Regina v Patrick James Colville

[2003] NSWCCA 23

Reported Decision: 137 A Crim R 543

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Patrick James Colville [2003] NSWCCA 23
HEARING DATE(S):	10 February 2003
JUDGMENT DATE:	21 February 2003
JUDGMENT OF:	Handley JA at 1; Sully J at 2; Buddin J at 75
DECISION:	Appeal against conviction dismissed.
LEGISLATION CITED:	Criminal Appeal Act 1912 (NSW) Bail Act 1978 (NSW)
CASES CITED:	Mraz v The Queen (1955) 93 CLR 493 Queen v Ireland (1970) 126 CLR 321 Maric v The Queen (1978) 52 ALJR 631 Azzopardi v The Queen (2001) 205 CLR 50
PARTIES :	Regina Patrick James Colville
FILE NUMBER(S):	CCA 60895/01
COUNSEL:	D. Frearson - Crown P. Game - Appellant
SOLICITORS:	S. E. O'Connor - Crown D. J. Humphreys - Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	00/41/0162
LOWER COURT JUDICIAL OFFICER :	Shillington DCJ

60895/01

HANDLEY JA
SULLY J
BUDDIN J

Friday 21 February 2003

REGINA v Patrick James COLVILLE

Judgment

1 HANDLEY JA: I agree with Sully J

2 SULLY J: Between 28 and 30 November 2001 the appellant, Mr. Colville, stood trial in the District Court at Queanbeyan, and before his Honour Judge Shillington QC and a jury. The charge upon which the appellant was so tried alleged that on 27 March 1997, at Queanbeyan, the appellant had maliciously inflicted grievous bodily harm upon a named victim. The jury found the appellant guilty as charged, and he was sentenced subsequently to a substantial term of imprisonment. The appellant now challenges his conviction; but he does not apply for leave to appeal against his sentence, and no more need now be said about the sentence.

3 The following grounds of appeal were notified and argued:

“1. The trial judge erred when he revoked bail on 28 November, 2001.
2. The trial judge erred when he refused bail on 28 November, 2001.
3. The trial judge erred when he refused to grant an adjournment on 30 November, 200l
4. The trial judge erred when he refused to discharge the jury on 30 November, 2001
5. The trial judge did not give the jury adequate directions on the appearance and ill-health of the appellant.
6. The trial judge did not give the jury adequate directions on the silence of the appellant at trial.
7. The trial miscarried by reason of the fact that a court officer advised the jury at the trial judge’s request at about 4 pm on Friday 30 November, 2001 that unless the jury had a verdict by 4.30 pm they would have to come back on Monday.”

The Course of the Trial

4 On 28 November, a Wednesday, the appellant was formally arraigned; and his trial commenced. The hearing proceeded without event until the normal luncheon adjournment. When the Court resumed after the luncheon adjournment, the appellant was not present. The following interchange occurred between the learned trial Judge and Mr. Winch, counsel at trial for the appellant:

“WINCH: I was just looking towards the door in the hope that Mr. Colville would be coming through it. I last saw him going up town as I was coming back with some sandwiches, I assumed he was going to get some. He’s not back.
HIS HONOUR: How long ago was that that you saw him going ---
WINCH: I saw him at about twenty past I suppose, or quarter past.
HIS HONOUR: I think you better warn him, if this happens again he’ll have to go into custody during the trial.
WINCH: Your Honour I appreciate that, but that’s the circumstances.
HIS HONOUR: Mr. Colville, why weren’t you here at two o’clock?
ACCUSED: I thought I was on time.
HIS HONOUR: Have you got a watch?
ACCUSED: No.
HIS HONOUR: You’ll have to be here on time in future.
ACCUSED: Sorry.”

5 Thereafter the hearing proceeded without event until the normal adjournment at the end of the sitting day. Counsel then appearing for the appellant raised the matter of bail. The trial Judge said that he would continue the appellant’s bail, but upon stated conditions. The only such condition now relevant was that the appellant be back at Court not later than 9.30 a.m. on the following day.

