R v Colbert - [2016] SASCFC 12

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COLBERT
[2016] SASCFC 12
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Lovell)
24 February 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EXPRESSION OF JUDGE'S OWN OPINION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE
Appeal against convictions and sentence. The appellant was convicted by unanimous jury verdict for the offences of endanger life and manslaughter by gross negligence. The appellant owned and operated a trucking company. In March 2014, the brakes on a particular truck failed on two occasions. The first occasion resulted in a “near miss”. The second occasion resulted in an accident, in which the driver of the truck suffered injuries that caused his death. It was the prosecution case that the evidence established that the appellant had been made aware that the truck’s brakes were not functioning properly prior to the incidents. The appellant was sentenced to a term of imprisonment of 13 years and 6 months, reduced to 12 years and 6 months on account of time spent in custody and on home detention bail, with a non-parole period of 10 years.
Whether the summing up lacked balance. Whether the Judge properly directed on the burden of proof. Whether the Judge properly directed on the meaning of gross negligence. Whether to apply the proviso.
Held per the Court (allowing the appeal):
1.       There should be a retrial on the charges. Appeal against sentence not considered.
2.       The Judge properly directed the jury on the meaning of gross negligence.
3.       This is not a case for the application of the proviso.
Per Gray and Sulan JJ:
1.       Appeal allowed on the basis that the Judge’s summing up lacked balance.
2.       The Judge properly directed the jury on the burden of proof.
Per Lovell J:
1.       In the circumstances of the case a “Liberato” direction was required. Appeal allowed on grounds 2, 4 and 6.
2.       The summing up was fair and balanced. Grounds 1 and 3 dismissed.
Criminal Law Consolidation Act 1935 (SA) s 13, s 29(1) and s 353(1), referred to.
Cleland v The Queen (1982) 151 CLR 1; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Weiss v The Queen (2005) 224 CLR 300; Baini v The Queen (2012) 246 CLR 469; Nydam v R [1977] VR 430; Liberato v The Queen (1985) 159 CLR 507; McKenzie v Police [2015] SASC 78; Wilde v The Queen (1988) 164 CLR 365; AK v Western Australia (2008) 232 CLR 438; Fleming v The Queen (1998) 197 CLR 250; Gassy v The Queen (2008) 236 CLR 293; Lindsay v The Queen (2015) 89 ALJR 518; Murray v The Queen (2002) 211 CLR 193; R v Lavery [2013] SASCFC 46, considered.

R v COLBERT
[2016] SASCFC 12
Court of Criminal Appeal: Gray, Sulan and Lovell JJ
GRAY AND SULAN JJ.

This is an appeal against convictions and sentence.
Background
On 17 June 2015, the defendant and appellant, Peter Francis Colbert, was convicted of the offences of endangering life[1] and manslaughter[2] following a trial before a Judge and jury. Both verdicts were unanimous.
[1] Criminal Law Consolidation Act 1935 (SA) section 29(1).
[2] Criminal Law Consolidation Act 1935 (SA) section 13.
The defendant was the sole director and shareholder of a trucking company, Colbert Transport Pty Ltd. The defendant purchased the business from Dean Sellars. Prior to purchasing the business, the defendant was an employee of Mr Sellars. The company had a fleet of 11 trucks, which were owned by the wife of the previous owner of the business. After purchasing the business, the defendant managed the day-to-day affairs of and the business of the company. He was responsible for the maintenance and upkeep of the fleet of trucks and the allocation of driving jobs to employed drivers.
The company’s fleet of trucks included a Mitsubishi Tautliner truck, registered number SB49DY, which was known as the “Big Girl”. The truck was permitted to weigh not more than 22.5 tonnes, including its load.
Shane Bonham was employed by the company as a truck driver. On 5 March 2014, he was driving the Mitsubishi truck south on Dyson Road. He attempted to apply the brakes to bring the truck to a halt at an intersection, but the brakes failed. This incident gave rise to the count of endanger life.
Robert Brimson was employed by the company as a truck driver. On 7 March 2014, he was driving the Mitsubishi truck on Main South Road in the course of his employment. The brakes failed and the truck collided with the support column of an overhead advisory road sign. Mr Brimson died as a result of injuries sustained in the crash. The truck and load weighed 18.2 tonnes at the time of the collision. This incident gave rise to the count of manslaughter.
On 21 August 2015, the Judge sentenced the defendant to a term of imprisonment of 13 years and six months. This was reduced to 12 years and six months to take account of time spent in custody and on home detention bail. A non-parole period of 10 years was fixed. The sentence commenced on 13 August 2015, the date on which the defendant’s bail was revoked. The defendant was disqualified from holding or obtaining a driver’s licence until further order.
The Prosecution Case on the charge of Endanger Life
It was the prosecution case that the defendant owed a duty of care to the truck drivers employed by Colbert Transport to properly maintain the braking systems of the trucks so that they could be safely driven on public roads with loads up to the relevant maximum. It was said that the defendant permitted Mr Bonham to drive the Mitsubishi truck with its load on public roads on 5 March 2014 in circumstances where the truck’s braking system was in such a state that it was likely to endanger the life of Mr Bonham. In respect of this element of the offence, the jury needed to be satisfied that a reasonable person in the position of the defendant, with his knowledge and who engaged in the same conduct, would have foreseen that his conduct carried with it and appreciable risk of death to a person driving the truck with its loads on public roads on 5 March 2014.
It was the prosecution case that the defendant, at the time of permitting Mr Bonham to drive the Mitsubishi truck, knew that his failure to maintain the braking system of the truck would be likely to endanger the life of Mr Bonham.
Finally, it was the prosecution case that the defendant, when permitting Mr Bonham to drive the truck on 5 March 2014, was recklessly indifferent as to whether Mr Bonham’s life was being endangered. In respect of this element of the offence, the jury needed to be satisfied that the defendant knew that there was a substantial risk that permitting Mr Bonham to drive the Mitsubishi truck with its load on public roads could endanger his life, and permitted him to drive the truck notwithstanding that risk.
The Prosecution Case on the charge of Manslaughter by Gross Negligence
It was the prosecution case that the defendant permitted Mr Brimson to drive the Mitsubishi truck with its load on public roads on 7 March 2014 in circumstances where the defendant had failed to maintain the truck’s braking system such that it was not in a state that it could be safely driven with its load on public roads that day.
It was the prosecution case that the defendant’s conduct substantially contributed to the death of Mr Brimson.
Finally, it was the prosecution case that the defendant’s failure to maintain the truck’s braking system was grossly negligent. To be satisfied that the defendant’s conduct amounted to gross negligence, the jury needed to be satisfied that a reasonable person in the position of the defendant, with his knowledge and who engaged in the same conduct, would have foreseen that his conduct carried with it a high risk that death or really serious bodily harm would follow. The jury needed to be further satisfied that the defendant’s conduct involved such a great falling short of the standard of care that a reasonable person would have exercised, and involved such a high risk of death or really serious bodily harm, that it warranted criminal punishment.
The Evidence at Trial
A number of current and former employees gave evidence. The effect of this evidence was that, at times leading up to 7 March 2014, they had driven, or had been a passenger of, the truck the “Big Girl” and each had experienced problems with the braking system. They gave evidence that the defendant was aware that the brakes did not function satisfactorily and that he failed to adequately maintain the truck, in particular the braking system.
