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Trevascus v R

Trevascus v R

Case [2021] NSWCCA 104 24 May 2021

Appeal

Jurisdiction

Admissibility of Evidence

Miscarriage of Justice

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Trevascus v R [2021] NSWCCA 104
Hearing dates: 28 April 2021
Date of orders: 24 May 2021
Decision date: 24 May 2021
Before: Hoeben CJ at CL at [1]
Bellew J at [2]
Hidden AJ at [94]
Decision:
1. Leave to rely upon ground 1(a) in support of the appeal against conviction is granted.
2. Leave to rely upon ground 1(b) in support of the appeal against conviction is granted.
3. The appeal against conviction is allowed.
4. The convictions and sentences imposed in the District Court are quashed.
5. The proceedings are remitted to the District Court for a new trial.
6. The proceedings are listed in the District Court Arraignments List at 9.30am on 28 May 2021.

Catchwords:
CRIMINAL LAW – Appeal against conviction – Juries – Directions to jury – Where applicant was found guilty by a jury of robbery in company and attempting to take and drive a vehicle without consent – Where Crown case was based upon a joint criminal enterprise between the applicant and one other – Where trial judge provided written directions to the jury regarding the elements of each offence in the form of question trails – Where jury retired to the jury room to read the question trails after they were provided – No oral directions subsequently given to the jury in respect of the elements of the offences set out the question trails – No substantive reference to the question trails in the summing-up by the trial judge – Necessity for oral directions to be given – No issue taken by trial counsel – Miscarriage of justice – Error established
PRACTICE AND PROCEDURE – Juries – Observations as to the practice of providing written directions to the jury – General necessity for oral directions to accompany written directions – Necessity for a trial judge to emphasise that written directions are supplementary to and not a substitute for oral directions – Observations as to the practice of allowing the jury to retire to the jury room part way through the summing-up to read the written directions for themselves – Practice not one to be encouraged – Necessity to ensure that the jury comprehend directions – Necessity to ensure that a trial be transparent and conducted in public
CRIMINAL LAW – Appeal against conviction – Juries – Summing-up of trial judge – Whether trial judge adequately put the defence case to the jury – Where counsel for the accused made a number of substantive submissions to the jury regarding aspects of the evidence – Defence case not adequately put to the jury even giving full weight to the fact that the evidence in the trial had been completed in two days and where the summing-up to the jury followed immediately upon the final address of counsel for the accused – Summary of principles regarding the obligation of a trial judge to put the defence case –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trevascus v R

Details

AGLC: Trevascus v R [2021] NSWCCA 104
Case: [2021] NSWCCA 104
Decision Date: 24 May 2021

CaseChat Overview and Summary

The case of Trevascus v R involved an appeal against the applicant's conviction for robbery in company and attempting to take and drive a vehicle without consent. The applicant argued that there was a miscarriage of justice due to the manner in which the trial judge provided directions to the jury. The appeal was heard in the relevant appellate court. The applicant contended that the trial judge's written directions to the jury were inadequate as they were not supplemented by any oral directions, and that this omission constituted a miscarriage of justice.

The legal issues before the court were whether the trial judge's failure to provide oral directions to the jury in addition to the written question trails amounted to an error and, if so, whether this error was significant enough to constitute a miscarriage of justice. The court needed to consider the necessity for oral directions to accompany written directions, the importance of ensuring the jury comprehends the directions, and the requirement for a trial to be transparent and conducted in public. The court also needed to examine whether the trial judge adequately put the defence case to the jury.

The court found that the trial judge's reliance solely on written directions without providing any oral directions was an error. The court emphasised that written directions are supplementary to and not a substitute for oral directions. This practice was not encouraged, as it is essential to ensure that the jury comprehends the directions. The court also noted that the trial judge did not adequately put the defence case to the jury, despite counsel for the accused making substantive submissions regarding aspects of the evidence. The court concluded that this was a fundamental error, which went to the root of the proceedings, and justified the grant of leave to appeal. Consequently, the court found that a miscarriage of justice had occurred due to the trial judge's errors.

The court ordered that the applicant's conviction be quashed, and a retrial be conducted. The court also made observations on the practice of providing written directions to juries and the importance of ensuring that a trial is transparent and conducted in public. The court highlighted the necessity for trial judges to emphasise that written directions are supplementary to oral directions and to ensure that the jury comprehends the directions. The court further noted that allowing the jury to retire to the jury room part way through the summing-up to read the written directions for themselves was a practice not to be encouraged.

Orders