6 On Thursday, 29 November, the Court duly re-assembled. The appellant was not present. According to the trial transcript, the following interchange occurred:

“HIS HONOUR: Is your client here Mr. Winch?
WINCH: He wasn’t when I walked in the door, your Honour, my solicitor is just going to make a phone call on his mobile.
HIS HONOUR: Does he live around here?
WINCH: No he lives in Dickson in Canberra in the ACT.
HIS HONOUR: I did warn him yesterday so I think ---
WINCH: I’ve got nothing to say, your Honour.
HIS HONOUR: What’s the rate of progress of the Crown’s case at the moment?
CROWN PROSECUTOR: We’re still in the thick of it, your Honour, in relation to various observations at the scene. I anticipate it will perhaps become a bit more focused after lunch this afternoon and I’m hopeful that I’ll finish by midday tomorrow at the latest. Your Honour, I’ll just flag at this stage that I have a witness who is currently in custody, a Mr. Bradley Patterson, and it may be I’ll be seeking leave to cross-examine pursuant to section 38.”

7 Another matter was then interposed, there being no indication in the transcript of how long its hearing lasted.

8 The trial Judge then returned to the appellant’s matter. The following interchange is recorded:

“HIS HONOUR: What’s the latest?
WINCH: Miss Byrd went out and there was nothing happening on his mobile and a look up and down the street doesn’t show him running towards the court, so I’m not in a position to assist your Honour than that.
HIS HONOUR: Probably the option is to go on without him if he’s intentionally absented himself from the court. I wouldn’t do that straight away of course.
WINCH: That’s an option of course that’s available to your Honour.
HIS HONOUR: What authority have the New South Wales police got to go into the ACT if I direct the issue of a bench warrant.
WINCH: I think they wouldn’t be able to execute it until he was in this jurisdiction. My understanding is they don’t have any authority to go and pluck him from Canberra but of course there may be some co-operation between the ACT authorities and the New South Wales ones that might provide for him to be apprehended in those circumstances. I’m not sure how that works, your Honour, I must say.
HIS HONOUR: I might ask the registrar to come and see me, he’s probably got the latest information on the subject.
WINCH: I couldn’t be sure of that, your Honour.
HIS HONOUR: I think in the circumstances I’ll direct the issue of a bench warrant for his arrest and I’ll just take a short adjournment. If there’s any information, if you could urgently convey it to me or to my associate, Mr. Winch.
WINCH: Of course, your Honour.”

9 The trial transcript records that there was then a short adjournment, but does not indicate its actual duration.

10 The appellant did, eventually, arrive at Court. The precise time of his arrival is not noted in the transcript. Mr. Winch, who was the appellant’s counsel at trial, swore, and the Court received in connection with the present appeal, an affidavit descriptive of various events occurring at the trial. It will be necessary to make, from time to time herein, reference to things said by Mr. Winch in that affidavit. Paragraph 3 of Mr. Winch’s affidavit deposes to the fact that the appellant arrived at Court on the Thursday morning at 10.40 a.m; and this is broadly consistent with the notation in the trial transcript that the first witness who was called after the appellant arrived at Court, was so called at 10.40 a.m. Mr. Winch’s affidavit deposes to the fact that the appellant, upon arrival at 10.40 a.m., appeared to Mr. Winch to be “hot and sweaty”.

11 The appellant having arrived at Court, the following interchange occurred:

“HIS HONOUR: Mr. Winch, your client I see is now here in court.
WINCH: Yes he is, your Honour.
HIS HONOUR: Is there any explanation as to why he wasn’t here at 10 o’clock?
WINCH: The explanation that he gives is that the vehicle he was travelling in was stopped by the Roads and Traffic Authority somewhere near Fyshwick and was delayed and inspected for more than half an hour.
HIS HONOUR: Did he have a mobile phone with him?
WINCH: I didn’t ask I’m sorry. I’m told he had it with him but it plainly wasn’t working when we called, your Honour.
HIS HONOUR: Sorry, he had it with him but ---
WINCH: He tells me he had it with him but ---
HIS HONOUR: He didn’t decide to make a call.
WINCH: I think he did make a call to the court.
HIS HONOUR: He did a few minutes ago but ---
WINCH: It was only a few minutes ago, I ---
HIS HONOUR: That’s the message I had, that he’d be here in seven minutes, so that doesn’t sound as if it was made some time before.
WINCH: No. I’ve got no more information than that, your Honour.
HIS HONOUR: I have issued a bench warrant for his arrest and in the circumstances I’ll revoke that order. I propose to direct that he’s to remain in custody for the remainder of the trial. We’ll have the jury thanks.”

