[7-000] Suggested outline of summing-up (for use as an aide memoire)
Prior to final addresses, it is prudent for the judge to raise with counsel, in the absence of the jury, the specific legal issues which in their submissions have arisen in the trial and which need to be the subject of specific reference in the summing-up. The task of drafting the summing-up is the responsibility of the trial judge. It cannot be delegated to the parties: Hamilton (a pseudonym) v R  NSWCCA 80 at –; . Of course, the trial judge is entitled to have the detailed assistance of the parties with regard to correctly explaining to the jury the law, the evidence, and the matters in dispute.
The following summing-up format is suggested purely as a guide and is not intended to be exhaustive:
Burden and standard of proof.
Where there is more than one count, each count is to be considered separately.
Where there is more than one defendant, each case is to be considered separately.
Legal elements of each count (a direction of law). It is not the function of a trial judge to expound to the jury the principles of law going beyond those which the jurors need to understand to resolve the issues that arise for decisions in the case: The Queen v Chai (2002) 76 ALJR 628. For example, in sexual assault cases it is unnecessary and unhelpful to direct the jury upon elements of consent not relevant to the issues in the case: R v Mueller (2005) 62 NSWLR 476 at  and . Consideration needs to be given to any alternative verdicts: see Alternative verdicts and alternative counts at [2-210].
It is generally not good practice to read legislation to a jury: Pengilley v R  NSWCCA 163 at ; R v Micalizzi  NSWCCA 406 at . Where it is necessary to refer to a legal principle derived from statute, it is the effect of the provision, so far as it is relevant to the issue before the jury, that should be conveyed.
Any general matters of law which require direction — for assistance in this regard, reference might be conveniently made to the chapters in the Bench Book under the various headings in “Trial Instructions”. This will operate as a check list, although it is not suggested that it would be exhaustive.
How the Crown seeks to make out its case — this will involve an outline of the nature of the Crown case, by reference to the various counts. Where necessary, the Crown case against separate accused(s) should be distinguished.
Defences — this will involve an outline of the defence or defences raised by the accused, distinguishing where necessary between individual accused.
Evidence — here reference should be made to the relevant evidence, relating it, where possible, to the legal issues which arise under the particular counts and the defences raised. It will be necessary, of course, to distinguish between direct and circumstantial evidence. A legal direction on circumstantial evidence will already have been given.
Summarise arguments of counsel again relating them, if possible, to particular counts and defences and legal issues.
Recap any matters where essential.
In the absence of the jury, seek submissions from counsel in relation to any factual or legal issues which they contend were not appropriately dealt with in the summing-up. In DJF v R  NSWCCA 6, Giles JA, with whom RA Hulme J agreed, said that even outlining a matter on which further directions are sought should be done in the absence of the jury: at .
As to the use by the judge of written directions: see The jury at [1-535]. Written directions (including question trails) do not replace the need to give oral directions: Trevascus v R  NSWCCA 104 at .
[7-020] Suggested direction — summing-up (commencement)
The following is based upon the assumption that there is more than one accused.
Members of the jury, the accused stand before you upon an indictment which is in the following terms … [read the indictment].
I take this opportunity of reminding you that, at this stage, at all times you are free to ask any questions about these legal directions I am giving you if you have any difficulty with them. You can ask as often as you like and ask any questions that you wish in regard to both the legal directions and any questions of fact.
Members of the jury, to that charge each accused has pleaded “not guilty”. It becomes your duty and your responsibility, therefore, to consider whether each accused is “guilty” or “not guilty” of the charge and to return your verdict(s) according to the evidence which you have heard.
I propose to commence this summing-up with a number of general directions which, to some extent, repeat those I gave you at the beginning of the trial. However, it is important I give them again, not only to remind you of what I said earlier but also to place those directions in the context of the trial which has now taken place.
What I said earlier was, in a sense, an explanation to you of the part you were expected to play in the trial, and a warning to you that it was necessary for you to participate in the determination of the factual issues from the outset.
I remind you that you are bound to accept those principles of law which I give to you and to apply them to the facts of the case as you find them to be. The facts of the case and the verdicts you give are for you, and you alone, because you alone are the judges of the facts.
I am the judge of the law, but you are quite correctly called the judges of the facts. I have nothing to do with those facts or your decisions in relation to them. I have nothing to do with what you accept as truthful, or what evidence you decide to reject as untruthful; nor indeed what weight you might give to any one particular part of the evidence given or what inferences you draw from that evidence.
It is for you to assess the various witnesses and decide whether they are telling the truth. You have seen each of the witnesses as they have given their evidence. It is a matter for you entirely as to whether you accept that evidence.
Your ultimate decision as to what evidence you accept and what evidence you reject may be based on all manner of things, including what the witness has had to say; the manner in which they said it; and the general impression which they made upon you when giving evidence.
In relation to accepting the evidence of witnesses, you are not obliged to accept the whole of the evidence of any one witness. You may, if you think fit, accept part and reject part of the same witness’ evidence. The fact you do not accept a portion of a witness’ evidence does not mean you must necessarily reject the whole of their evidence. You could accept the remainder of their evidence if you think it is worthy of acceptance,
You have heard addresses from counsel for the Crown and counsel for the accused. You will consider the submissions they have made in their addresses and give those the submissions such weight as you think fit. In no sense are those submissions evidence in the case.
