Trevascus v R

1. [1]

   HOEBEN CJ at CL: I agree with Bellew J and with the orders which his Honour proposes.

2. [2]

   BELLEW J: Ryan Trevascus (the applicant) stood trial in the District Court before his Honour Judge Colefax SC and a jury, having pleaded not guilty to the following offences:

   1. (1)

      on 26 June 2018, at Woodbine in the State of New South Wales, being in company with another person, robbed David Melia of a set of keys, the property of David Melia (count 1).

   2. (2)

      on 26 June 2018, at Woodbine in the State of New South Wales, being in company with another person, attempted to take and drive a vehicle, namely an Audi (Registration CZF 88E), without the consent of David Melia and whilst David Melia was in the vehicle (count 2).

3. [3]

   The offending in count 1 was contrary to s 97(1) of the Crimes Act 1900 (NSW) and carried a maximum penalty of 20 years imprisonment. The offending in count 2 was contrary to ss 154C(2) and 344A(1) of the same Act and carried a maximum penalty of 14 years imprisonment. No standard non-parole period was prescribed in either case.

4. [4]

   Following a trial in which the entirety of the evidence was completed in two days, the applicant was found guilty by the jury of both counts.

5. [5]

   His Honour gave the following indicative sentences:

6. [6]

   His Honour imposed an aggregate sentence of 7 years imprisonment with a non-parole period of 5 years and 3 months imprisonment. [1]

7. [7]

   The applicant now seeks leave to appeal against both his conviction and sentence on the grounds considered below.

The Crown case at trial

1. [8]

   The Crown case at trial was based on a joint criminal enterprise between the applicant and his co-offender Frank McGuiness (McGuiness), and may be summarised as follows.

2. [9]

   On the evening of 26 June 2018, David Melia (the complainant) drove his motor vehicle into a service station at Ruse in south-western Sydney for the purposes of buying tobacco papers. McGuiness was at the service station at that time. As the complainant was leaving, McGuiness asked him if he would drive him to Leumeah Railway Station in exchange for petrol money. The complainant agreed to do so.

3. [10]

   After the complainant drove away from the service station, McGuiness made a telephone call. Having completed the call, he asked the complainant to drive him to McDonald's at Woodbine rather than to Leumeah Railway Station. The complainant agreed and drove McGuiness to that location, where he stopped in the main parking area on arrival. The applicant arrived there on a pushbike a short time later. Having spoken with McGuiness, the applicant rode away and was followed by the complainant and McGuiness in the complainant's vehicle. The applicant rode to the front of a nearby house where he stopped and spoke to his girlfriend before abandoning the pushbike and getting into the back seat of the complainant's vehicle.

4. [11]

   McGuiness then asked the complainant to drive him to Campbelltown and the complainant agreed. Having made another phone call, McGuiness asked the complainant to drive him to an address in Minto Heights. Once again, the complainant agreed. When they arrived at that address, McGuiness got out of the vehicle and went into a unit block whilst the complainant and the applicant remained in the vehicle. When McGuiness returned, the complainant said that he needed to return to Campbelltown. He drove back to McDonald's at Woodbine where he stopped in the carpark and told the applicant and McGuiness to get out of the vehicle.

5. [12]

   McGuiness then insisted on being driven further by the complainant. When the complainant refused, McGuiness became aggressive and punched him on multiple occasions. The applicant, who was sitting in the rear of the complainant’s vehicle, then grabbed a chain that the complainant was wearing around his neck and choked him by pulling the chain backwards as McGuiness was simultaneously punching the complainant. The force exerted by the applicant pulling the chain was such that the complainant was unable to move his head forward.

6. [13]

   McGuiness then grabbed the complainant’s keys from the centre console of the vehicle. When the complainant demanded the return of his keys, McGuiness got out and moved around to the driver's side of the vehicle. He was still in possession of the keys. At that point, a further physical altercation occurred between McGuiness and the complainant at the driver’s side door. In the course of that altercation McGuiness punched the complainant on multiple occasions and attempted to pull the complainant out of the driver's seat.