12 The order which his Honour thus made for the revocation of the appellant’s bail is submitted to have been wrong in law. That submission is the foundation of Ground 1.

13 When the mid-morning adjournment was reached, the trial Judge ordered, in the absence of the jury, the remand in custody of the appellant. The same procedure was followed at the luncheon adjournment. At the conclusion of the sitting day, counsel for the appellant told the trial Judge that he was instructed to make an application for bail. Mr. Winch says in paragraph 4 of his affidavit that, by that time, the appellant “still appeared to be sweaty and did not appear to be well. He used a pack of tissues wiping his face and was asking my instructing solicitor for water”.

14 The learned trial Judge responded to that bail application by saying, simply: “I don’t propose to grant bail at this stage. He’s remanded in custody”. This refusal is the foundation of Ground 2.

15 On the following day, Friday 30 November, the resumed hearing began at 9.30 am. Mr. Winch deposes in paragraph 5 of his affidavit that: “….. the appellant again appeared unwell. In conference, the appellant was asked if he needed medication. He replied in words to the effect that ‘I have a cold. I’ll be okay’ “.

16 During the course of the morning, evidence was taken from a number of witnesses, and an electronically recorded police interview with the appellant was played.

17 The trial transcript records that during the playing of that recorded interview, counsel for the appellant made an application, the precise terms of which are not recorded, but are summarised in the transcript as follows:

“(Defence counsel informed his Honour his client had indicated he felt extremely unwell and needed to attend the bathroom. Leave granted.)”

18 The jury was sent out; and the appellant was formally remanded in custody. There followed a short adjournment, but the transcript does not record its actual duration.

19 During this adjournment the appellant was examined by ambulance officers. According to a Court & Escort Security Unit report dated 1 December 2001, this examination was carried out at about 11.10 a.m. According to this report, the appellant’s “vital signs were assessed as normal”. The actual ambulance report, as summarised in the Incident Report prepared by the Court & Escort Security Unit reads:

“At 11.10 a.m. on Friday 30/11/2001 this inmate was seen by officers Marks and Bamber from the NSW Ambulance Service who stated that after examination of Colville that his observations were all normal i.e. blood pressure, temperature, sugar levels, heart rate and in their opinion this inmate is fit to appear in court and does not require hospitalisation at this time.”

20 What then happened is described as follows in the Court & Escort Security Unit report:

“While escorting ……… (the appellant) ……… back to Queanbeyan District Court at approximately 11.37 a.m, he disclosed to us that he was a heroin user and that he was currently using about one gram per day. He stated that he was suffering withdrawal from this drug.”

21 When Mr. Winch next saw the appellant, the latter was, in Mr. Winch’s observation, “……very ill. He was dishevelled, had black rings under his eyes, was sweaty and was pale grey in colour”.

22 After the Court had reassembled the following interchange is recorded as having occurred in the absence of the jury:

“HIS HONOUR: What is the situation Mr. Winch?
WINCH: Your Honour, if I might make some submissions about that. Those are his vital signs as it were and their opinion is that he’s fit in a physical sense, but my submission to your Honour is this, that he tells me that he still feels nauseous and very unwell and to my observations, your Honour, he still looks pretty unwell and I am reluctant – sorry, my submission is that he be allowed some more time to collect himself and at least feel better before we proceed any further. He just tells me that he feels really sick.
HIS HONOUR: I am sorry Mr. Winch but I don’t really think I can delay the trial on that basis. I appreciate he may feel unwell at the moment but all he has to do at the moment is sit and listen, in effect, really.
WINCH: Yes, but perception is really important in trial matters and I am concerned that he looks terrible at the moment, too, and that he was taken out feeling unexpectedly ill and he now still looks very dishevelled and very unsatisfactory image to the jury, in my submission your Honour.
HIS HONOUR: Well there is certainly nothing objective at all in this report. There’s no suggestion that he’s even got a temperature. He had a normal temperature.
WINCH: No, there’s nothing objective. No I am afraid the trial must proceed, Mr. Winch (sic: but, semble the second sentence should be attributed to his Honour).
MFI # (unstated) AMBULANCE REPORT
HIS HONOUR: He doesn’t have to stand up when the jury come in. If he wants to lie back there he can.”