Kevin Bonham worked for Mr Sellars. He gave evidence that when he first commenced employment with Mr Sellars the Mitsubishi truck was having work done on it. About two months after Mr Bonham started, the defendant joined the business and became the most frequent driver of the truck. Mr Bonham said he had driven the truck on eight or ten occasions. When he drove the truck, he found that he would sometimes have problems with the air pressure associated with the brakes. He noticed the problem on the second occasion on which he drove the truck, prior to about October 2013. He told the defendant about the problem. The defendant agreed that the air pressure did drop on occasion and advised Mr Bonham to keep the revolutions up at around 1,000 to 1,200 to keep enough air in the tanks.
Donna Miles worked for Mr Sellars for a couple of weeks in late 2013. She gave evidence that, on her first day, she drove as a passenger in the Mitsubishi truck with the defendant. She also drove the truck. In her assessment, the brakes were not stopping the truck as quickly as they should have. She told the defendant and he took over as the driver. Later in the week, she again drove the truck and had difficulty with the brakes. On that occasion she drove with another employee, Dale Dahlhelm. During the course of that trip Mr Dahlhelm had to attend to what appeared to be a fuel blockage.
Mr Dahlhelm worked for Mr Sellars in 2013. He gave evidence about driving the Mitsubishi truck on one occasion with Ms Miles. He described the brakes as poor and found it difficult to pull up, particularly with a full load. The truck was slow to slow down and he needed to use the gears in addition to the brakes in order to slow down. Mr Dahlhelm said that, at one point during the trip, he had to swerve to miss a car that had pulled out in front of him because the brakes did not slow the truck down in time. He spoke to Mr Sellars about the truck in the presence of the defendant, who said that the vehicle was fine.
Kym Lecor was employed by the defendant in 2014 for three days. He gave evidence that he drove the Mitsubishi truck once. He considered the brakes to be a little soft and spongy, but not that bad, although the truck was a little slow at stopping.
Graham Johns was employed by Mr Sellars and then the defendant. He gave evidence that he drove the Mitsubishi truck on two or three occasions in December 2013 and every day for two weeks in January 2014. On one occasion in December 2013, he had problems with the air brake system and found that he would needed stop to let the air build up after braking two or three times when driving at low speeds in the metropolitan area. He considered that it should take a lot longer for the air to run out. In January 2014, he had difficulty stopping when driving down a slight hill. He found the brakes to be really spongy. Upon his return to the depot, he told the defendant that the brakes were not the best, and that they were dropping air when he used them. The defendant told Mr Johns that he was aware of the problem.
David Fuller was employed as a truck driver by the defendant in February 2014. He gave evidence that he drove the Mitsubishi truck a few times in his first week. The brakes were always losing air and on a number of occasions he had hardly any brakes, which caused some near misses. When he told the defendant, the defendant replied that the problem was that Mr Fuller was using the brakes too many times, which was causing them to lose air. Mr Fuller thought that the defendant may have been correct in this assessment, though did not give it much thought at the time.
Alison Wilson was employed by Mr Sellars and then the defendant. She gave evidence that she was a passenger in the truck on three or four occasions over a seven month period with the defendant as the driver. She considered that the brakes were very insufficient and that the truck was not stopping as it should have.
Shane Bonham was employed by Mr Sellars and then the defendant as a truck driver. He gave evidence that the defendant was the principal driver of the Mitsubishi truck. In November 2013, Mr Bonham drove the truck to a repair shop to address a problem with a component of the air lines that run the braking system. Mr Bonham met the defendant at the repair shop. The defendant was advised that a part needed to be replaced at a cost of $1,100.00. The part was an important part of the air system which operated the brakes. A failure of the part would result in the truck having no braking power. The defendant declined to replace the part and asked the mechanic to put the existing part back into the truck. Mr Bonham was under the impression, however, that the problem was fixed at this time. Prior to that incident, Mr Bonham considered that the defendant was appropriately maintaining the trucks. In February 2014, Mr Bonham was driving the truck west on Grand Junction Road in slippery conditions. A vehicle 75 metres ahead of him stopped suddenly and he applied the brakes. The front wheels locked. He released the brakes and applied the emergency brakes. The back wheels locked. He then reapplied the foot brakes and the truck continued to slide forward, having lost traction. This was the first occasion that the brakes had locked in that manner. Mr Bonham considered the brakes were working and that the problem was a result of the weather.
On 5 March 2014, Mr Bonham was driving the truck south on Dyson Road with a load of 12.5 tonnes. He was driving at 80 kilometres per hour in a 100 kilometre per hour zone. When he was about 200 metres from an intersection, the lights turned yellow. He applied the brakes but they did not work. The lights turned red and he reapplied the brakes. The brakes did not work due to a lack of air pressure. The lack of air pressure made it difficult to use the gears to slow down. Mr Bonham was forced to turn left onto O’Sullivan Beach Road and then into a slip road. The truck travelled a further 400 metres before it came to a stop. He called the defendant and told him “I nearly rolled the truck. These brakes on this truck need to be effing fixed” or “The brakes are fucked. They need to be fixed.” The defendant assured Mr Bonham that he would look at the brakes as soon as he returned. When he returned to the yard, he went straight home as he was too upset to speak to the defendant. The next day, Mr Bonham went to work but did not speak to the defendant about the brakes. He drove the truck again, with a lightweight load, and did not have any difficulties braking.
Eryn Williams was employed by Mr Sellars and then the defendant as an administrator. She gave evidence that the defendant had been driving the Mitsubishi truck on the Salisbury Highway when he called her in a flustered state. He told her that the truck had caught fire and asked her to bring a fire extinguisher to his location. Ms Williams and Gary Schilling, the yardman, drove the fire extinguisher to the defendant. When the defendant later returned to the yard, he told her that he had taken the truck to Shane Farrelly, a mechanic, but could not afford to fix the brakes so the defendant had put a ball bearing in the brake line to stop the brake fluid from leaking.
On 5 March 2014, when the defendant was present, Shane Bonham asked Ms Williams “did [the defendant] tell you what has happened today?” She replied that he had not. Mr Bonham then proceeded to tell her about his near miss, in the presence of the defendant.
Gary Schilling was employed by Mr Sellars and then the defendant as a yardman. He performed basic maintenance tasks, including checking oil and water, and releasing air out of the air cylinders. The defendant did not recall ever adjusting the brakes on the Mitsubishi truck during the time the defendant owned the business. He gave evidence of the occasion on which he went with Ms Williams to meet the defendant on the Salisbury Highway. He saw that the rear passenger side wheels were producing a lot of smoke. The defendant told him that the brakes were locked. Mr Schilling was only able to release the brakes by putting a pin in the back of the booster, which he considered may have been broken, on the rear passenger side axle. This process is known as “caging”. Mr Schilling gave evidence that after the brakes cooled down he returned to the yard with Ms Williams.
Shane Farrelly, a self-employed diesel mechanic, gave evidence that he first worked on the Mitsubishi truck in November 2013. Mr Schilling had told him that the truck was “running really rough”. This advice was confirmed by the defendant, who added that it lacked power. Mr Farrelly worked on the truck for about 30 minutes and replaced a number of parts to address that particular problem, which was either a blocked fuel filter or a blocked fuel line. He also advised the defendant that the truck had a bent tyre rod arm and drew to the defendant’s attention an air leak from the rear of the truck. The defendant told Mr Farrelly that he knew about both problems. The defendant said he could not work out the source of the leak. Mr Farrelly told the defendant that the source of the leak was the relay valve and that it would take a couple of hours to replace it. Mr Farrelly fixed the problem but, when the defendant picked up the truck, air started leaking from the rear again. This caused Mr Farrelly to also replace part of the emergency braking system. Mr Farrelly worked on the truck a second time in January 2014, after it had broken down in Mawson Lakes. Mr Farrelly recharged the batteries and bled the fuel system. He denied working on the truck in January 2014 in relation to a gearbox problem. He also denied that the truck was brought to his workshop in February 2014 following the incident in which the truck broke down on the Salisbury Highway. Mr Farrelly considered that a truck of this kind with air brakes should have the brakes adjusted at least every three months, depending on the manner in which the truck is driven.