7. [14]

   As that was taking place, the applicant got out of the rear of the vehicle and approached the driver's side door where he stood near McGuiness. He walked away briefly before returning and getting back into the rear of the vehicle, at which time McGuiness was still standing in the driver's side door. A short time later the applicant again got out of the vehicle and tried to open the driver's side door from the outside. The complainant got out and confronted the applicant, following which the applicant ran off.

8. [15]

   As he did so, the complainant yelled:

9. [16]

   A further confrontation occurred between the complainant and McGuiness before McGuiness also ran off.

10. [17]

    CCTV footage taken when the complainant’s vehicle returned to McDonald’s at Woodbine was tendered in the Crown case. [2] This Court was not asked to view the footage but its contents are contained in the summary of trial provided by the Crown in the following terms which were accepted to be accurate: [3]

11. [18]

    The complainant suffered a number of injuries including a broken nose and a black eye, along with facial swelling and tenderness.

12. [19]

    McGuiness pleaded guilty to an offence of robbery in company and asked the court to take into account a further offence of attempted aggravated take and drive a motor vehicle on a Form 1. He was sentenced to a term of imprisonment of 7 years and 7 months with a non-parole period of 5 years and 8 months. An appeal against that sentence was dismissed. [4]

The applicant’s case at trial

1. [20]

   In his opening address to the jury, trial counsel for the applicant (who was not counsel for the applicant before this Court) articulated the primary issues in the following terms: [5]

2. [21]

   The complainant, who was called to give evidence in the Crown case, was cross-examined by counsel consistent with the matters outlined in the opening address.

3. [22]

   At the time of his arrest, the applicant participated in an interview with police which was tendered in the Crown case. In the course of that interview, the applicant admitted to being in the car with the complainant and McGuiness and said that they had driven to Minto Heights in order to buy drugs for the complainant as payment for “putting up" with McGuiness. He specifically admitted to being in the car with the complainant at McDonald's at Woodbine. He also agreed that an argument had started because the complainant had said that he needed to go home.

4. [23]

   As to the assault of the complainant, the applicant told police that he remembered McGuiness and the complainant were “going at it". He said that he had “no idea" that the complainant was wearing a gold chain and that although he had grabbed the complainant and McGuiness, he had done so for the purposes of trying to separate them. He denied assaulting the complainant or stealing any of his property and maintained that at all times he was simply trying to stop the complainant and McGuiness from fighting.

5. [24]

   The applicant gave sworn evidence before the jury in which he said that on the evening in question he had received a telephone call from McGuiness who had said “something along the lines of going to get some drugs". He said that he did not believe that he had ever said anything about fingerprints, and that he had left the scene because he thought that the complainant and McGuiness were having a scuffle and that it was not his place to become involved. When cross-examined, he maintained that he had attempted to separate the complainant and McGuiness, but accepted that there were inconsistencies between his sworn evidence before the jury and his account to police when interviewed. He was cross-examined at some length by reference to the CCTV footage. He accepted that at one point he knew that the complainant was being assaulted but denied that he was aware that McGuiness was trying to rob the complainant. He also denied attacking the complainant, as well as the suggestion that his evidence had been tailored in an attempt to provide an innocent explanation of what was depicted on the CCTV footage.

6. [25]

   At the commencement of his closing address, counsel for the applicant unequivocally accepted that the evidence established that both a robbery and an attempted carjacking had taken place. However, he submitted to the jury that those offences had been committed solely by McGuiness and that although the applicant had been present at the time of the relevant events, he had: [6]

7. [26]

   A short time later, counsel said: [7]

8. [27]

   In addressing the jury in relation to the complainant's evidence, counsel for the applicant urged the jury to undertake a careful assessment of the complainant's credibility. He submitted that specific aspects of the complainant's evidence were “highly not believable”, that the jury would find that the complainant had become engaged with McGuiness in order to source drugs, and that he (the complainant) was not a credible witness. Counsel also reminded the jury of aspects of the complainant’s cross-examination about his version of events and submitted that a finding that the complainant had not been honest about the circumstances in which he came to be involved with the applicant and McGuiness would lead to a finding that he was, generally speaking, not credible. [8]

9. [28]

   Counsel also addressed aspects of the applicant's account to police in his interview. [9] In doing so, counsel submitted to the jury that although the applicant had (as counsel put it) “got a few things wrong in the ERISP”, any discrepancies between what he had said in his interview and other evidence in the trial amounted to small and unimportant details.