23 This refusal of an adjournment is the foundation of Ground 3.

24 The jury then returned to Court, and his Honour addressed the jury in these terms:

“HIS HONOUR: Thank you, members of the jury, the trial will proceed. The accused has indicated that he doesn’t feel well. He is just resting where he is at the moment. I don’t know whether you can see him from where you are, but if you can’t see him that’s the reason, but he is there. We will proceed with the playing of the interview. We are on page 7.”

25 The trial then proceeded with the completing of the playing of the recorded police interview with the appellants; and the remaining evidence in the Crown case was then called.

26 According to paragraph 10 of Mr. Winch’s affidavit:

“The trial continued with the appellant lying prone in the dock. He took no part in the trial from the time he returned to Court after being examined by the ambulance officers. He continued to look very unwell. He remained dishevelled and sweaty with black rings under his eyes and an unhealthy colour.

27 At the close of the Crown case, Mr. Winch made an application in the absence of the jury. The trial transcript records the following interchange:

“WINCH: Your Honour my application is this that the accused is lying out of sight of the jury, he’s clearly despite the absence of objective signs by the ambulance officers presenting himself in a way that is not to his best advantage and I’m asking that the jury be discharged because he’s just not able it seems to me to present himself in an appropriate fashion to the jury.
HIS HONOUR: Well I’m not at all satisfied I might say in view of his conduct earlier in the trial, that this is a genuine situation, particularly in view of the medical evidence and the application’s refused.”

28 This refusal of a discharge of the jury is the foundation of Ground 4.

29 Mr. Winch’s affidavit gives the following description of what followed the conclusion of the Crown case:

“11. At the conclusion of the Crown case I applied for a discharge of the jury which was refused (T 196). The appellant’s condition at that stage appeared to be very poor.
12. During the addresses and summing up the appellant continued to lie prone in the dock looking unwell.
13. During the Crown address the Crown paused and complained of distraction from the dock (P8 address). The appellant had groaned. In front of the jury his Honour said “The accused will have to stay completely quiet there, where he is, Mr. Winch, if he wants to remain in the court”. (P8 address)
14. His Honour did not break for lunch at the usual time but commenced his summing up immediately. The summing up commenced after 1 pm during the normal lunch hour. The summing up was short. No lunch break was taken until after the jury had retired to commence its deliberations.”

30 The addresses of both counsel were recorded. The transcript of the Crown Prosecutor’s address amplifies as follows the incident of which Mr. Winch speaks in paragraph 13 of his affidavit:

“I’m sorry, there is a good deal of movement behind me, your Honour. I notice that it is having a distracting effect.
HIS HONOUR: the accused will have to be completely quiet there, where he is, Mr. Winch, if he wants to remain in the court.
WINCH: Your Honour, he’s just lying there. He hasn’t sat up or done anything of the sort.
HIS HONOUR: Continue, Mr. Fernandez.
CROWN: All right, thank you.”

31 The appeal papers contain a transcription of his Honour’s summing-up. There is no record of its commencing time, but it is noted that, after two brief applications for factual re-directions, one by the Crown and the other by the defence, the jury retired at 1.35 pm to consider its verdict.

32 The terms of the summing-up give rise to Grounds 5 and 6.

33 During the retirement of the jury there occurred an incident as to which the only evidence before this Court is the following part of Mr. Winch’s affidavit:

“A court officer came up to a group of lawyers, including the Crown Prosecutor, myself and our instructing solicitors, outside the Court shortly after 4 p.m. The Court officer told us that she had been told by the judge to tell the jury that unless they had a verdict by 4.30 p.m. they would have to come back on Monday.”

34 Nothing seems to have been done by anybody in response to this information. The incident is the foundation of Ground 7.

35 The jury returned its verdict at 4.29 p.m.

The Course of Events after Verdict

36 The appellant stood for sentence on Friday 7 December 2001. By that time his Honour had received reports about the appellant’s physical condition. It is convenient to introduce a consideration of that material by quoting as follows from the remarks on sentence:

“He has clearly had a heroin habit which, as I have been told from the bar table, he was able to moderate until about three months before this trial started when he commenced a serious habit which is referred to in some reports which have been placed before me. Those reports arise by reason of the order which I made on the day before the trial concluded that the prisoner should go into custody.
He had on the first day been late returning to court in the afternoon after the luncheon adjournment and on the following day he was not present at 10 o’clock, no communication had been had from him and ultimately he turned up to court at about a quarter to eleven. In the light of that conduct I then made an order that he must remain in custody for the remainder of the trial.
It appears from reports, which have been placed before me, that he came into custody in possession of a fix of heroin, if I can use that vernacular, which he apparently injected himself with whilst in court on that Thursday. He, having no further access to a further dose apparently became affected by the drug which he had taken the previous day and went into a state of withdrawal on the Friday. That resulted in an adjournment of the trial at the request of Mr. Winch on Friday morning. During the period of the prisoner’s absence from court he was seen by members of the Ambulance Service and a report was provided to me which suggested that his vital functions were normal and that he was fit to return to court. On that basis he came back into court although he did look somewhat dishevelled and the trial proceeded. Later in the day, he lay down in the dock, no doubt because of the effects of the withdrawal which were becoming more evident. As I have said the trial resulted in a verdict of guilty by the jury later that afternoon.”

37 There was before his Honour, and there has been made available to this Court a copy of, a report dated 3 December 2001 and provided by the Assistant Superintendent at the Queanbeyan Court & Escort Service Unit. The potential importance for present purposes of this report is such as to warrant reproducing, rather than paraphrasing, it. Formal parts omitted, the report reads:

“On Saturday 1 December 2001 I was assigned to transport 155007 Colville Patrick to the Metropolitan Remand and Reception Centre in Silverwater NSW.
Our procedures are to strip search inmates before any escort and as such I and First Class Correctional Officer Phillip McFarlane proceeded to perform a regulation strip search of Colville.
During the strip search for my own information I asked Colville how he had brought the syringe into the cells area and Colville informed me that the syringe had been in his coat pocket and that he had thrown it down behind the mattress when he was placed in the cell prior to being strip searched.
I asked Colville when he had “taken the hit” and he told me that he had taken it whilst in court on Thursday morning (29 November 2001).
I then said “You mean that you took it in the dock?”. Colville said “Yes, I took it in the dock”. I then asked Colville what had he done with the syringe after he had thrown it behind the bed and he informed me that when he had come back from court he had retrieved it and flushed it down the toilet.
I asked Colville how much heroin was he using and he told me that he was using about 1 gram a day.
Colville had not to my knowledge had access to any more heroin since Thursday 29 November 2001 and appeared to me to be “withdrawing” badly by the morning of Friday 30 November 2001.
Colville was attended to by NSW Ambulance Officers on Friday 30 November 2001 and was deemed medically fit to attend court by them.
At approximately 5.30 pm on Friday 30 November I authorised a hospital escort to Queanbeyan Hospital for Colville as he had been experiencing nausea and severe stomach pain all day and was now vomiting.
Colville was treated for heroin withdrawal at Queanbeyan hospital and given medication for the symptoms.
Colville was issued this medication as prescribed and his health appeared to improve overnight and enabled me to have this conversation with him where he had been unresponsive to any attempt by me to speak to him on Friday 30 November 2001.”

38 A reading of the transcript of the proceedings on 7 December 2001 makes plain that his Honour was anxious about some possible consequences of the information that his Honour had received post-trial. The following interchanges occurred prior to his Honour’s hearing of submissions on sentence:

“HIS HONOUR: But what I’m really concerned about, there was no suggestion on your part in that application that you were impeded in the conduct of your – of the forensic aspect of the trial. That is, the possible quality of your client as a witness in the trial.
WINCH: Well, your Honour, I was deeply concerned that he looked so terrible at that stage, your Honour.
HIS HONOUR: Yes.
WINCH: And at that stage, what was then in front of the jury was a man who was, it seemed to me, unable to do himself justice and I put those matters to your Honour.
HIS HONOUR: Yes, I understand that.
WINCH: So that’s – that was the basis of my application.
HIS HONOUR: I don’t think that – it hasn’t really answered my question. If you had been intending to call your client as a witness in the trial, I would have expected that you would have raised that with me --
WINCH: I --
HIS HONOUR: -- as another reason why you felt that you’d want --
WINCH: Your Honour, I didn’t --
HIS HONOUR: ..well, you wanted to have the jury discharged or the trial adjourned.
WINCH: Your Honour, I didn’t raise it with you and your Honour was right to assume that therefore it was not my intention to call him. That’s --
HIS HONOUR: Yes. Yes, well, I understood that and I don’t want there to be any misunderstanding about it.
WINCH: I’m not – I’m not attempting to --
HIS HONOUR: No. I’m sure there wouldn’t be, Mr. Winch. I have absolute confidence in your position.
WINCH: No, your Honour. I – it was not my intention to call him. The application would have been more fulsome in a different kind --
HIS HONOUR: Yes, well, that’s what I – would have expected.
WINCH: --had I needed – had I wished or – to do that, of course.
His honour: Yes. Yes, I understood it to be based on the appearance of your client at the time and the effect that was – that may have on the jury.
WINCH: Yes.
HIS HONOUR: Yes.
WINCH: Yes, that’s right.