Cameron Wurfell, a mechanic, gave evidence of the occasion on which the defendant and Shane Bonham brought the Mitsubishi truck to him following an air fitting leak. He obtained a quote of $1,350 plus labour to replace a valve. The defendant did not accept the quote.
Laura Whitbread witnessed the incident which resulted in the death of Mr Brimson. She gave evidence that the conditions were warm and dry. At the time, she was driving her motor vehicle south on Main South Road. The traffic was heavy and moving slowly, at 5 to 10 kilometres per hour. She noticed the Mitsubishi truck in the same lane, 25 to 50 metres behind her, travelling at about 60 kilometres per hour. She saw it veer to the left onto a gravel shoulder, past her car and into an information sign.

Janine Gray, another eyewitness, recounted that she was driving her motor vehicle south on Main South Road at the time of the accident. She saw the Mitsubishi truck about 150 to 200 metres behind her as she sat in the left lane. She saw the truck swerve into the middle lane and then to the left. She saw the truck collide with a pole. The traffic was stationary at the time due to roadwork being carried out.
Brevet Sergeant Paul Zilm, a police motor vehicle collision investigator, attended on the scene of the collision on 7 March 2014. He gave evidence that the tyre marks were suggestive of the truck’s wheels rolling rather than being locked due to brakes being applied. He received the truck’s dashboard camera footage and identified the sounds of a low-pressure alarm, two brake applications and the driver making the comments “oh, fucken brakes”, “oh, fuck off, no fucken brakes” and “where am I gonna fucken go?” This was followed by the sound of numerous heavy break applications and then the comment “I’ve got nowhere to fucken go” just prior to the crash. Brevet Sergeant Zilm said that the dashboard camera footage made it clear that Mr Brimson was unable to slow or stop the truck.
Troy Seyfang, a diesel mechanic, gave expert evidence as to the sounds heard in the dashboard camera footage prior to the collision on 7 March 2014. He considered that there were sounds of the footbrakes being applied on multiple occasions and the clutch being applied. There was also a buzzer noise, which was consistent with a low air warning alarm. It was apparent to him that the truck was not slowing with each brake application. Each successive brake application became less audible as a result of diminishing air supply.
Eliot McDonald, a senior vehicle examiner with the Major Crash section of police, gave expert evidence of his examination of the truck at the scene of the collision on 7 March 2014 and at the police depot on 14 March 2014. He observed extensive damage to the truck and a lack of brake adjustment. The right rear maxi brake, or emergency brake, had been disabled by the insertion of a bolt into the spring brake chamber. He considered that the caging of the maxi brake should only be a temporary release so that the truck can be moved to a safe location – a truck should not have the maxi brake disabled for routine driving. His inspection disclosed that the left front steer axle had minimum breaking capacity and the right front steer axle had no braking capacity. The left-hand side drive axles had minimal or no braking capacity. The braking capacity of the right-hand side drive axles could not be assessed due to damage to the truck in the collision. The left-hand side lazy axles had minimal or no braking capacity, while the right-hand size lazy axles had reduced braking capacity. He considered that the brakes had required adjustment and that, for a truck of this kind, the brakes should be adjusted every two to four weeks or every 5,000 to 10,000 kilometres.
The defendant gave evidence. He said that his driving style did not rely heavily on the brakes, instead using the gears to slow down. The Mitsubishi truck was used five days per week and had travelled over 870,000 kilometres as at March 2014. He did not notice a serious drop in air pressure when driving the truck. The defendant said that he had asked Mr Farrelly to conduct general maintenance of the trucks and was in the process of establishing a servicing system. He gave evidence of the occasion on which Ms Williams and Mr Schilling attended on him with a fire extinguisher on the Salisbury Highway. At that time, he looked at the air pressure gauge and it indicated above average air pressure. He denied any knowledge of Mr Schilling having caged or disabled the brakes. After cooling off the brakes with the fire extinguisher, he drove the truck to Mr Farrelly and instructed him to fix it. He collected it a couple of hours later after being told it was ready. He was not invoiced for the work and did not ask Mr Farrelly about the brakes. He assumed Mr Farrelly had adjusted the brakes on that occasion. He denied telling Mr Farrelly that he knew about an air leak. He denied being told about Mr Bonham’s “near miss” on 5 March 2014.
The Trial Judge – Summing Up
The Judge at the outset of his summing up addressed the jury on the presumption of innocence and the burden of proof. The Judge directed the jury that an accused person is presumed innocent and can only be convicted of a crime if the jury is satisfied that all the elements of the offence have been proved beyond reasonable doubt.
The Judge provided a written memorandum to the Jury which addressed the elements of the offences. The Judge read the memorandum to the Jury during his summing up. The Judge directed the jury on the meaning of gross negligence:
Now, to amount to gross negligence Mr Colbert’s conduct would have to go far beyond just an absence of care that might found a civil claim for damages against him. For example, you all may be familiar directly or indirectly with, say, a minor motor vehicle accident in which there is some minor deviation from the standard of care by one or both parties, it is a matter of money, perhaps it is a fight about money, but that is what we would call a civil claim for damages, if you will.
In this case, you would need to be satisfied to convict of manslaughter that a reasonable person in the position of Mr Colbert, and with the knowledge of Mr Colbert, who engaged in the very same conduct as Mr Colbert, would have foreseen that that conduct carried with it a high risk that death or really serious bodily harm would follow, and that Mr Colbert’s conduct involved such a great falling short of the standard of care that a reasonable person would have exercised, and involved such a high risk that death or really serious bodily harm would follow, that his conduct warranted criminal punishment.
So, in other words, it is much more than just a civil dispute between citizens over a deviation from a required standard of care, but, rather, the negligence has to be gross negligence. It has to be of the type that I have just read out to you and will not repeat again, and has to be, in your view, gross negligence such that it becomes a serious criminal matter rather than a mere civil failure to conform to a standard of care.
The Judge directed the jury as to how it should consider and evaluate different types of evidence and witnesses. The Judge directed the jury that the defendant was not required to give evidence and that his evidence should be assessed in the same manner as any other witness.
At the conclusion of the Judge’s summing up, counsel for the defendant at trial made an application for a mistrial on the basis that the summing up was unbalanced. Counsel submitted that the Judge had spent a considerable amount of time addressing the prosecution case and addressed arguments in support of the prosecution case in detail. By contrast, the Judge had simply drawn to the jury’s attention the different topics raised in the defence case and told the jury that they were matters to be considered, rather than develop them in the manner in which he had summarised the prosecution case. The application for a mistrial was refused.
The Appeal Against Convictions
Counsel appearing for the defendant on the appeal advanced three complaints. First, that the Judge’s summing up resulted in an unfair trial. In particular, it was submitted that the summing up was unbalanced, did not adequately direct the jury as to the manner in which the defendant’s evidence should be treated and implied that the defendant had an onus to produce certain documents about which the Judge had questioned the defendant during the trial. Second, that the Judge failed to direct the jury that it must be satisfied that the prosecution had proved its case beyond reasonable doubt even if it did not accept the defendant’s evidence. Third, that the Judge failed to adequately direct the jury as to the meaning of gross negligence. At the hearing of the appeal, counsel were granted leave to add a further ground of appeal, being a complaint that the Judge had failed to direct the jury that, if they believed the evidence of Shane Bonham and Eryn Williams as to the conversations following Mr Bonham’s “near miss” on 5 March 2014, then such evidence could not be used by the jury when considering the endangering life charge.
