Burden and standard of proof.

Where there is more than one count, each count is to be considered separately.

Where there is more than one defendant, each case is to be considered separately.

Legal elements of each count (a direction of law). It is not the function of a trial judge to expound to the jury the principles of law going beyond those which the jurors need to understand to resolve the issues that arise for decisions in the case: The Queen v Chai [2002] HCA 12. For example, in sexual assault cases it is unnecessary and unhelpful to direct the jury upon elements of consent not relevant to the issues in the case: R v Mueller (2005) 62 NSWLR 476 at [4] and [42]. Consideration needs to be given to any alternative verdicts: see Alternative verdicts and alternative counts at [2-210].

It is generally not good practice to read legislation to a jury: Pengilley v R [2006] NSWCCA 163 at [41]; R v Micalizzi [2004] NSWCCA 406 at [36]. Where it is necessary to refer to a legal principle derived from statute, it is the effect of the provision, so far as it is relevant to the issue before the jury, that should be conveyed.

Any general matters of law which require direction — for assistance in this regard, reference might be conveniently made to the chapters in the Bench Book under the various headings in “Trial Instructions”. This will operate as a check list, although it is not suggested that it would be exhaustive.

How the Crown seeks to make out its case — this will involve an outline of the nature of the Crown case, by reference to the various counts. Where necessary, the Crown case against separate accused(s) should be distinguished.

Defences — this will involve an outline of the defence or defences raised by the accused, distinguishing where necessary between individual accused.

Evidence — here reference should be made to the relevant evidence, relating it, where possible, to the legal issues which arise under the particular counts and the defences raised. It will be necessary, of course, to distinguish between direct and circumstantial evidence. A legal direction on circumstantial evidence will already have been given.

Summarise arguments of counsel again relating them, if possible, to particular counts and defences and legal issues.

Recap any matters where essential.

In the absence of the jury, seek submissions from counsel in relation to any factual or legal issues which they contend were not appropriately dealt with in the summing-up. In DJF v R [2011] NSWCCA 6, Giles JA, with whom RA Hulme J agreed, said that even outlining a matter on which further directions are sought should be done in the absence of the jury: at [16].

As to the use by the judge of written directions: see The jury at [1-535]. Written directions (including question trails) do not replace the need to give oral directions: Trevascus v R (2021) 104 NSWLR 571 at [65]. Where written directions are provided, the trial judge is required to give oral directions which, as a minimum, oblige the trial judge to read out and explain the written directions. This allows the judge and counsel to gauge the jury’s reaction to the directions and detect whether the jurors are paying attention and appreciate the gravamen and purpose of the document: Cook (a pseudonym) v R [2022] NSWCCA 282 at [55]–[58].

Section 161 Criminal Procedure Act 1986

The above suggested directions are given upon the basis that the judge intends to summarise the evidence during the course of the summing-up. However, s 161 Criminal Procedure Act provides that the judge need not summarise the evidence if of the opinion that, in all of the circumstances of the trial, a summary is not necessary. In the case of a short trial with narrow issues and other relevant factors, the trial judge may decide in the exercise of his or her discretion not to summarise the evidence: R v DH [2000] NSWCCA 360; Alharbi v R [2020] NSWCCA 130 at [73]–[77].

Importantly, s 161 does not relieve the judge of the obligation to put the defence case accurately and fairly to the jury and instruct the jury about how the law applies to that case: Wong v R [2009] NSWCCA 101 at [141]; AS v R [2010] NSWCCA 218 at [21]; Condon v R (unrep, 9/10/95, NSWCCA). This does not require that it be done at length but it needs to be sufficient to highlight the evidence most relevant to the defence case: Alharbi v R at [75], [77], [82]. When putting the defence case to the jury, it must be made clear that the onus of proof remains on the prosecution: Wong v R at [141].

Desirability of the judge raising the identification of the relevant legal issues with counsel at the conclusion of the evidence

Essential elements of a summing-up

Generally, the summing-up should be as concise as possible so the jury is not “wearied beyond the capacity of concentration”: Alharbi v R at [78]. In R v Williams (unrep, 10/10/90, NSWCCA), the court said that a summing-up:

See also The Queen v Chai [2002] HCA 12 at [18]. In Haile v R (2022) 109 NSWLR 288 at [117], Bellew J summarised a trial judge’s obligations when summing-up to the jury as follows:

Alternative charges and arguments not put

A judge has a special judicial obligation to leave manslaughter to the jury where it is an available verdict: James v The Queen (2014) 253 CLR 475 at [23]. A judge is obliged to instruct the jury on any defence or partial defence where there is material raising it regardless of the tactical decisions of counsel as part of ensuring a fair trial. However, it is wrong to equate this obligation with leaving alternative verdicts: James v The Queen at [33]. The test is what justice to the accused requires: James v The Queen at [34]; The Queen v Keenan (2009) 236 CLR 397 at 438. If neither party relies on an included offence then the judge may conclude that it is not a real issue in the trial: James v The Queen at [37].

See the discussion in Alternative verdicts and alternative counts at [2-210].

If the judge advances an argument in support of the Crown case that was not put by the Crown this can occasion a significant forensic unfairness to the accused where his counsel is unable to address the jury on the new point: R v Robinson [2006] NSWCCA 192 at [137]–[149] where Johnson J set out the relevant principles.

