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Court of Criminal Appeal 24 May 2021

Trevascus v R

[2021] NSWCCA 104

Also reported as (2021) 104 NSWLR 571
Assault & violenceTheft & propertyPublic order & justice offences
C RIMINAL LAW APPEAL AGAINST CONVICTION JURIES DIRECTIONS TO JURY UP BY THE TRIAL JUDGE NO ISSUE TAKEN BY TRIAL COUNSEL

Citation: Trevascus v R [2021] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 24 May 2021
Judges: Hoeben CJ at CL, Bellew J, Hidden AJ

Background

The applicant was tried in the District Court before Judge Colefax SC and a jury on two charges arising from an incident on 26 June 2018 at Woodbine in south-western Sydney. The Crown alleged that the applicant and a co-offender, acting in a joint criminal enterprise, robbed the complainant of his car keys and attempted to take and drive the complainant's Audi without consent while the complainant remained in the vehicle.

The entire trial evidence was completed in two days. The jury found the applicant guilty on both counts. The trial judge imposed an aggregate sentence of seven years imprisonment with a non-parole period of five years and three months.

The applicant sought leave to appeal against both conviction and sentence. The appeal against conviction raised two principal grounds: first, that the trial judge had provided written jury directions without subsequently giving oral directions on the elements of the offences; and second, that the trial judge had failed to adequately put the defence case to the jury in the summing-up.

  • Whether written jury directions (in the form of "question trails") can substitute for oral directions on the elements of the offences charged
  • Whether the practice of sending the jury to the jury room mid-summing-up to read written directions for themselves is appropriate
  • Whether the trial judge's summing-up adequately put the defence case to the jury
  • Whether the deficiencies, in the absence of objection from trial counsel, amounted to a miscarriage of justice warranting leave to appeal

Decision

On written versus oral directions: The trial judge provided written directions in the form of question trails covering the elements of each offence and sent the jury to retire and read them during the summing-up. No oral directions on the elements of the offences were subsequently given, and the summing-up made no substantive reference to the question trails. The Court of Criminal Appeal held that this constituted error. Written directions are supplementary to oral directions and cannot replace them. The Court emphasised that oral directions are necessary to ensure comprehension, and that sending the jury to the jury room to read written directions in the absence of the judge, counsel, and parties raises serious concerns about transparency and the public conduct of the trial.

On the practice of retiring mid-summing-up: The Court expressly discouraged the practice of allowing juries to retire to the jury room partway through a summing-up to read written directions on their own. It noted that the necessity to ensure a jury comprehends its directions, and the requirement that a trial be conducted in public, both militate against this approach.

On the defence case: The Court found that the trial judge's summing-up failed to adequately put the defence case. Trial counsel had made a number of substantive submissions to the jury about aspects of the evidence, but these were not reflected in any meaningful way in the summing-up. The Court confirmed the established principle that a trial judge bears an obligation to put the defence case to the jury fairly, and that failure to do so can constitute a miscarriage of justice even where no objection was taken by trial counsel at the time.

On leave and remedy: Although no objection had been taken by trial counsel to either deficiency, the Court granted leave to appeal on both grounds. The errors went to the root of the proceedings. The conviction appeal was allowed and the matter was remitted for retrial. The sentence appeal consequently did not require determination.

Orders Made

• The proceedings are listed in the District Court Arraignment List at 9.30am on 28 May 2021 for a new trial.

Key Takeaways

  • Written jury directions, including question trails setting out the elements of an offence, are supplementary to oral directions and do not substitute for them. A summing-up that provides written directions without accompanying oral directions on the elements of the offences charged is liable to constitute a miscarriage of justice.

  • The Court of Criminal Appeal expressly discouraged the practice of sending the jury to retire to the jury room, away from the judge and parties, to read written directions for themselves during a summing-up. Transparency and the public nature of a trial require that direction-giving occur in open court.

  • A trial judge's obligation to put the defence case to the jury is a substantive requirement. Where counsel for the accused has made meaningful submissions about the evidence, the summing-up must reflect that case adequately, even in short trials where the summing-up immediately follows counsel's address.

  • Failure by trial counsel to object to a deficiency in jury directions does not preclude a finding that a miscarriage of justice occurred, where the deficiency goes to the root of the proceedings.

  • In granting leave, the Court confirmed that errors of this kind, even absent contemporaneous objection, can be sufficient to justify appellate intervention and a retrial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 154C(2), 344A(1)
- Criminal Appeal Rules (NSW)
- Criminal Procedure Act 1986 (NSW)
- Jury Act 1977 (NSW)
- Jury (Amendment) Act 1987 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021

Cases:
- Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
- RPS v R (2000) 199 CLR 620; [2000] HCA 3
- Dixon v R [2017] NSWCCA 299
- RR v R [2011] NSWCCA 235; (2011) 216 A Crim R 489
- R v Meher [2004] NSWCCA 355
- R v Davis [1999] NSWCCA 15
- R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- McGuiness v R [2021] NSWCCA 80
- Greenhalgh v R [2017] NSWCCA 94
- El-Jalkh v R [2009] NSWCCA 139
- Condon v R (1995) 83 A Crim R 335
- Petroff v R (1980) 2 A Crim R 101
- R v Bourke [2003] QCA 113
- R v Burns (2009) 103 SASR 514; [2009] SASC 105
- R v Dunn (2006) 94 SASR 177; [2006] SASC 58
- R v Thompson (2008) 21 VR 135; [2008] VSCA 144
- R v McGuiness; R v Trevascus [2020] NSWDC 90
- R v Malone (Court of Criminal Appeal (NSW), 20 April 1994, unrep)
- R v Kerr (No. 2) [1951] VLR 239