R v Zreika

[2001] NSWCCA 373

CITATION:	R v. ZREIKA [2001] NSWCCA 373
FILE NUMBER(S):	CCA 60767/00
HEARING DATE(S):	4 September 2001
JUDGMENT DATE:	21 September 2001
PARTIES :	Regina - Respondent Mahmoud ZREIKA - Appellant
JUDGMENT OF:	Hodgson JA at 1; Dowd J at 72; Carruthers AJ at 73

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0287; 99/11/0530
LOWER COURT JUDICIAL OFFICER :	Naughton DCJ

COUNSEL :	Mr. D. Patch for Appellant Mr. W. Dawe QC for Respondent
SOLICITORS:	Galloways, Sydney for appellant S.E. O'Connor, Sydney for respondent
CATCHWORDS:	CRIMINAL LAW - Appeal against conviction - Possession of recently-stolen property - Other evidence from which knowledge that property stolen could be inferred - Whether directions adequate - Allegation of unfairly prejudicial remarks by trial judge - No point taken at trial - Whether leave should be given to rely on this ground.
DECISION:	Appeal against conviction dismissed.; Application for leave to appeal against sentence dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60767/00

Hodgson JA
Dowd J
Carruthers AJ

Friday 21 September 2001

R v. Mahmoud ZREIKA

Judgment
1 HODGSON JA:

On 8th November 2000, the appellant was convicted on four counts of receiving a motor vehicle knowing when he did so it was stolen, after a trial before Naughton DCJ which lasted thirteen days.

2 On 21st January 2001, the trial judge sentenced the appellant. On one of the four charges, he sentenced the appellant to one and a half years' imprisonment commencing on 8th November 2000 and expiring on 7th May 2002; and on each of the other three charges, he sentenced the appellant to two years' imprisonment to be served concurrently, commencing on 8th May 2002 and expiring on 7th May 2004. In relation to the latter sentence, the trial judge set a non-parole period of one and a half years expiring on 7th November 2003.

3 The appellant appeals from his conviction and seeks leave to appeal from his sentence.

4 There were four motor vehicles involved in the charges against the appellant. In relation to each motor vehicle, the appellant faced three charges: stealing (Crimes Act 1900, s.154AA); receiving the motor vehicle knowing when he did so it was stolen (Crimes Act 1900, s.188); and disposing of the motor vehicle knowing when he did so it was stolen (Crimes Act 1900, s.188). The second of those charges in relation to each motor vehicle was brought as an alternative to the first of them, and the third charge was brought as an alternative to the second charge. In relation to each motor vehicle, the jury found the appellant not guilty on the stealing charge and guilty on the receiving charge. The guilty verdict on the receiving charges satisfied the charges of disposing.

5 In essence, the appellant's defence at the trial was that he did not know the vehicles were stolen, and he gave evidence at the trial in which he offered explanations of his possession of the vehicles. The first ground of the appeal against conviction relates to directions given by the trial judge in relation to these explanations. The second ground relates to alleged unfairly prejudicial remarks and opinions expressed by the trial judge in summing up to the jury.

6 Before looking at the grounds of appeal and submissions in more detail, it is convenient to set out an outline of the history in relation to each of the four cars which was supported by convincing evidence at the trial, not the subject of any significant contest at the trial, and not in any way challenged on the appeal; and then to set out the substance of the explanation given by the appellant in relation to each vehicle.

7 The first vehicle, in relation to which the first three charges were brought, was a green 1987 Ford Fairlane sedan registered number ABU 47A.

8 On 24th July 1995, the appellant purchased at an auction a written-off vehicle of the same colour, make and model, which then had registration number QEP 737, for $4,800.00 cash.

9 On 25th October 1995, the vehicle the subject of the charges was stolen from a Mr. Cadefski.

10 On 22nd December 1995, the appellant obtained registration, under registration number QNQ 989, of a vehicle of the same colour, make and model. The registration papers provided by the appellant showed an engine and chassis number identical to those of the stolen vehicle. The inspection report submitted by the appellant showed that the vehicle was in reasonable condition, with an odometer reading of 102,358km.

