The Court of Appeal has reinforced the importance of judges adhering to the Benchbook, and of taking proper care of juries, in its decision that a miscarriage of justice occurred in a regional matter last year.
In October, 16-year-old “DCY” was convicted in the Mt Isa Childrens Court of rape, recording the complainant in breach of her privacy, and distributing the recording.
On appeal in June this year, Chief Justice Helen Bowskill, Appeal Court President Justice Debra Mullins, and Justice James Henry set aside the convictions and ordered a new trial on those counts.
In their reasons delivered on 4 August, they said the cumulative effect of the errors and irregularities at the end of the matter was at least material, if not fundamental, resulting in a miscarriage of justice.
The jury had been told the trial was expected to last “about four to five days”, and daily sitting hours would usually be 9.30am to 1pm and 2pm to 4.30pm.
On the Friday at the end of the five-day trial, counsels’ addresses began at 4.10pm, summing up at 6.15pm, and deliberations at 8.20pm, then the jury was allowed home at 9.20pm.
The jury was required to return and continue deliberations on the Saturday at 9am, eventually delivering its verdict Saturday at 3pm.
The appeal judges said the pressure placed on the jury was a breach of the fundamental rule that a jury must be free to deliberate without any form of pressure.
They also found the judge’s summing up, which did not follow the structure recommended in the Supreme and District Criminal Directions Benchbook, and departed from standard directions in several ways, risked confusion and misunderstanding for the jury.
“Instead of the usual directions, commencing with an explanation of the functions of the judge and jury, an explanation of what is, and is not evidence, and the fundamental legal principles, the trial judge commenced by saying he would ‘explain the law as it relates to the offences’,” they said.
The judge then referred to the Crown’s particulars and evidence for each count, using an “unorthodox” way to summarise evidence as though it were a statement of fact, they said.
“Summarising evidence in this way, intertwined with reference to the particulars of each charge, and before any instruction to the jury about what evidence is, of the jury’s role as the ‘constitutional tribunal for deciding issues of fact’, and of the distinction between a comment the judge may make about the facts, as opposed to the judge’s directions on the law, was confusing, to say the least,” they said.
“Following that summary of the evidence, the judge proceeded directly, without signalling that he was now directing the jury about the law or explaining that he was outlining the elements of each relevant set of offences, to instruct the jury, in substance, about the elements of the offences.
“It was only after this that the trial judge commenced with the directions which are generally given at the beginning of the summing up in relation to the fundamental principles, namely, the presumption of innocence, the burden and standard of proof, the role of the jury as distinct from the role of the judge.
“The trial judge then addressed a range of other matters – including how to deal with inconsistencies in the complainant’s evidence, the evidence of preliminary complaint and the expert evidence, as well as drawing inferences – before addressing for the first time the requirement for the jury to decide the case according to the evidence, and explaining to the jury what is, and is not, evidence.”
The judge “adapted and in some cases truncated a number of the ‘standard directions – including the direction in relation to the respective functions of the judge and jury, and the directions in relation to the burden and standard of proof”.
The appeal judges said the only apparent rationale for abandoning the well-established structure for a summing up in this case was that it reflected the judge’s practice, as he had commented that he had used this order of summing up “multiple times previously without any issue or objections”.
They pointed out that the object of summing up is the help the jury, and that it must be “custom built” to a particular case.
“However, the requirement for customisation does not mean that it is appropriate for the well-established structure and format of the ‘general summing up directions’, set out in the Benchbook, to be abandoned,” they said.
“That structure is deliberately designed to assist members of a jury to understand their role, and the fundamental principles of law which apply to all criminal trials, before the issues in the particular case, and the law which applies to those issues, is explained to them.
“It provides context, before the crucial directions about the issues, and the law which applies to those issues, are given.
“It represents the wisdom and experience of many learned criminal trial judges, developed over an extensive period of time, and overseen by an expert committee of Supreme and District Court judges who proactively review and update the Benchbook on a regular basis, by reference to decisions of this Court and the High Court.
“More broadly, it reflects the well-known and elementary need, in effectively explaining information to any audience, to provide the introductory context or framework within which that information falls to be understood.”
They said adopting the general structure of summing up which was informed and guided by the Benchbook ensured that essential matters of procedure and law were addressed in a consistent, correct and logical way.
“For a trial judge to launch immediately into summarising the evidence in relation to multiple charges, and then outlining the elements of the offences, before explaining the respective roles of the judge and the jury, what evidence is, and how they assess evidence – let alone the burden and standard of proof – is not only unhelpful; it carries a significant risk of confusion and misunderstanding,” they said.
“It is difficult enough for a jury, comprised of lay people from all walks of life, to listen carefully to and comprehend the detailed oral instructions and directions that trial judges are required to give them.
“That degree of difficulty, and its accompanying risk of audience confusion and misunderstanding, is unnecessarily compounded when the tried and tested, logical and rational order of summing up is not followed.”
The judges said the difficulty was also compounded by the summing up being delivered late on a Friday night before a long weekend, and the jury not being informed that the trial would run beyond the usual adjournment time, let alone consulted about any inconvenience that would cause to them.
They said the timing of the end of the trial was “undoubtedly an irregularity”.
“It was unfair – to the accused, the Crown, and their respective legal representatives, but most of all to the jury,” they said.
“No enquiry was made of the jury as to whether they were able to stay and sit on into the night on Friday.
“It is conceivable that members of the jury might have had family, caring or other responsibilities. They were given no opportunity to say, or to make alternative arrangements, if they did.
“As the upcoming weekend was a long weekend, members of the jury may have had family commitments or travel plans; or having spent five long days in a row, diligently performing their duty, may simply have been exhausted and wished to go home at an ordinary time.”
The judges said trial judges “must at all times endeavour to be cognisant of the comfort and concentration of the jury, and ensure they are supported to perform their duty to the best of their ability”.
“The trial judge may well have felt under pressure because this Friday marked the end of the scheduled circuit in Mt Isa and because, given the appellant’s age, it was preferable for the trial to be concluded before he turned 18, so that, if convicted, he would be sentenced as a child,” they said.
“However, objectively, neither of those factors presented insurmountable obstacles to conducting the trial in a regular manner.”
Read the case here.
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