R v Towney

1. [1]

   The trial of Trent Towney on a charge of murder commenced before me in Orange on 7 September 2015. The accused is alleged to have stabbed John Frail, fatally, on 20 July 2013. After the jury had retired to consider their verdict certain misconduct of one of their number was brought to my attention. I discharged the jury before they had reached a verdict, on 18 September 2015.

2. [2]

   The retrial of Trent Towney is to commence on 1 February 2016, again at Orange, and I have been allocated to preside. The date was fixed at a callover before Johnson J on 2 October 2015. On 14 December 2015 the solicitor for the accused notified my chambers that an application would be made that I disqualify myself. He was requested by my associate to provide urgently the materials upon which this application would be made.

3. [3]

   I listed the application for hearing on the earliest date available to myself and defence counsel, being Friday 18 December 2015. Crown counsel assigned to the retrial and who had prosecuted at the first trial was unavailable for that date but the application had to proceed. 18 December 2015 is the last court sitting day before the date fixed for the retrial in Orange, taking into account the Court’s fixed long vacation through late December 2015 and January 2016. These are my reasons for dismissing the application.

The limited requests for re-direction at trial

1. [4]

   The application to disqualify is brought upon the ground of apprehended bias said to be exhibited in passages of the summing-up which I delivered to the jury on 16 and 17 September 2015. I therefore commence these reasons by identifying the limited extent to which complaint about the summing up was made by defence counsel at the trial and the limited scope of the re-directions which were sought.

2. [5]

   Towards the end of the summing-up at pp 66 to 72 some redirections were asked for with respect to what I had said to the jury up to that time. First, a redirection was requested with respect to the subject of what use the jury might make of lies alleged to have been told by the accused. I gave a redirection on that at p 73.

3. [6]

   Secondly, I was asked to redirect upon the evidence of distances which had been estimated by Crown witnesses, variously, between a vehicle which was stationary in Federation Street at the time of the stabbing and a nearby road barrier. I gave a redirection about that at p 75.

4. [7]

   Thirdly at the top of p 71 a redirection was requested with respect to whether there was any evidence that the deceased had been "down", as defence counsel put it, at the time when he was stabbed. When counsel was addressing me on that point his submission was cut off but reconstructing as best I can the transcript quoted in the first third of p 71 of the summing-up, I interpret that defence counsel was seeking a redirection on the question of whether there was any evidence to show that the deceased may have been bent over and moving towards the accused at the time when he sustained the fatal stab wound which I will describe shortly.

5. [8]

   I declined to re-direct on this, dismissing the complaint with the words which appear about a third of the way down p 71 of the summing up, “you addressed them on that”. This subject of whether the deceased had been bent over when he received the fatal knife wound was relevant to what inference the jury would draw regarding the accused’s intention in wielding the knife. The present assertion of apprehended bias is in part founded upon my summing up on intention, in particular so far as I summed up the evidence regarding the posture of the deceased at the time he received the fatal wound and how that fact would bear upon the accused’s intention: see [27] – [59].

6. [9]

   Fourthly, at p 71 a redirection was sought regarding evidence of the manner in which the accused had held the knife – whether his grip was thumb and forefinger towards the end of the knife handle furthest from the blade or whether it was the reverse, thumb and forefinger at the blade end of the handle.

7. [10]

   On this subject, after discussion with me about the time at which Brody Roach had observed a particular grip, defence counsel did not press for the re-direction.

8. [11]

   Fifthly, a redirection was sought on the question of what evidence was available to the jury concerning the degree to which the accused may have been intoxicated at the time of the fatal attack on the deceased.

9. [12]

   On the fifth subject, intoxication, I declined to give any redirection. The contention made on the present application that there is a reasonable apprehension of bias on my part is in part based upon the way in which I summed up on the subject of intoxication: see [70] – [85].

10. [13]

    After these requests for redirection had been ruled upon, when the summing-up resumed at page 73 I did, as earlier mentioned, redirect on the two matters which I considered warranted it. My summing-up concluded at page 83 and at that point no further redirection was sought by either counsel.

Delay in bringing the application for recusal

1. [14]

   When this matter was before Johnson J on 2 October 2015 for callover to appoint a date for retrial, the Crown and defence were informed that the retrial was allocated to me. No objection was then taken to my presiding at the retrial, nor was any reservation expressed. From 2 October to 14 November 2015 no communication was made from the accused's representatives to the Court foreshadowing an application of the nature now brought or suggesting that instructions would be taken regarding any difficulty that might be thought to arise if I should conduct the second trial.

2. [15]

   I have now been informed by Mr Nash who appeared for the accused at the trial and who appears for him on this notice of motion that the reason for the application being deferred until what is in practical terms the last possible moment before commencement of the retrial is that it was not determined by those instructing him that he would be counsel for the retrial until late November. I do not consider that a justification for the delay. Whatever uncertainty there may have been regarding trial representation, Mr Nash's instructing solicitors should have ascertained from him at the latest by the date of the callover whether he saw any objection to my being the judge at the second trial.

3. [16]

   It is common practice in this Court for a judge who has conducted a trial which has aborted also to conduct the retrial (see [90], below). It should have been anticipated that that practice would be followed and counsel who had appeared at the first trial should have been asked to advise his instructing solicitors whether or not that would present any difficulty – so that it could be foreshadowed to the list judge on callover. Whether or not he was briefed for the retrial it would have been Mr Nash's duty to volunteer to the solicitors who instructed him in the first trial that he thought continuity of the trial judge would be objectionable, if that were the case. It is regrettable that this application, which could have been and should have been foreshadowed at the callover and brought immediately thereafter, has instead been brought at a congested and difficult closing stage of the law term.

The Crown case at the aborted first trial

1. [17]

   A short summary of the Crown case at the last trial is necessary in order to give context to these reasons. The Crown alleges that on 19 July 2013 and into the early hours of 20 July the accused hosted a gathering of friends and relatives at his home at 200 Warren Road, Gilgandra. This is on the corner of Warren Road and Federation Street in that town. Evidence was called to prove that the deceased attended this gathering during the evening of 19 July but left when asked to do so.

2. [18]

   He returned to the premises not long before 3am on 20 July 2013. At that time, after a physical confrontation between the accused and the deceased outside the front of the house, evidence was given that the deceased moved away from the house on foot across Federation Street. There was further evidence given that the accused then went inside the house to the kitchen and took up a knife. The Crown witnesses said he re-emerged through the front door and ran after the deceased, caught up with him on Federation Street and stabbed him. These witnesses described the deceased then moving across Federation Street and collapsing against a wall of a building on the far side, where he died.

3. [19]

   According to the post-mortem report, the fatal stab wound was inflicted to the right side of the base of the neck. The knife had passed from there through to the left lung where it terminated in the upper lobe. Vital arteries in the neck were transected as was the trachea. The oesophagus was partly transected. The approximate depth of the wound was 17 centimetres.

Principles regarding disqualification for apprehension of bias

1. [20]

   The disqualification application was brought on notice of motion filed by my leave in court on 18 December 2015, supported by an affidavit of the accused's solicitor sworn 14 December 2015. This affidavit merely identifies the entire transcript of the trial and states that the solicitor obtained instructions on 9 December 2015 to apply for me to disqualify myself. Such an application is required to be made to and decided by the judicial officer whose recusal is sought: Bainton v Rajski (1992) 29 NSWLR 539 at 544 and 548; Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 at 12.

2. [21]

   The present application invokes principles relating to apprehended bias. Actual bias is not alleged. This is made clear in the terms of the order sought in the notice of motion as follows:

3. [22]

   The written submissions filed on behalf of the accused dated 16 December 2015 confirm that the application is based only upon apprehended bias, in this passage at p 3:

4. [23]

   The principles applicable to a recusal or disqualification application upon this ground are stated in the following passages. In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at 344 – 345, the authors of the joint judgment stated as follows (citations omitted):

5. [24]

   In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 492 – 493 the following statements appear in a judgment joined in by five of the justices (citations omitted):

6. [25]

   In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74 Deane J listed the different categories of circumstances which might give rise to an apprehension of bias as follows (citations omitted):

7. [26]

   This may not be an exhaustive or exclusive list of the categories, as was observed by the authors of the joint judgment in Ebner v The Official Trustee in Bankruptcy at [23]. The present application is clearly in the second category. It is said that my conduct constituted by portions of the summing-up would give rise to a reasonable apprehension of bias in a fair minded lay observer. Specifically, upon this recusal application, criticisms were made of the summing-up on intention, on self defence and on intoxication.

The summing-up on intention

1. [27]

   First, with respect to intention. The jury, if they were to convict, would have had to infer from circumstantial evidence that the accused had intended either to kill the deceased, John Frail, or to cause him grievous bodily harm. The evidence was capable of satisfying them that the fatal wound was caused by a knife thrust by the accused which entered the base of the deceased's neck and caused the wound which I have described at [19].

2. [28]

   The Crown put to the jury in final address that they would infer from a stab wound of this nature, which it was not disputed had been delivered by the accused, that he must have intended to kill or at least to cause grievous bodily harm. It may have been significant to the jury's deliberation upon this to consider whether the knife blow which inflicted this wound was delivered whilst the deceased was upright (in which case the accused would have to have raised the knife above the level of the deceased's shoulder and plunged it downward) or whether the blow was sustained when the deceased was in some different posture. I put the cases of the Crown and of the accused respectively about this in the following passages from pp 58 and 59 of the summing-up:

3. [29]

   The complaint made about the summing-up on the subject of how the deceased received the fatal blow concerns a passage which immediately followed the last of those which I have just quoted. This extended from pp 59 – 60 and is said to exhibit what a reasonable bystander would interpret as bias against the accused:

4. [30]

   The criticism made about this is that the impugned passage:

5. [31]

   It was said that this undermining took place by my reference to, amongst other things, the absence of any evidence that the deceased bent down and ran at the accused. But that was an accurate statement on my part. There was not a word of evidence to the effect that the deceased had bent over and run at the accused in a manner which could possibly have caused the fatal blow to result from him running into a knife either held out or thrust out horizontally or near horizontally in front of the accused. Notably, defence counsel had never put such a proposition to any witness.

6. [32]

   Counsel for the accused submitted the following, on the present application:

7. [33]

   In oral argument on this application I attempted in vain to elicit from the accused’s counsel what he meant by “an ongoing altercation between the two men” and how, if he could identify evidence which would satisfy that description, it would contradict my reminder to the jury that there was “no description by any witness that the deceased bent forward or put his head down and ran at the accused”. In this sentence I identified to the jury a very specific concept of which I said no witness gave a description. My statement is not rendered erroneous by Mr Nash identifying vague and imprecise generalities in some witnesses’ descriptions of what took place between the two men.

8. [34]

   The reference, in the passage of the written submission which I have quoted at [32], to the transcript at p 292 seems inappropriate. This is part of the evidence of Karah Towney. There is nothing there that bears on the topic. At pp 289 – 290 there is a relevant passage of Karah Towney’s evidence which I quote:

9. [35]

   At T 294 lines 18 – 35 there is another relevant passage of Karah Towney’s evidence, as follows:

10. [36]

    The last part of Karah Towney’s evidence relevant for present purposes is this, at T 295, lines 1 – 11:

11. [37]

    These are the nearest passages to the reference given by the accused’s counsel (T 292) that appear to have anything to do with a description of the fatal physical altercation. The effect of them is that the accused went towards the deceased "swinging his arm" with the knife in his hand. Karah Towney said that the deceased was facing the accused at the time this occurred. When reminded of the statement she had given police and her evidence at committal she added that the two men had been "going towards each other" when this occurred and that John Frail had been “still trying to fight with Trent” and “they both just went at each other”. There is nothing in this which constituted any evidence of John Frail ever adopting any bent over position such as would have been necessary for the fatal knife thrust into his neck to have been made by the accused with a horizontal or pushing stroke. If this is what the accused’s counsel relies upon as evidence “that there was an ongoing altercation” then it has no bearing whatever on the accuracy of the impugned passage of my summing up.

12. [38]

    The passage at T 316, upon which counsel relies in the extract from his submissions quoted above at [32], is at T 316 line 14 to T 317 line 32. This was evidence of Rebecca Trudgett:

13. [39]

    This is the evidence that the accused knifed the victim with a pushing stroke having “had the knife… in front of him”, “pointed it towards John” and “a couple of times Trent leaned the knifed into him.” But it contains no description of John Frail having assumed any posture such that knife strokes “in front of” the accused and “out towards” the deceased, whereby the accused “leaned the knifed into him” could have caused the wound which penetrated from the right side of his neck through his trachea to the upper lobe of his left lung. If the jury accepted that knife blows were struck as Rebecca Trudgett described, apparently intended by her to convey that the knife was thrust horizontally in front of the accused, then in the absence of any evidence that John Frail was bent over with his torso more or less horizontal at the time, the jury would not have had any basis upon which to conclude that any of these were the knife strokes which caused the fatal wound.

14. [40]

    In the passage of my summing up on this issue which is now attacked (see [29]), I referred to the evidence of Sharlette Williams and Stevie Smith. Sharlette Williams observed the final and fatal confrontation between the two men from the front passenger seat of a motor vehicle stationary in Federation Street. She saw the stabbing take place on the roadway near to the left side of the car. She described it as follows at T 202 line 25 to T 203 line 21:

15. [41]

    Stevie Smith witnessed the event from the driver’s seat of the motor vehicle. At T 163 line 49 to T 165 line 32 she gave this evidence:

16. [42]

    In the impugned passage of the summing up at p 59 (quoted at [29] above), when I told the jury that it was open to them to find (“you may conclude…”) that the only way the fatal blow could have been struck was “much as Sharlette Williams and Stevie Smith described” I was referring to the evidence quoted at [40] and [41]. That is, evidence that the accused raised his right hand to a position slightly behind himself and swung the knife over and downward to the victim. Having further reviewed that evidence I am not persuaded that there was any error in telling them that it was open to them to find that the only way the mortal wound, as earlier described, could have been inflicted was by a stabbing action such as described by Sharlette Williams and Stevie Smith and that they could reason to a conclusion that it could not have been caused by a pushing stroke such as described by Rebecca Trudgett unless the deceased had been bent over facing towards the accused, of which there was no evidence.

17. [43]

    The direction I gave to the jury in the passage quoted at [29] was that there was an absence of evidence of the deceased having assumed a posture which could have resulted in him receiving the fatal blow in any way other than by the type of stroke which the two witnesses, Williams and Smith, described, namely, raising the knife high and plunging it downward. I consider that this observation was fully justified having regard to the relevant passages of evidence the totality of which have been extracted at [34] – [41] above. It was for those reasons that I did not see fit to re-direct upon this – as referred to at [7] and [8] above, where I have mentioned what was said at p 71 of the summing-up.

18. [44]

    As for apprehension of bias, I fail to see how it would arise out of this aspect of the summing-up. The evidence does not show that I was mistaken in the manner in which I put this to the jury.

19. [45]

    Even if I had been mistaken, what is it that I would be deciding in the re-trial which this passage might suggest I have pre-judged? If evidence emerges in the re-trial of some other way in which the fatal blow could have been struck, then it would necessitate that I should sum up differently. Even if the evidence should be the same, there is no saying that the issues at the end of the evidence will be the same or that this point will ever be taken. I do not see how any misstatement of the evidence in the impugned passage of the summing up, if there is a misstatement, could be taken by any reasonable bystander to indicate bias.

20. [46]

    There are numerous statements in the authorities about the extent to which a trial judge may appropriately make comment to the jury upon the evidence. In B v The Queen [1992] HCA 68, (1992) 175 CLR 599 at 605, Brennan J, with whom Mason CJ and Deane J agreed, said this (citations omitted):

21. [47]

    In R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49 the Court pointed out (at 56) that the trial judge is entitled to express opinions on the facts provided it is made clear to the jury that factual disputes are exclusively for them to decide. In this case I told the jury many times that factual questions were exclusively for them. In the passages that are complained of I repeatedly stated that they "may conclude", or similar, and that they "can reason about" the evidence. This was expressed in the orthodox language of a summing up which made it abundantly clear to them that the judgment on these evidentiary and factual points was theirs.

22. [48]

    In the course of argument on this motion, counsel for the applicant submitted to me that I had told the jury that they "must" decide this issue of fact by finding that the fatal knife swing by the accused occurred as described by Sharlette Williams and Stevie Smith. I reject that submission. I did not at any stage tell the jury that they "must" decide any factual matter. This is apparent in the transcript of the summing up. Such a direction from me would almost undoubtedly have provoked a request for a re-direction. If I had inadvertently said such a thing and had been made aware of it I would have corrected myself. It would have been completely contrary to a central theme of the summing-up.

23. [49]

    In R v Meher [2004] NSWCCA 355 the following was stated at [87]:

24. [50]

    I refer also to the judgment of Blanche CJ in R v Malone (Court of Criminal Appeal (NSW), 20 April 1994, unrep):

25. [51]

    Further in relation to the impugned passage of my summing-up at pp 59 – 60 concerning evidence of the posture of the deceased when the fatal blow was received, the accused now submits:

26. [52]

    The absence of expert evidence on the bio-mechanics of what postures the deceased and the accused respectively would have had to assume in any scenario in order for the fatal blow to have been struck did not invalidate what I put to the jury. It was quite appropriate in my view to inform them that they could use their own common sense and apply their own reasoning to work out what postures of the respective parties would have been consistent with such a blow being occasioned and then to consider that against the evidence of Crown witnesses which described the respective movements of the accused and the deceased at various times. The absence of expert evidence does not invalidate the impugned passage.

27. [53]

    Next it was submitted on this point that:

28. [54]

    The other evidence to which the accused's counsel has referred is that of Kade Mackenzie, who was in the rear passenger seat of Stevie Smith's car, stationary in Federation Street, when the fatal altercation took place. His evidence at T 227 lines 5 – 23 is as follows:

29. [55]

    The description of "throwing punches" which seems to have been attributed to both the accused (at lines 6 and 25) and the deceased (at line 42) is completely general and does not give any description of a knife stroke by the accused which would contradict or qualify the description of the knife stroke given by Sharlette Williams and Stevie Smith. I fail to see how it can meaningfully be said that I “singled out” their evidence regarding the knife stroke from that of Kade Mackenzie when he gave no specific description of any thrust which could possibly have caused the fatal wound, at all. “Throwing punches” with a knife was an empty generality which neither counsel attempted to have clarified by the witness. At T 231 lines 40 – 42 counsel for the accused merely had the witness reiterate this broad description:

30. [56]

    This was not evidence of actions by the accused which could have caused the fatal wound. “Swinging the knife around [John Frail’s] arms or under them” could not result in a deep penetrating wound from the right side of the neck through the throat to the upper lobe of the left lung. To the extent that the impugned passage of my summing-up “singled out” the evidence of Sharlette Williams and Stevie Smith from these two answers I consider it was entirely appropriate to do so. The subject on which I was attempting to remind the jury of relevant evidence and to instruct them regarding the manner in which it would be open to them to reason with respect to it was the subject of what conclusion they might draw about the nature of the blow which inflicted the critical wound. It would have been an irrelevance and a distraction to include reference to this evidence of Kade Mackenzie (quoted at [54]) which was of other knife strokes immaterial to the matter at hand.

31. [57]

    As to the complaint (in the submission quoted at [53]) that I "highlighted an earlier argument made during the summing-up (but not by the Crown)", the passage at p 28 of the summing-up was in these terms:

32. [58]

    This passage does not involve an "argument made during the summing-up" at all. It involves the jury being directed that in evaluating the evidence of various witnesses, including conflicting witnesses, it would be appropriate that they take into account the opportunity for observation that the witnesses respectively had. Whether the Crown had referred to this or not, it was my duty as the trial judge to point it out. There were witnesses who had viewed this final confrontation from different angles. Whether defence counsel or Crown counsel said anything about the relative advantage of observation enjoyed by one witness over another, I was bound to point out to them that they should consider this when weighing up the evidence and deciding which witness or which parts of any witness’s evidence they felt they could rely upon. A generic instruction about having regard to witnesses’ opportunities for observation is a standard component of the trial judge’s directions in most criminal trials in this State. I consider it appropriate and desirable to give a direction on this point in specific terms in relation to any factual issue that may be significantly affected by witnesses’ relative opportunities to observe.

33. [59]

    If, contrary to what I have said above, I was in error at the trial in telling the jury that it was open to them to accept the evidence of Sharlette Williams and Stevie Smith as to the nature of the fatal knife stroke (at summing-up p 59) and in inviting them to consider relative opportunities for observation by the witnesses respectively (at summing-up p 28) and if I am still wrong in the assessment of those matters which I have given here, nevertheless I do not think it would be open to a reasonable bystander to conclude that such error on my part as may be found should give rise to a reasonable apprehension of bias.

The summing-up on self-defence

1. [60]

   Secondly, with respect to excessive self-defence. This was not opened by the accused's counsel. I considered that it had to be left to the jury because of the description given by Karah Towney at T 294 – 295 (quoted above at [35] and [36]) of the physical confrontation between the accused and the deceased which occurred in Federation Street immediately prior to the fatal stab wound being inflicted. She said that the deceased "was still trying to fight Trent".

2. [61]

   The fact that self-defence and excessive self-defence had to be left to the jury raised a subsidiary factual question as to whereabouts on the road surface the stabbing had occurred. Depending upon where the jury found that the stabbing had occurred, they might conclude either that the deceased had moved back towards the accused before being fatally stabbed or that he had not done so. Whether the deceased had moved back towards the accused as the latter ran out from his home with a knife might have been considered by the jury to have a bearing upon whether the deceased had acted in a manner from which the accused reasonably apprehended that he would have to defend himself.

3. [62]

   Defence counsel had addressed the jury on the basis that the position of blood stains on the road indicated the location of the stabbing. Part of my remarks in the summing-up, which is now impugned on this application, was intended to draw the attention of the jury to the circumstance that before they could draw the suggested inference as to where the stabbing had taken place, they would have to consider whether it followed that the location of the blood on the road was the location where the victim had stood when stabbed.

4. [63]

   The part of the summing up that is criticised in this respect is at summing-up pp 64 – 65, as follows:

5. [64]

   Counsel now says on behalf of the applicant that there was no evidence of “spurt or spatter”. There did not need to be direct evidence that in fact blood had spurted or spattered from the victim for it to be appropriate to issue to the jury this caution about the use of the circumstantial evidence of the location of blood stains as a basis for inferring the location of the fatal stabbing.

6. [65]

   This was an orthodox application of the principles governing the use of circumstantial evidence and of the way in which a jury is customarily instructed about these principles. Elsewhere in the summing up I gave a general direction about the use of circumstantial evidence, pointing out, as is usual, that before they drew an inference from circumstances they should ask themselves whether the inference really in logic followed. Here, defence counsel in final address clearly was asking the jury to infer from the presence of bloodstains on the road that the victim had stood at the location of those stains when the stab wounds were inflicted. The jury had to consider whether that really followed or whether it might be possible or even probable that blood might have fallen to the ground at some distance from where the deceased, whose blood it was, was standing when he was struck.

7. [66]

   What I put to the jury in this instance, as criticised, was not as the accused has now submitted “speculative”. It was a possibility that they needed to consider and it arose as a matter of common sense and everyday knowledge. If drawing to the attention of the jury the fact that they had first to make a decision about whether the blood on the road had fallen directly down from the location of the stabbing or had spurted or spattered from some point more distant had the effect of diminishing the defence argument, then that was because the argument which had been run depended upon an assumption that the blood found on the road after the incident fell directly downward from the point of stabbing. As trial judge, holding the balance between the parties I was not bound to refrain from reiterating, with specific reference to this factual issue, the standard direction that I had elsewhere given the jury as to the proper process of inferential reasoning.

8. [67]

   In his final address, after reminding the jury of evidence given by eye witnesses about where on the roadway the accused and John Frail had finally come together, defence counsel put this to the jury at T 567/9 – 48 (extracted so far as relevant):

9. [68]

   This submission completely failed to acknowledge to the jury that it depended upon an assumption that the blood on the ground must have fallen directly vertically from the victim as he stood on the spot where the blood was subsequently found. It was not acknowledged in this passage of the address that any element of inference from this assumed circumstance was involved. As trial judge I was not bound to let this incomplete analysis pass.

10. [69]

    Again, whether I was right or wrong at the trial to have summed-up to the jury in the manner which I did on the subject of inferring the victim’s position on the roadway from the location of bloodstains and whether I am right or wrong in the analysis of this subject now given in these reasons, it does not appear to me that any reasonable bystander could reasonably apprehend that bias against the accused might underlie the terms in which I put these matters to the jury.

The summing-up on intoxication

1. [70]

   The third aspect of the summing-up which the accused now complains about as exhibiting a basis upon which bias might be apprehended concerned the degree to which the accused may have been intoxicated at the time when the stabbing took place.

2. [71]

   On this subject, the Crown had addressed the jury at T 530 lines 6 – 9 as follows:

3. [72]

   The Crown Prosecutor then read from the transcript of evidence of Emma Towney and Rebecca Trudgett, which included Emma Towney’s statement that at some unidentified point during the night the accused “did look intoxicated” (T 242 line 35) and the evidence of Ms Trudgett that, again at an unidentified point in the night, the accused “wasn’t that affected, he was getting a little bit tipsy but that’s about it” (T 311 lines 10 – 11).

4. [73]

   At T 531 lines 7 and 10 the Crown Prosecutor concluded on this subject as follows:

5. [74]

   In closing address, answering this portion of what the Crown Prosecutor had to say, at T 546 line 34 to T 547 line 6, the following was said by the accused’s counsel:

6. [75]

   In summing-up I reminded the jury of the Crown’s address on the subject of intoxication as follows:

7. [76]

   At summing-up pp 60 – 61 I reminded the jury of defence counsel’s argument on intoxication. It is this passage in respect of which complaint is now made to the effect that the reasonable bystander could infer from it that I hold a bias against the accused:

8. [77]

   I have mentioned already, at [11] and [12] that a redirection was sought on this and not given (see summing-up pp 69 – 72).

9. [78]

   It has been pointed out on this application that in the course of summing-up I referred to the evidence of Emma Towney as being to the effect that she had said the accused did not look intoxicated. That was incorrect, as can be seen from T 242 line 35 quoted above at [72]. The Crown had addressed the jury correctly, that Ms Towney had said he did look intoxicated (at T 530). The error on my part was inadvertent. On this application the accused’s counsel has expressly disclaimed any suggestion that a reasonable apprehension of bias could arise from this error. Neither counsel noted my mistake in this respect at the time. There would be no possible inference of bias arising from it.

10. [79]

    What is said about the passage from my summing-up at pp 60 – 61 is that I “singled out” the evidence of Whalan Williams as the other evidence of the applicant’s intoxication. It is then complained that my reference to the three hours between when Whalan Williams made his observation and the time which was relevant for the jury to ascertain the accused’s state of intoxication suggested to the jury that there was time for the applicant to sober up. As the accused’s counsel put it, “This accordingly added weight to the Crown’s argument, as summarised, that there was very ‘scant’ evidence of intoxication.”

11. [80]

    This was another instance of my simply pointing out to the jury that they needed to take account of a relevant witness’s opportunity for observation in evaluating his evidence. The Crown had submitted to the jury that the only observers of the accused’s state of intoxication at a time relevant to his formation of the requisite intention were Emma Towney and Rebecca Trudgett. The accused’s counsel had countered with the submission this was wrong, that there were more witnesses – and named Whalan Williams. He was not a witness who had had the opportunity to observe the accused at the time of the fatal confrontation in order to be able to say anything at all about his state of intoxication at that time.

12. [81]

    It would have been completely misleading for me to have left the jury with this point of disagreement between the Crown and the defence without pointing out that Whalan Williams had not made his observation at a relevant time. To suggest that my doing so “added weight to the Crown’s argument” is a distortion of what occurred.

13. [82]

    Further, in relation to this point the proposition that I had “singled out” the evidence of Whalan Williams was sought to be made good on the application by suggesting that there was more evidence beyond that of Whalan Williams which had bolstered or perhaps expanded upon the evidence of Emma Towney and Rebeca Trudgett and to which I should have made reference in summing up.

14. [83]

    Reference was made in argument to the witness Brody Roach. Defence counsel had referred to him in the passage which I have quoted above at [74] when responding to the Crown’s claim that there were only two witnesses relevant to intoxication. But when one looks at the evidence of Brody Roach (T 73 – 104) it provides nothing specific about the degree of intoxication of the accused at the relevant time at all. In addressing the jury counsel had done no more than tell them that they “will remember the evidence of Brody Roach”, without quoting any of it. When summing-up I could not find anything in the evidence of this witness concerning the degree of intoxication of the accused at the time of the fatal confrontation, for the purpose of reminding the jury of it. Brody Roach agreed that “at some point in the evening”, “people were drinking” (T 79). He said people were sitting around in the lounge room drinking (T 81) but he did not notice how much of the drink which had been brought to the premises had been consumed (T 82). In cross-examination Brody Roach said that John Frail was “charged up”, “very drunk” at the time he was asked to leave the party (before returning quite some time later): T 94 – 95.

15. [84]

    The accused’s counsel in support of this part of his argument suggested that there was a deal of other evidence about large amounts of alcohol being at the premises during the evening, about most people present consuming alcohol and a great deal of drinking going on and so on. This general evidence was not such that the jury needed to be reminded of it, or of which it would have been appropriate for me to remind them, in drawing to their attention the competing arguments of the Crown and the defence about what evidence was available to establish the accused’s degree of intoxication when he stabbed the deceased.

16. [85]

    The witnesses’ generalities about drinking going on, as now identified by the accused’s counsel, simply could not have been relied upon by the jury to prove anything about how much the accused, in particular, was affected by alcohol shortly before 3am when he stabbed the deceased. To a reasonable bystander properly informed about the evidence, the addresses and the summing-up, it could not be reasonably apprehended that I was actuated by bias pointing out that Whalan Williams’ evidence of the state of the accused’s intoxication was with respect to a time at least three hours too early to be relevant and that there was no other specific evidence about the accused’s state of sobriety at the time of the knife attack which should be taken into account by the jury together with the evidence which the Crown had identified of Emma Towney and Rebecca Trudgett.

Conclusion

1. [86]

   For these reasons, I consider that no reasonable bystander, understanding the evidence and arguments presented in closing addresses, aware of the contents of my summing-up as a whole and familiar with the duties incumbent on the trial judge in giving the jury their final charge, would apprehend from any of the matters raised by the accused on this application that I would approach the retrial with a bias against him in relation to any matter. There is no basis for any reasonable person with knowledge of the full circumstances to infer that as presiding judge in the retrial I would act out of bias in the manner in which I would direct the jury on any factual issue, in the rulings I might give upon the admissibility of evidence, in the exercise of discretions which might be in my hands with respect to procedural matters, in formulating the law to the jury or in anything else within my province.

2. [87]

   In considering what has been argued and in reaching this conclusion I have been guided by statements of principle on the application of the law relating to disqualification for bias particularly in respect of criminal trial judges, having regard to their limited decision making role. In R v El-Zeyat [2012] NSWSC 340 Johnson J said:

3. [88]

   In Balic (No 2) (1994) 75 A Crim R 515 at 520 it was said by Cole JA, Handley and Sheller JJA agreeing:

4. [89]

   Balic (No 2) was cited with approval in R v Kearns [2003] NSWCCA 367 and was cited and applied by Johnson J in R v El-Zeyat.

5. [90]

   I have taken carefully into account Cole JA’s recognition, in the passage quoted at [88], that there are aspects of the functions of a trial judge in a criminal trial which might be subject to influence by bias, if any were held. For the reasons given, I do not consider it could be reasonably apprehended that, in making decisions of the kind referred to by Cole JA, I would hold or be influenced by any pre-judgment concerning the accused on the basis of the matters put to me on this application. As Johnson J pointed out in El-Zeyat at [29]:

6. [91]

   The orders of the Court are:

   1. (1)

      The accused’s notice of motion filed in Court by leave on 18 December 2015 is dismissed.

   2. (2)

      The retrial of Trent Towney is to proceed before Fagan J at Orange commencing 1 February 2016.