10. [29]

    By reference to the CCTV footage counsel submitted (inter alia) that the complainant had been “mistaken or confused” about that part of the incident in which the applicant was said to have attempted to choke him by pulling on the gold chain. [10] Counsel also challenged other aspects of the complainant's evidence [11] before turning to specific aspects of the defence case. [12] In doing so, counsel focussed upon the contents of the applicant's record of interview with police, and his cross-examination by the Crown. He then addressed the jury on further aspects of the CCTV footage, [13] the effect of his submissions being that at least some of that footage was at odds with the evidence of the complainant, and provided further support for a conclusion that such evidence was generally not credible.

11. [30]

    Counsel concluded his final address to the jury by saying: [14]

The requirement for leave

1. [31]

   The appeal against conviction is based upon the two grounds which are considered below. The issues raised by those grounds were not the subject of any objection or application by counsel for the applicant at trial and accordingly, leave to rely upon those grounds is required. [15]

2. [32]

   In Obeid v R, Bathurst CJ (with whom the other members of the Court agreed) formulated a number of propositions in relation to the operation of rule 4, including the following: [16]

The directions of the trial judge

1. [33]

   At the commencement of his summing-up to the jury the trial judge said the following: [17]

2. [34]

   Consistent with the approach outlined in that passage, his Honour then directed the jury as to what constitutes a joint criminal enterprise in terms which are uncontroversial. [18]

3. [35]

   His Honour then said: [19]

4. [36]

   Two separate documents, each headed “Jury Question Trail”, were then distributed to each member of the jury, one in respect of each count in the Indictment. [20] His Honour then adjourned for a short period during which the jury retired to read both documents in the jury room.

5. [37]

   The question trail in respect of count 1 was in the following terms: [21]

6. [38]

   The question trail in respect of count 2 was in the following terms:

7. [39]

   When the jury returned following the adjournment, his Honour said: [22]

8. [40]

   Notwithstanding his Honour’s reference to having “started” to direct the jury as to law, his Honour did not, at any stage thereafter, read, further explain, or indeed make any substantive reference to, the contents of either question trail. There were only two further references to the question trails in the summing-up. The first was made in the context of reminding the jury of the necessity to give separate consideration to each count in the Indictment: [23]

9. [41]

   The second was made in the context of directing the jury as to the onus and standard of proof: [24]

10. [42]

    When given the opportunity to do so at the conclusion of the summing-up, [25] neither the Crown nor counsel for the applicant sought any further directions, nor was any issue taken by either of them with any of the directions which had been given.

Submissions of the Applicant

1. [43]

   In advancing this ground, counsel for the applicant before this Court conceded that the provision of documents setting out directions of law as to the elements of the offence(s) was potentially beneficial to a jury, and was a course which was expressly permitted by s 55B of the Jury Act 1977 (NSW) (the Act). Counsel also conceded that all of the directions of law contained in each of the question trails provided to the jury were correct.

2. [44]

   The precise error relied upon by counsel in support of this ground was articulated as the failure of the trial judge to read each question trail to the jury. Counsel submitted that s 55B of the Act did not displace the common law requirement to give oral directions as to elements of the offence. It was submitted that the requirement to give oral directions was consistent with criminal proceedings being, as counsel described them, “primarily oral in character”. Counsel submitted that in the circumstances of the present case, such directions should have included, at the very least, a recitation of the contents of each of the question trails which had been provided.

3. [45]

   It was further submitted that the proposition that the obligation to give directions of law to the jury could be discharged merely by the provision of a document would, if taken to its logical conclusion, mean that a summing-up could consist entirely of a document being handed to the jury without anything further being said. It was submitted that such a proposition was at odds with obligations which are imposed on a trial judge by the common law, the most fundamental of which is to ensure the fairness of the trial.