11 On 16th January 1996, following an advertisement in the Trading Post, the appellant sold a green Ford Fairlane registered number QNQ 989 to one Mr. Newing for $11,000.00 cash.

12 Later, this vehicle sold to Mr. Newing was identified by Mr. and Mrs. Cadefski as the stolen vehicle, and the previous owner of the written-off vehicle purchased by the appellant at auction said that for a number of reasons this vehicle was not his vehicle. A crime scene examiner gave evidence that the original engine and chassis number of the stolen vehicle had been altered so as to appear to be those of the written-off vehicle.

13 The second motor vehicle, the subject of the fourth to sixth charges, was a blue 1996 Holden Commodore sedan registered number QTF 967.

14 On 5th March 1997, the appellant purchased a written-off vehicle of the same colour, make and model, then registered number OEA 261, at an auction for $12,000.00 cash.

15 On 25th or 26th March 1997, the subject vehicle was stolen from Mobil Oil Pty. Limited.

16 On 27th March 1997, the appellant obtained registration under registration number QWH 562 for a vehicle of the same colour, make and model. The inspection report presented by the appellant in applying for registration showed that the vehicle was in apparently sound condition, with an odometer reading 5,190km.

17 On 24th April 1997, the appellant sold the vehicle QWH 562 for $24,000.00. There was expert evidence that this vehicle had the engine and identification and compliance plates from vehicle QTF 967, and the vehicle was clearly identified as being the vehicle stolen from Mobil.

18 The third motor vehicle, the subject of the seventh to ninth charges, was a blue 1996 Holden Berlina sedan registered number AEG 43G.

19 On 27th June 1997, the appellant purchased a written-off 1996 blue Commodore registered number UFQ 328 at an auction for $7,000.00 cash.

20 On 2nd or 3rd July 1997, the vehicle the subject of the charges was stolen from a Mr. Horrell.

21 On 9th July 1997, the appellant presented papers in support of an application for registration of what was described as a "Commodore Berlina" with a claimed market value of $17,000.00, together with an inspection report showing the vehicle in apparently sound condition and with odometer reading 19,674km. This vehicle was registered under the registration number UNB 608.

22 On 22nd August 1997, the appellant sold the vehicle UNB 608 for $25,000.00.

23 Expert evidence showed that the vehicle sold by the appellant had the engine and identification and compliance plates from UFQ 328. Other evidence showed that the vehicle was not the vehicle UFQ 328, and it was identified by Mr. Horrell as being the vehicle stolen from him.

24 The fourth vehicle the subject of the tenth to twelfth charges, was a white 1996 Holden Berlina sedan registered number UGJ 220.

25 This vehicle was stolen from Canterbury/Hurlstone Park RSL Club on 24th or 25th May 1997.

26 On 27th June 1997, the appellant purchased a written-off white Holden Commodore sedan registered number QSY 846 at an auction for $9,800.00.

27 On 30th September 1997, the appellant presented to the RTA registration papers for what was described as a "VS Holden Commodore Berlina" with a claimed market value of $19,000.00. The appellant also provided an inspection report stating the vehicle was in apparently sound condition and with odometer reading 6,400km. The vehicle was registered under registration number URN 904.

28 On 2nd or 3rd October 1997, the appellant sold the vehicle URN 904 for $24,000.00.

29 Expert evidence showed that this vehicle had the engine and identification and compliance plates from the vehicle QSY 846. The evidence also showed that this vehicle was not in fact the vehicle QSY 846. It was identified by Mr. Thomas from the Canterbury/Hurlstone Park RSL Club as being the vehicle stolen from that club.