Counsel appearing for the Director of Public Prosecutions on the appeal submitted that, when read as a whole in the context of the evidence and issues at trial, the Judge’s summing up was appropriate and did not result in an unfair trial. Insofar as the Judge may have erred, it was submitted that there was no miscarriage of justice and, as a consequence, this Court should apply the proviso.
Balanced Summing Up
In Cleland, Gibbs CJ described the balance to be struck by a trial Judge when summing up to a jury in the following terms:[3]
... It is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence. In what manner, and in what detail, this should be done must of course depend on the circumstances of each case. ...
[3] Cleland v The Queen (1982) 151 CLR 1, 10.
In Courtney-Smith (No 2), the New South Wales Court of Criminal Appeal, Gleeson CJ, Kirby P and Lusher AJ, set out the approach to be taken when considering whether a summing up is unfair or lacking balance as follows:[4]
The duty of a judge to act with manifest fairness in proceedings before him is not in doubt… If a summing-up can be described as “unfair, lacking in judicial balance and so partaking in partiality as to render the trial a miscarriage of justice”, this Court must intervene. However, before doing so the following considerations must be kept in mind:
(1) The summing-up must not be considered in isolation. It must be read in the light of the conduct of the trial. Its place in the trial, following the final addresses of counsel, must also be kept in mind. If the arguments of counsel are still vivid, it is unnecessary for the judge to repeat them tediously.
(2) The trial judge is entitled to express opinions on the facts, provided he or she makes it clear to the jury that it is exclusively their function to decide factual disputes. The mere incantation of the jury’s role in resolving factual disputes will not repair an unfair, unbalanced intrusion by the judge into discussion of the facts. But it is not the law that the judge can make no observation on the facts.
(3) In default of standard formulae for charging juries, and new statutory rules confining judges, wholly or substantially to instruction on the law, the summing-up to a jury in a criminal trial will necessarily be an individualistic endeavour. It is impossible in those circumstances to stamp upon judicial performance a monotonous uniformity. What must be uniform, however, is the overall fairness and balance.
(4) The assessment of the overall balance requires a consideration of the whole of the summing-up. Isolated phrases taken from here and there are no substitute for a consideration of the entire charge, looked at as a whole and in its context in the trial… It is not the length of time devoted to the case of the Crown or the accused which is in issue. It is the fairness, balance and impartiality of the summing-up which the appellate court must review and safeguard.
[References omitted. Emphasis added.]
[4] R v Courtney-Smith (No 2) (1990) 48 A Crim R 49, 55-56.
A review of the summing up discloses that there is substance to the defendant’s complaint. There is a marked change in the manner in which the Judge dealt with the prosecution case on one hand, and the defence case on the other. When dealing with the prosecution witnesses, the Judge’s approach was at times to introduce arguments to bolster or support the prosecution position, to the detriment of the defence. In a number of respects, the Judge’s approach introduced arguments in favour of the prosecution case that the prosecutor had not put forward at all. It is relevant to observe that the Judge’s approach in this respect occurred while reminding the jury of the witnesses’ evidence, as distinct from when summarising the prosecution case. This had the effect of bolstering the witnesses’ evidence.
One example concerned the evidence of Ms Williams as to a conversation between herself, Shane Bonham and the defendant said to have occurred in the office following Mr Bonham’s “near miss” on 5 March 2014. During the course of his summing up, when addressing Ms Williams’ evidence, the Judge said:
As to Mr Bonham’s near miss on 5 March 2014, Ms Williams also gave some evidence about that matter. Now you will remember that she described actually seeing Shane Bonham on the afternoon of 5 March with Colbert being present and she gave evidence to you that Shane Bonham came in and said to her, ‘Did Peter tell you what has happened today?’
Just pausing there, you will note that form of words, ‘Did Peter tell you what has happened today?’ Now that does convey, you might think, something consistent with Bonham having already told Peter Colbert what had happened that day. That is to say, over the telephone. So in other words, the prosecution would say here’s Bonham, who knows that he has already complained to Colbert over the phone, gets back to the depot, sees Ms Williams, the administrator, puts his head in the door, as it were, and goes in and says ‘Did Peter tell you what’s happened today?’ because of course the only way that Peter could be telling her what has happened today is if he had been informed over the telephone by Bonham that something had happened. There is no other way that he would have known.
So those words, when you think about them in their form, are consistent with Bonham’s evidence that he had telephoned Colbert, and I just draw that to your attention because of course you know that Colbert just denies, says ‘Never telephoned me at all’. So that is a matter you are going to have to be looking at.
[Emphasis added.]
This Judicial analysis was not part of the prosecution case at trial. It may be contrasted by the Judge’s treatment of the defence case on this topic:
Mr Algie also made submissions as to why you should reject the evidence of Ms Eryn Williams concerning the two conversations we have discussed and you will bear those submissions in mind.
A further example relates to the Judge’s analysis of the expert evidence, the Judge said:
Ladies and gentlemen, you do find within his evidence and the other experts’, that driving behaviour can accentuate brake wear and the need for adjustment, but, at the end of the day, you will take into account if a trucking company is employing various drivers who have various methods of driving, various braking patterns, it is a matter for you, but you might think it even more vital that there be a consistent recorded checking process of the brakes in place because one does not necessarily know how any particular driver is going to use the brakes.
This analysis and argument was not put to the jury in the prosecutor’s address.
The Judge’s Misconception about the Defendant’s Evidence being a Recent Invention
When the defendant was cross-examined, he was asked whether the company had in place a system for the maintenance of upkeep of the vehicles in the fleet. The defendant gave evidence that he had plans to implement a system. He had discussed this with Ms Williams, but the plan had not yet been implemented. When Ms Williams gave evidence, she was not cross-examined about this topic. The topic was not raised with the defendant in examination in chief. The topic was raised for the first time by the Judge during the defendant’s was cross-examination. The Judge intervened during cross-examination to ask the following questions on the topic:
Q. Would you be able to produce, if you wanted to, any sort of a draft that you started on, started working on the paperwork.
A.      Off the top of my head, probably not at this point, no.
Q.      Did you ever actually start putting pen to paper and making a draft of this.
A.      Yes.
Q.      And where is that paperwork.
A. Off the top of me head, I couldn't tell you offhand. Could be where the trucks are now, I'm not sure, I don't go anywhere near there. Haven't been near there for a while.
When summing up, the Judge commented that there was “nothing to support” the defendant’s evidence:
You will remember he said in cross-examination that he had plans for a system to ensure regular services to start in April 2014, just a month after, says he, the month of the fatal accident. But there is nothing to support that. You have his word and you can place what reliance you wish, but he says that he had a plan in his mind that he would put something in place and he rather hoped that it would be April 2014 when it was put in place. He said that he had started some sort of a draft, but he had no idea where that would be.
Ladies and gentlemen, just on this matter of the assertion that he was thinking about this and was going to put a system in place and so on, you will remember that of course Ms Williams was the administrator and if anyone was going to be responsible for getting a system up and running and maintaining it in terms of paperwork and records, it was certainly going to be her. So if there was any move in this direction, you would have thought that she would be on the ground floor, she would be the one who would be talked to about ‘Look, we’ve got to get something down on paper. We’ve got to get this, we have got to get registers, folders, whatever, computer programs’.