4. [46]

   In these respects, counsel referred the Court to a number of authorities which, he submitted, recognised the primacy of oral directions, and supported the proposition that the absence of such directions amounted to error. In terms of the application of rule 4, counsel submitted that the error for which he contended was a fundamental one which went to the root of the trial, and gave rise to a substantial miscarriage of justice. It was submitted that in those circumstances, and notwithstanding the absence of any objection by trial counsel, leave should be granted to allow ground 1(a) as a ground of appeal.

Submissions of the Crown

1. [47]

   To the extent that the submissions advanced on behalf the applicant involved an assertion that there had been a lack of transparency by allowing the jury to retire to the jury room to read the documents, the Crown submitted that there had been no indication of any irregularity. It was submitted that the jury should be presumed to have followed and understood the contents of each of the question trails when they retired to the jury room to read them.

2. [48]

   The Crown submitted that the directions contained in the question trails were straightforward. The Crown also pointed out that such directions were accepted to be legally correct. The Crown emphasised that the contents of the question trails had been settled in consultation with both the Crown and counsel for the applicant, and had been provided to the jury with the consent of both parties. The Crown submitted that in circumstances where the course taken by the trial judge was expressly permitted by s 55B of the Act, and where no issue had been taken by trial counsel, leave under rule 4 should be refused.

Consideration

1. [49]

   There is no issue that s 55B of the Act permitted the trial judge to provide the question trails to the jury. Section 55B was introduced by the Jury (Amendment) Act 1987 (the Amendment Act) and is in the following terms:

2. [50]

   The Second Reading Speech to the Amendment Act made no specific reference to s 55B, although it included the following: [26]

3. [51]

   The Explanatory Memorandum to the Amendment Act included the following: [27]

4. [52]

   The practice of providing written directions to assist a jury in a criminal trial had been endorsed by this Court long before the enactment of s 55B in Petroff v R. [28] In that case, the trial judge had provided the jury with a document containing (inter alia) a summary of relevant matters of law to which he made reference in the course of his summing-up, and had allowed the jury to retain the document in the course of their deliberations. Importantly however, the trial judge had emphasised that the document was not to be used as a substitute for the detailed oral directions that he had given, and was at all times to be interpreted in the light of those oral directions. The applicant argued that a miscarriage of justice had arisen as a consequence of what was described as a “grave departure from practice” by the trial judge providing the document to the jury.

5. [53]

   By majority, this Court dismissed the appeal. [29] Nagle CJ at CL (with whom Street CJ agreed) said: [30]

6. [54]

   His Honour went on to say: [31]

7. [55]

   It is evident from those passages that although the approach which had been taken by the trial judge was endorsed, the Court emphasised that a document of the kind which had been provided to the jury was not to be regarded as a substitute for oral directions. That emphasis necessarily assumed that oral directions were required.

8. [56]

   The practice of assisting a jury by providing written directions has also been endorsed in other jurisdictions, in the absence of any statutory equivalent of s 55B. However once again, that endorsement has been accompanied by clear statements supporting the necessity for a trial judge to make it plain to the jury that any document which might be provided for their assistance is not to be used as a substitute for oral directions.

9. [57]

   For example, in R v Bourke [32] (a decision of the Queensland Court of Appeal) the trial judge had provided written directions to the jury setting out the elements of each offence and also setting out some of the questions that the jury would be required to consider. In rejecting a submission that the written directions were inconsistent with the oral directions which had been given, Williams JA (with whom McMurdo P and Philippides J (as her Honour then was) agreed) cited the decision of Nagle CJ at CL in Petroff as authority for the proposition that a written document cannot be used in substitution for oral directions. [33] His Honour went on to say: [34]

10. [58]

    In agreeing with Williams JA, and again referring to the judgment of Nagle CJ at CL in Petroff, McMurdo P said: [35]

11. [59]

    In R v Dunn [36] (a decision of the Court of Criminal Appeal of South Australia) the trial judge had provided the jury with a document setting out the elements of the offences of murder and the alternative verdict of manslaughter, but no oral directions were given to the jury as to the basis on which they might arrive at that alternative verdict. Bleby J (with whom Sulan and White JJ agreed) said: [37]

12. [60]

    In reaching that conclusion, and by reference to the judgment of Nagle CJ at CL in Petroff, his Honour observed that “[c]ourts have been at pains to point out the need for such written directions to be supplementary to and not in substitution for oral directions”. [38] Having referred to the decision in Bourke his Honour then said: [39]

13. [61]

    The circumstances postulated in the italicised portion of that passage of his Honour’s judgment reflect what occurred in the present case.

