was $200 less than he had agreed to pay Mr Butler for it. However, it was the prosecution case that Mr Bachra needed money to pay his substantial debts. By paying a deposit of $150 on 29 August, and then selling the car on the same day, Mr Bachra was making a quick $450.
Mr Khare gave evidence that during the course of the following weeks he telephoned Mr Bachra a number of times asking for the registration papers. Mr Bachra assured him that he would receive the registration papers soon. However, on each occasion Mr Bachra gave an excuse for not being able to produce them. Mr Khare did not obtain the papers.
On 9 October 2006 Mr Khare went to the Motor Vehicles Department and transferred the car into his name. Somehow Mr Bachra became aware of this. On the same day he contacted Mr Khare and they both agreed to meet at the house in Clearview to talk about the registration work. By this time Mr Khare no longer lived at the house in Clearview.
The following day, 10 October, Mr Bachra met Mr Khare and Mr Puri at the house in Clearview. They went into Mr Khare’s old bedroom. Mr Khare gave evidence that Mr Bachra questioned him about why he had transferred the car into his name. Mr Khare explained that he had repeatedly asked for the registration papers from Mr Bachra but that he had not received them. At this point Mr Bachra became upset. He accused Mr Khare of wasting his time. He demanded money from Mr Khare to compensate him for being at the house instead of at work, although it was not established where he was working, and for the cancellation of the existing registration of the car. He then punched Mr Khare on the left cheek, causing it to bleed. This action was the subject of the assault charge in count one.
Mr Bachra also wanted to know why Mr Khare was trying to get money out of Mr Puri for an electricity bill. He told Mr Khare that he would have to pay Mr Puri and Mr Singh’s share of the bill. He pushed Mr Khare to the ground, placed his foot on Mr Khare’s chest and made a comment to the effect that Mr Khare did not know him. He then left the room quickly and returned with a handgun. He pressed the muzzle of the gun against Mr Khare’s forehead and told him “I can kill you right now, but today you are a bit lucky, because there are no bullets in this gun.” He removed the magazine from the gun and showed Mr Khare that it was empty. This was the subject of the aggravated assault charge in count two.
Mr Bachra then asked Mr Puri if Mr Khare owned anything valuable. Mr Puri mentioned that Mr Khare owned a laptop computer. Mr Bachra asked Mr Khare where the laptop was. Mr Khare replied that it was at his new home. Mr Bachra drove Mr Khare and Mr Puri to Mr Khare’s new house and took the laptop from his bedroom. This was the subject of the aggravated robbery charge in count three.
Following this, Mr Bachra drove Mr Khare to an Automatic Teller Machine (ATM). He told Mr Khare that he wanted money to pay for fines that he claimed Mr Khare had incurred whilst driving the car, and to compensate him for having to take time off work. Mr Bachra directed him to withdraw all of his money out of his account using the ATM. He warned Mr Khare that he could, in the words of the Judge, “blow his head off”, and he also warned him not to talk to anyone. Mr Khare withdrew $500 and handed it to Mr Bachra. He was then dropped home. The taking of the money by Mr Bachra gave rise to the aggravated robbery charge in count four.
Later on 10 October, Mr Bachra met Mr Khare in a car park in the eastern suburbs. Mr Bachra then drove Mr Khare to a unit nearby. Mr Khare gave evidence that Mr Bachra told him that he had incurred more fines and that he now owed Mr Bachra $1,700. Mr Bachra told Mr Khare to ring his friends to see if he could obtain money from them. Mr Khare made some calls but was unable to raise the money. Mr Khare had $400 in cash with him. He handed this over to Mr Bachra. The handing over of the money gave rise to the charge of robbery in count five.
It should be noted that there was evidence that from 9 October onwards there were over 160 telephone calls or attempted calls between Mr Bachra and Mr Khare, primarily from 10 October, the day after the car was registered in Mr Khare’s name.
