Werry v The Queen
[2010] VSCA 314
•25 November 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2009 0831
| JASON WERRY | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | BUCHANAN, WEINBERG and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 November 2010 |
| DATE OF JUDGMENT | 25 November 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 314 |
| JUDGMENT APPEALED FROM | R v Werry (Unreported, County Court of Victoria, Judge Gaynor, 16 September 2009) |
---
CRIMINAL LAW – Application for leave to appeal against conviction – Rape – Whether trial judge erred by failing to adequately put the defence case to the jury – Whether trial judge required to summarise final address of defence counsel – Adequacy of judge’s charge must be assessed in light of the conduct of the trial – Application for leave to appeal refused.
---
| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr L C Carter with Mr R F Edney | Doogue & O’Brien |
| For the Crown | Mr G J C Silbert SC with Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
In my opinion the application for leave to appeal against conviction should be dismissed for the reasons stated by Weinberg and Bongiorno JJA.
WEINBERG JA
BONGIORNO JA:
After a trial lasting some five days in all, three days of which were taken up with the hearing of evidence, the applicant was convicted in the County Court at Melbourne of one count of rape (count 1). The jury acquitted him on one count of having stolen a handbag which belonged to the complainant (count 2).
The applicant subsequently, and separately to these matters, pleaded guilty to one count of having trafficked in a drug of dependence, Cannabis L. It appears that the police, when they came to his home to question him about the rape, discovered some nine cannabis plants, weighing a total of approximately 17.9 kilograms, growing hydroponically in a shed in his rear yard.
The applicant was sentenced to a term of seven years’ imprisonment on the count of rape, and four months’ imprisonment on the count of trafficking. One month of the sentence on the count of trafficking was cumulated upon the sentence on the count of rape, making a total effective sentence of seven years and one month’s imprisonment. The sentencing judge fixed a non-parole period of five years.
The applicant now seeks leave to appeal against conviction. The Director of Public Prosecutions has appealed against the sentence imposed, but that matter has been put over to be determined only in the event that the conviction appeal fails.
Circumstances surrounding the offending
On Sunday 26 October 2008, the complainant (CLC) spent the afternoon, and the early part of the evening, drinking alcohol with her boyfriend at Dandenong
railway station. At some point between 9 and 10 pm, an argument broke out between them. Her boyfriend walked off, and left CLC behind. By that stage she had consumed between five and eight cans of mixed alcohol. She acknowledged, in evidence at trial, that she was ‘a bit drunk’.
Sometime before the argument broke out, CLC and her boyfriend had attempted, unsuccessfully, to gain admission to a nightclub in the area known as ‘Shoop’. After they parted, CLC thought that her boyfriend might have gone back to that nightclub, so she began to walk towards it. She said in evidence that ‘Shoop’ was located about a 15 minute walk from the train station. She said that she was about halfway there when a car pulled up. At that moment, she was standing on a traffic island, waiting to cross the road.
The applicant was the driver of that vehicle. CLC’s evidence was that, at that time, she was upset and crying. The applicant leaned out of his car window and asked her what was wrong. She said that he seemed friendly and helpful. Eventually, after some further conversation, she got into the passenger seat of the car.
According to CLC, the applicant then asked her whether she was a ‘working girl’. He offered her $500 to have sex with him. She told him that she was not a prostitute, and that she had no interest in having sex with him. That did not dissuade the applicant. According to CLC, he drove off immediately, with her still in the passenger seat. He drove to a petrol station where he got out of the car, filled the tank, and paid for the petrol. He purchased a can of soft drink, and a packet of cigarettes which he gave to CLC. He also bought himself a packet of condoms.
CLC said that she asked the applicant to drive her back to Dandenong railway station. However, instead of doing so, he drove to an area that she described as ‘the Dandenong Ovals’, which turned out to be a large area of parkland called ‘Grieves Reserve’. She said that the applicant told her that he had gone there because he needed to find a toilet. He drove around past several toilet blocks which CLC said she could see from the car were locked. He eventually parked the car on a gravel road at a remote area at the back of the reserve.
CLC said that the applicant then got out of the car and went behind a nearby toilet block. She said that he was gone for a few minutes. By that time it was dark. CLC said that she suddenly realised that she was alone with a stranger, and might be at risk.
CLC said that the applicant returned to the car and opened the passenger door. He told her that he had seen a rabbit, and invited her to get out of the car and have a look at it. CLC thought that suggestion was ‘a bit weird’, and refused. The applicant then grabbed her by the arm, and pulled her around the side of the car. He dragged her into a bushy area, and pushed her to the ground. She fell onto her stomach, and then got up to her hands and knees, and the applicant forced her to remain there by placing his hand on her back.
CLC said that at that stage she was crying, and begging the applicant to desist. However, he pulled down her jeans, and the shorts that she was wearing underneath, and proceeded to have sexual intercourse with her. She said that she could ‘feel’ that he had put on a condom. She continued to cry throughout, repeatedly asking him to stop, and promising not to tell anyone.
According to CLC, the applicant told her to stop crying, and said that ‘it would soon be over’. He continued to have intercourse with her for several minutes, keeping hold of her throughout, and preventing her from resisting. Finally, when it was over, he returned to his car and drove away.
CLC said that she then got dressed and made her way on foot to Dandenong railway station. This took between 20 and 25 minutes. She went to a public telephone, and called Kimberley Molnar, a social worker with whom she was in close and regular contact. She told Ms Molnar what had happened. CLC was, at this time, living in a residential unit in Dandenong run by the Department of Human Services. Ms Molnar drove at once to the railway station and collected CLC. Together, they contacted the police.
The police obtained still photographs from a security camera located at the petrol station where CLC’s attacker had purchased petrol. One of these photographs, depicting an image of the applicant, was published in the local newspaper. Eventually, someone came forward and identified the applicant as the person in the photograph.
When interviewed, the applicant declined to comment. However, semen was located on CLC’s jeans and shorts, and DNA analysis made it clear that it was he who had had sexual intercourse with her.
The applicant gave evidence at the trial. His account of the events of that evening differed starkly from that of CLC. He said their initial contact had occurred while he was seated in his car speaking with a prostitute named ‘Naomi’. CLC happened to be close by. ‘Naomi’ had asked him whether he ‘wanted to do a job with her’. CLC overheard what was being said, and asked what it meant. CLC then engaged in a conversation with ‘Naomi’ about how much ‘Naomi’ charged for sex.
The applicant claimed that he refused ‘Naomi’s’ offer, and that she walked away. However, CLC stayed behind, and eventually asked him if he would be prepared to pay her for sex. He said that he agreed to do so. They then drove to Grieves Reserve, via the petrol station, where he purchased petrol and the other items described. He said that they had sex while both were leaning over the boot of his car. He claimed that they were interrupted by the ringing of his mobile phone, and that he decided at that stage that the ‘sexual encounter’ was ‘not going to work’.[1]
[1]R v Werry (unreported, County Court of Victoria, Judge Gaynor, 16 September 2009), [14].
The applicant said that CLC then became angry and abusive. She refused to join him in the car, and he drove off.
Grounds of appeal
There were originally two grounds of appeal. The first was that the verdict was unsafe and unsatisfactory. That ground was expressly abandoned before us. Ground 2 was in the following terms:
The learned trial judge erred by failing to adequately put the defence case to the jury, including by failing to summarise the final address of defence counsel.
The applicant’s submissions
Counsel for the applicant noted that there was no issue at trial as to whether the applicant had had sexual intercourse with CLC. That was readily admitted. The only question which the jury had to determine was whether that intercourse took place without CLC’s consent and, perhaps to a lesser extent, whether in that event, the applicant was aware that such consent was not forthcoming.
The ground of appeal, as formulated, does not complain of a failure on the part of the trial judge to identify, for the jury, the issues to be resolved. These were made perfectly clear. Nor is it suggested that her Honour failed to summarise adequately the evidence led in the trial, both on behalf of the Crown, and on behalf of the defence. It is not suggested that there was any imbalance in the manner in which that summary was given.
The point is a much narrower one. The applicant contends that the trial judge failed adequately to summarise the defence case for the jury. However, in support of that contention, he relies almost entirely upon the fact that her Honour declined, in her charge to the jury, to remind them of the arguments put by defence counsel in his closing address.
It is necessary, therefore, in considering that ground, to have regard to what her Honour actually did say in her charge to the jury.
The trial judge’s charge
After giving the jury general directions, in fairly standard form, the trial judge summarised the evidence given by both CLC and the applicant. She first gave the jury what is commonly know as a ‘Liberato direction’.[2]
[2]Liberato v The Queen (1985) 159 CLR 507. When a case turns upon a conflict between the evidence of a prosecution witness, and that of a defence witness (including, of course, the accused), the jury should be told that, although they must determine who is to be believed, the answer to that question, if adverse to the defence, does not conclude the issue as to whether the prosecution has established its case beyond reasonable doubt. They must be told that, even if they do not positively believe the evidence led by the defence, they cannot find an issue against the accused contrary to that evidence if the evidence gives rise to a reasonable doubt regarding that issue.
The trial judge then turned to the question of motive. She said the following:
In this case also there has been a suggestion by the defence that [CLC] had a motive to fabricate or make up a lie about having been raped by the accused man, that the motive is something along the lines that she had been away from her residential unit for a couple of days and she was worried she was going to get into trouble.
No accused person is under any obligation to come up [with] a motive for why they say a complainant might be making up an allegation and as you can see this is just a matter of common sense. Firstly, an accused person might know perfectly well that a person giving evidence against him is not telling the truth but not have a clue why they would not be telling - why they would be telling a lie against them. It would be simply unreasonable for accused people to come up with this. Secondly, and perhaps more importantly, requiring an accused person to come up with a motive against someone who is giving evidence against them is breaching the second fundamental principle that an accused person has no burden of proof. Requiring an accused person to come up with a motive for why they say someone is not telling the truth, is pretty much making them prove their innocence.
Her Honour went on to add:
In considering the evidence before you it would be wrong, a betrayal of your oath, and quite illogical if you were to go, well, why would she say it if it was not true?
Looking around and searching for a motive for lies allegedly by a complainant or a witness is a totally impermissible exercise by a jury and you must not do it. Do you understand that? It is very serious.
Shortly afterwards, the trial judge summarised for the jury the attack that counsel for the applicant at trial had mounted upon CLC’s credibility. In doing so, her Honour referred to what counsel had said to the jury about CLC’s prior inconsistent statements in his closing address. Her Honour said:
There is one final, general matter that I need to talk to you about and that relates to the cross-examination of the complainant, [CLC], by Mr Hannebery, for the defence. He talks to you in his final address about the fact that he said there were a number of what you would say are prior inconsistent statements by [CLC]; that is, that she said different things about the same issue. …
The trial judge then reminded the jury, at some length and in considerable detail, of the various inconsistencies in CLC’s evidence upon which the applicant’s counsel had relied in his attack upon her credibility in his closing address. She then instructed the jury as to how these prior inconsistencies, if established, could be used. She said:
Now, the way in which you can use prior inconsistent statements is this. You use them in determining the credibility and reliability of the witness. So, you might think that prior inconsistent statements on particular issues reveal such a fundamental flaw in that person’s capacity to answer questions truthfully and reliably that you would not accept that witness’ general truthfulness and reliability, or you might think, well, they are on topics that do not really matter or they do not generally affect my impression of that witness’ truthfulness and reliability. It is a matter for you, but that is the way in which you use prior inconsistent statements.
It is clear from the passages set out above that the trial judge did address two of the main points made by defence counsel in his closing address to the jury. Her Honour referred to counsel’s argument as to CLC’s motive to lie (although it was submitted that her Honour’s summary of that argument was too brief, and therefore inadequate), and also to counsel’s argument regarding what he submitted were CLC’s prior inconsistent statements. She reminded the jury of each, and every one, of those alleged inconsistencies, and explained precisely how the defence relied upon them.
Later in her charge, the trial judge set out the elements of rape in a wholly unexceptionable manner and with commendable clarity. Her Honour pointed out what would have been obvious, in any event, namely, that there was no argument in this case as to either the fact of sexual penetration, or the intention to sexually penetrate. She identified consent as the essential issue in the case, and explained exactly what that entailed. She related the law as she expounded it to the actual evidence in the case. All of this was done impeccably.
Although the trial judge did refer to what she termed the ‘fourth element’ of rape, namely, the accused’s state of mind regarding CLC’s consent, she pointed out correctly that, in the particular circumstances of this case, if the jury were satisfied that CLC’s evidence was to be accepted, there was little or no room for any argument about a lack of awareness that CLC was not consenting.
By this stage, late on Friday afternoon, the trial judge had not yet summarised the evidence in its entirety. She resumed her charge on the following Monday morning. She directed the jury, correctly, as to the way in which they were to approach the issue of recent complaint. She then turned to the evidence itself. She reminded the jury that she would be providing them with a summary only of the evidence that had been led. She told the jury that, merely because she did not mention a particular piece of evidence did not mean that it was of less importance than the evidence she did mention, or that it should be ignored.
The trial judge then summarised in considerable detail both the evidence in-chief given by CLC, and the cross-examination of her by counsel for the applicant. In reminding the jury of her evidence under cross-examination, her Honour implicitly, at least, also reminded them of a number of the arguments advanced by counsel in his closing address. The transcript of the relevant part of her Honour’s charge illustrates the point. She said, in relation to the cross-examination of CLC, that:
she agreed that she had been living at the unit for a few months and that the people at the unit were responsible for her and on that Sunday she had not been there for a couple of days and had not let anyone know where she was. She said she knew that – she said people at the unit knew if she did not come home that she was usually with her boyfriend. She could not remember speaking to anyone there to let them know she was OK, where she was staying and she was aware now that they put out a missing persons report for her.
On that Sunday afternoon, she was drinking alcohol at the Dandenong train station from about 3 pm with her boyfriend … . They had got someone else to buy the drinks for them. She agreed she was drinking for the purposes of getting drunk and that she had drunk as many drinks as it took to get drunk. She said during the fight [her boyfriend]injured her shoulder and she told Dr Odell about this, you will recall. I will be reminding you of Dr Odell’s evidence, but he has talked about a bruise on her shoulder. It was put to the witness that she told police she had tried to ring her boyfriend … on reverse charges straight after the fight, but she could not remember saying this. She did not know [his] number, so she said that was a mistake if that is what she told the police. She agreed she voluntarily got into the car with the man that night and that he did not know her. She said he looked friendly and willing to help her. She agreed that being drunk affected her judgment. … [A]t the time she got into the car, she was a bit drunk and upset because of what had happened with her boyfriend.
She agreed she had no pressing need for transportation or a lift anywhere. She said that she did not know at the time whether there was money on her card or not. She said the man said he would pay for her items and she thought he was doing it to be nice and she said she offered to pay. It was put to her that the day before in her evidence she said she did not offer to pay and she said that the day before she was not quite sure because she had not read her statement to police. The next day she went down to the bank and saw there was no money in her account. She said she usually had a few hundred in her account, but she had spent quite a bit on alcohol and other stuff. She did not know how much money she had spent on alcohol that day. She said she had also bought clothes as well. She said all the nearby ATMs that night were shut. She had gone to an ATM at the bottle shop to check, but the bottle shop was shut.
She said she asked the man to drop her off at the station after he went to the servo. She said she asked him if she could be dropped off beforehand, and he said he really had to go to the toilet. She knew that there were toilet facilities available at the Dandenong train station, but she did not think of that at the time. She said she had been drinking and this affected memory and she was not thinking about toilets at that time. She said she was physically moved from the car after the man asked her to look at a rabbit. He had his hand on her left arm. It was put to the witness that she had never told police about the man physically getting her out of the car. You will recall words were read out from her statement. She did not think it mattered at the time telling police whether or not he had his hand on her arm or not.
She said she was initially pulling away from him, but then she stopped because she was not sure what would happen to her if she kept resisting, so she followed him. The first time she noticed a condom being involved was when she felt it inside her. She did not put it on. She said the realisation that he had put it on when he was at the toilet block came to her afterwards, but not at the time that he put his penis inside her. She agreed she told police that when the man went to the toilet block, she did not say about the toilet block to police. She said he just got out and she did not know where he had gone. She also told police she heard the sound of a wrapper, but she did not see one.
It was put to the witness that she told police the man told her if she screamed someone would get hurt, which she agreed to. She said the first person that she spoke to about this was Ms Molnar who came to pick her up. She agreed Ms Molnar asked her if she wanted to go to the police and that she said yes. She wanted to ring her boyfriend first and then go to the police. When she and the man got to the ovals, she was wondering what they were doing there. She made no attempts to run away until he grabbed her arm and then she made some attempts to push away. She said she was pushed from a standing position to lying flat on her stomach in the bark. She had no injuries from this. She said when he pushed her down, she started screaming and telling him to stop. She did not see the man take the condom off, but she saw him throw something away and she thought it must be the condom. She saw the condom after he left. She did not want to take the condom, because she did not know if she was going to [the] police at that time. She thought about it while she was walking to the station.
She denied agreeing to have sex with the man. She denied that she approached the car the man was in. She said she first saw the car at the traffic island, not at the corner of Rodd and Robinson Street in Dandenong. She denied there was a female in the car at the time. She agreed she was distraught and crying. She denied ever speaking to a woman in the car. She denied there was any agreement to have sex for money. She said that when he was raping her [she told him] to stop. She denied that they had sex in a car.
Having then reminded the jury of the evidence given by other Crown witnesses, the trial judge turned to the evidence of the applicant. Importantly, her Honour set out, in summary form, the whole of that evidence, both evidence in-chief and cross-examination. She said:
Evidence in-chief
You then have the evidence of Jason Werry. He told you that he is a mechanic who, on 26 October 2008, was living at 9 Rowan Drive in Doveton with Danielle Jensen. He said he had been in a relationship with her for about six years. He said on 26 October he went out to get an extension power cord and a few grocery items and that he went out at about 10.15 by himself. He drove Danielle’s silver VT Commodore and drove to the 7-Eleven, about five minutes away on the corner of Plough Street and Stud Road. He travelled straight there. The items he wanted were not stocked by the 7-Eleven, so he drove straight to Coles on the Princes Highway. There he bought a power lead or extension cord and a couple of bottles of coke and some grocery items, paying by cash, probably under $20, which he thought he put in a plastic bag.
He got back in the car intending to drive home and got to the exit of Coles’ car park when he saw a girl he had known for a long time who he had not seen for quite a long time and her name was Naomi, and he knew her as a sex worker in Dandenong. She stood at the exit where he is pulling up. He said “Hello”, and she quickly jumped in the car so they could catch up and then he drove eventually to a car park at the back of Dandenong, off Robertson Street between Plough and Scott Streets, because he believed Naomi had to meet someone around there and that was where she intended to work.
He said they sat in the car for about ten minutes just talking and catching up and a young blonde headed girl came in their direction on Naomi’s side of the car. Naomi was smoking and the girl spoke to her and asked for a smoke. The passenger window was open. He said the girl was very distraught, looked like she had been upset or crying. After she approached the car, she was talking and the girl gave her a smoke and she was talking to Naomi and he thinks he told her to jump in the back if she wanted to. The girl got in and he remembered her saying she had had a fight with her boyfriend who had beaten her up and that she had no money. He said Naomi was telling him that she had to leave and meet up with someone and then asked him if he would like to catch up for a job or do a job with her which he understood her to mean did he want him to have sex with her for money and he said no, because he had to go home. He said he’d introduced himself to the girl as Jason.
He said he had a conversation about doing a job and the girl started talking to Naomi about being a prostitute and asking how much money she got for jobs and so forth. Naomi then got out of the car and Jason got out too to get Naomi’s number to catch up. He thinks the girl got out with them and then she jumped back into the car and he said to her, “What am I going to do with you”, and asked if she wanted a lift or to go somewhere and she did not know. He was not a hundred percent sure about what he then said. She asked him for a drink of coke, of the coke that he had in the back and he said, “Well, no”, but he had to go and get gas and he would get her a drink then. They then headed to the service station. The blonde girl was by then sitting in the front passenger seat. As they were driving to [the] service station, the girl asked if he would pay her to do a job and by the time they got to the service station he had agreed, but he had to figure out how much money he had on him. He thought the girl was trying to get as much money as she could and he thought he would do it for $100, but he was not clear how much money he had on him.
He jumped out of the car at the servo, put about $10 of gas in the car. The girl asked for a packet of cigarettes and for him to take the money out of what he was going to pay her for the job. He got her a drink she’d asked for and he bought a packet of condoms and a drink for himself. There had not been a discussion about buying condoms on the way to the servo. He went back to the car and they drove to the park in Dandenong. He could not really recall discussion after they got back into the car. He said they then drove to the park and after that there was some talking and chit chatting. He could not really remember the conversation. He said they went to the far left hand side of the park to a dirt road with trees and shrubbery where they had a brief conversation, where they were talking about (indistinct). She said she had been there earlier. He asked her if she was still up for doing the job and she said “Yes”. He asked her if she wanted to get out of the car and do it, and she said “Yes”. They got out of the car, walked to the back of the car, where she pulled her pants down. He pulled his pants down, put a condom on and started having sex with her. He said she was leaning with her arms and elbows over the boot and he was behind her.
He put the condom on [and asked if] she wanted to use the lube as this came with the condom packet. She said “No”, so he put the condom on, put his penis in her vagina and started moving for about a minute or two at the longest. Next, he could see his phone inside the car starting to ring and he was stressing because he saw he had a message. He said it was an awkward situation at the back of the car and very cold. He ended up stopping and said to her, “Don’t worry about it.” He was a hundred percent certain that he did not ejaculate. After he said not to worry about it, the girl turned round and started going ballistic, swearing and cursing and becoming hostile, calling him a fucking arsehole. He did not really take note of what she was saying but she was swearing and upset. He pulled back a bit. He was trying to settle her down but he had taken the condom off by this time and pulled his pants up.
He said the abuse probably went on for less than five minutes and he ended up leaving because she told him to just get away from her. He asked her if she wanted a lift and she said no and he got into the car. He did not recall seeing any possessions when he left that were not his. He headed home and on the way he thought he should wash the car because he [was] trying to think of an excuse about why he had been away from home for so long. He washed the car at the car wash on Princes Highway in Doveton and went home. He was not far off finishing the car when he noticed his phone. Again he rang Danielle back and then went home. He denied raping and stealing from [CLC].
Cross-examination
In cross examination he could not remember if he was working on the car before he left that night. He went out that night either for a power board or an extension cord. They had just got an air conditioner at the time. It might have been for that, but he was not sure. He said it was about 10.30 when he left Coles. He did not remember how much money he had on him but he would have paid for the items with cash. He said when Naomi jumped in the car that he went down Princes Highway and generally - because she generally hangs out in Scott Street. It was about 10.40 when he parked the car and [he] talked to Naomi about general things because they know a couple of the same people. He said the blonde girl [who] came up looked different to [CLC] but he did not dispute that it was her. [H]e said she seemed in a semi distressed or upset state. She was not happy but was not full on upset and crying. She did not seem a normal happy person. He could not say a hundred percent that she was not crying. He could not remember how she got in the car. He did not remember her carrying a bag. He vaguely recalled some of the conversation in the car. He said the girl was saying about having a fight with a boyfriend and Naomi was talking to her about that and this lasted for about ten to 15 minutes. He said the conversation was between Naomi and the girl and he really was not taking any notice.
He did not notice anything about how the girl spoke or walked. There was nothing that gave him an indication she was intoxicated. He overheard her saying she had no smokes or money and she was kind of stuck. Naomi said she was meeting someone and had to go and he assumed [s]he had a job to do and he did not know where she was meeting them. He refused to do a job with Naomi because he had to go home. He thought she meant the job with him would take place in the next surrounding minutes. He said it was at this point that the blonde girl started asking what they were talking about and he told her that Naomi worked on the streets and Naomi told her that she had sex for money. He did not tell the girl to get out of the car as they wanted to talk because he did not want to be rude. At that point the blonde girl was not crying but he did not take too much notice of the state she was in. He exchanged numbers with Naomi when they got out of the car. He put her number in the phone, but he was not quite sure under what name he would have put it. He did not necessarily want to put it under her name. He has not seen Naomi since. Danielle does not know Naomi. He has not rung her number since he got the number. He said he had done jobs with Naomi in the past. He said to the girl in the car, “What am I going to do with you”, because she was still in the car and the girl said, “I don’t know”, and told him that she lived on the other side of Dandenong and he assumed she lived on a different side of Dandenong to him, because he did lived in Doveton. He could not recall if he offered her a lift to the train station. It was at this time that she asked him if she could have a drink of coke and he said no and he was going to the service station and he could get some there. It was his idea to take her somewhere and buy her a drink. He did not think that Danielle had started calling him at that time, but he was in a hurry to get home. He agreed he went to a BP, which is in the opposite direction from his home. He arrived there at about 11.00. He said it was as they were leaving the corner of Rodd Street and on the way to the BP station that they negotiated to have sex for money. He said she was not distraught at the time, did not specify an amount. She indicated she would do it for whatever he had but not for $20 or $50. He could not remember how much he had in his wallet, but said he would have checked at the servo. He thought $100 would be enough, but thought that he checked his wallet when he was filling up the gas. At this point he had not agreed because he was not sure if he had the money. Once he checked his wallet, he thought he would have had a couple of hundred dollars. When they stopped she said to him that she needed cigarettes and if they did a job he could buy the smokes and take the money out of the job money.
He said once he realised he had enough money, he bought her the cigarettes because he knew he had enough to pay for the job. He thought she was over 18 because she told him she had been to Shoop.
He said it was a stupid decision not to go home and felt he was kind of stuck with the girl although he had not asked her to get out of the car. There was nothing specifically that made him change his mind and accept the girl’s offer when he had rejected Naomi’s offer. He thought his girlfriend started ringing him around the time he was driving to the service station and he did not answer the phone and did not think to tell the girl that his girlfriend was ringing and that he had to get home.
He went to Greaves Street because he knew the park. He wanted to be far away from the public because prostitution is illegal. They were in the back corner of the park, there were no roads. The fear of being caught engaging in an act of prostitution did not stop him from having sex with the girl either and he took her down a bitumen road which turned into a dirt track where he parked. He did not need to go to the toilet. He gave quite some detail about where the toilet blocks were in the park.
He said the girl pulled down her own trousers. He could not remember how far, he assumed to her knees or maybe her ankles. He remembered her pulling her shorts down and she did not take either the jeans or shorts off and he had sex with her. He asked her if she still wanted to do it before they got out of the car because they had not done anything and they were both still sitting in the car and he was concerned about the time.
At this stage, he recalled his girlfriend had been calling him but he did not use that as an excuse to get out of it. He said he was up for having sex with this girl but he denied really wanting to have sex with her.
He did not remember whether he handed over the money before they had sex. About a minute or two after he started having sex he noticed his phone was ringing a bit more. In his mind, he was still concerned about the time. He said the situation was awkward because they were not friends or anything while they were having sex and he was a bit on edge. He denied she was telling him to stop. He said, once they started he realised he would not be able to ejaculate because it was awkward and that was another reason why he stopped. He could not remember whether he paid her or not. He recalled withdrawing and saying, “Let’s not worry about it” and her becoming very hostile and swearing at him.
He said, she pulled her pants up but he did not remember when. He took the condom off and threw it away. He said at the specific area where they were parked there were no toilets but there was one almost directly in the middle of the park and one where they entered, which is the entry from the Princess Highway near the phone box on the right hand side. He did not know how his sperm had got onto her shorts.
When he left, the girl was in the trees near the garden and there was pine bark under the bushes. They were standing within half a car to a car width from the tan bark. When she got out of the car, she did not have a bag with her. He did not remember her having a phone or mentioning a phone in the car. He left her at the back of Greaves Reserve at about midnight. He probably spent about five minutes trying to help her before he left.
When he left and headed towards home, he was trying to think of an excuse about where he had been so he went to a car wash. He did not tell his girlfriend he had met Naomi that night because Danielle did not know Naomi and he got home about midnight.
After summarising the evidence, the trial judge gave some further general directions, and then sent the jury out to commence their deliberations. Her Honour did not specifically remind the jury of the arguments of either the prosecutor, or counsel for the applicant, apart from what she had earlier said in her charge. Defence counsel, when asked if he had any exceptions, stated that there were none.
The applicant’s exception to the charge
Some hours later, during the course of the afternoon, her Honour re-convened the Court. The jury had asked to be reminded of CLC’s evidence, and also to be reminded of whether the applicant, in his evidence, had mentioned a mobile phone. While considering those matters, in the absence of the jury, defence counsel raised, for the first time, a concern about the adequacy of her Honour’s charge.
The transcript reads as follows:
MR HANNEBERY: Your Honour, there was one other matter, that occurred to me later. Your Honour, didn’t summarise, in a sort of direct sense, the arguments of either counsel or the closing addresses.
HER HONOUR: I should have said something about that. It’s a practice I often don’t undertake. I don’t - - -
MR HANNEBERY: And Your Honour, can I say that I think why it took me a few hours is that it’s not one that I have ever particularly enjoyed much but - - -
HER HONOUR: No judge ever did justice to my final addresses, let me tell you, Mr Hannebery. Look, - - -
MR HANNEBERY: All it is is that some smarter people than me have suggested that perhaps there needs to be something.
HER HONOUR: What do you say, Mr Gilligan? Is that a practice that has to be invariably followed?
MR GILLIGAN: I don’t think it does have to be invariably followed, Your Honour. It seems to be in the discretion of the trial judge and if it has been a short trial as I understand it has.
HER HONOUR: It has been a short trial.
MR GILLIGAN: It may not be necessary and I don’t know when it was that the addresses were done but - - -
HER HONOUR: Yesterday, sorry Friday.
MR GILLIGAN: I can’t really comment as to what the issues, I know basically - I don’t think it’s an absolute rule that there has to be anything said, Your Honour - - -
HER HONOUR: Yes, I don’t think that, particularly at this stage of the game. I think it is a matter – it’s not something that it is routine – as opposed to the sort of, summary of evidence except where trials have been particularly short. This has been a short trial. The jury heard what - - -
MR GILLIGAN: They have been out for some time now as I understand it anyway.
HER HONOUR: They went out at about eleven o’clock this morning.
MR GILLIGAN: I see.
HER HONOUR: I’m very disinclined to bring them back and give them a rousing recital – by the way, sorry about that – I’m not making very judicial comments for transcript. I must say. It seems to me not to have been a particularly pressing matter in this trial, particularly because of it’s length which was not – really by it just – in my view sort of edged over from being a short trial.
MR GILLIGAN: I’m sure Your Honour would have made perfectly clear the issues involved in the trial in the course of the charge.
HER HONOUR: I made clear the issues between defence counsel, I mean, we didn’t start the trial until was it, Tuesday - - -
MR HANNEBERY: Wednesday.
HER HONOUR: It was a very short trial indeed and following on the special hearing I don’t see the need for it, I must say.
It is now said that the trial judge erred in failing to accede to defence counsel’s submission that the jury should have been reminded ‘in a sort of direct sense, the arguments of either counsel or the closing addresses’.
Consideration
In our opinion, that argument is devoid of any merit. The exception that was taken, if it can be so described, was belated, perfunctory and, at best, half-hearted. If counsel genuinely thought that there was a risk that the jury might not have understood the true issues in this case, or might not have appreciated the nature of the case put on behalf of his client, it was his duty to say so immediately, and in clear and emphatic terms. The reason that this was not done was because counsel correctly recognised that the jury could not conceivably have been under any misapprehension as to either matter.
It is clearly established that a trial judge’s charge need not follow any specific pattern. Each charge must be tailored to the particular circumstances of the case.[3] Sometimes, in order to ensure that the defence case is adequately presented to the jury, it will be necessary to set out in some detail the arguments put forward in counsel’s closing address. That is particularly so where those arguments do not emerge clearly from either the summary of the evidence provided by the judge, or the nature of the case itself. In other circumstances, a much briefer reminder of counsel’s arguments will suffice.[4]
[3]Alford v Magee (1952) 85 CLR 437, 466. See also R v Lawrence [1982] AC 510, 519.
[4]In R v Lawrence [1982] AC 510, Lord Hailsham said, at 519, that a ‘concise summary of the evidence and arguments on both sides’ is all that is required.
In the present case, the trial judge provided the jury with a comprehensive and detailed summary of both the evidence in-chief and the cross-examination of CLC. By doing so, her Honour effectively reminded the jury of something they would, in any event, have well understood, namely the basis upon which the defence case rested. The fact that she elected to do so in the way that she did, rather than rehearsing specifically, in summary form, the closing arguments of counsel, was in no way prejudicial to the applicant, and did not deprive him of having his case fairly presented to the jury.
That is not to say that there will not be cases where a summary of the evidence, including cross-examination, will not be sufficient to ensure that the defence case is adequately presented to the jury. Plainly, there is a difference between a summary of evidence and a summary of argument. Where, for example, counsel raises a new point in his or her closing address that did not emerge during cross-examination, it will ordinarily be best for the judge to remind the jury of that particular argument. There can, however, be no universal and inflexible rule.
This Court has repeatedly emphasised that a trial judge is under a duty to put the defence case fairly to the jury. It was submitted on behalf of the applicant that, although there may be no particular formula as to how this responsibility is to be discharged, it was ‘usual for the final address of defence counsel to be summarised’. It was further submitted that the trial judge had not done this in the present case, or if she had, she had not done so adequately. It was submitted that her Honour’s abbreviated treatment of the arguments raised in closing addresses created a risk that the jury were not provided with a properly articulated summary of what were said to be a series of quite sophisticated arguments as to why CLC should not be believed.
Counsel for the applicant drew our attention to several authorities that were said to support his contention that the trial judge’s charge was deficient in this respect. He relied upon, first, R v AJS.[5] In that case, this Court said:
[5](2005) 12 VR 563.
Axiomatically, it is the responsibility of the trial judge in every jury trial:
(a) to decide what are the real issues in the case;
(b) to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;
(c) to tell the jury, in the light of the law, what those issues are;
(d) to explain to the jury how the law applies to the facts of the case; and
(e) to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.
These propositions are of long-standing and of high authority. They have often been repeated in this court. If adhered to, they should serve to simplify, rather than complicate, the task of the trial judge. Adherence to them is, of course, essential if the jury is to be adequately equipped for its task.[6]
[6]Ibid 577 (citation omitted).
Counsel also referred to R v Dao,[7] where this Court said:
[7](2005) 156 A Crim R 459.
The duty of a trial judge in charging a criminal jury arises from their respective roles at trial. In its most basic form, this duty requires the judge to define the legal principles necessary for the determination of the case and to communicate them to the jury in a manner which will assist them in carrying out their role. The role of the jury is, of course, to determine issues of fact and to apply the facts to the principles communicated to them so as to return a verdict. The judge, also, has an important role in assisting the jury in its fact-finding function. The judge in the charge must identify the issues and relate them to the evidence in the case; the judge must direct the jury as to the manner in which they must or may or may not use certain evidence; the judge, in the appropriate case, must or may warn the jury to approach certain evidence with caution or not to act upon it without corroboration; and the judge in performing these tasks must do so in a fair and even-handed way. Finally, the judge must put the defence fairly to the jury so that upon their retirement to consider the verdict, they have a clear understanding of what is the position of the accused.
It has been accepted, in this jurisdiction at least, that the proper performance of these tasks requires the judge, in any but the most straight-forward of cases, to remind the jury of the evidence which has been placed before them, which is, after all, the material with which they must undertake their task, and to relate the facts and issues raised by counsel to the charges upon which they are required to return a verdict. It will be recalled that, of all persons involved in a criminal trial, it is only the jury who do not have a transcript of this evidence. In these circumstances, such an even-handed summary, relating the evidence to the issues, will be of invaluable assistance to them. The importance of this judicial function has led Ormiston, J.A. to deplore the practice of failing to provide a summary of evidence in these terms:
It seems to be becoming increasingly frequent for judges in the County Court not to summarise the evidence, usually on the ground that the trial has been short and that the jury would therefore remember all that had been given in evidence. The present trial in fact took some six sitting days so that some of the evidence was given a week before the judge concluded his address to the jury. One should not assume that what a trained and experienced lawyer can recollect will be invariably the same as each member of the jury, without the same or any similar training, can recollect at the end of a trial.
Any neglect on the part of a trial judge to provide this assistance to the jury brings about the very real risk that the whole trial process will have miscarried with the consequence that the trial may have to be repeated. Such a result is, obviously enough, likely to be serious, if not disastrous, for all concerned: the witnesses and victims must undergo a further unnecessary ordeal; the jurors’ time and services have been wasted; the State’s financial resources have been thrown away both in funding the trial and the appeal; and perhaps the accused might have been required to serve an unnecessary prison term if acquitted on the re-trial and, in any event, the accused must endure the stress of the retrial. This risk is a real one because the verdict will stand only where the appeal court can be satisfied that, notwithstanding the failure of the trial judge, the jury has been able to perform its functions as the due trial process requires.
We, too, would therefore add our voice to those who have lamented the practice adopted by some judges of failing in their charges to juries to provide a summary of the relevant evidence or of the arguments which counsel have offered to the jury in their final addresses. How a particular judge approaches this task in a particular case is essentially a matter for their own judgement, brought to bear with the benefit of long forensic experience in the light of the manner in which the case has been conducted by the prosecution and the defence. Nevertheless, however it be done, it must be done.[8]
[8]Ibid 646-5 (citations omitted).
Counsel next referred to R v Zilm,[9] where Eames JA, with whom Callaway and Ashley JJA agreed, said:
[9](2006) 14 VR 11.
The common law obligations of a judge in every jury trial have recently been summarised by Maxwell P, Nettle JA and Redlich AJA in R v AJS, as follows:
(a) to decide what are the real issues in the case;
(b)to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;
(c) to tell the jury, in the light of the law, what those issues are;
(d) to explain to the jury how the law applies to the facts of the case; and
(e)to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.[10]
[10]Ibid 25 (citation omitted).
Counsel then referred to R v VN,[11] where Redlich JA, with whom Maxwell P and Buchanan JA agreed, said:
Counsel for the applicant only faintly pursued this ground as a discrete error which could give rise to a miscarriage of justice. He submitted that this was one of the deficiencies in the trial judge’s directions which should be considered among the aggregate of errors which caused the trial to miscarry.
In the charge, the trial judge gave a brief summary of the complainant’s evidence, including her cross-examination. Her Honour succinctly summarised the defence case, in which she identified the principal grounds upon which the complainant’s reliability had been challenged. Her Honour did not summarise counsel’s final addresses. It was submitted on the applicant’s behalf that this was a material omission because, as a result, her Honour had insufficiently related the evidence to the issues in the case or to the defence case that had been advanced.
The identification of the factual issues in the case will often be achieved in a charge in the course of summarising the respective cases of the parties. As this court has observed on many occasions, that would focus the jury’s attention on the real issues. The failure of a trial judge to summarise the arguments of the parties, or to otherwise identify the factual issues in the case, creates a substantial risk that the accused will not have received a fair trial. The importance to a jury of a summary of the evidence which relates to the issues in the case and a summary of counsel’s arguments should not be underestimated. By some means or other, the attention of the jury must be drawn to the issues and the evidence upon which the defence relies.
It was not suggested on this appeal that there was an imbalance in the manner in which her Honour had dealt with the prosecution and defence cases. The closing arguments of both parties were very brief. The closing address of defence counsel was largely directed to argument concerning count 9 upon which the jury acquitted the applicant. Although it would have been preferable for her Honour to summarise the arguments of the parties, her Honour during the course of her charge sufficiently identified the issues and reminded the jury of the principal features of the defence case when summarising the evidence and in the course of directing the jury as to how they should approach the evidence of the complainant. In particular, her Honour, in giving the jury various warnings, reinforced the primary grounds upon which the defence sought to challenge the testimony of the complainant and her brother.
Although her Honour ought not to have departed from the important requirement of summarising counsel’s closing addresses, the issues were uncomplicated and were made plain to the jury during the course of the charge. The way in which the defence put its case was adequately explained to the jury. Defence counsel was best placed to consider whether any omission from the charge prejudiced the applicant in any way. Counsel who appeared for the applicant in the trial was extremely experienced. The fact that no exception was taken to her Honour’s charge provides a strong indication that there was no unfairness in the manner in which her Honour had directed the jury.[12]
[11](2006) 15 VR 113.
[12]Ibid 144-5 (citations omitted).
Finally, counsel referred to R v Thompson,[13] where Redlich JA said:
[13](2008) 21 VR 135.
The common law obligations of a judge in every jury trial were summarised in R v AJS. They include an explanation to the jury as to how the law applies to the facts of the case, identification of the issues in the trial, relating the issues to the facts of the case and summarising so much of the evidence as is relevant to the facts in issue by reference to the issues in the case. These obligations subsume the judge’s obligation to ensure that the prosecution and defence case is clearly placed before the jury, usually by summarising the addresses of counsel, on both sides.
The applicant submits there was a failure to comply with the common law obligations as a consequence of the direction to put aside the documents given to the jury and further submitted that the trial judge had failed to give any oral summary of the evidence in the case and, in particular, the defence case and had not given an adequate direction as to how the evidence related to the issues.
The principle stated in Alford v Magee (1952) 85 CLR 437 that the law must be given to the jury with an explanation of how it applies to the facts, together with the well-established concomitant obligation to identify the issues and the evidence relevant to those issues, has been the subject of extensive attention in this court. Alford v Magee was again discussed in Fingleton v R (2005) 227 CLR 166 by McHugh J who referred to the obligations of the trial judge to “identify the real issues in the case, the facts that are relevant to those issues and [provide] an explanation as to how the law applies to those facts”.
…
In the oral charge, the jury’s attention must ordinarily be drawn to the relevant evidence which bears upon the issues of fact in dispute. The duty to expose the facts relevant to the issues is not confined to the ultimate facts in issue comprising one or more of the elements of the offence, but relates also to the substratum of facts which are in dispute and which bear upon the resolution of the ultimate issues. The evidence which is relevant to those subsidiary issues must also be identified. Ormiston JA in R v De’Zilwa (2002) 5 VR 408 spoke of the fallacy in assuming that jurors will recollect the same things that a trained and experienced lawyer would recollect. Moreover, the real significance of pieces of evidence may not be apparent when the evidence is given. A common experience of trial judges has been that the jury may not have recognised the significance of individual pieces of evidence or how that evidence relates to other evidence and supports an argument of a party during the course of the evidence.
Though the common law obligations prescribe the minimum assistance which a jury must be given, there is no particular means by which the oral directions must satisfy them. The level of particularity at which the evidence and arguments need to be summarised will vary, depending upon the nature of the issues and the circumstances of the trial. The summary should highlight the evidence which bears upon the resolution of the issues in the trial without an unnecessary recitation of unimportant evidence. But enough must be said to ensure that the jurors have sufficient knowledge and understanding of the relevant evidence and the issues to which they relate, to discharge their duty to determine the case according to the evidence.
Directions given in a very short trial involving a simple factual issue may differ considerably in their content from those required in a lengthy or more complex trial. It is for the trial judge to craft the oral directions in such a way that ensures that the oral exposition is sufficient. In R v VN, it was recognised that in some circumstances, summarising the respective case for each party might satisfy the obligation of identifying the factual issues in the case by focusing the jury’s attention on the real issues. And if in doing so, reference is also made to the evidence which each party relies upon in relation to those issues, that may be sufficient to satisfy the requirement that the evidence relating to the issues be summarised.
If the accused has given an account by way of sworn evidence or interview, there ought to be either a summary of that evidence, or alternatively the relevant parts of that evidence could be referred to in answer to each part of the Crown case as it is separately summarised. A failure to advert by some method during the charge to the substance of the applicant’s account will ordinarily mean that the case for the accused has not been adequately placed before the jury.
The likelihood of an unfair trial if these minimum obligations are not observed has been the subject of repeated warning by this court. In this regard, I gratefully adopt the comprehensive observations of Eames JA in R v Zilm. The importance of a summary of the relevant evidence and counsel’s arguments was also emphasised by this court in R v Dao in these terms:
It has been accepted, in this jurisdiction at least, that the proper performance of these tasks requires the judge, in any but the most straight-forward of cases, to remind the jury of the evidence which has been placed before them, which is, after all, the material with which they must undertake their task, and to relate the facts and issues raised by counsel to the charges upon which they are required to return a verdict. In [R v Yusuf (2005) 11 VR 492] (a case concerning the obligation on the charging judge imposed by the Crimes Act 1958 s 37) the failure was described as an irregularity. It will be recalled that, of all persons involved in a criminal trial, it is only the jury who do not have a transcript of this evidence. In these circumstances, such an even-handed summary, relating the evidence to the issues, will be of invaluable assistance to them. The importance of this judicial function has led Ormiston JA to deplore the practice of failing to provide a summary of evidence in these terms:
“It seems to be becoming increasingly frequent for judges in the County Court not to summarise the evidence, usually on the ground that the trial has been short and that the jury would therefore remember all that had been given in evidence. The present trial in fact took some six sitting days so that some of the evidence was given a week before the judge concluded his address to the jury. One should not assume that what a trained and experienced lawyer can recollect will be invariably the same as each member of the jury, without the same or any similar training, can recollect at the end of a trial.”
We, too, would therefore add our voice to those who have lamented the practice adopted by some judges of failing in their charges to juries to provide a summary of the relevant evidence or of the arguments which counsel have offered to the jury in their final addresses. How a particular judge approaches this task in a particular case is essentially a matter for their own judgement, brought to bear with the benefit of long forensic experience in the light of the manner in which the case has been conducted by the prosecution and the defence. Nevertheless, however it be done, it must be done.
The need to give more than lip service to these obligations was again stressed in R v VN where it was observed that:
The failure of a trial judge to summarise the arguments of the parties, or to otherwise identify the factual issues in the case, creates a substantial risk that the accused will not have received a fair trial. The importance to a jury of a summary of the evidence which relates to the issues in the case and a summary of counsel’s arguments should not be underestimated. By some means or other, the attention of the jury must be drawn to the issues and the evidence upon which the defence relies.[14]
[14]Ibid 162-5 (citations omitted).
After careful consideration of the passages to which our attention was drawn, we are of the view that nothing said in any of these cases detracts from the proposition that the adequacy of a charge must be assessed in light of the conduct of the trial, particularly having regard to the issues raised by the Crown and by defence counsel.[15]
[15]R v Taylor (2004) 10 VR 199, 209. See also R v Stoddart (1909) 2 Cr App R 217, 246.
A judge’s summing up must be balanced and fair, but ought not be the place ‘for the compulsory recitation of formulae’.[16] The judge must instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. That means that the judge must identify the issues in the case, and relate the evidence to those issues.[17] It also means that the judge must put fairly before the jury the case which the accused makes.[18]
[16]R v Dickson [1983] 1 VR 227, 230.
[17]In R v Jellard [1970] VR 802, it was noted that a trial judge was obliged to ‘relate the law to the evidence’. See also R v Chai (2002) 187 ALR 436, 441.
[18]RPS v The Queen (2000) 199 CLR 620, 637.
There is, however, clear authority for the proposition that a trial judge is not bound to discuss all of the evidence, or summarise all of the arguments put by both sides.
In Domican v The Queen,[19] the High Court observed:
the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This court has said that it “is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities”. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.
The foregoing statements are applicable to all criminal cases…[20]
[19](1992) 173 CLR 555.
[20]Ibid 561 (citations omitted).
The New South Wales Court of Criminal Appeal, in R v Zorad,[21] had earlier commented upon the principles which should govern a judge’s charge in the following way:
A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence: … This is a rule which appears increasingly to be ignored by trial judges. It is not a compliance with that rule simply to read the relevant part of the section to the jury and then to read out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross-examination and then re-examination of each witness before turning to the next witness and so on. The idea of a summing-up is to present for the jury the issues of fact which they have to determine.[22]
[21](1990) 19 NSWLR 91.
[22]Ibid 105.
Conclusion
Applying these principles, we have no doubt that the jury were adequately apprised of the issues in this case, the evidence bearing upon those issues, and the nature of the defence case. The trial itself was brief, and the questions to be determined were relatively straightforward. There was nothing terribly sophisticated about the attack mounted upon CLC’s credibility, or the arguments mustered in support of that attack. The trial judge was entitled to charge the jury as she did, and she was not obliged to repeat every argument raised by counsel for the applicant in his closing address.
Ground 2 should therefore be rejected.
It follows that the application for leave to appeal against conviction should be refused.
---
8
0