30 The appellant's evidence in relation to these vehicles was to the following effect.

31 In relation to the first vehicle, he went to the auction with his friend Ahmed Katiah. Mr. Katiah did the bidding, provided the money, and the vehicle was taken to Mr. Katiah's workshop. Subsequently, Mr. Katiah telephoned the appellant, said the car was fixed, and asked the appellant to register the vehicle in the appellant's name because Mr. Katiah had too many cars in his name. Mr. Katiah then asked the appellant to sell the car for him and give the proceeds to Mr. Katiah. The appellant did so and received $300.00 for selling the car. In relation to this vehicle, as in relation to all four vehicles, the appellant denied stealing it and denied ever knowing it was stolen.

32 In relation to the second vehicle, the appellant said that he went to the auction with his nephew Tony Yaghi, who was a panel beater, and who was helping him to buy a car. His nephew lent him the $12,000.00 with which he purchased the car. He then took the car to a repairer Ahmed Metar. Mr. Metar repaired the car, and provided documents for registration, and the appellant paid Mr. Metar $8,000.00 for carrying out this repair.

33 In relation to the third and fourth vehicles, the appellant said that he went to the auction by himself. After buying the car, he took it to Ahmed Metar for repair, and subsequently paid Mr. Metar for the repairs, the sum of $12,000.00 in relation to the third vehicle, and $9,000.00 in relation to the fourth vehicle.

34 In the case of the second, third and fourth vehicles, the appellant admitted lying to the purchaser of each vehicle about the history of the vehicle, in order to mislead the purchaser and obtain a satisfactory sale of the vehicle. \

35 The first ground of the appeal against conviction was that the trial judge misdirected the jury on the question of recent possession.

36 In support of this ground, Mr. Patch for the appellant referred the Court to a number of passages in the summing up by the trial judge, including the following passage:

If an accused person has property in his possession which has recently been stolen and he either gives no explanation as to how he came to have it, or gives an explanation which you are satisfied could not reasonably be true, then you are entitled to take that into account in determining whether you are satisfied beyond reasonable doubt that the accused stole that property or that he received it believing it to have been stolen.

37 A little later, the trial judge noted in his summing up that the appellant had sought to give explanations, and he continued:

It is a question for you as to whether you accept them as being reasonable explanations. ... If you consider that an explanation was called for from the accused and that he has not given one, that is, not given an explanation or a reasonable explanation for his possession of the stolen goods, you can take that into account against the accused and weigh it up in the light of the whole of the evidence in deciding whether the Crown has proved its case against the accused.

38 Mr. Patch submitted that this in effect reversed the onus of proof. At the very least, he submitted, the trial judge should have said, after the words "it is a question for you as to whether you accept those explanations", further words such as "or regard them as being reasonably possible". In substance, the trial judge told the jury that they could take the appellant's explanation into account in the appellant's favour only if in fact they accepted it.

39 Mr. Patch further submitted that it was an error to say that the failure of the accused to give an explanation can be taken into account: what the trial judge should have said was that "if the accused does given an explanation which you cannot dismiss beyond reasonable doubt, then you should not convict on the basis of recent possession".

40 In support of that submission, Mr. Patch referred to the case of Bellamy (1983) 3 A Crim R 432. He noted that, at 437, Street CJ said that "It is enough if [the jury] thinks that the explanation may reasonably be true" for the jury not to be able to convict "merely on the basis of possession of recently-stolen property". He referred also to passages in the judgment of Reynolds JA, including the following at 438:

If the jury is left in doubt, that is, they think the explanation may be true, then ... the accused is entitled to an acquittal.

41 Mr. Patch also referred to Richards (1987) 34 A Crim R 407, in which Bellamy was followed.

42 Mr. Patch submitted that the trial judge's direction erroneously suggested to the jury that the accused had the onus to provide an explanation, because otherwise, how could the jury take into account the accused's failure to give an explanation or give a reasonable explanation?

43 Mr. Patch pointed out that both the defence and the Crown sought a re-direction on this matter. Mr. Patch submitted that this shows how the matter was perceived, on both sides, in the courtroom dynamics at the time.

44 Mr. Patch also submitted that in relation to the fourth vehicle, there was a delay of over four months between the time when the vehicle was stolen and the time when it was shown to be in the appellant's possession. Mr. Patch submitted that that was too long a period for the possession to count as the possession of property recently stolen, so that the direction in relation to that matter should not have been given in relation to that charge.