14. [62]

    In R v Burns [40] (also a decision of the Court of Criminal Appeal of South Australia) the trial judge had provided a document to the jury which was not dissimilar in some respects to the question trails provided by the trial judge in the present case. The document was supplemented with oral directions by the trial judge (with which the Court found error, the nature of which is not relevant for present purposes). Gray and Sulan JJ accepted that there were likely to be advantages in providing written directions to a jury as an aid to the summing-up of a trial judge. However, their Honours stressed that the use of such documents was subject to an important qualification which (having referred to the observations of Nagle CJ at CL in Petroff) they explained in the following passage: [41]

15. [63]

    In a separate judgment, Kourakis J (as his Honour the Chief Justice then was) having noted that the practice of providing written directions to a jury had become an accepted one, [42] said: [43]

16. [64]

    As I have noted, there is no doubt that the course followed by the trial judge in the present case of providing the question trails to the jury was expressly permitted by s 55B of the Act. That section serves a statutory confirmation of the accepted position at common law, namely that a trial judge has a discretion to provide such material to a jury for their assistance.

17. [65]

    However in my view, there is nothing in the terms of s 55B of the Act which provides any support for the conclusion that in enacting that provision, the Parliament intended to abrogate the clear obligation imposed by the common law on a trial judge to give oral directions to the jury. In particular, s 55B does not permit a trial judge, having reduced directions of law to writing, to provide them to the jury, have the jury read them for themselves, and then say nothing more about them. Quite apart from not being sanctioned by statute, that is a course which runs entirely contrary to the proposition, supported by the authorities to which I have referred, that oral directions are always necessary. It follows that the failure on the part of the trial judge to give oral directions to the jury regarding the contents of each of the question trials was an error.

18. [66]

    Whether written directions should be provided to a jury at all will always be a matter for the exercise of the discretion of the trial judge. A fundamental factor which will inform the exercise of that discretion will be whether the provision of written directions is likely to assist the jury in their understanding of the issues in the trial. If a determination is made that written directions should be provided, both the Crown and counsel for the accused should obviously be given the opportunity to be heard in relation to the content of such directions, as well as in relation to the form of any document which is to be provided to the jury.

19. [67]

    However, for the reasons already explained, and even if written directions are provided, there remains an obligation on the trial judge to give oral directions as well. It is not possible to prescribe the content of such oral directions. That will necessarily be a matter for the determination of the trial judge and will depend upon all of the circumstances of the case, including its nature and complexity. However, in any case where written directions are provided, and irrespective of whether such directions go to the elements of the offence or to substantive issues of law such as self-defence, intoxication or provocation, the obligation of the trial judge to give oral directions will require, at the very least, that such directions be read and explained to the jury in their entirety. The obligation to give oral directions is also likely to encompass the necessity to differentiate, for the jury’s assistance, between those elements which are in issue from those which are not. In terms of the element(s) which are in issue, the obligation to give oral directions will generally require the trial judge to identify the evidence which is relevant to such element(s). [44] Finally, and importantly, it will always be necessary, in any case where written directions are provided, for the trial judge to emphasise to the jury that such directions are not a substitute for the oral directions which are given. A reiteration of that proposition in any written document provided to the jury would be prudent.