On 11 October, during the day, two individuals came to talk with Mr Khare about the problems he was having with Mr Bachra. Mr Khare told them that he was contemplating going to the police. During this conversation Mr Bachra arrived and made some further threats to Mr Khare. According to Mr Khare, Mr Bachra said that he was in trouble for thinking about going to the police and that he now wanted Mr Khare to pay him $2,000 instead of $1,700. He threatened to kill Mr Khare and his family if he did not cooperate. He also said that if Mr Khare paid the money he would return the laptop and give him the registration papers for the car. Mr Bachra then left with the two men who had come to speak with Mr Khare, and a fourth man.
Later on 11 October Mr Bachra called Mr Khare and arranged to meet him that evening. They met somewhere near Payneham Oval. Mr Bachra told Mr Khare that he would give him back his laptop as well as the registration papers for the car if he paid him $2,000 for the fines that he claimed Mr Khare had incurred while driving the car. He told him that he would meet him at midday the next day to collect $1,000, and named the place where they would meet. He also said that he would collect the balance of $1,000 from Mr Khare after that from his home. Mr Khare gave evidence that Mr Bachra threatened to kill him, his former house mate, his current housemate, and his current housemate’s children if he went to the police or failed to cooperate. That threat and the demand for money gave rise to the charge of blackmail in count seven. Mr Bachra then took $20 from Mr Khare’s wallet. This was the subject of the robbery charge in count six.
On 12 October Mr Khare gave Mr Bachra $2,000. However, Mr Khare did not receive his laptop or the registration papers. Over the next few days Mr Bachra continued to call Mr Khare. He told Mr Khare that he had incurred more fines and that he owed him more money. At some point Mr Khare stopped answering his calls.
On 16 October Mr Khare was walking home from the shops along Regency Road. Mr Bachra pulled up next to him in his car and told him to get into the car. He drove Mr Khare to a nearby location in the side streets and asked him why he had not been answering his phone calls. He insisted that Mr Khare had to pay him for further fines. He threatened to kill him, his current housemate, and his parents. He looked through Mr Khare’s wallet but did not find any money. He then drove Mr Khare to an ATM at Regency Road Shopping Plaza. They both stood at the ATM. Mr Bachra removed Mr Khare’s bank cards from his wallet and demanded that he give him the PIN for each card. He then withdrew $200 from Mr Khare’s account and drove him home. This was the subject of count eight, the charge of robbery.
Later on 16 October Mr Khare went to the police and gave a statement about what had happened.
Mr Bachra did not give evidence. There was no affirmative defence case. The defence case was, in substance, that the prosecution had not proved its case beyond reasonable doubt. The Judge’s “thumbnail sketch” of the defence case was as follows:
Ms Demertzis, on the other hand, submitted that you could not be satisfied beyond a reasonable doubt that Mr Khare was a truthful and reliable witness. She emphasised the inconsistent statements made by Mr Khare to the police and during the first trial. She submitted that a number of those inconsistencies could not be innocently explained away. Rather they revealed, she argued, that Mr Khare was prepared to dishonestly change his story when confronted with contradictory evidence.
Ms Demertzis further submitted that it is open to you to infer from the circumstances surrounding Mr Khare’s acquisition of the Ford Laser and its registration some six to seven weeks later, that he had borrowed the vehicle from the accused and that the telephone records and text messages were consistent with attempts by the accused to legitimately recover from Mr Khare, fines that he had incurred while using the car.
She further argued that the bank records were entirely consistent with Mr Khare withdrawing money while going about his everyday business. She submitted that the note written by Mr Khare was not inconsistent with the defence case and argued that, apart from Mr Khare, there was no direct evidence linking the accused to the gun found in the boot of his car.
The summing up
Mr Boucaut, in a forceful and well-pointed submission, took the Court to each of the passages about which complaint is made. I have subsequently re-read the summing up as a whole.
The Judge’s treatment of the facts began with what he called a “thumbnail sketch” of the prosecution and defence cases. No complaint is made about that. The complaint by Mr Boucaut relates to the next part of the summing up, in which the Judge went through the evidence in chronological order, reminding the jury “… of some of the competing points made by counsel”: summing up at page 31.