45 In my opinion, it was not an error for the trial judge to have directed the jury to the effect that, if they were satisfied that the appellant's explanation could not reasonably be true, they could take into account the recent possession and their view of the explanation as matters tending to support a finding of guilty. In my opinion, to give a direction in those terms is not a reversal of the onus of proof. Certain of the passages in the summing up, highlighted by Mr. Patch, could, if read in isolation, suggest that the jury was entitled to take recent possession into account in support of a finding of guilt if they did not accept the appellant's explanations as reasonable explanations, as distinct from being satisfied that the explanations could not reasonably be true. However, in my opinion a fair reading of the whole summing up indicates that the jury would not have been left with the impression that they could find the appellant guilty, on the basis of recent possession alone, even if they were not satisfied beyond reasonable doubt that the appellant's explanations could not possibly be true.

46 In some cases, it will be desirable for a trial judge to squarely put to the jury that, if they are not satisfied beyond reasonable doubt that the accused's explanation is false or if they think the explanation is reasonably possible, then they cannot convict merely on the basis of possession of recently stolen property. That direction would often be appropriate if the only evidence of guilt, or the main evidence of guilt, is possession of recently-stolen property. On the other hand, if the possession of recently-stolen property is only one small element in the Crown case, and is not an essential link in a chain of Crown evidence but rather one independent support of a case having other independent support, then it may be confusing for a jury to put the matter to them in those terms.

47 In the present case, the evidence of guilt went far beyond possession of recently-stolen property, and amounted to an extremely strong circumstantial case based on many elements. The ultimate question for decision by the jury was not whether the appellant's story was reasonably possible, but whether on the whole of the circumstances of the case they were satisfied beyond reasonable doubt that the appellant knew the property was stolen. The plausibility of the appellant's explanation was only one factor going to this question. The trial judge made it abundantly clear that the jury had to be satisfied beyond reasonable doubt that the appellant knew that the property was stolen.

48 Without attempting to be exhaustive as to the circumstantial case against the appellant, independently of possession of property recently stolen, I note that the evidence showed four separate occasions when a car, similar to a written-off vehicle purchased by the appellant, was stolen at around the time of the purchase by the appellant: in the case of the first vehicle, it was stolen three months after the purchase; in the case of the second vehicle, it was stolen three weeks after the purchase by the appellant; in the case of the third vehicle, it was stolen one week after the purchase by the appellant; and in the case of the vehicle, it was stolen one month earlier than the purchase by the appellant. On each of these four occasions, the stolen car was substituted for the car purchased by the appellant, with its identification being altered to that of the written-off car purchased by the appellant and, on three occasions, with the engine substituted. The appellant then sold this vehicle shortly afterwards, having obtained a new registration number for it. On each of these four occasions, the written-off car had a severely damaged body, whereas the car sold by the appellant had an undamaged body, which the appellant claimed he believed to be the result of repairs made to the written-off vehicle.

49 Having regard to the strength of the inference of knowledge that each vehicle was stolen that arises from these circumstances, and the further details of them appearing in the evidence, it is my opinion that it was not necessary for the trial judge to give a specific direction that, if they thought the appellant's explanation was reasonably possible, then it was not open to them to convict merely upon the basis of possession of recently-stolen property. It was never the Crown's case that the appellant should be convicted merely upon the basis of possession of recently-stolen property.

50 Accordingly, I do not think a case of misdirection has been made out on this basis. In coming to that view, I take into account the submission concerning the request for redirection at the trial, although I note that the Crown's acquiescence in the appellant's request for redirection was explicitly made out of an abundance of caution.