39 Thereafter, Mr. Winch having indicated that he was in a position to finalise the proceedings on sentence, those proceedings continued to finality, and his Honour passed sentence.

The Grounds of Appeal - Generally

40 The jurisdiction and powers of this Court in connection with this appeal derive from section 6(1) of the Criminal Appeal Act 1912 (NSW). Leaving aside for the moment the proviso to section 6(1), the focus of each particular part of the section is the concept of a “miscarriage of justice”. The focus of the proviso is the concept of a “substantial miscarriage of justice”. The two concepts overlap, but they are not identical.

41 There have been many curial attempts to define the concept of a “miscarriage of justice”. Two of them, taken from decisions of the High Court of Australia, will suffice for present purposes.

42 In Mraz v The Queen (1955) 93 CLR 493, Fullagar J says, in terms which have been cited subsequently in many decisions:

“…………Every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried.” [93 CLR, 514]

43 In The Queen v Ireland (1970) 126 CLR 321, Barwick CJ said:

“The basis of an order for a new trial is that the trial which has been had has not been a fair and proper trial. Quite clearly, in my opinion, an aggregate of faults, none of which if it were the only fault, would afford a justification for making an order for a new trial, may properly lead to the conclusion that the trial as a whole has miscarried, so that there should be an order for a new trial.” [126 CLR, 331]

44 It is necessary when applying such principles as those extracted from Mraz and Ireland, to bear carefully in mind that the appeal to this Court is an appeal against the ultimate conviction. When individual faults are suggested to have caused a trial to miscarry, the faults, if established in fact, must be related to the conviction; and must be so related in such a way as justifies an ultimate conclusion on the part of this Court that justice done according to law requires that the conviction not be allowed to stand: Maric v The Queen (1978) 52 ALJR 631, per Gibbs ACJ at 634, 635.

45 All of the foregoing considerations are, in my opinion, very much in point in the present appeal. The grounds of appeal seem to me to propound three quite distinct allegations of miscarriage, namely:

1. that the trial was essentially so unfair by reason of the alleged faults covered by Grounds 1, 2, 3 and 4 that, even had Grounds 5, 6, and 7 not been available, the conviction resulting from such unfairness should not be allowed to stand;

2. that the trial miscarried, not because of any fundamental unfairness of the kind referred to in 1. above, but because the directions to the jury were inadequate in the respects covered by Grounds 5 and 6; and those inadequacies were so fundamentally related to the conviction, that the conviction should not be allowed to stand.

3. that the trial miscarried in that the trial Judge impermissibly brought temporal pressure to bear on the jury, thereby so tainting the ultimate verdict that the conviction based upon that verdict should not be allowed to stand.

Miscarriage Resulting from Procedural Faults during the Trial: Grounds 1, 2, 3 and 4

46 The appellant appeared off bail on the first day of his trial. That bail was deemed to continue unless a contrary order was made by the trial Judge: Bail Act 1978 (NSW) s 43. A major concern of the trial Judge, once the trial had begun, had been to ensure that the appellant complied strictly with his bail condition to attend the Court at the proper time, thereby ensuring that the orderly progress of the trial was not disrupted.

47 When the appellant breached his bail condition as to Court attendance, as he plainly did, the Judge became both empowered and entitled to revoke bail: Bail Act, s 50.

48 I see no error in his Honour’s response to cavalier behaviour on the part of the appellant; and particularly not, in the face of a clear earlier warning.

49 The refusal of the trial Judge to grant bail at the conclusion of the second day of the trial was a discretionary one. On the evidence then before his Honour, he was acting, in my opinion, well within his discretion by refusing bail. His Honour plainly took the view that he would not brook any further risk that the appellant would not attend Court in strict compliance with a bail condition as to such attendance. The relevant statutory criterion is that for which section 32(1)(a) of the Bail Act provides: see in particular s 32(1)(a)(ii). Its proper application to the situation as it presented at the time to the trial Judge amply justified his Honour’s decision not to grant bail.