It is not necessary to set out each of the passages that Mr Boucaut criticised. It is sufficient to give some illustrations, but I emphasise that these are illustrations only.
The Judge referred to a submission by defence counsel relating to an inference that might be drawn from the number of telephone calls made by Mr Bachra to the alleged victim after a certain date. Defence counsel argued that the pattern of phone calls was consistent with a conclusion favourable to Mr Bachra on a particular aspect of the facts. Having referred to the argument by defence counsel, and to her submission, the Judge said (at pages 33-34 of the summing up):
Ladies and gentlemen, is there another explanation? Is there another explanation for the accused possibly becoming upset and hounding Mr Khare from about 9 October onwards? Is there another reason why, on Mr Khare’s account, the accused never handed over the registration papers that Mr Butler had given him on 29 August? Is it the position that he never intended to relinquish ownership of the Laser? Was it in fact his intention to retain ownership of the car and to take it back from Mr Khare when it suited him? Is that why he continued to make payments to Mr Butler in September and early October? Did he extract $600 from Mr Khare on the pretext that he was selling him the car? Is that why he never handed over the papers? Is that why he became upset after he discovered that Mr Khare had gone ahead and registered the car in his own name? Did he become upset at that stage because his scheme had fallen apart?
There are two other points that you might want to consider. If the accused had bought the car for his sick father, why would he have lent the car on the same day to a man he had only just met? Furthermore, if the car did belong to the accused and had always belonged to the accused, why did he not ring the police after he discovered what Mr Khare had done? Why bother ringing him or trying to ring him on over 160 occasions, from 10 October onwards, if, in fact, the car was his and Mr Khare had, in effect, committed an act of theft? Well, ladies and gentlemen, they are issues that you might want to consider.

There were two other occasions when, after summarising a defence submission, the Judge posed a number of questions for the jury to consider: summing up at pages 36 and 42. There were also a number of occasions when the Judge made a comment on a defence submission, which comment was of an adverse kind: summing up at pages 39-40, 46, 47, 51-52 and 55.
On the other hand, there are a number of occasions on which the Judge referred to a defence submission without any particular comment, one way or the other: summing up at pages 34, 37, 39, 43, 44-45, 48, 49, 50, 53 and 55. There were also some occasions on which the Judge dealt with a submission and posed a single question for the jury, in terms of whether the evidence pointed the way suggested, and in what I consider to be a neutral manner: summing up at pages 35, 36 and 47-48.
It is relevant to point out that in this part of the summing up the Judge was working through a fairly considerable body of evidence. The trial occupied 13 days. There was a lot of evidence, of a quite detailed nature, for the jury to consider. Mr Bachra did not give evidence in his defence. The defence case was that the prosecution had not proved its case beyond reasonable doubt. So the first occasion when the jury would have had an opportunity to consider the defence case as a whole was when the jury heard closing submissions by counsel.
It is also appropriate to note that at the beginning of the summing up the Judge told the jury, in very clear terms, that they alone were the judges of fact, and that if he made comments about the evidence they should feel free to act on their own view of the matter. He reminded them of this point immediately before moving to that part of the summing up in which he summarised the evidence for them. He also reminded them on a number of occasions while summarising the evidence that whether they accepted particular defence submissions was a matter for them to determine: summing up at pages 34, 35, 36, 39, 43, 46, 48 and 50.
It is now necessary for me to consider the summing up as a whole. Did the Judge deal with the defence case in a manner that suggested to the jury that there was really nothing in it, or nothing of substance for them to decide? Did the Judge sum up to the jury in a manner that might have conveyed the impression that they would be wrong or unwise to give any credence to the defence case?
I agree that when the Judge posed multiple rhetorical questions for the jury at pages 33-34, 36 and 42 of the summing up, the Judge’s approach was, with respect, moving beyond a comment and in the direction of what Mr Boucaut called a “demolition”. But there are only a few instances of this. On the other occasions that I have referred to above, my opinion is that no criticism can be made of the individual comments or questions. And when I stand back and look at the summing up as a whole, while it is fair to say it was somewhat adverse to the defence, I do not consider that it went so far as to raise a risk that it overawed the jury, or as to convey an opinion that there was really nothing in the defence case that the jury needed to consider.
