R v Molloy - [2008] SASC 352

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v MOLLOY
[2008] SASC 352
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice Kelly)
15 December 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING UP AS A WHOLE
Appeal against conviction - appellant convicted in the District Court of the offence of using a carriage service to make child pornography available - in summing up to the jury the learned trial judge suggested various routes by which the jury may arrive at a verdict of guilty or not guilty - whether the trial judge erred in directing the jury with respect to the onus of proof - whether the appellant's defence was adequately and accurately put to the jury - whether the appellant lost the chance of an acquittal.
Held: the trial judge's summing up to the jury adequately identified the facts and critical legal issues which arose during the trial - the trial judge clearly and accurately summarised the defence evidence and the defence case - the summing up as a whole would not have led the jury into error or any misunderstanding as to the onus of proof - appeal dismissed.
Criminal Code 1995 (Cth) - s 474.19(1)(a)(iv), s 474.19(1)(a)(i), referred to.
R v Smith [SASC] SASC 135, applied.
Murray v The Queen (2002) 211 CLR 193; R v Briske [2007] SASC 314; R v Woods [2008] SASC 335; R v Calides (1983) 34 SASR 355, discussed.

R v MOLLOY
[2008] SASC 352
Court of Criminal Appeal: Anderson, White and Kelly JJ

ANDERSON J. I would dismiss the appeal essentially for the reasons given by Kelly J.
I agree with the submission in reply from the Commonwealth Director of Public Prosecutions as to the relevance of the decision in R v Woods [2008] SASC 335 as relied on by the appellant in its supplementary submissions.
In particular I agree that Doyle CJ in R v Smith [2008] SASC 135 at [12] and [13] has accurately stated the requirement of a summing up on proof beyond reasonable doubt, which applies in this matter:
Doyle CJ stated:
[12]Mr White, counsel for Mr Smith on appeal, submits that the Judge was required to tell the jury that even if they were to reject Mr Smith’s evidence, that was not enough to support a guilty verdict. The Judge should have told the jury that they had to go further and accept the evidence of J as proof beyond reasonable doubt.
[13]The suggested further direction is a correct statement of the law. In some cases the circumstances might call for a direction along these lines. But it cannot be said that this further direction will always be necessary, nor was it necessary here. The ultimate question is whether the Judge adequately brought home to the jury the requirement for proof beyond reasonable doubt, and what that requirement means. The Judge’s directions were clear, were repeated several times, and adequately identified the jury’s responsibility.
In Woods the majority did not refer to the decision in Smith. It seems that Woods is a decision based on its own facts and relates only to the specific directions given in that case by the trial judge.
In this matter the judge in summing up said at [5]:
If you believe and accept the evidence of the prosecution witnesses, and if you assess it in the manner suggested on behalf of the prosecution, and if you disbelieve the accused regarding, in particular, his denial that he meant to make child pornography material available to others, then I would anticipate you bringing in a verdict of guilty.
His Honour repeated that direction at the end of his summing up. Kelly J has dealt with this statement in her reasons in the context of the effect of the entire summing up and I agree with her analysis of it.
It is my view that Woods is not, as suggested by the appellant, authority for the proposition that the portion of the summing up of His Honour in this matter, as set out above, contains an important error. For the reasons given by Kelly J I do not consider that there is an error.
WHITE J. The circumstances giving rise to this appeal are set out in the reasons of Kelly J. I agree generally with those reasons.
I add the following. On one view, the directions of the Judge given both at the commencement and conclusion of his summing up of which the appellant complains are unobjectionable. It may be said that those directions set out appropriate paths of reasoning which the jury could adopt in considering whether the prosecution had proved the charge.
However, I respectfully consider that directions of this kind may not be appropriate generally. The reason for that lies in the emphasis which such directions give to the acceptance and belief by the jury of two competing bodies of evidence. That emphasis, at both the commencement and conclusion of the summing up in the present case, had the potential to distract the jury from their fundamental task of considering whether the prosecution had discharged the onus on it of proving the charge. The directions may have shaped the issue for determination, in the mind of the jury, as turning on which body of evidence they accepted or believed. The decisions in R v Calides,[1] Murray v The Queen[2] and R v Briske[3] all warn against an identification of the issue in this way.