50 Were this Court now sitting on appeal from that particular decision, then I should think it trite that the Court would not interfere lightly with the decision. As it is, that is not the true character of this appeal. This appeal is, as previously explained, against the appellant’s conviction. I see no relevant nexus between that decision and the ultimate conviction.

51 As to the refusal of the adjournment, and of the discharge of the jury, I take it as trite that each such decision of the trial Judge was discretionary; that this Court, which did not see and hear anything of what was actually the position on the ground at trial, should not be quick to say that the Judge was wrong; and that, even were it to be demonstrated that the Judge did in fact err in either or in both of the decisions, it would still be necessary, in order that the appeal might succeed because of those errors, to find an appropriate nexus between the erroneous decision(s) and the ultimate conviction. I can see no such nexus.

52 I would not uphold any of Grounds 1 through 4.

Miscarriage Resulting from Inadequate Directions: Grounds 5 and 6

53 As to the appearance and ill-health of the appellant, the learned trial Judge did not add to his comments to the jury on the Friday, after the interruption of the playing of the recorded police interview with the appellant; but his Honour did open the summing-up with these words:

“Ladies and Gentlemen I now propose to sum up to you. I realise it’s well after 1 o’clock but I think for a number of reasons including the condition of the accused that I should proceed to that task now.” [emphasis added]

54 It can be accepted readily enough that the learned trial Judge would not have fallen into error by telling the jury that they should not be distracted in carrying out their all-important work in the trial, by the obvious fact that the accused was unwell and looked unwell.

55 It does not follow, however, that his Honour fell into error by not giving such directions.

56 If the complaint made in Ground 6 is set aside for the moment, the summing-up seems to me to have done precisely what this Court has repeatedly told District Court Judges that they should do in summing-up to a jury. The appellant’s trial was not a complex one. The issues joined at trial were few and simple. The summing-up, - the Ground 6 point aside, - was clear, simple and succinct. It said all that the particular case required to be said, both as to the relevant principles of law and as to the relevant factual issues and the evidence bearing upon those issues. The contrary was not contended at trial, save for two simple and uncontroversial applications for simple and uncontroversial factual corrections. Neither was the contrary contended, - the Ground 6 point reserved, - at the hearing of the appeal.

57 It is, of course, impossible for the members of this Court to put themselves, in any exact sense, into the shoes of the learned trial Judge at the time of the trial. All that this Court can do is to look at the trial transcript, and such additional material as Mr. Winch’s affidavit; and then to do its best to get a fair, but realistic, sense of the course of the trial.

58 Approached in that way, it seems to me to be a fair inference that the learned trial Judge took the view that the appellant, if indeed unwell, was not so unwell as to require either the major disruption or the total aborting of the trial; that there was no obvious prejudice to the appellant from the continuation of the trial to its proper finality; and that the important thing from his Honour’s point of view, as from the appellant’s own point of view, was to keep the attention of the jury focused, not on irrelevant matters such as the accused’s physical presentation, but on the relevant issues of law and of fact.

59 Given the relevant material which his Honour had before him in that connection, I do not see that this Court is in any position to say that the course followed by his Honour was erroneous in law. I am strengthened in that view by the consideration that the appellant relied, simply and clearly, and as he was undoubtedly entitled to do, upon his answers in his recorded interview, as giving to the jury all that he himself wished to say; and there was no suggestion at trial that the appellant had been unwell or unfairly disadvantaged in any other way on that occasion. I am further strengthened in that view by the fact that very experienced trial counsel did not see the need to apply for any re-directions.

60 I would not uphold Ground 5.

61 As to Ground 6, the relevant law is now stated definitively in the majority decision of the High Court of Australia, (Gaudron, Gummow, Kirby, Hayne and Callinan JJ; Gleeson CJ dissenting), in Azzopardi v The Queen (2001) 205 CLR 50. The general thrust of the majority opinion can be gathered, relevantly, from paragraphs 51 and 52 of the joint judgment of Gaudron, Gummow, Kirby and Hayne JJ:

“51. In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused’s silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence.
52. As will later appear, there may be cases where the failure of an accused to offer an explanation by reference to some matter peculiarly within his or her knowledge will permit comment to be made as to that failure. However, as with all judicial comments on the facts in a jury trial, it will often be better (and safer) for the judge to leave the assessment of the facts to the determination of the jury in the light of the submissions of the parties. Unnecessary or extensive comments on the facts carry well-recognised risks of misstatements or other errors and of blurring the respective functions of the judge and the jury.”