I am conscious of the fact, to which I have already alluded, that there was a lot of detailed evidence for the jury to consider, that the case warranted the kind of detailed approach to the evidence that the Judge took, and that it was appropriate for the Judge to give the jury some help in approaching the facts, even if that help came in the form of comment on a submission.
I agree with Mr Boucaut that many judges would not have thought it appropriate to comment as firmly or as often as the Judge did. But it is important to bear in mind that the law allows considerable latitude to a trial judge in deciding what approach to the facts will best assist the jury.
Conclusion
For these reasons, while acknowledging that Mr Boucaut’s argument was not without substance, I am not persuaded that there has been a miscarriage of justice.
I would grant permission to appeal. The issue raised warranted the consideration of this Court. But I would dismiss the appeal.
GRAY J: This is an application for permission to appeal against conviction.
The defendant and applicant, Manjit Singh Bachra, was convicted by jury verdict following a trial in the District Court of the offences of assault, aggravated assault, three counts of robbery, two counts of aggravated robbery, and blackmail.
The prosecution led evidence of a course of conduct by the defendant toward his victim. The course of conduct involved stand over demands, physical violence and threats, which caused the victim to part with money and property. The offending took place over several days. The victim was a critical witness in the prosecution case. The defendant did not give or call evidence at the trial.
The detailed facts are set out in the reasons for judgment of Doyle CJ, and I only refer to the facts when necessary for an understanding of my reasons.
The defendant seeks permission to appeal on the ground that a miscarriage of justice has occurred as a result of the trial Judge’s summing up, which was said to have lacked proper balance. It was complained that the Judge in summing up commented in strong terms and unfavourably on arguments and submissions put by defence counsel in the course of her closing address to the jury.
Counsel for the defendant invited this Court to review the summing up in its entirety and then instanced 14 examples of what were said to be comments by the Judge that were so unbalanced when viewed collectively so as to give rise to the risk of a miscarriage of justice. Counsel accepted that none of the matters identified on a stand alone basis would warrant the conclusion that there was a risk of a miscarriage of justice. His submission was based on the cumulative effect of the comments.
Counsel for the defendant accepted that the Judge when summing up directed the jury that they were the sole judges of the facts, and expressly reminded the jury that they were free to ignore any comment he might make as to the facts with which they did not agree. However, it was then submitted that notwithstanding these directions, the Judge took the jury through a number of defence counsel’s points of argument, destroying each one through a series of rhetorical questions and counterpropositions which were designed by the Judge to indicate to the jury that they should disregard defence counsel’s arguments and reason towards a finding of guilt. Counsel then contrasted this process to the Judge’s treatment of the prosecution arguments, contending that an analysis of the summing up disclosed no adverse comments of the same nature in relation to any prosecution submission.
This Court in Joyce,[1] addressed a submission that a summing up was unbalanced. Bray CJ, Walters and Zelling JJ commented that although strong language may be imprudent, it may not necessarily be a ground for interference by an appellate Court:[2]
The second matter is that it seems necessary to say again that so long as a judge makes it plain to the jury that the decision on the facts is for them, so long as he commits no error of law and does not misrepresent the evidence, either by positive misstatements or by omission so grave as to make what is said misleading, so long as he puts the defence as opposed to all the arguments in support of the defence, then he is not debarred from expressing his own view about the facts, nor from expressing that view with a certain strength. There may, indeed, be cases of comment so extreme as to be capable in the opinion of the court of appeal of producing a miscarriage of justice, but strong expressions on the part of the judge will not necessarily carry the case into the forbidden territory. In R v Choat this Court said: –
“There is no doubt that the whole trend of the summing-up was strongly adverse to the appellant, and that the comment upon this subject was much more pointed than is usual; but the nature and degree of any comment upon the evidence – so long as the facts are left to the jury – must rest entirely in the discretion of the judge who tries the case (R v Rhodes); subject only to the discretion of this Court to relieve against an apparent or apprehended miscarriage of justice. It is possible that the learned Judge said more than another might have said in the same circumstances, but he had the advantage of seeing the witnesses and hearing the addresses of counsel. It is impossible to say that the facts were not left for the determination of the jury, and ‘even a judge is not disentitled to use advocacy if it is proper for the occasion’ (R v Pope)”.