51 As regards the other submission, that it was inappropriate to give a direction in relation to possession of property recently stolen when the possession was over four months after the stealing, I accept the submission made by Mr. Dawe QC for the Crown based on certain passages in the judgment in R v. Sinanovic [2000] NSWCCA 395, at pars.25-26. After referring to R v. Smail (unreported CCA 15th August 1986) Hulme J expressed the view that, having regard to the basis of the doctrine, namely the unexplained fact of possession, and having regard to the nature of the property, the doctrine could properly be applied in that case where the time between the stealing and possession was as much as seven months. I accept that Mr. Dawe's submission that there is no hard and fast line that can be drawn as to what would constitute possession of property recently stolen, that it depends on the circumstances of the case, and that it could not be concluded that in this case the period of just over four months was too long for the possession to count as "recent".

52 The second ground of appeal against conviction was that there was a miscarriage of justice by reason of the unfairly prejudicial remarks and personal opinions expressed by the trial judge in his summing up to the jury.

53 Mr. Patch submitted that, at several points during the summing up, the trial judge made sarcastic and unfairly prejudicial remarks that made it patently obvious that he did not believe the accused. He submitted that the cumulative effect of these remarks must have been very strong. The remarks included the following four excerpts from the summing up:

SU85: "Your may think ladies and gentlemen - it is a matter entirely for yourselves - that this was a very sophisticated and a very clever operation and not by someone who was the unsuspecting, ignorant person whom you might think it was the intention of the accused to put himself forward as. But this is a matter for you to determine."
SU100: "As to the accused saying that he did not know anything about the cars you might think, ladies and gentlemen, that he knew a hell of a lot about how to buy them, how to have them cheaply repaired, how to re-register them, how to advertise them cleverly, how to sell them cleverly by even telling the prospective purchaser "I'll just go and check with my wife" to make the purchaser think that he really was fair dinkum and bona fide and genuine, You might think that he was very clever in those respects. He certainly seemed to have fooled four not unintelligent purchasers. It is a matter for you to determine whether this was a clever and highly sophisticated theft operation and "re-birth" operation. That is a matter which you have to decide."
SU102: (in reference to the fact that no car remains were found at the accused's premises) "You might think, ladies and gentlemen, that this is just an indicator of the man's efficiency and that an efficient operator in that type of field would get rid of incriminating evidence as soon as he possibly could."
SU104: "There is one particular question you might think was significant that was asked shortly half way through his evidence. He was asked in chief by Mr. D'Arbon...."When you took possession of the repaired car on the day you went to the registry did you know that the car was in fact a re-birthed stolen car?" Answer, "No, not at all."
You might ask yourselves is that the sort of answer you would get from someone who knew nothing about these sort of procedures. You might think would he not have said what does "re-birthing" mean, but he did not do that, he just said straight away "no, not at all." It is one of the matters you might take into account."

54 Mr. Patch submitted that the last comment was also illogical, because, by the time of the trial, the accused would have been well aware of the meaning "re-birthing", because it was part of the Crown case.

55 Mr. Patch referred to the cases of Courtney-Smith (1990) 48 A Crim R 49, R v Machin (1996) 68 SASR 526, and R v Sinanovic [2000] NSWCCA 396, at pars.129-139. He submitted that in this case, as in Machin and Sinanovic, the credibility of the appellant was crucial and the comments of the trial judge, conveying forcefully that he disbelieved the appellant, must have worked very much and unfairly to the prejudice of the appellant. As noted in those cases, it was not sufficient to tell the jury that they should disregard the judge's comments unless they happened to coincide with their own views.

56 I note that no objection was taken to these aspects of the summing up at the trial, so according to r.4 of the Criminal Appeal Rules, the leave of the Court is required before this ground can be relied on. As stated in R v Ion (1996) 89 A Crim R 81, leave should be granted only if the appellant satisfies the Court that the omission to raise the objection has led to a miscarriage of justice. Having regard to the nature of the comments, their place in a long summing up, the clarity with which the trial judge made it clear to the jury that they should disregard any view of the facts expressed by him unless it coincided with their own view, the circumstance that no objection was taken at the trial, the strength of the Crown case, and the circumstance that the appellant admitted to the jury that he told lies about the motor vehicles to purchasers in order to mislead them about the history of the motor vehicles and induce them to purchase the vehicles, I am far from satisfied that there has been a miscarriage by reason of the comments complained about. Indeed, I am affirmatively satisfied there has been no miscarriage. Accordingly, I would not grant leave to rely on this ground.

57 I would add that in any event I am not satisfied that the stringent approach to these questions supported by Machin, but questioned by subsequent cases in South Australia, is good law in New South Wales. With the possible exception of the last comment, I do not believe in the particular circumstances of this case, the comments transgress even the more stringent approach of Machin. There is some force in the criticism of the last comment; but in my view, this one illogical comment on the facts in the long summing up would not in any event justify allowing an appeal.

58 Turning to the application for leave to appeal from the sentence imposed, ground 1 of this application was that the trial judge erred in not considering whether there were "special circumstances" in the meaning of s.44(2) of the Crimes (Sentencing Procedure) Act 1999; and ground 2 was that the trial judge erred in not finding that there were such "special circumstances".

59 Mr. Patch pointed out that, because the judge adopted a non-parole period of three-quarters of the head sentence in relation to the two year sentence on the counts concerning vehicles two, three and four, the effect of the totality of the sentence was that the total period during which the appellant was ineligible for parole was six-sevenths of the total of the sentences. The circumstance that the period of imprisonment, in relation to which a non-parole period was set, was accumulated on an earlier sentence, so that the period during which the appellant would not be entitled to parole was extended, was one which could amount to a special circumstance: see R v Moffitt (1990) 20 NSWLR 114; Simpson (1992) 61 A Crim R at 61; Close (1992) 65 A Crim R 55 at 60; Bidner, NSWCCA, file numbers 60307/91 and 60330/92; R v Bo Too & Maiereriki, NSWCCA BC9201742 16/7/92. The sentencing judge expressly found there were not special circumstances, but the failure to advert to the disproportion resulting from the accumulation of sentences and the gross disproportion itself showed that the judge had not considered these matters which could amount to special circumstances, and had erred in not finding special circumstances and fixing an effective non-parole period more proportionate to the total sentence. Particularly was this so, Mr. Patch submitted, when there was a normal practice of setting the non-parole period at three-quarters of the head sentence, unless there was some justification for departing from this.

60 Of course, as conceded by Mr. Patch, there is no rule requiring justification for departure upwards from an effective non-parole period of three-quarters of the head sentence. Furthermore, the discrepancy between an effective non-parole period of three-quarters, as is quite usual, and an effective non-parole period of six-sevenths, as in this case, is not a large difference. The failure expressly to refer to the possibility that the accumulation of sentences could amount to special circumstances is not a conclusive indication that the sentencing judge did not consider this, particularly where there were no factors suggesting that the appellant would be assisted by a lengthy period of parole. Sentencing judges are not required to refer explicitly to every matter which they take into account or decide not to give effect to.

61 Accordingly, I would not grant leave to appeal on this ground.

62 Ground 3 of the sentence application was that the trial judge erred in not making all sentences concurrent.

63 Mr. Patch submitted that the acts for which the applicant were sentenced were all part of the same related series of events, considered by the sentencing judgte as part of a carefully and cleverly organised scheme; and so the sentences should have been concurrent.

64 In my opinion, the circumstance that one count related to events in 1995 and early 1996, and the other counts all related to events occurring in 1997, was sufficient to justify the course taken by the sentencing judge in his discretion. In my view also, the totality of the sentence was entirely appropriate.

65 Ground 4 of the application in relation to sentence was that the trial judge erred in taking into account the fact that the Court file disclosed that the appellant had appealed to the Court of Criminal Appeal before he was sentenced.

66 Mr. Patch referred to a remark where the sentencing judge is recorded as saying to the effect that the appellant had not shown any contrition, repentance, or remorse, and went on to say that on the contrary, he had remained defiant, and filed an appeal against conviction. It was an error, Mr. Patch submitted, to take into account the matter of appeal and the appellant remaining defiant as matters of aggravation.

67 In my opinion, the reference to an appeal having been lodged was only made in the context of matters negativing contrition, repentance, and remorse on the part of the appellant, and was not in any way taken into account as a matter of aggravation. It was appropriate for the sentencing judge to take into account the lack of contrition, repentance, and remorse shown by the appellant.

68 Ground 5 of the application in relation to sentence was that the appellant was sentenced on the basis that he was involved in the theft of the motor vehicles, even though he had been acquitted of all stealing charges.

69 Mr. Patch pointed to the remarks of the sentencing judge as follows: "I find that the offender had a significant part in the overall scheme of theft, alteration and re-sale. His criminality was of a high order." Mr. Patch submitted that it was not open to the sentencing judge to take into account aggravating circumstances covered by charges in an indictment in respect of which the person had been found not guilty by the jury, in the same way as the judge could not take into account aggravating circumstances not charged in the indictment: see Kingswell (1985) 19 A Crim R 65, and De Simoni (1980-81) 147 CLR 383.

70 In my opinion, as submitted by Mr. Dawe, the remarks did not indicate that the sentencing judge was impermissibly elevating the criminality of the appellant to that of a thief, but rather elaborated on the character of the receiving of which the appellant had been found guilty.

71 For these reasons, I propose the following orders:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence dismissed.

72 DOWD J: I have read the judgment of Hodgson JA in draft form. I agree with the orders proposed, and with his Honour's reasons.

73 CARRUTHERS AJ:

I have had the benefit of reading the judgment in draft form of Hodgson JA. I agree with the orders which he proposes, and his reasons therefore.

74 I wish however to add certain comments of my own in relation to the second ground of appeal, namely, that there was a miscarriage of justice by reason of the unfairly prejudicial remarks and personal opinions expressed by the trial judge in his summing up to the jury.

75 The relevant facts, so far as this ground is concerned, are set out in the judgment of Hodgson JA and I gratefully adopt what his Honour has said in that respect, and I agree that leave to appeal on this ground should be refused for the reasons set out by his Honour.

76 Effectively this ground is one that the trial judge was guilty of perceived bias in his summing up.

77 This is a serious accusation to make against a trial judge. There is an additional element of seriousness in that counsel for the appellant at the trial did not object to any of the statements which are now impugned and sought no correction or redirection in that regard. There can be no suggestion that this was an oversight on the part of defence counsel, who conducted the trial with skill and resolution. So much is evident from the transcript. Rule 4 of the Criminal Appeal Rules requires therefore that the leave of this Court is required for reliance by the appellant on this ground.

78 In both written and oral submissions, counsel for the appellant (who was not counsel at the trial) made a stinging attack upon the conduct of the trial judge. The written submissions contend that:

At several points during the summing-up, the trail (sic) judge made sarcastic and unfairly prejudicial remarks which made it patently obvious that he did not believe the accused.

79 The leading authorities in this area were considered recently by Hulme J in R v Sinanovic [2000] NSWCCA 396 at paras 77-86. It is not necessary therefore for me to refer in detail to the well known authorities in this field of the law.

80 The law was concisely stated by this Court (Gleeson CJ, Kirby P, and Lusher AJ) in R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 56: -

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 may make no observation on the facts.

81 Necessarily, questions of fact and degree arise here, as well as changing perceptions of fairness. Views must necessarily differ as to what is "an unfair-unbalanced intrusion by the judge into discussion of the facts".

82 It does appear that the number of cases in which criticism of the trial judge's comments in relation to factual matters is increasing and there is an increasing readiness on the part of appellants to raise this ground irrespective of whether objection was taken at first instance or not.

83 This increasing degree of criticism arises in the context that the nature of a criminal trial in this day and age is demanding and imposes considerable pressure on trial judges who in most cases are dealing with complex questions of law and procedure as well as not infrequently complex evidentiary matters, particularly where scientific evidence has been led and challenged.