20. [68]

    Further in my view, the obligation to give oral directions emphasises that the practice of allowing the jury to retire in the course of the summing-up and read written directions to themselves in the jury room is not one to be encouraged. Such a practice runs contrary to the fundamental obligation on a trial judge to assist the jury. It also largely deprives a trial judge of the important advantage of assessing whether or not the members of the jury comprehend the directions which are being given. In this regard Bleby J made the following relevant observations in Dunn: [45]

21. [69]

    In R v Thompson [46] (a decision of the Victorian Court of Appeal) Redlich JA took a similar view: [47]

22. [70]

    A further reason why the practice of allowing the jury to retire and read written directions for themselves is inappropriate stems from the fact that it is a practice which is completely lacking in transparency. Subject obviously to the exercise of any power to close the court, the common law requires that a criminal trial take place in public, and that directions of the trial judge be given “in the full light of publicity”. [48] In this regard, the further observations of Redlich JA in Thompson are apposite: [49]

23. [71]

    Why, in all of these circumstances, trial counsel raised no issue concerning the absence of oral directions is unclear. However, as Bathurst CJ pointed out in Obeid, a necessary ingredient of a fair trial is that proper directions be given as to the elements of the offence. If such an ingredient is overlooked, leave should generally be granted pursuant to rule 4. [50] In my view, for the reasons expressed, there was a failure on the part of the trial judge to provide proper directions as to the elements of each of the offences. That failure resulted in a miscarriage of justice and I am satisfied that leave should be granted pursuant to rule 4.

24. [72]

    This ground of appeal is made out.

The directions of the Trial Judge

1. [73]

   The trial judge correctly recognised that a primary issue in the trial was whether the Crown had established that the applicant was party to a joint criminal enterprise. [51] Having given the jury a lengthy direction as to what constituted a joint criminal enterprise, [52] his Honour later returned to this issue and said: [53]

2. [74]

   His Honour then directed the jury as to the drawing of inferences before giving a Murray direction in respect of the evidence of the complainant. [54] In the course of giving that latter direction, his Honour said: [55]

3. [75]

   His Honour then directed the jury as to the way in which the evidence of the applicant was to be assessed. [56] However in doing so, his Honour made no specific reference to anything which had been said by the applicant, be it in his evidence or in the course of his interview with police.

4. [76]

   Before this Court, the Crown relied solely upon the italicised parts of those passages from the summing-up as discharging the obligation of the trial judge to put the defence case.

Submissions of the applicant

1. [77]

   Counsel for the applicant submitted that the summing-up was bereft of any, or at least any substantive, reference to the defence case. It was submitted, in particular, that the trial judge had made no substantive reference to any specific proposition which had been put to the jury on behalf of the applicant, notwithstanding the numerous and detailed submissions which had been made by counsel in the course of his closing address. It was submitted that this failure constituted a fundamental error which went to the root of the proceedings and which gave rise to a substantial miscarriage of justice, thus justifying a grant of leave pursuant to rule 4.

Submissions of the Crown

1. [78]

   The Crown expressly acknowledged that the reference to the defence case in summing-up was “brief” but submitted that there was no obligation on the trial judge to summarise the evidence. It was submitted that when the summing-up was read as a whole, it was evident that the trial judge had put the defence case adequately, and that the primary issues which had been the focus of counsel’s final address to the jury had been properly addressed.

Consideration

1. [79]

   Accepting that s 161 of the Criminal Procedure Act 1986 (NSW) (the CPA) alleviated the need for the trial judge to summarise the evidence, one of the factors which is of paramount significance in assessing a summing-up is to determine whether the defence has been fairly put, thus allowing the jury to properly consider the issues raised on the accused’s behalf. If, when the summing-up is viewed as a whole, the jury has not been given the opportunity fairly to consider the defence case, then there has been a miscarriage of justice. [57] The principles which centre upon the obligation of a trial judge in that regard include the following.

2. [80]

   Firstly, the fundamental task of the trial judge is to ensure a fair trial which will involve not only instructing the jury about the law, but which will extend to identifying the issues, relating the law to those issues, and assisting the jury to understand how it is that the accused may be guilty of the offence charged in the indictment. It is the case which the accused makes that the jury must be given to understand, and it is not sufficient for the trial judge to simply say to the jury that they should give consideration to the arguments which have been put by counsel. [58]

3. [81]

   Secondly, fairness and balance will ordinarily require that the respective cases for the prosecution and the accused be accurately and fairly put to the jury, although that requirement does not oblige the trial judge to put to the jury every argument put forward by counsel for the accused. [59]

4. [82]

   Thirdly, the adequacy of a summing-up will depend, at least in part, upon the circumstances of the particular case. [60] 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. [61]

5. [83]