Speaking at large, it may be imprudent and impolitic if language is used by a judge which makes him appear a decided partisan. But we do not deny that the circumstances of a particular case may entitle the judge to convey his observations in direct and forceful terms. In neither instance will that necessarily afford a ground for the intervention of this court. We point out that in R v Guerin, Moffitt A-JA said: –
“In R v Tsigos the trial judge … told the jury in strong terms his view of the case, including that: ‘It would be flying in the face of the oath you took, namely to return a verdict on the evidence, if you were to return a verdict of acquittal’. Barwick CJ (with whom Taylor, Windeyer and Owen JJ, agreed, contra Kitto J) said: ‘In my opinion in the circumstances of this case, in expressing himself as he did he was doing no more than he was entitled to do, however direct and forceful the language in which he conveyed his observation and however unnecessary, as I think it was, in this case to speak as he did’.”
[Footnotes omitted]
[1] R v Joyce [1970] SASR 184.
[2] R v Joyce [1970] SASR 184 at 198-199.
In Green,[3] Barwick CJ, McTiernan and Owen JJ when addressing a submission that a summing up was unbalanced adopted a similar position:
The second ground of appeal with which we should deal, is the submission that the summing up was unbalanced, unfair and considerably slanted against the accused. We have studied the whole summing up anxiously and very carefully. The admitted facts of the case, even if the young woman had consented to the successive activities of the four young men, were most likely to cause revulsion and disgust in the minds of decent men. Consequently the risk of prejudice against the accused was high. One might have expected the trial judge to have been sensible of this risk and to have taken pains to ensure that the jury appreciated the need to consider the vital issue of consent or no consent calmly and objectively eschewing any inadmissible influences. 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. 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 was unfair, lacking in judicial balance and so partaking of partiality as to render this trial a miscarriage of justice. These qualities so pervade the summing up that quotation of single passages from it is unprofitable. It must be read, as we have read it, as a whole.
[Emphasis added]
[3] Green v The Queen (1971) 126 CLR 28 at 34.
The above observations have been consistently approved and applied over the ensuing decades.[4]
[4] See for eg, R v D (1997) 68 SASR 571 at 580; R v Glover (1987) 46 SASR 310; R v Macbeth [2008] SASC 71.
Recently in RPS[5] the High Court revisited the topic of jury judicial instruction in criminal trials. The Court cited the decision in Tsigos[6] with approval when commenting:
Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.
But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.
[Footnotes omitted]
[5] RPS v The Queen (2000) 199 CLR 620 at [41]-[42].
[6] Tsigos v The Queen (1965) 39 ALJR 76 (n).
It may be accepted that the Judge’s summing up in the within proceeding did make comment to the jury on arguments being put by defence counsel in her closing address. It may be further accepted that in many instances, but not all, the Judge’s observations were designed to indicate to the jury that the assertions of counsel in regard to those factual matters may not, for the reasons the Judge indicated, carry weight. In part the Judge conveyed those observations through the use of the rhetorical question. The issue on this application is whether, in doing so, the Judge went beyond his entitlement to comment. Did the Judge provide the jury with a summing up that lacked the necessary degree of “judicial balance and [was] so partaking of partiality as to render [the] trial a miscarriage of justice.”[7]
[7] See Green v The Queen (1971) 126 CLR 28 at 34.
In my view the observations of the Judge were observations on matters of fact made within his discretion. The summing up, when viewed in its entirety, did not lack “judicial balance” and did not reason toward a finding of guilt.