[1] (1983) 34 SASR 355 at 358-359.
[2] [2002] HCA 26; (2002) 211 CLR 193.
[3] [2007] SASC 314.
Further, the reference in the directions to the evidence which the jury may “believe” may have had the practical effect of emphasising to the jury the importance of the view which they took of the appellant’s own evidence. On my reading of the transcript of the evidence and addresses at trial, the credibility and reliability of the evidence of the prosecution witnesses was not in issue. The appellant had not contended that the evidence of the prosecution witnesses should not be believed or accepted. His case was that that evidence did not warrant the inferences which the prosecution invited the jury to draw, namely, that he had knowingly made pornographic material available by use of the internet. Because the appellant had denied having such an intention, the credibility and reliability of his evidence was directly in issue. In these circumstances, the directions which tended to shape the issue as one about which body of evidence the jury accepted or believed may have suggested to the jury that their focus should be on an assessment of the appellant’s own evidence. This could have distracted the jury from giving attention to the true issue for their consideration, ie, whether they were satisfied that the prosecution had proved the charge. It did not follow of course that rejection of the appellant’s evidence had the consequence that the jury should regard the prosecution case as having been proved. But the impugned directions, although included as assistance to the jury, did have the potential to distract the jury from a proper approach to their task.
However, the Judge’s summing up should be read as a whole. I consider it significant that on numerous occasions during the course of his summing up the Judge directed the jury plainly and strongly as to the onus of proof and as to the standard of proof. It is not necessary to set out in these reasons the actual directions of the Judge to which I am now referring. I am satisfied that the jury was directed so often as to the onus and standard of proof that any tendency which the impugned directions may have had to an inappropriate path of reasoning must have been overcome.
I consider that the jury must have been aware from the Judge’s directions, considered as a whole, that, whatever view they took about belief or disbelief of the prosecution and defence evidence, they had to be satisfied beyond reasonable doubt that each element of the charge was established.
Accordingly, I am satisfied that the Judge’s directions did not involve an error of law or have the consequence that a miscarriage of justice has occurred. I would dismiss the appeal
KELLY J.
Introduction
On 15 August 2008 the appellant was found guilty by a jury of the crime of using a carriage service to make child pornography available, contrary to s 474.19(1)(a)(iv) of the Criminal Code 1995 (Cth) (‘the Code’).
The appellant was originally charged with that offence and one other offence, namely using a carriage service to access child pornography, contrary to s 474.19(1)(a)(i) of the Code. He pleaded guilty to that count and elected to be tried before a judge and jury on the second count. The essence of the prosecution case on the second count was that the appellant was knowingly involved in sharing files on the Internet, which were defined as child pornography under the Code.
The appellant appeals against the guilty verdict of the jury in relation to the second count.
At issue on this appeal are two passages from the learned trial judge’s summing up, which the appellant contends amounted to a material misdirection with respect to the onus of proof and distorted the defence, thereby creating a real risk that the appellant’s defence was not adequately and accurately put to the jury.
In essence, the appellant submits that the ‘advice’ which the trial judge gave to the jury unduly restricted or deflected the jury from its task of giving proper consideration to the whole of the evidence before them with the result that there is a real risk the appellant may have lost a chance of acquittal.
Before dealing with the arguments advanced on this appeal, it is helpful to summarise the relevant facts.
Background
On 19 December 2006, police went to the appellant’s home and seized his personal computer. An analysis of that computer revealed that it had on it a program known as an eMule program. That program enables files within it to be shared with other users. On 19 December 2006, an analysis of the computer showed that of 239 files shared, 43 were child pornography material. Those 43 files were the subject of the charge of using a carriage service to make child pornography available.
The essence of the prosecution case was that the appellant, by operating the file sharing eMule program, was intentionally making those files available to others and at the time he was, at the very least, aware of the substantial risk that there was child pornography material on the file. The prosecution invited the jury to draw that inference from all of those circumstances, including the nature of the program and the manner in which the appellant had used it.
At the time the police attended the appellant’s home on 19 December 2006, the computer was on, connected to the Internet and the eMule program was running. At the time there was no dispute that the appellant was an experienced computer user. One of the exhibits tendered at the trial was a program designed by the appellant. By virtue of the set-up of the file-sharing eMule program, the fact that it was operating meant that the appellant was making the files in his ‘shared files’ available to others. At the time when the police attended, the appellant was therefore making 43 child pornography files available to other users of the eMule program. Analysis of the computer revealed that the appellant had searched on the eMule program using terms such as ‘10yo’, ‘11yo’, ‘12yo’, ‘pre-teen’, ‘Pthc’, ‘Ptsc’, ‘young candid video’, etc. It was the prosecution case that the appellant must have been at least aware of the substantial risk that there was child pornography material on his files because he was in the habit of searching for and downloading child pornography, amongst other material.
There was evidence before the jury that the eMule program is in fact quite simple to use. It is a program used to download video files over the Internet. When that program is loaded on a computer, which is connected to the Internet, the eMule user is connected to all other users who are similarly operating the program and connected to the Internet. eMule users can then copy each other’s files. That occurs by the user searching on a term or a keyword and the computer will then list those available files stored in the memory of other eMule users’ computers that correspond to the search term or keyword used. The user can then select a title or titles from that list, which results in the file being downloaded via the Internet on to their own computer.
There was some further evidence that when the eMule program is opened, there are several tabs which can open different pages of the program. To initiate a search, the user selects the search tab and the search page opens and the user enters a search term. Results of the search are listed on that page and a file can be selected for downloading. The evidence was that a file may take some time to compile. Indeed, a larger file may take many days. The user can then monitor the progress of the file as it is downloading by opening the transfer tab. Once the download is complete, the program automatically sends the file into the shared files folder. To view the completed file, the user opens the ‘shared files’ tab and the title of the downloaded file will appear on that page. In the case of a video file, that video may be played by double-clicking the title name as it appears on the ‘shared file’ page.
A downloaded file is automatically stored in the ‘shared files’. All titles on the ‘shared files’ page are available to other users of the eMule program to copy. The only way to prevent this from occurring is to either delete the file from the ‘shared file’ list, or to move it from that list to another folder within the computer. The procedure is explained in the Help manual which forms part of the eMule program. By clicking on the ‘shared files’ tab, the shared file page lists the title of all the files on the user’s computer that are available to others. Therefore, when using the eMule program, it is easy to see which of a person’s files are available to be shared by other eMule users. It was the sharing of files in this way that was the subject of the charge using a carriage service for making child pornography material available, contrary to s 474.19(1)(a)(iv) of the Code.
The count to which the appellant pleaded guilty related to the appellant accessing child pornography files and saving them. The analysis of his computer revealed 193 files which were child pornography material. In an interview with the police, the appellant admitted that all of the child pornography material had been downloaded using the eMule program.
The second count in respect of which the jury returned the verdict of guilty related to the 43 files found in the ‘shared files’. The remainder of the child pornography material on the appellant’s computer had been removed from the ‘shared files’ and placed in other folders which the appellant had created. The files that the appellant had removed from the ‘shared files’ and placed in other folders were therefore no longer available to be copied by other eMule users.
The case against the appellant was based principally on the analysis of the appellant’s computer and his record of interview with the police. There was expert evidence to the effect that the eMule program was designed to enable users to share material. The appellant had a relatively sophisticated understanding of computers, for example, he had changed default settings on the eMule program, which demonstrated an awareness of how the program operated.
Analysis of his computer showed that particular child pornography files had been uploaded by the users from his computer. Simply highlighting a file in the ‘shared file’ list reveals how many times a particular item has been uploaded. One file, described as ‘Arkive! 6yr 8yr and 11yr Good! Nudism Mast…’ had been uploaded 355 times.
In his defence, the appellant gave evidence and denied that he meant to make the child pornography on his computer available to others. He said that he would review a file after he had downloaded it and if he saw it contained pornography, he would delete it. He claimed he had no knowledge that others had access to any files, and that he never accessed the shared files because he had no need. He gave explanations as to the change of the settings, which the prosecution suggested was inherently incredible and ought to be rejected.
The Trial Judge’s Directions
The trial judge commenced and concluded the summing up with what he described as some assistance to the jury to reach a verdict. These passages were the main focus of the appellant’s complaints on appeal. They are reproduced in full below.
Assist to reach a verdict
I want to start by saying some things to you which you may find of help in actually arriving at a verdict. I will be repeating these things later on and just before you retire to consider your verdict, so there is no need for any of you, at this stage, to make notes; you might care to make notes later when I repeat what I am now about to say.
These are very much matters of fact, they are not matters of law, they are matters for your consideration.
If you believe and accept the evidence of the prosecution witnesses, and if you assess it in the manner suggested on behalf of the prosecution, and if you disbelieve the accused regarding, in particular, his denial that he meant to make child pornography material available to others, then I would anticipate you bringing in a verdict of guilty.
If you believe and accept the evidence of the accused, that is to say his denial of having meant to make child pornography material available to others, then I think you will have little difficulty in arriving at a verdict of not guilty.
If you conclude that it is reasonably possible that the accused’s account (his denial) represents the truth, then, again, I should think you would have little difficulty in arriving at a verdict of not guilty.
If you have a reasonable doubt about any of the ingredients of the charge of using a carriage service to make child pornography material available, then you should give the benefit of the doubt to the accused and acquit him by finding him not guilty.
But, as I said at the outset, if you believe and accept the evidence of the prosecution witnesses and if you assess it in the manner suggested on behalf of the prosecution and if you disbelieve the accused regarding his denial that he meant to make the child pornography material available to others, then I would anticipate you bringing in a verdict of guilty.
Those matters, ladies and gentlemen, are all matters of fact for you; they are not matters of law. I have not been giving you (and I do not give you) directions about them. I have said those things and will be repeating them later out of a desire to assist. I will be (and have been) simply trying to provide you with some assistance in actually arriving at a verdict.
At the conclusion of the summing up the trial judge substantially repeated those paragraphs as follows:
Assist to reach verdict
As I indicated at the commencement of my summing up, ladies and gentlemen, I propose now to repeat what I said at the outset by way of some offered assistance to you in actually arriving at a verdict. I repeat that these are not matters of law. I am not giving you directions about these matters. I am saying these things out of a desire to assist.
If you believe and accept the evidence of the prosecution witnesses and if you assess it in the manner suggested on behalf of the prosecution and if you disbelieve the accused regarding his denial that he meant to make child pornography material available to others, then I would anticipate you bringing in a verdict of guilty.
If you believe and accept the evidence of the accused, that is to say his denial of having meant to make child pornography material available to others, then I think you would have little difficulty in arriving at a verdict of not guilty.
If you conclude that it is reasonably possible that the accused’s account (his denial) represents the truth, then again I should think you would have little difficulty in arriving at a verdict of not guilty.
If you have a reasonable doubt about any of the ingredients of the charge of using a carriage service to make child pornography material available, then you should give the benefit of the doubt to the accused and acquit him by finding him not guilty.
But if, and only if, you believe and accept the evidence of the prosecution witnesses and you assess it in the manner suggested on behalf of the prosecution and you disbelieve the accused regarding his denial that he meant to make the child pornography material available to others, then I would anticipate you bringing in a verdict of guilty.
You should do, ladies and gentlemen, your best to apply the law to the facts. You should remember constantly that the onus of proof rests with the prosecution throughout and that the standard of proof is proof beyond reasonable doubt.

I mention that the parties agreed that the heading contained in the settled version of the summing up was not part of the verbal summing up to the jury.
In the first place, the appellant complained that although the trial judge prefaced those remarks by suggesting that all he was doing was giving the jury some ‘assistance’ and not directions of law, nevertheless given the language he employed, it is unlikely that the jury would have appreciated the difference.
The appellant contends further that in those passages, what the trial judge effectively did was to invite the jury to consider that the appellant’s evidence was the sole bar to conviction. The fact that these passages appeared at the commencement of the summing up and were repeated at the very end of the summing up, just before the jury went out to deliberate, undermined the directions as to the onus of proof which the trial judge gave elsewhere in the summing up.
Furthermore, so the appellant contended, the impugned passages contained a material misdirection of law in that they invited the jury, in effect, to convict the appellant in the event that they either rejected the appellant’s account or concluded that the appellant’s account was not even a reasonable possibility.
This error was compounded by the fact that on the prosecution case alone, depending on the way in which the jury viewed that evidence, there was an alternative route to acquittal. In the appellant’s submission, the trial judge’s advice to the jury not only overlooked that alternative route, but had the effect of focusing the jury’s attention solely on whether the jury accepted or rejected the appellant’s evidence.
In this case, it was particularly important the jury be told to evaluate the prosecution case very carefully as even on the prosecution case without taking into account the appellant’s evidence there was a reasonable explanation for the computer set-up which was consistent with the appellant’s claimed innocence.
Analysis
There is some justification for the appellant’s submission that the jury may not have appreciated the difference between directions of law from the trial judge and comments made by way of assistance in actually arriving at a verdict (as the trial judge put it). The fact that the comments were made at the commencement of the summing up and repeated again towards the conclusion of the summing up, notwithstanding the trial judge’s disclaimer, supports the conclusion that the jury may not have appreciated the difference. In the circumstances, I consider that the real issue, irrespective of the terminology the trial judge used, is whether the comments made in those passages were in fact accurate statements.
In order to address that issue it is necessary to look not just at the passages complained of, but at the whole of the summing up in the context of the legal and factual issues which arose during the trial. One of the critical issues for the jury’s determination at the end of the evidence was whether the prosecution had proved beyond reasonable doubt that the appellant intended to make the child pornography material found on his computer available to others, or at the very least, that he had the knowledge that he was making available child pornography material or he was reckless with respect to the fact that he was making available material which constituted child pornography. There was no dispute that the material found on the appellant’s computer constituted child pornography, however there was a real issue as to whether the appellant intended to make that material available to others. So one of the critical issues was his state of mind. That was the context in which the judge summed up to the jury.
It was necessary for the judge to convey to the jury in clear language that the onus was on the prosecution to prove that the appellant had the requisite state of mind and to prove it beyond reasonable doubt. The question is whether the judge’s statements in the passages complained of suggesting various routes by which the jury may arrive at a verdict of guilty or not guilty, would have deflected the jury from their task, which was to assess on the basis of all of the evidence whether the jury was satisfied beyond reasonable doubt of each and every element of the offence.
In the body of the summing up the trial judge did deal with the critical issues which arose during the trial. On the topic of the appellant’s state of mind, after reminding the jury that if in the end they were unable to decide whether the accused was telling the truth on the particular issue of his state of mind, they should give the benefit of the doubt to the appellant, the trial judge went on to give general directions on the topic of intention and how a person’s intention might be proved. At the conclusion of that general direction he again cautioned the jury against too readily making an assumption of the intent or state of mind of the appellant.
After accurately summarising both the prosecution and the defence cases, which included quoting several key passages from the evidence relevant to the respective cases, the trial judge went on to say:
95Ladies and gentlemen, you will remember constantly that the accused has to prove nothing but in assessing his testimony and his credibility and reliability as a witness you are invited to note that the accused, who was under no legal obligation to answer the questions asked by the police, answered every question and consistently did so, you might think, maintaining that he had no knowledge that these files were being shared. Again, remembering that there is no onus of proof on the accused, you were invited by the defence to evaluate and decide count 2 upon the basis that the accused’s account of events was ‘entirely true’, the words of Mr White. You were invited to see the set-up on p.22 of Exhibit P1, said to be the best evidence as providing support for the proposition that nothing was shared. There is ‘nothing to be shared at that tick and there is nothing else ticked’, Mr White submitted. The lack of files in the ‘Downloads’ section and the absence of ticks in any of the other boxes are significant, so it was argued.
96It was suggested that, far from there having been any sinister purpose, the accused was trying to have the best of both words, so to speak. The defence case was that far from the situation being that the accused must have known that he was sharing files, the computer evidence shows that he deliberately set himself up the other way or, at the least, that there is a reasonable possibility that he did so.
97The defence relies upon the law that if that be the position, that is to say, if there is a reasonable possibility that the accused set things up in the way suggested on his behalf, you are bound to acquit the accused. You are invited to reconsider the evidence of what the accused said to the police when first spoken to and what he said during the lengthy record of interview.
…
100The defence relies upon (and emphasises) that important rule of law known as the presumption of innocence. The defence says that the prosecution has not discharged the onus (or burden) of proof which rests on the prosecution and you cannot be satisfied beyond reasonable doubt. The defence says that there is no direct evidence that the accused opened up and was aware of the ‘Shared Files’ directory. The defence reminds you that the accused told you on oath from the witness box when giving evidence that he did not. He did not go into the ‘Shared Files’ or the ‘Transfer’ section.
In those passages the trial judge drew to the jury’s attention a point which was of critical importance to the appellant’s case, namely that there was an explanation for the computer set up, even if the appellant’s evidence was rejected by the jury, which was nevertheless consistent with the appellant’s innocence. The trial judge clearly and accurately summarised the defence evidence and the defence case. Counsel for the appellant on the hearing of this appeal did not seek to argue otherwise.
It must be borne in mind that it was in the light of the specific issues which arose for the jury’s consideration that the trial judge proffered the guidance or assistance in the passages complained of.
In my respectful view it would have been preferable if the trial judge commenced his summing up by giving the jury assistance with regard to the factual and legal issues which arose for their determination instead of proffering suggestions as to alternative routes by which the jury might arrive at either a verdict of guilty or a verdict of not guilty. However, I cannot accept the appellant’s submission that the comments made by the trial judge in those passages were misconceived at law, nor do I consider that they conveyed to the jury any suggestion that there was any onus of proof on the appellant.
Strictly speaking it was not inaccurate to tell the jury, in effect, in the first paragraph that if they accepted the evidence of the prosecution witnesses and drew the inferences from that evidence beyond reasonable doubt and if they disbelieved positively the appellant’s denials, they would be likely to bring in a verdict of guilty. Nor was it inaccurate to say that if they believed the appellant or at least concluded that it was reasonably possible that the appellant was telling the truth, they would have little difficulty arriving at a verdict of not guilty. Nor was it inaccurate to suggest that the appellant was entitled to the benefit of the jury’s reasonable doubt.
In those passages the trial judge was really doing no more than stating both sides of the coin, namely that in order for the jury to bring in a verdict of guilty, the jury needed to be satisfied beyond reasonable doubt of all of the essential elements of the crime. On the other hand, if they entertained a reasonable doubt about any elements of the crime, they should acquit.
Moreover, having reminded the jury at a number of points throughout the summing up that the accused was presumed innocent, that he did not have to prove anything and that the burden of proof was on the prosecution to prove each and every element of the offence beyond reasonable doubt, in his last direction to the jury the trial judge reminded the jury that they should remember constantly that the onus of proof rests with the prosecution throughout and that the standard of proof is proof beyond reasonable doubt.
In the light of these matters it is difficult to understand the appellant’s contention that the directions of the learned trial judge had the effect of telling the jury that the defence was solely reliant upon the appellant’s evidence. I consider that a reading of the passages as a whole does not support the conclusion contended for by the appellant.
In submitting that the trial judge’s comments constituted a misdirection to the jury, counsel for the appellant relied on a number of authorities commencing with the decision in Murray v The Queen (2002) 211 CLR 193.
In Murray, a trial judge summing up in a murder case, made repeated references along the lines of ‘if you accept the accused’s version…’. The High Court found that the trial judge had effectively posed the question for the jury’s determination with respect to the charge as a question of whether it accepted the prosecution or the accused’s version of events and to that extent the trial judge had misstated the issue in a way that relieved the prosecution from proving it’s case beyond reasonable doubt. The court held that that amounted to a misstatement of the burden of proof and ordered a retrial.
In R v Briske [2007] SASC 314 this court applied the principle enunciated in Murray. The court held that repeated references by the trial judge to the effect of ‘If you accept the evidence of the accused…’ without any counterbalancing instructions, that the accused would also be entitled to an acquittal unless the prosecution negatived, even as a reasonable possibility, the accused’s version amounted to a misdirection. It was held that the cumulative impact of the references by the trial judge to the jury accepting the evidence of the accused was such as to require a retrial.
This court’s decision in R v Woods [2008] SASC 335 was also relied on by the appellant. Although that decision was handed down after submissions were made on this appeal, the court received written submissions from both the appellant and the respondent with respect to the effect of that decision. In Woods the court by majority (Gray and Sulan JJ, David J in dissent) accepted a submission that the trial judge’s directions taken as a whole in that case had the effect of inviting the jury to either accept the prosecution version of events or the appellant’s version. It was held that those directions in conjunction with other defects found in the summing up, constituted a misdirection as to the onus of proof and a retrial was ordered.
One matter which emerges from the decided cases is that it is sometimes a matter of very fine degree as to whether a particular turn of phrase, or perhaps infelicitous expression either in isolation or in combination, have the effect of confusing or misleading a jury to the point where it amounts to a material misdirection.
In the light of what appears to be an emerging trend to subject the summings up of trial judges to minute analysis line by line, passage by passage, it is instructive to reflect on the following passage in the judgment of Kirby J in Murray at 216.Although his Honour was in dissent in that case, the following passage from the judgment is a helpful reminder for an appellate court.
72…However, it is a cardinal principle of appellate scrutiny of judicial instructions to a jury that regard must be had to:
(1)The character of the communication. It obliges a real contact by the judge with the collective mind of the jury fresh from having heard the evidence. It does not call for a convoluted legal essay whose only merit is that it might protect the judge from appellate reversal; and
(2)The entirety of the communication. Particular passages in the instructions must be read and understood in the light of -
(a)     the issues actually fought at the trial;
(b)     the addresses to the jury by trial counsel that immediately preceded the judge's instructions;
(c)     any consideration and discussion between the judge and counsel prior to the instructions as to their content; and
(d)     the entire content of the instructions, taken as a whole. It is a basic mistake to isolate any judicial (or other) utterances and to consider them out of context. But it is especially mistaken to take parts of a judicial communication with a jury in a criminal trial in isolation from the context
Footnotes omitted
It does need to be borne in mind that in a case where an accused person raises a positive defence as was the case here, that when putting the defence case to the jury it is important that the trial judge does not leave the jury with the impression that there is some sort of onus on an accused person just because he has raised a defence. One of the potential difficulties which arises when giving directions which focus on acceptance of an accused’s evidence as a reasonable possibility, is that such terminology might imply that there is some sort of onus on an accused person to raise such a reasonable possibility. It is necessary therefore that trial judges are careful to balance these kinds of directions with a timely reminder that makes it plain that rejection of an accused’s evidence even as a reasonable possibility does not necessarily lead to the conclusion that the accused should be convicted. This is the very point which Doyle CJ made in Briske.
When the passages complained of in this summing up are read as a whole I do not consider that any such inference was conveyed by the trial judge in this case. The issues were narrowly confined and it appears that the trial judge’s guidance to the jury both in the passages complained of and in the balance of the summing up was tailored to those issues.
Counsel for the appellant suggested that there may be some significance in the fact that after deliberating for some time the jury indicated that they may be deadlocked on one or more of the elements. It was said that the reason for the apparent deadlock may have been attributable to the trial judge’s directions in the impugned paragraphs.
I do not consider that the appellant’s argument should be accepted.
This was a trial of a Commonwealth offence requiring a unanimous decision of twelve jurors for conviction. There are so many and varied reasons as to why a jury may reach an apparent state of deadlock in any given case that it would be pointless to speculate.
Moreover, the question which the jury asked after deliberating for some two and a half hours after being sent out, does not support any suggestion that the jury were not alert to the critical issues about which they needed to be satisfied beyond reasonable doubt before convicting the appellant.
In the question which the jury asked, the jury correctly identified the four key matters about which they needed to be satisfied before they could return a verdict of guilty.
Counsel for the appellant also made the point, albeit faintly, that the trial judge’s comments in paragraph 34 of the summing up unduly focussed on the appellant’s credibility compounding the effect of what was said to be the trial judge’s misdirections. In that paragraph the trial judge advised the jury that the appellant’s credibility as a witness was challenged and remained in dispute. Once again when that comment is read in the context of the preceding direction which was a general direction about the assessment of witnesses and how the jury might approach that task, it can be seen that the trial judge’s comment was a statement of the obvious in an appropriate context. The appellant’s complaint about this sentence in the summing up illustrates the difficulty in subjecting to criticism isolated passages in a summing up divorced from the context in which the trial judge expressed them. For these reasons I cannot accept the appellant’s submissions.
Conclusion
On the facts here I consider that the trial judge’s summing up to the jury on the facts and legal issues for the jury’s determination was adequate in identifying the critical issues for the jury’s determination. I do not consider that the summing up as a whole would have led the jury into error or any confusion or misunderstanding by them as to the onus of proof. I would dismiss this appeal.