84 The question of how far judges may go in expressing views regarding the evidence during the course of a criminal trial is probably as old as the judicial process itself. It is now some 400 years since Sir Francis Bacon uttered the well known aphorism that "an overspeaking judge is no well-tuned cymbal". But, as McReynolds J pointed out in his dissenting judgment in Berger v United States (1921) 255 U.S. 22 at 43: -

And while 'an overspeaking judge is not well-tuned cymbal' neither is an amorphous dummy unspotted by human emotions a becoming receptacle for judicial power.

85 In Peter George Sparrow (1973) 57 Cr App R 352, the Court of Appeal (Criminal Division) was concerned with, on appeal of a murder case, whether the trial judge's comment on the failure of the accused to give evidence (which comment was made in one form or another on 6 occasions) exceeded the grounds of what was permissible such as to create a miscarriage of justice. In rejecting the appeal, Lawton LJ, speaking on behalf of the Court, said (at 362-363): -

In the judgment of this Court, if the trial Judge had not commented in strong terms upon the appellant's absence from the witness-box, he would have been failing in his duty. The object of a summing-up is to help the jury and in our experience a jury is not helped by a colourless reading out of the evidence as recorded by the judge in his notebook. The Judge is more than a mere referee who takes no part in the trial save to intervene when a rule of procedure or evidence is broken. He and the jury try the case together and it is his duty to give them the benefit of his knowledge of the law and to advise them in the light of his experience as to the significance of the evidence ; and when an accused person elects not to give evidence, in most cases, but not all, the Judge should explain to the jury what the consequences of his absence from the witness-box are and if, in his discretion, he thinks that he should do so more than once, he may; but he must keep in mind always his duty to be fair. [my emphasis]

86 The passage in bold above is important. It rightly stresses the complementary role which the judge and jury play in the criminal trial process, and a judge's need to assist the jury (based on his or her experience) with regard to the significance of the evidence where such assistance is necessary.

87 The general problem under consideration was adverted to by the majority of the High Court (Gaudron ACJ, Gummow, Kirby and Hayne JJ) in RPS v The Queen (2000) 74 ALJR 449 at 458, where their Honours said when dealing with judicial instructions in criminal trials: -

Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.
But none of this must be permitted to obscure the division of the functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel. (my emphasis)

88 Some judges take the view that they should never comment in relation to the facts irrespective of how the matter is ultimately left for consideration by the jury. Other judges take a different view, and at times conclude that assistance by them would be appreciated by the jury in dealing with factual issues. The High Court still allows for that position consistently with well established authority.

89 Sometimes, and this is not uncommon in modern litigation, the jury may well be left in a state of confusion if all that is done by the trial judge is to remind them of the evidence in the course of identifying the issues before them of the arguments of counsel.

90 As Windeyer J expressed the matter in Jones v Dunkel (1959-60) 101 CLR 298 at 314:-

So much, too, depends upon the judge's view of what guidance the particular jury should have in the particular case; upon how far he may think it necessary to go over matters on which counsel addressed; or, on the other hand, on how far he may think he should bring into sharper focus matters which counsel blurred. And much depends on how far he may think it desirable, after advocacy is spent, to redress the balance. On top of all this, the summing up has to be given promptly at the conclusion of the trial, without the opportunity for careful composition which a reserved judgment may get.

91 I cannot stress too strongly that it is the function of trial counsel to raise with the judge any comments on factual matters made by the judge, which counsel responsibly considers to have extended beyond the bounds of fairness. The matter can then be dealt with by argument and if necessary, corrected by the trial judge. If the trial judge maintains the comment and conviction ensues, then a proper platform has been raised for the matter to be dealt with in this Court. It is not appropriate that complaints be gleaned from a meticulous reading of the transcript well after the conclusion of the trial by counsel whose task it is to seek and find what they believe to be points justifying an appeal. This syndrome has now become so common that it has attracted the appellation of "an armchair appeal point". It would also eliminate the necessity of this Court having to hear argument in relation to alleged unfairness by a trial judge who has never had the opportunity to reconsider the relevant comment at the appropriate time, namely, when it was made.

92 In my view this Court should necessarily look with some circumspection upon appeals based upon allegedly prejudicial remarks by the trial judge in the absence of objection being taken by counsel at the trial.

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