In reaching this conclusion it is important to draw attention to the context in which the Judge’s observations were made. At the commencement of his summing up the Judge made several references to the ascertainment of facts being a matter for the jury:
So you must follow my directions on the law, however, you should understand that the facts stand differently. You and you alone are the judges of the facts. You are the sole judges of the facts, including the ultimate question of whether the accused has been proved guilty of any or all of the charges brought against him. In short, it is your function to apply the law as I explain it to you to the facts as you find them to be. The verdicts, of course, are solely your responsibility.
In the course of my summing up I will make some observations about the evidence and the facts, but you should understand that I do that for your assistance to try to help you to identify the issues and evaluate the evidence. You must remember that anything I say about the facts is said simply for your assistance. If I say anything about the facts with which you disagree, you should ignore what I have said and act upon your own view of the matter. The facts and the way the facts are to be interpreted are your responsibility and no-one, judge or counsel, can exercise that responsibility for you.
Thereafter followed a lengthy summing up in which the Judge traversed the evidence given at trial over some 11 days. In the course of doing so, when dealing with discreet factual issues, the Judge discussed the submissions of counsel, frequently reminding the jury that the resolution of the factual disputes were matters for them.
The Judge in concluding his summing up made the following observation:
Ladies and gentlemen, that concludes my summing up. I have been very lengthy and you have been very patient and like counsel I thank you for the attention that you have paid to what I have had to say over the last few hours. I have been long because the law is quite complex. I had to deal with a number of offences and I went through the events in chronological order in the hope that process would assist you to get your head around the evidence which has been quite voluminous and some of the evidence you have not heard for a couple of weeks. I have attempted to put before you the substance of the case for the prosecution and the case for the accused and the key points made by [both counsel] in their very helpful closing addresses. I am sure that I have not covered all the points they have made but that is not my function. You could have hardly forgotten the points that each made. Please remember what I have said during my summing up must be considered against the background of their addresses. I remind you of the burden of proof, that it is for the prosecution to prove the accused’s guilt beyond reasonable doubt in respect of any charge that you have under consideration. If you entertain a reasonable doubt, the accused must be given the benefit of that doubt and be acquitted. If on the other hand you are satisfied beyond reasonable doubt of his guilt, then you are duty bound to say so.
Taking the summing up as a whole and each of the impugned passages collectively, I do not consider that the Judge overstepped his responsibilities. The jury were faced with a defence case which put the prosecution to proof. In the course of closing addresses counsel for the defendant commented that assertions made by the prosecution on factual matters were “dubious”, “absurd” and “bizarre”. I do not consider it inappropriate for the Judge to invite the jury to not only consider but to test these submissions. I do not consider that the Judge’s technique of posing rhetorical questions was an inappropriate method of inviting the jury to test and consider the assertions being advanced by counsel. This approach, as earlier discussed, was coupled with the repeated reminders to the jury that the resolution of factual issues was for them. I further consider that the Judge discharged his relevant duty in accordance with the observations from RPS as set out above.[8]
[8] RPS v The Queen (2000) 199 CLR 620 at [41]-[42].
I do not consider that the Judge’s approach, taking the summing up as a whole, gave rise to any risk that the jury would be deterred from performing its function and discharging its duty. I do not consider that the jury would have been left with the thought that they should follow the views of the Judge.
Conclusion
I would refuse permission to appeal.
WHITE J: I agree with the orders proposed by the Chief Justice and with his reasons.
I add one further observation. The joint reasons of Gummow and Hayne JJ and the separate reasons of Kirby J in Gassy v The Queen[9] confirm that a lack of balance or an absence of impartiality in a judge’s commentary on factual matters in the course of a summing-up may give rise to a miscarriage of justice. Those same reasons also indicate how easily the manner of an attempt by a judge to assist the jury on factual matters may have that effect. In Gassy, it was the trial Judge’s suggestions as to the approach which the jury may adopt in considering the evidence which were impugned, but the considerations underpinning the reasons of Gummow and Hayne JJ, and of Kirby J, are capable of more general application. The decision in Gassy indicates therefore that it may be appropriate for trial judges to exercise restraint when commenting on the submissions of counsel concerning factual matters.
[9] [2008] HCA 18; (2008) 236 CLR 293.

[2010] SASCFC 42

19 October 2010

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge