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Court of Criminal Appeal 14 September 1999

Regina v Townsend

[1999] NSWCCA 294

Sexual offences
CRIMINAL LAW AND PROCEDURE CHARGE TO JURY

Citation: Regina v Townsend [1999] NSWCCA 294
Court: New South Wales Court of Criminal Appeal
Date: 14 September 1999
Judge(s): Handley JA, Grove J, Hidden J

Background

The appellant was tried in the District Court at East Maitland on eight counts of sexual offences against a complainant who was his wife's niece. The alleged offences occurred between 1983 and 1988, when the complainant was aged between approximately seven and seventeen. The family were travelling show people, and the alleged incidents took place across various locations while the family was on the show circuit.

The appellant gave evidence at trial denying all allegations. Several family members also testified in support of his denials, contradicting specific aspects of the complainant's account, including evidence about the configuration of a showground grandstand and details of incidents allegedly witnessed by the appellant's children.

The jury convicted the appellant on seven of the eight counts. He appealed on the ground that the trial judge's summing-up failed to put the defence case adequately or fairly to the jury.

  • Whether the trial judge's charge to the jury was adequate in circumstances where it summarised elements of the Crown's case but made no reference to the defence case.
  • The scope of a trial judge's obligations when summing up under section 405AA of the Crimes Act 1900, which relieves judges of any obligation to summarise all evidence chronologically.

Decision

Grove J (with whom Handley JA and Hidden J agreed) held that the charge was inadequate. While the trial judge outlined the ingredients of each count and referenced how the Crown sought to establish them, he made no reference at all to the case being advanced by the defence. That omission fell short of the obligations that section 405AA of the Crimes Act 1900 expressly preserves.

The Court drew on its earlier decision in R v Piazza (1997) 94 A Crim R 459 to restate the applicable principle. Section 405AA(1) removed any obligation to recite all evidence chronologically, but section 405AA(3) preserves all other aspects of the summing-up function. A judge remains obliged to communicate to the jury what each party's case consists of, how that case is said to be supported by the evidence, and to present the issues of fact the jury must determine.

The defence case in this trial was, as the Crown itself acknowledged, straightforward: a flat denial of all allegations, supported in relation to several specific incidents by corroborating witnesses. The trial judge's failure to put that case to the jury in any collected or summarised form was a material error that could not be remedied short of a new trial.

The appellant also sought to raise additional grounds of appeal, but the Court noted those grounds, even if made out, would not have resulted in verdicts of acquittal. Accordingly, a new trial was the appropriate remedy.

Orders Made

  • Appeal allowed.
  • Convictions and sentences on the seven counts quashed.
  • New trial ordered on those counts.

Key Takeaways

  • Section 405AA of the Crimes Act 1900 removes a trial judge's obligation to summarise all evidence, but expressly preserves every other aspect of the summing-up function, including the duty to outline each party's case.
  • A trial judge must communicate to the jury the substance of the defence case and how it is said to be supported by the evidence, even where that case is simple and clear.
  • Under the principle restated in R v Piazza, a summing-up should include a collected resume of evidence relevant to the issues and a brief outline of the arguments put in relation to that evidence.
  • The Court of Criminal Appeal confirmed that these obligations are not diluted merely because the defence case is straightforward or easy to understand from the evidence.
  • Where a charge to the jury outlines only the Crown's case and omits any reference to the defence, that omission will ordinarily be a sufficient basis for ordering a new trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 405AA (obligation to summarise evidence)
- Crimes Act 1900 (NSW), s 409B(3)(a) (cross-examination on prior statements)

Cases
- R v Piazza (1997) 94 A Crim R 459
- Domican v The Queen (1992) 173 CLR 555
- Regina v Zorad (1990, unreported) (cited within Piazza)