Requirements of fairness

On the other hand if a judge refers to the evidence on a crucial issue, fairness requires that there be reference to the competing versions, and the competing considerations, including the inferences arising: Cleland v The Queen (1982) 151 CLR 1 per Gibbs CJ at 10; Domican v The Queen (1992) 173 CLR 555 at 560–561; R v Zorad (1990) 19 NSWLR 91 at 105; El-Jalkh v R [2009] NSWCCA 139 at [147]; RR v R [2011] NSWCCA 235 at [85]; Buckley v R [2012] NSWCCA 85 at [9]–[14]. It is therefore essential, if a summing-up is to be fair and balanced, that the defence case be put to the jury: Abdel-Hady v R [2011] NSWCCA 196 at [134]ff.

The defence case must be fairly and accurately put during the summing-up so that the jury can properly consider the issues raised. If that opportunity is not given, then there has been a miscarriage of justice: Wong v R [2009] NSWCCA 101 at [133]; AS v R [2010] NSWCCA 218 at [21]; R v Malone (unrep, 20/4/94, NSWCCA); R v Meher [2004] NSWCCA 355 at [76]. This extends to explaining any basis upon which the jury might properly return a verdict in the accused’s favour: Castle v The Queen (2016) 259 CLR 449 at [59]. Reference to the defence case encompasses any challenge to the prosecution evidence and submissions: Dixon v R [2017] NSWCCA 299 at [14].

Circumstances in which judge may express his or her view of the facts

In McKell v The Queen (2019) 264 CLR 307 the plurality reiterated that a trial judge’s discretion to comment on the facts should be exercised with circumspection and that comments conveying a trial judge’s opinion of the proper determination of any disputed factual issue to be determined by the jury should not be made: at [3], [5], [47]–[50]; The Queen v Abdirahman-Khalif (2020) 271 CLR 265 at [77]; Haile v R at [118]. However, there are circumstances where judicial comment is necessary to maintain the balance of fairness between the parties by, for example, correcting errors in a closing address: at [53]–[54]. Lai v R [2019] NSWCCA 305 is an example of a case where the trial judge crossed the line of permissible comment by conveying his opinion of disputed facts which created a substantial risk the jury might actually be persuaded of the accused’s guilt: [109]. Haile v R is another example. In that case, the trial judge drew repeated comparisons between the evidence given by a principal Crown witness and the accused, in effect suggesting to the jury that they had to choose between the two: see [42]–[48], [54], [99]–[103]. Repeatedly asking the question “Why would she lie?”, in conjunction with expressing personal views about aspects of the defence case, compounded the unfairness of the summing-up which the Court of Criminal Appeal concluded lacked balance: at [120]–[127].

Directions where counsel overlooks/breaches the rule in Browne v Dunn

A trial court must always endeavour to demonstrate flexibility in its response to a breach of the rule in Browne v Dunn, which is to be determined by the particular circumstances of the case and the course of the proceedings: Khamis v R [2010] NSWCCA 179 at [42]; MWJ v The Queen [2005] HCA 74 at [18]. A non-exhaustive list of possible responses by a court to a breach of the rule appears in Khamis v R at [43]–[46] including that if the accused’s evidence is allowed and there has been a breach of the rule the trial judge may fashion appropriate and careful directions to the jury: see also RWB v R [2010] NSWCCA 147 at [101], [116].

In general, it is dangerous for a trial judge to give a jury direction critical of the failure of counsel to put a proposition to a witness (in accordance with the rule in Browne v Dunn (1893) 6 R 67): RWB v R at [101]; Llewellyn v R [2011] NSWCCA 66 at [98]. If any direction is given, it is important for the jury also to be told that there may often be reasons, of which the jury are unaware, why such a thing was not done: R v Banic [2004] NSWCCA 322 at [23] and R v Liristis [2004] NSWCCA 287 at [59]–[89]. It is unfair to suggest to a jury that the only inference that they should draw is that the witness failed to include the contentious matter in his or her statement or instructions: RWB v R at [101], [116]. In some cases it is necessary to instruct the jury that oversights by counsel occur: Llewellyn v R at [98].

Brief reference to majority verdicts in summing-up

The suggested direction makes a brief reference to a majority verdict.

A brief reference to majority verdicts in the summing-up has been held not to undermine the direction that a unanimous verdict is required: Ingham v R [2011] NSWCCA 88 at [25]. However, if any reference is made in the summing-up it must not give the jury an indication of the time when a majority verdict will be accepted by the court: Hunt v R [2011] NSWCCA 152 at [27]. McClellan CJ at CL in Ingham v R at [25], said that a brief reference to a majority verdict in the summing-up has the “advantages referred to by the Victorian Court of Appeal” [in R v Muto [1996] 1 VR 336 at 339] which “are equally applicable to criminal trials in NSW”. The advantages referred to in Muto include: being frank with the jury from the start; not pretending that majority verdicts are not possible; not confusing the jury with premature and largely irrelevant information about the effect of the majority verdict section; making clear that their verdict should be unanimous; and finally, to put the possibility of a majority verdict out of their minds. Macfarlan JA in Doklu v R [2010] NSWCCA 309 at [79] was inclined to the view that “it is better not to mention the possibility unless there is a reason to do so” but this approach was not taken or endorsed in Ingham v R: see brief reference to Doklu v R at [87]. Apart from Victoria, a brief reference to majority verdicts is made in England and Wales (The Consolidated Criminal Practice Direction — Criminal Procedure Rules at VI.26Q.1) and Archbold (2022) at 4-509, p 585. As to the position in other States and Territories, see discussion in Ingham v R [2011] at [69]–[81].

If after the summing-up the jury indicate that it cannot agree: see Prospect of disagreement at [8-050]ff.