Trevascus v R: Trial Judge Must Sum Up Defence Case
When a person is being tried for a crime in the District Court or Supreme Court, there are numerous procedural fairness requirements that must be observed. One of these is that the trial judge must fully and clearly explain the defence case to the jury members before they retire to consider their verdict. The lengths to which a trial judge must go to sum up the defence case properly were spelled out in the 2021 NSW Court of Criminal Appeal decision of Trevascus v R  NSWCCA 104.
Trevascus v R
In the matter of Trevascus v R, Justice Bellew (with whom Justices Hoeben, CJ at CL, and Hidden, AJ, agreed) noted that a trial judge must sum up the defence case adequately and that failure to do so amounts to a miscarriage of justice even if counsel for the accused failed to raise the issue of the adequacy of the judge’s directions at trial.
There were two grounds of appeal argued int his matter, and both were upheld. They were:
- That the trial judge (Judge Colefax) erred in his directions to the jury as to the elements of each offence;
- That the judge erred in the directions given to the jury in that he failed to summarise the defence case, including the submissions made on behalf of the applicant.
Of particular interest in the case, was the trial judge’s use of written “question trails”, which were provided to the jury, and which the jury members were allowed to absorb in the privacy of the jury room.
The facts in Trevascus v R
The accused was charged with robbery in company and with attempting to take and drive a motor vehicle without consent while the owner was still in the vehicle. He was charged under the doctrine of joint criminal enterprise, which requires the prosecution to demonstrate an agreement between criminal actors.
The Crown argued that the accused had acted in concert with a co-accused person by being in the vehicle and restraining its owner while the co-accused assaulted the owner and took his car keys.
The defence argued that the accused had not restrained the owner and, while agreeing he had been in the car, said he had no knowledge of what the co-accused would do and no intention to take his keys or his car.
The Trial Judge’s decision
Judge Colefax told the jury that his summing up would be partly oral but would involve also the provision of two “jury question trails”, documents which set out the elements of the two offences charged and the various questions the jury had to be satisfied of before it could convict.
He allowed them to read those documents in the privacy of the jury room because he could tell that many members of previous juries had “felt uncomfortable with all eyes being on them as they were trying to absorb what was in the document”.
The jury retired, read the documents and returned for further oral directions from Judge Colefax.
The accused contended that, on top of the problems in relation to the question trails, that Judge Colefax had not made any substantive reference to the defence case in his summing up.
The Court of Criminal Appeal’s decision
Justice Bellew found that Judge Colefax’s failure to elaborate on, or even to simply read aloud, the “question trails”, was an error.
“ 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 …” Justice Bellew said.
The obligation to give oral directions meant that the practice of allowing the jury to 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,” Justice Bellew found. “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.”
The practice also lacked transparency, a critical ingredient of a fair trial.
“Why, in all of these circumstances, trial counsel raised no issue concerning the absence of oral directions is unclear,” Justice Bellew said.
Noting that there was no longer a requirement to summarise the evidence, Justice Bellew said that that “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.”
It was not sufficient for the trial judge to simply say to the jury that it should give consideration to the arguments which have been put by counsel, even though those arguments had been put just before the judge’s summing up in what had been a short (two-day) trial.
“Taken as a whole, what was said by the trial judge fell short of putting the defence case to the jury,” Justice Bellew said.
Reserving some veiled criticism of the accused’s representative, he continued, “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, he found that the trial judge’s failure to put the defence case had resulted in the jury not having a fair opportunity to properly consider that case and that this had resulted in a miscarriage of justice.
The CCA remitted the matter to the District Court for a new trial.
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