The Judge further noted that Ms Williams had not been cross-examined by counsel for the defendant on that topic. When addressing the defendant’s evidence that he was in the process of developing a plan to have the trucks serviced on a regular basis, the Judge said:
The accused in cross-examination in questioning about this plan that he had:
‘Q. After you took over the business did you turn your mind to perhaps putting in place a system that saw this truck serviced on a regular basis.
A. Yes, me and Kevin Williams – [but clearly it should be Eryn Williams] - had had discussions, in fact about a month’s time, unfortunately after the accident occurred, that there would be in place a service rotation of the Big Girl’.
Let’s assume that that is to be interpreted as him asserting that he and Ms Williams had discussions before the accident about putting into a place a system that was scheduled to come in after the accident. As I understand it, that is what he is putting to you. Now, as I say, it would be very natural for him to be having discussions with Ms Williams about that, but you will have noted that when Ms Williams was called to give evidence, she did not say anything in evidence about that but, more particularly, counsel for Mr Colbert never asked her anything in cross-examination about any plans to put a system in, any discussions that she had had with Mr Colbert about it, such as to confirm that he ever did have those plans. She was the ideal person to ask and confirm it and she was not asked. You will appreciate that he only gave his evidence after she had left the witness box.
[Emphasis added.]
The clear implication from the Judge’s observations was that the defendant was inventing the story that he had discussed the introduction of a system for the maintenance of vehicles with Ms Williams.
Counsel for the defendant when addressing the application for a mistrial raised this topic with the Judge and the following exchange took place:
COUNSEL:... Your Honour also undermined the evidence of the accused with respect to a matter which is arguably largely irrelevant, namely what plans that he had to institute a system of systematic servicing at some point in the future. It was an agreed fact that there was no such system in place at the relevant time. What he may or may not have done in the future really won’t assist the members of the jury. It was something that was extracted from him, as I recall, in cross-examination.
HIS HONOUR:    Extracted from him, Mr Algie? He was trying to say to the jury that it is most unfortunate that he had all these plans under way that would have come in just shortly after the collision and it wasn’t as though he was ignoring this matter, it was just unlucky. That is what he was saying to the jury.
COUNSEL:That’s right. But that evidence, as I recall, came out, to use a more neutral term, in cross-examination.
HIS HONOUR:    Let’s go to it, if you want to make something of it. I think p.314, Mr Algie.
COUNSEL:        Yes. It was material that wasn’t led in chief.
My point that arises from that is to, as it were, criticise the accused or his defence with respect to that topic for not having cross-examined Ms Williams with respect to it, in my submission, is quite unfair.
HIS HONOUR:     In what way do you say it is unfair?
COUNSEL:It invites the jury to take an adverse view of the accused and his evidence because, although it was not his case with respect to this matter in chief, it was cross-examined from him by the prosecution and then to criticise him for not having cross-examined another witness with respect to it creates, potentially, in the mind of the jury, an adverse response to the accused and his very important evidence denying these offences.
HIS HONOUR:    Mr Algie, either he always had a position that he had positive discussions with Ms Eryn Williams about setting up a system, etc., or it is something that he made up on the spot during cross-examination.
COUNSEL:Or it is something that was seen as not relevant to the presentation of his defence.
HIS HONOUR:    That is the first aspect. He always had that position, but it was not seen as worth advancing.
COUNSEL:        It was not led as evidence-in-chief.
HIS HONOUR:    That is right. One might wonder why not. In other words, if the witness Williams would give support to that, then that would, one would have thought, be some sort of advancement of the defence case that he was being proactive and he was just unlucky. If you want me to say something, if you are saying to me ‘Well, yes, he always gave those instructions but it was determined not to go down that track’, perhaps I will say something.
COUNSEL:        My concern is far greater than that.
HIS HONOUR:    Let’s just deal with bits one by one rather than divert from what we are talking about. What do you want me to do about this particular matter?
COUNSEL:I think I will need an adjournment to consider that and, indeed, to consider any overall application that maybe I should be instructed to make.
HIS HONOUR:    If you are talking about a mistrial, I am certainly not inclined to grant a mistrial, Mr Algie.
COUNSEL:That may be so, but if I am to press the matter I may need to make the application in any event.
HIS HONOUR:     You better get your instructions now then.

Following the adjournment, an application for a mistrial was made and dismissed. The following exchange then took place:
HIS HONOUR:    ... Mr Algie, in relation to the specific matter you mentioned concerning cross-examination of the accused at 314 have you taken instructions as to - sorry, it is not a matter of taking instructions, is it your position that that was always the position of your client and that, however, you abstained from leading that evidence because of a judgment that it was not relevant?
COUNSEL:        Yes.
HIS HONOUR:    I had, I must say, thought that was something he had made up at the time, perhaps, but if you are telling me that I will accept what you say and therefore I will say something to the jury about that. Do you have a form of words that you would wish me to put?
COUNSEL:No, I will leave it in your Honour’s hands, but I certainly would urge your Honour to structure something that removes any view that somehow this adversely impinges upon the honesty or reliability of the accused in his evidence...
[Emphasis added.]
Following further submissions, the Judge adjourned to draft a formula of words to put to the jury, provided that draft to counsel for input and then further directed the jury as follows:
Ladies and gentlemen, you may remember that during my summing up I mentioned a passage of evidence in the cross-examination of Mr Colbert which is at transcript 314 in which Mr Colbert said that he had discussions with Ms Eryn Williams as to the setting up of a system for servicing the trucks on a regular basis, and I went on from there to point out to you that no questions were asked of Ms Williams in cross-examination about that.
Now, after you retired, I have been informed by counsel for Mr Colbert that Mr Colbert had in fact mentioned that matter to his lawyers before trial but it was decided that it was not a relevant matter to be raised at trial.
So, accordingly, I direct you that you should not hold it against Mr Colbert in any way that Ms Williams was not cross-examined on that matter because it was not his decision, as it were, in all of the circumstances.
So, you should therefore approach Mr Colbert’s evidence in cross-examination about that topic with a completely open mind and give it whatever weight you consider appropriate.
The Judge then added the following general observation:
The only thing I will add is that I do remind you once again that you should not have any regard to any view that you might think that I might hold as to the respective merits of the prosecution or the defence case. I have said a number of times that all matters of fact are entirely for you and you are not to be influenced about any view you have as to what I might think or not think about any matter of fact. So I do not think I can be plainer than that. Thank you ladies and gentlemen, you can retire.
A number of matters arise for discussion from the above extracts. It is apparent that the Judge was, at the time of the cross-examination of the defendant, of the view that the defendant was making up the assertion that he was working on a draft of systematic servicing of the trucks and that the Judge remained of that view until discussions with counsel at the conclusion of the summing up. It is unfortunate that the Judge, at the time of the cross-examination or prior to summing up, did not raise with counsel, in the absence of the jury, his concerns about recent invention. Had the Judge done so, counsel could have informed him of the true position and the consequent damage to the defendant’s credibility, at least in the mind of the Judge, would have been avoided.
The Judge’s direction to the jury was that they should not hold it against the defendant in any way that Ms Williams was not cross-examined on the topic and that they should approach the defendant’s evidence about that topic with a completely open mind and give it whatever weight they thought appropriate. The difficulty with this direction is that it did not directly address his Honour’s earlier assertions about Ms Williams, her role as an administrator and what she might be expected to have heard on this topic. That part of the Judge’s summing up, as extracted above, remained without any further comment. It might be observed that his Honour’s earlier discussion on the topic of plans for a servicing system was clearly adverse to the defendant. The sting of that discussion may have still been with the jury. A very clear further direction about that topic needed to be given to the jury to address the prejudice that may have arisen.