62 The emphases in the quoted passage have been added by way of indicating some of the nice practical judgments that a trial Judge must now make on the particular topic.

63 As has been previously noted herein, the appellant’s trial was short, and was clearly and simply focused. It was, certainly, necessary to warn the jury against the natural temptation for the lay-mind to reason that an accused person who gives no evidence at his trial is conveying by that election that he is in truth guilty as charged. The way in which that was required to be done did not depend, however, upon taking such statements as have been quoted from Azzopardi, and using them as some kind of routine check-list to be intoned mantra-like to the jury.

64 What had to be done was to give the jury a clear and circumspect, but sensible and practical, direction having a sensible and practical regard to the just requirements of the particular case.

65 The directions actually given by his Honour were:

“Members of the jury the accused in this trial had the opportunity of giving evidence, he did not do so. But I emphasise members of the jury he was perfectly entitled to take that course and as he has done and as Mr. Winch has reminded you what he says before you in this trial (is) what he said during the interview which is before you as in the transcript and which you’ve heard played this morning. When he was interviewed in 1997 on 18 August, what he said there is what he, in effect, says to you here.
Members of the jury it is important of course that I emphasise, as I have said already, there is no onus upon the accused to prove that he is not guilty. It is for the Crown to prove that he is guilty.’

66 In my opinion, that was sufficient. I am strengthened in that conclusion by the fact that very experienced trial counsel did not see the directions as calling for any further refinement.

67 I would not uphold Ground 6.

Miscarriage Resulting from an Impermissible Contact between Judge and Jury: Ground 7

68 It is both fair and convenient to quote the relevant written submission of the appellant:

“The factual basis of this ground is to be found in an affidavit of trial counsel, to be filed in advance of the hearing of this appeal. It has to be conceded that in ordinary circumstances the message sent by his Honour to the jury would not support a ground of appeal. However, the jury knew that the summing-up had been “hurried up” because of the ill health of the appellant. They might have thought that they were being hurried up to reach a verdict for the same reason, or that (this being a country trial) the judge was too keen for it to finish on the Friday so that everyone wouldn’t have to come back on the Monday. In any event, this matter should be added to those outlined above in support of a conclusion that the combination of circumstances caused the trial to miscarry.”

69 In my opinion, the short answer to that submission, apart from its concluding sentence, is that there is nothing to take the incident outside the scope of the “ordinary circumstances” which the submission concedes, correctly, would not establish a miscarriage.

70 That said, I am of the opinion that this Court should make plain, for the assistance of trial Judges in any Court, that what was done in the present case should not be regarded as good practice.

71 If a trial Judge proposes to say anything to a jury about timings, and especially so in the case of timings relating to the final deliberations of the jury, then the Judge should clear with counsel in open Court, and of course in the absence of the jury, what the Judge proposes to say. Thereafter, having had the assistance of counsel, the Judge should bring the jury into Court, and say in open Court whatever he has decided to say, ensuring that it is accurately recorded. Prudence and courtesy alike would suggest that the jury should be given a proper opportunity of indicating to the Court whether what is proposed can be accommodated conveniently by the jury. To follow that suggested procedure need take no great time, and need entail no needless formalism; but will ensure that what I might describe as forensic loose ends are not left lying around.

Miscarriage; the Combined Effect of Grounds 1 through 7

72 I have dealt with the seven grounds of appeal in what seem to me to be their logical groupings. It is, however, appropriate to consider also whether the seven grounds of appeal, undifferentiated in that way, are sufficient in their aggregate effect to establish a miscarriage of justice in connection with the appellant’s trial.

73 For the reasons hereinbefore explained, I am of the opinion that no one of the individual grounds of appeal has been made good. In my opinion, no grouping of the grounds of appeal into the three categories that seem to me to be logical, has demonstrated a miscarriage of justice. In those circumstances, I am unable to see any basis upon which it could be found that the seven grounds, considered simply as an undifferentiated whole, demonstrate a miscarriage of justice.

Orders

74 In my opinion, the appeal against conviction should be dismissed.

75 BUDDIN J: I agree with Sully J.

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Last Modified: 02/24/2003