Law Update: Trial Summing Up

At the end of a trial in the District or Supreme Court, after each party has addressed the jury, it falls to the Judge to provide a summary of the evidence. Precisely what the summary should be has been the subject of instruction in the case of R v Zorad (1990) 19 NSWLOR 91 per Hunt, Enderby and Sharpe JJ:

“A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence [….]”

After critically observing the tendency of trial judges not to comply with such a rule, their honours noted this:

“It is not a compliance with that rule simply to read the relevant part of the section to the jury and then to read out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross-examination and then re-examination of each witness before turning to the next witness and so on. The idea of a summing-up is to present for the jury the issues of fact which they have to determine.”

This approach was approved in R v Tillott (NSWCCA, 8 April 1991, unreported).

Following those cases, the NSW Parliament ammended the legislation to provide that a trial judge need not summarise the evidence given in the trial if of the opinion that a summary is not necessary (Section 161 of the Criminal Procedure Act).

The recent case of Buckley v R; R v Buckley [2012] NSWCCA 85 affirms the good sense of the rule in Zorad while noting that, in some circumstances, it will be right for a judge not to summarise the evidence:

It is easy to state the basic requirements of a proper summing up: it is less easy to apply them in particular cases. Especially in times where every word uttered in the course of a trial is recorded and transcribed, there is considerable pressure on a trial judge to err on the side of excessive caution in referring to the evidence and the issues, lest any misstatement or omission be seized upon by counsel for the purposes of an appeal. The safest course, it may be thought, is to deal with the evidence as it has unfolded, in a largely chronological fashion. Unfortunately, that course is likely to be of less help to the jury than the more demanding course of identifying issues in dispute and relating relevant evidence to each issue in turn. It is clear that it is the latter course which must generally be adopted.” [per Basten JA at 14].

The court has also noted with approval the recent judgement of  El-Jalkh v R [2009] NSWCCA 139 James J (Spigelman CJ and Simpson J agreeing), where (after referring to Zorad and the statutory provision) it was observed that:

“It is clear from the authorities to which I have referred that it is an essential function of a trial judge in summing-up to a jury that the trial judge, having identified the issue or issues in the trial, put the defence case on that issue or those issues and that the trial judge make such references to the evidence as may be required to enable the jury properly to understand the defence case and that it is not sufficient for the trial judge to say to the jury that they should give consideration to the arguments which have been put by counsel.”  [at 147].

A Kernaghan.

See Jade Law for more information on recent Australian and New South Wales case law.