The final direction to the jury is also of concern. It may be inferred that the Judge included this further direction, without consulting counsel, as a result of the suggestion that his summing up was unbalanced. As noted above, the Judge first directed the jury that they should not have any regard to any view that the jury might think that the Judge might hold as to the respective merits of the respective prosecution and defence cases. However, the Judge did not address the view that the jury might have of the merits of the analysis and discussion the Judge gave in support of the prosecution case. It was through this analysis and discussion that the Judge was expressing a view as to the merits of aspects of the respective cases. This analysis had its own persuasive force independent of whether the Judge might be viewed as having been persuaded of it himself.
There is a further difficulty. As noted earlier, the Judge directed the jury as follows:
I have said a number of times that all matters of fact are entirely for you and you are not to be influenced about any view you have as to what I might think or not think about any matter of fact.
The difficulty with this direction is that it was at odds with the Judge’s earlier, standard form, direction, which the Judge put in the following terms:
Now, I will only be commenting on some of the facts here in the hope that I might be able to direct your attention to the more important issues in the case, but if I say anything about the facts with which you disagree, well, you ignore what I say and you act upon your own good judgment. See, ‘trial by jury’ is not a meaningless phrase. It accurately describes the nature of a trial in this court. The facts and the way in which the facts are to be interpreted are your responsibility and no-one can take that responsibility from you.
The standard form direction does not suggest that the jury should not be influenced at all by a view the Judge may have on a matter of fact. In the ordinary course, one would expect the jury to be assisted by such a view. However, if the jury disagreed with the Judge’s view, they should disregard that view and act on their own view of the facts. It may be said that, so interpreted, such a direction is unduly favourable to the defendant in the context of a summing up which was said to be unfavourable to the defendant. However, coming as it did at the conclusion of the summing up, there is a real risk that the jury would be confused as to the proper approach they should take as to the entirety of the evidence, and the views the Judge expressed about the evidence.
Counsel for the defendant drew attention to the different manner of expression that the Judge used on occasions when contrasting the evidence of prosecution witnesses to those of the defendant. For example, when dealing with the incident concerning the smoking brakes, the Judge contrasted “Mr Colbert’s evidence” with that of Mr Farrelly, “As against that [the defendant’s evidence], you will remember that Mr Shane Farrelly denied, on oath, positively, that he did any work to the truck on that occasion.” Matters such as this would not ordinarily, of themselves, make out a case of an unbalanced summing up, but they have some significance when considered in the context of the summing up in the present proceeding.
A reading of the entire summing up, in our view, does cause disquiet. It is significant that the Judge undertook analysis on a number of occasions that had the effect of bolstering the prosecution case, in particular the evidence of the prosecution witnesses. It is significant that this analysis did not form part of the prosecutor’s opening or closing addresses. However, the matter concerning Ms William’s evidence is of greater concern. The Judge’s treatment of that topic, left without correction, was highly damaging to the defence case. The Judge was clearly suggesting to the jury that the defendant’s assertions in cross-examination lacked credibility. The question arises as to whether the Judge’s direction would overcome the prejudice that may have arisen. In our view, it did not.
The Proviso
Section 353(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
[Emphasis added.]
The court must, and may only, apply the proviso if it considers that no substantial miscarriage of justice has occurred.[5] There is no singular test for what constitutes a substantial miscarriage of justice.[6] An important consideration is whether the evidence, if properly admitted, would prove the defendant’s guilt beyond reasonable doubt, or whether a conviction would be inevitable following a properly conducted trial. When undertaking this analysis, an appellate court adopts the same approach as when considering whether a jury verdict is unreasonable or cannot be supported having regard to the evidence.[7] The court must make its own independent assessment of the whole of the record of the trial, having regard to its disadvantage of not having heard the evidence at trial. However, as the High Court noted in Weiss, the conclusion that a conviction was inevitable is a necessary but not sufficient condition for the application of the proviso:[8]
... there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
[5]    Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, [25]-[26].
[6]    Weiss v The Queen (2005) 224 CLR 300, [42]; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, [21].
[7]    Weiss v The Queen (2005) 224 CLR 300, [41].
[8]    Weiss v The Queen (2005) 224 CLR 300, [45]; see also Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, [21], [29].
Wilde[9] concerned the application of the proviso in circumstances where the defendant had been convicted after the trial Judge had wrongly directed the jury on the use that could be made of certain evidence. The majority, consisting of Brennan, Dawson and Toohey JJ, considered the application of the proviso in circumstances where a Court of Criminal Appeal had concluded that, with a proper trial, a conviction was inevitable:[10]
... The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v. Hildebrandt; Reg. v. Henderson; Reg. v. Couper.
...
... It is the significance of the evidence wrongly admitted, in the context of the trial, which must determine whether the error was of a fundamental kind.
[Footnotes omitted.]
The majority held that the strength of the prosecution case is relevant to both an assessment of whether the error was of a fundamental nature and whether a conviction was inevitable.[11]
[9] Wilde v The Queen (1988) 164 CLR 365.
[10] Wilde v The Queen (1988) 164 CLR 365, 373-4; see also 375 (Deane J).
[11] Wilde v The Queen (1988) 164 CLR 365, 374.
In AK v Western Australia, Gleeson CJ and Kiefel J considered the application of the proviso where there is a strong prosecution case and said:[12]
[12] AK v Western Australia (2008) 232 CLR 438, [23].
It was submitted on behalf of the appellant that some errors are so fundamental or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso, irrespective of the strength of the prosecution case, or the appellate court’s view as to the guilt of the accused. Reference was made to Fleming v The Queen. Furthermore, it was said, the proviso cannot be applied where the error at trial denies or substantially frustrates the capacity of an appellate court to decide whether a conviction is just. As a matter of principle, these propositions are correct. ...
[Footnotes omitted. Emphasis added.]
Gummow and Hayne JJ observed:[13]
Likewise, what was said in Wilde v The Queen about the possibility that some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presupposition of the trial as to deny the application of the proviso is not to be taken as if it were a judicially determined exception grafted upon the otherwise general words of the relevant statute. Rather, as both Wilde and Weiss acknowledged, the operation of the proviso in the common form criminal appeal statute will fall for consideration in a very wide variety of circumstances. What was said in Wilde did no more than advert to a particular class of such circumstances in which the error or errors at trial are properly seen as radical.
In every case it will be necessary to consider the application of the proviso (and here s 30(4)) taking proper account of the ground or grounds of appeal that have been made out and which, but for the engagement of the proviso, would require the appellate court to allow the appeal. ...
[Footnotes omitted. Emphasis added.]
Heydon J addressed the application of the proviso where the error which enlivened its application is significant and said:14
The s 120(2) duty [for a Judge to provide reasons] in the present case. Just as the importance of s 120(2) is very great, so the extent of non-compliance with it in this case was extreme. The non-compliances cannot be described as constituting mere “irregularities”. It is not material that those non-compliances “did not affect the evidence which was led”. Nor is it correct to see the non-compliances as not having been “in the conduct of the trial itself”, any more than the addresses of counsel or the summing up in a trial by jury can be said not to be in the conduct of the trial itself. The duty to comply with s 120(2) is an essential means of securing the fair and just conduct of the trial, and is also an essential means of revealing any deficiencies in the trial as a whole.
In Fleming v The Queen it was said that there may be cases where the failure to satisfy the requirements of the then New South Wales equivalent to s 119(3) “involves errors that are so trivial that the Court of Criminal Appeal may conclude that there has been a trial according to law, notwithstanding that failure”. So too a failure to satisfy the requirements of s 120(2) may involve omissions to include principles of law or findings of fact which are so trivial that it is open to conclude that there has been a trial according to law notwithstanding those omissions. But in Fleming v The Queen, given the importance of the subject matter of the warning about the need to assess the relevant witness’s reliability in the light of her age, emotional instability and infatuation with the appellant in that case, the miscarriage of justice was a substantial one, and the proviso was not applied. Here too, given the importance of the requirement of a statement of findings in a factually unusual and puzzling case, and the extent of the breach of that requirement, the proviso should not be applied. The error was one which was a sufficiently “serious breach of the presuppositions of the trial” to go to “the root of the proceedings”.
[Footnotes omitted.]
[13] AK v Western Australia (2008) 232 CLR 438, [54]-[55].
14 AK v Western Australia (2008) 232 CLR 438, [109].
Fleming15 concerned a failure by a trial Judge in a trial by Judge alone to record a warning about accepting the reliability of a witness’ evidence in his written reasons. The Court concluded that the Judge had erred by failing to record the warning and considered the application of the proviso as follows:16
With respect to the application of the proviso, it has been held in this Court that not every wrong decision on a question of law will lead to the quashing of the conviction or a new trial and that "[t]here is no rigid formula to determine what constitutes such a radical or fundamental error" as to preclude the application of the proviso. There may be cases where the failure to satisfy the requirements of s 33 involves errors that are so trivial that the Court of Criminal Appeal may conclude that there has been a trial according to law, notwithstanding that failure. However, given the importance of the subject matter of the warning demanded by this case, the miscarriage of justice was a substantial one. This was not a case for the application of the proviso.
[Footnotes omitted.]
15 Fleming v The Queen (1998) 197 CLR 250.
16 Fleming v The Queen (1998) 197 CLR 250, [39].
In Gassy,17 the High Court considered the application of the proviso in circumstances where the trial Judge had directed the jury in a manner which was unfair to the defendant. Gummow and Hayne JJ, in ordering a retrial, considered that it was not open to apply the proviso having regard to the nature of the prosecution case, the acceptance of which required an assessment of the “accuracy and reliability” of identification evidence given by persons at trial.18 Kirby J joined in the order for a retrial and considered that the Court could not apply the proviso due to its disadvantage of not having heard the evidence. Relevantly, when considering the application of the proviso, Kirby J made the following observation about the importance of judicial impartiality:19
In Pemble v The Queen, this Court held that, whatever course counsel for the accused may take, the trial judge “must be astute to secure for the accused a fair trial according to law” and to that end must “put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused”. For the judge to give the jury a clear and firm reminder of the prosecution case, at that critical point, without equally reminding the jury of the applicant’s main arguments, placed the applicant at a very great disadvantage. Not least was this important because, from the duration and announced difficulties of the jury’s deliberations, it is apparent that the applicant had succeeded with some or all of them in at least some of his criticisms of the prosecution case. Such criticisms had arguably left the jury unconvinced or, at least, confused up to the time that the supplementary direction was given.
The reasons for manifest judicial impartiality and neutrality derive from the very nature of the judicial function and the purposes of a public criminal trial. They are reflected in fundamental principles of human rights as expressed in international law. They have been repeatedly stated in the reasons of this and other courts. They were well explained by Debelle J in the court below.
[Footnotes omitted.]
17 Gassy v The Queen (2008) 236 CLR 293.
18 Gassy v The Queen (2008) 236 CLR 293, [36]-[37].
19 Gassy v The Queen (2008) 236 CLR 293, [96]-[97].

As earlier noted, a balanced and impartial summing up is fundamental to a fair trial. It is apparent that, while the defendant was giving evidence, the Judge formed the view that the defendant had engaged in recent invention. This plainly caused the Judge to form an adverse view of the defendant. The Judge summed up to the jury while holding this view. The Judge was not disabused of his view until after the jury had commenced its deliberations. As discussed earlier in these reasons, the Judge’s summing up was unbalanced and his subsequent directions did not remedy the unfairness to the defendant. The lack of balance was not isolated to discrete or inconsequential issues – it pervaded the Judge’s treatment of the defence and prosecution cases and witnesses. The effect of the Judge’s summing up was to deny the defendant the opportunity to have his guilt or innocence determined by a properly directed jury of his peers. In our view, this constituted such a departure from the essential requirements of a fair trial that it precludes the operation of the proviso.
If we are wrong in reaching this conclusion, it remains to consider whether we would conclude, based on our own review of the record of the trial, including the fact that the jury returned verdicts of guilty, that the defendant’s guilt had been proved beyond reasonable doubt. In the present proceeding, a central issue at trial was the extent of the defendant’s knowledge about the state of the brakes and the risks involved in allowing the truck to be driven in circumstances where it was having issues with its brakes. The resolution of this issue depended in large part on the jury’s assessment of the defendant’s evidence. This Court is at a particular disadvantage in attempting to form its own assessment of the defendant’s evidence as it has not had the benefit of watching the defendant, or any of the other witnesses, give evidence. It may be accepted that this was a strong prosecution case. However, we are not able to form the view that a conviction was inevitable or that it was not open to the jury, if property directed, to entertain a reasonable doubt as to guilt.20 In our view, this is not a case for the application of the proviso and a retrial should be ordered.
20 See Baini v The Queen (2012) 246 CLR 469, [32]; Lindsay v The Queen (2015) 89 ALJR 518, [86].
Having regard to the foregoing analysis, we do not propose to address the remaining grounds of appeal other than the complaint concerning the Judge’s direction as to the meaning of gross negligence.
The defendant accepted that the Judge correctly directed the jury on the meaning of gross negligence.21 It was said, however, that the Judge’s reference to other types of dispute were confusing and unhelpful. In our view, there is no substance to this complaint. The Judge’s reference to negligence in the civil litigation context did no more than illustrate the Judge’s direction about the high standard to which the jury needed to be satisfied to find that the defendant was grossly negligence.
21 See Nydam v R [1977] VR 430, 445.
Conclusion
We would allow the appeal, set aside the convictions and sentence imposed and order a retrial. In the circumstances, it is unnecessary to address the appeal against sentence.
LOVELL J.
The facts relating to this matter are set out in the joint judgment of Gray and Sulan JJ and I gratefully adopt their summary.
Grounds 2, 4 and 6
It is convenient for me to deal with these three grounds first.
The appellant complained that the Judge failed to direct the jury as to the manner in which they should treat the evidence of the appellant.22 Further, the appellant complained that the Judge failed to give a direction in line with the authority of R v Liberato.23 The need for such a direction, it was submitted, was heightened by the way in which the Judge structured his summing-up. Further, it was submitted that as the appellant was charged with two separate counts the Judge was required to instruct the jury that they should consider each count separately in light of the evidence that applied to each count. Whilst the evidence relevant to count 1 was generally admissible in relation to count 2 there was evidence given in relation to count 2 that was not admissible in relation to count 1. It was accepted by the prosecution on appeal that the Judge failed to give such a direction.
22 Murray v The Queen (2002) 211 CLR 193.
23 (1985) 159 CLR 507.
I note that neither counsel at trial brought these matters to the attention of the Judge after his summing-up had concluded. The failure to raise the matters does not mean the grounds cannot succeed.
It is a fundamental requirement of a summing-up that it contain clear and correct directions to the jury upon the onus and standard of proof. Where a case involves a conflict between the prosecution witnesses and the accused (and any witnesses) it is essential to ensure that a finding of credit adverse to an accused does not conclude the issue whether the prosecution has proved the issues beyond reasonable doubt that it bears the onus of proving.24 The issue in this case for the jury was not whether it should accept the appellant’s version of events but whether the prosecution had negatived it as a reasonable possibility.25
24 Liberato v the Queen (1985) 159 CLR 507.
25 Murray v The Queen (2002) 211 CLR 193.
As can be seen from the factual summary referred to above, the main issue at the trial in relation to both counts was the knowledge of the appellant as to the defects in the braking system of the truck. The incidents were separated in time by two days. The prosecution called evidence which if accepted by the jury established that the appellant had failed to maintain properly the brakes on the truck. Further, in relation to count 2 the prosecution relied on the statement of the alleged victim of count 1 Mr Bonham that he told the appellant of his “near miss” the subject of count 1.
The appellant gave evidence. The appellant denied that he had been told of the near miss by Mr Bonham and Ms Williams. He gave evidence that Mr Farrelly had performed some maintenance on the truck but had not sent him an invoice for the work. In the course of his address the prosecutor accused the appellant of lying to the Court about his evidence in relation to the witness Mr Farrelly and, by implication, lying about what Mr Bonham and Ms Williams had told him. The submissions by the prosecutor were perfectly appropriate in the circumstances of the case. However, no direction was sought by either counsel as to how the jury could use a “lie” of the appellant if they found he had told one.
The appellant also denied being told by others of problems with the truck.
The Judge at the beginning of the summing-up instructed the jury correctly on the onus of proof. This included what has been described as the third limb of the Calides direction.26 During the course of his summing-up the Judge explained to the jury the approach they should take to the evidence of the appellant, namely, that they should approach his evidence like any other witness in the case. No complaint was nor could be made about these directions. The thrust of the appellant’s submissions was that on the facts of this case more was required.
26 R v Lavery [2013] SASCFC 46.
The Judge summarised the prosecution witness’s evidence. When he turned to the appellant’s evidence he summarised it and on many, but not all, occasions compared it with the evidence of the prosecution witnesses. The appellant complains about the structure of the summing-up and in particular the way the Judge dealt with the appellant’s evidence.
In relation to the witness Mr Schilling the Judge stated:27
Now, Mr Colbert on this matter said in evidence that Mr Schilling did not tell him anything about caging an actuator and using the word ‘caging’ or any other description of it and the first time that he had heard of this matter was when this case started. He said he had no conversation with Mr Schilling about releasing the brake, pulling the brake back at all. He said that Mr Schilling’s attendance was to do no more than bring the fire extinguisher to cool down the brake.
Now, you will remember Mr Schilling’s evidence and again you will have to assess the accused’s evidence in the light of that evidence, positive evidence by Mr Schilling that he did indeed cage the brake and the positive evidence of the police finding that brake still there, caged, not long thereafter, on 7 March.
27 Summing-up Peek J at pp 71 and 72.
Further he stated in relation to the witness Mr Farrelly:28
He told you that he did not ask Farrelly what, if anything, he had done to the brakes. He said he was never invoiced for the job. He did not ask for an invoice. As against that, you will remember that Mr Shane Farrelly denied, on oath, positively, that he did any work to the truck on that occasion.
…
Now, in cross-examination of the accused he specifically denied telling Mr Farrelly that he knew that an air leak was present but couldn’t find it. You will remember that Mr Farrelly had given that evidence. Mr Colbert disagrees with Farrelly on that.
28 Summing-up Peek J at pp 72 and 73.
In relation to the witnesses Mr Fuller and Mr Johns the Judge stated:29
As to other witnesses giving evidence of problems with the brakes, you will remember two of them, addressed by the prosecution, Mr Fuller and Mr Johns, who both said that they had specifically called Mr Colbert’s attention to the faulty brakes. Mr Colbert simply denied that either of them had called those matters to his attention. It was a flat denial and therefore you will have to assess that, too, in the context of all of the evidence in the case.
29 Summing-up Peek J at p 74.
Further he stated:30
Indeed, you will have to assess Mr Colbert’s evidence as to his general opinion of the lack of braking difficulties in that truck against evidence of other truck drivers to whom you have been referred who say that they observed problems with the braking while they were present and Colbert was present; and also referred to comments they made to Mr Colbert about other matters which did, if their evidence is to be accepted, tend to bring these matters to his attention.
30 Summing-up Peek J at p 74.
I am not sure what the Judge meant by the expression “positive evidence”. The appellant of course gave “positive evidence” on oath that certain matters did not happen. I am also not sure what the Judge meant by the expression that the appellant “simply denied” that “either of them had called those matters to his attention.” He referred to it as “flat denial” and invited the jury to assess that “in the context of all of the evidence in the case.
Whether reminding the jury that the prosecution have to negative the appellant’s evidence even as a reasonable possibility in light of correct directions on the onus of proof depends on the issues and facts to be decided. It will not be necessary in every case. That reasoning also applies as to whether a Liberato direction need be given after the correct directions as to the onus of proof have been given.31 I have also had regard to the whole of the Judge’s summing-up. The entirety of the Judge’s summing-up must be looked at in relation to the issues actually fought at trial. Matters should not be taken out of context.
31 McKenzie v Police [2015] SASC 78.
The appellant’s evidence was in direct conflict with a number of prosecution witnesses on different issues. The credibility of the appellant was a crucial issue in the case. The fact that the jury may not have accepted his evidence, for example, on the “Farrelly” issue did not necessarily mean that he was not telling the truth in relation to the witness Mr Bonham. Further, the evidence given by Mr Bonham that he told the appellant about the “near miss” the subject of count 1, whilst highly relevant to count 2, was not admissible in relation to count 1.
It was in my view open to the Judge to structure the summing-up in the way he did. However, without further instructions, the structure was apt to mislead the jury about the task it had to undertake. The suggestion of the Judge that they should assess the evidence of the appellant as against the rest of the evidence (which could only be the prosecution case), without more, could be interpreted as posing the question “who do you believe”?
It was not a decision about who to believe or a preference of one witness over another. It was not simply a matter of assessing the appellant’s evidence against the rest of the evidence in the case. It was necessary for the Judge, given the structure of the summing-up, to remind the jury that the prosecution had to negative the evidence of the appellant as a reasonable possibility. Further, the Judge ought to have reminded the jury that even a rejection of the appellant’s evidence, or some of it, did not relieve the jury of its task of looking at the prosecution evidence standing alone and asking itself whether the prosecution had proved each and every element of the offences beyond reasonable doubt.
Ground 6 was in effect conceded by the prosecution (appropriately in my view). Standing alone it may not have been sufficient for the appeal to have been allowed. However, the failure to give a “separate counts” direction is a matter to consider along with the other grounds in relation to whether the proviso should be applied.
The prosecution case was strong. However, I am not satisfied that the jury would have understood that the burden of proof remained steadily on the prosecution and that it was not for the appellant to satisfy the jury in any way of his version of events. Further, the failure to give a Liberato style direction combined with the failure to give a “separate counts” direction (Ground 6) means that it would not be appropriate to apply the proviso.
I would allow the appeal on these grounds and would order a retrial.
Ground 1
I have already discussed the structure of the summing-up. I have found that further directions needed to be given.
Subject to those matters I do not consider that the Judge’s summing-up was unbalanced or unfair. It simply reflected the relative strengths of the two cases. I would dismiss this ground of appeal.
Ground 3
Counsel for the appellant drew the issue to the attention of the Judge. He redirected the jury appropriately. I would dismiss this ground of appeal.
Ground 5
I have had the benefit of reading the draft judgment of Gray and Sulan JJ. I agree with their reasons and would dismiss this ground of appeal.
Orders
I would grant permission to appeal on ground 6. I would allow the appeal on grounds 2, 4 and 6. I would dismiss grounds 1, 3 and 5.