   Fourthly, the need for, and extent of, any exploration of the evidence and the issues is to be assessed in the context of the trial, its length, its complexity and the way in which it has been conducted. Where the summing-up in a short trial has followed hard on the heels of a defence address, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in the closing addresses. To so require would be to credit the jury with little in the way of intelligence and common sense. However, an exercise of judgment is always required on the part of the trial judge to frame the summing-up in a way that is helpful to the jury. To suggest that in every case, regardless of its length or complexity, the trial judge must identify and repeat the points made by defence counsel, and the relevant evidence, would be to go too far. Counsel should be expected to contribute in this regard and to disclose whether they seek more by way of summary of the evidence and of the submissions than the judge proposes. [62]

6. [84]

   Fifthly, whilst s 161 of the CPA relieves the trial judge of the positive obligation to summarise the evidence if the circumstances of the particular trial render that unnecessary, it does not relieve the trial judge of the obligation to put the case of the accused to the jury, and instruct the jury about how the law applies to the case. The way in which the accused's case is put to the jury must make it clear that the onus of proof remains on the prosecution, but the case must still be put. [63]

7. [85]

   I accept that the applicant’s trial was a short one which, in relative terms, was not complex. I also accept that it was made clear by counsel for the applicant in his opening address that the principal issue was whether or not the Crown had established the applicant's participation in the joint criminal enterprise which was alleged. That remained the case throughout the trial. The proposition that the Crown could not establish the applicant’s involvement in the joint criminal enterprise formed a fundamental foundation of counsel’s closing address which, I acknowledge, took place immediately prior to the summing-up of the trial judge. However, it remains the case that by reference to two specific matters, counsel for the applicant advanced a number of detailed submissions in support of the overarching submission that the applicant’s participation in the joint criminal enterprise had not been established.

8. [86]

   The first matter involved a significant attack on the credibility of the complainant, in circumstances where that evidence was relied upon largely, if not exclusively, by the Crown to prove its case. The only reference made by the trial judge to this aspect of counsel’s address was to remind the jury of his submission that the complainant’s evidence was not credible. That was not said in the distinct context of putting the defence case, but was somewhat “buried” in the Murray direction.

9. [87]

   The second matter centred upon the CCTV footage, which counsel submitted contradicted the evidence of the complainant in several respects. The submissions as to that issue occupied a significant part of counsel’s final address. Although the trial judge made reference to the necessity for the jury to look at the CCTV footage carefully, nothing at all was said about the defence position in relation to it. In particular, nothing was said about the bases on which counsel for the applicant had put that it further eroded the complainant’s credibility.

10. [88]

    Even giving full weight to the fact that the trial was short and that the summing-up followed immediately upon the final address of counsel for the applicant, an obligation remained on the trial judge to put the defence case. The passages of the summing-up relied upon by the Crown did not discharge that obligation. Simply directing the jury that the “battleline [was] clear” was largely meaningless without some elucidation of how and where such battleline was drawn.

11. [89]

    Taken as a whole, what was said by the trial judge fell short of putting the defence case to the jury. I consider it surprising, to say the least, that counsel for the applicant did not raise these issues when given the opportunity to do so. Notwithstanding that, the failure to put the defence case resulted in the jury not having a fair opportunity to properly consider that case and resulted in a miscarriage of justice. For those reasons, leave under rule 4 should be granted.

12. [90]

    This ground of appeal is made out.

13. [91]

    It is unnecessary for me to consider the application for leave to appeal against sentence in light of the views that I have reached on the conviction appeal.

ORDERS:

1. [92]

   I propose the following orders:

   1. (1)

      Leave to rely upon ground 1(a) in support of the appeal against conviction is granted.

   2. (2)

      Leave to rely upon ground 1(b) in support of the appeal against conviction is granted.

   3. (3)

      The appeal against conviction is allowed.

   4. (4)

      The convictions and sentences imposed in the District Court are quashed.

   5. (5)

      The proceedings are remitted to the District Court for a new trial.

   6. (6)

      The proceedings are listed in the District Court Arraignments List at 9.30am on 28 May 2021.

2. [93]

   HIDDEN AJ: I agree with Bellew J.