If I happen to express any views upon questions of fact, you must ignore those views. That is what I mean when I say you are the sole judges of the facts of the case.
I am, of course, entitled to express a view. I do not, however, propose to try to persuade you one way or the other in the case — that is not my task. I may, when I come to a particular issue, suggest to you that there is no real dispute about it. That of course is my view and it is open to you, if you wish, to reject that view if it does not accord with your own independent assessment of the evidence.
I shall, of course, endeavour (during the summing-up) to focus attention upon those parts of the evidence which seem to me to be the areas in respect of which counsel have devoted most of their attention. Of course, it is necessary for you in deliberating to consider all of the evidence and not only the evidence to which I have referred you or to which you have been referred by counsel.
You are brought here from various walks of life and you represent a cross section of the community — a cross section of its wisdom and its sense of justice. You are expected to use your individual qualities of reasoning; your experience; and your understanding of people and human affairs.
In particular, and I cannot stress this too strongly, you are expected to use your common sense and your ability to judge your fellow citizens, so that you bring to the jury room (during the course of your deliberations) your own experience of human affairs, which must necessarily be as varied as there are twelve of you. It is that concentration of your own experience and your own individual abilities, wisdom and common sense which is, of course, the critical foundation of the whole jury system which has lasted in this State for almost two hundred years (and in many other democratic countries for far longer than that).
You have very important matters to decide in this case — important not only to the accused but also to the whole community. The privilege which you have of sitting in judgment upon your fellow citizens is one which carries with it corresponding duties and obligations. You must, as a jury, act impartially, dispassionately and fearlessly. You must not let sympathy or emotion sway your judgment.
Let me now say something to you about the onus of proof. This is, as you have already been told more than once, a criminal trial of a most serious nature and the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove [his/her/their] innocence but for the Crown to prove [his/her/their] guilt and to prove it beyond reasonable doubt.
It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. This is known as the “presumption of innocence”. This expression “proved beyond reasonable doubt” is an ancient one. It has been deeply ingrained in the criminal law of this State for almost two hundred years and it needs no explanation from trial judges.
The Crown does not have to prove, however, every single fact in the case beyond reasonable doubt. The onus which rests upon the Crown is to prove the elements of the charges beyond reasonable doubt. Soon I will outline to you the elements of the charges.
In a criminal trial there is only one ultimate issue. Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is “Yes”, the appropriate verdict is “Guilty”. If the answer is “No”, the verdict must be “Not guilty”.
Under our system of law, your verdict [on each count], whether it be “guilty” or “not guilty”, must be unanimous. As this is a prosecution for a Commonwealth offence, majority verdicts are not recognised. That is not to say that each of you must agree upon the same reasons for your verdict. You may individually rely upon different parts of the evidence or place a different emphasis upon parts of the evidence. However, by whatever route you each arrive at your decision, that final decision of either “guilty” or “not guilty” [in relation to each charge] must be the decision of all of you, unanimously, before it can become your verdict.]
Under our system of law, your verdict [on each count], whether it be “guilty” or “not guilty” must be unanimous. That is not to say that each of you must agree upon the same reasons for your verdict. You may individually rely upon different parts of the evidence or place a different emphasis upon parts of the evidence. However, by whatever route you each arrive at your decision, that final decision of either “guilty” or “not guilty” [in relation to each charge] must be the decision of all of you, unanimously, before it can become your verdict.
As you may know, the law permits me, in certain circumstances, to accept a verdict which is not unanimous. Those circumstances may not arise at all, so that when you retire I must ask you to reach a verdict upon which each one of you agree. Should, however, the circumstances arise when it is possible for me to accept a verdict which is not unanimous, I will give you a further direction.]
[The question whether there should be reference to majority verdicts has been considered. See Note 8 at [7-040] below.]
[7-030] Suggested direction — final directions
Except for two matters, I have now completed all I have to say to you before asking you to retire to consider your verdict(s).
First, if at any stage of your deliberations you would like me to repeat or further explain any of the directions of law I have given you, please do not hesitate to ask. It is fundamental that you should understand the principles which you are required to apply. If you have any doubt about those principles, then you are not only entitled to ask for further assistance, but you should ask for it. All you have to do is to write a note setting out the assistance you would like and give it to the court/sheriff’s officer who will deliver it to me. Upon receiving such a request, I shall discuss the matter with counsel, and the court will then reassemble for the purpose of seeking to assist you.
I must stress that your deliberations are confidential so please do not include anything that would disclose the content of your discussions, including any voting patterns.
[Where the jury do not have transcript] Secondly, all of the evidence has been recorded. Although you will not have the advantage of having a transcript of that evidence for your perusal, if you wish, at any stage of your deliberations, to have any part of that evidence checked or read back to you, then that can be arranged. You need only let one of the court/sheriff’s officers know and the court will reassemble for that purpose.
[Where the jury have transcript] Secondly, you have available to you the transcript of the evidence but if you experience any difficulty locating a particular passage that you are interested in, let me know by way of a note and I should be able to assist. I also remind you that whilst every effort is made to ensure the transcript is accurate, it is possible there may be errors. So if you have any doubt about whether something has been correctly transcribed, please let me know and I will endeavour to assist.
I shall now tell you what will happen when you return with your verdict(s). You will take your places in the jury box. Your foreperson will be asked to stand. My associate will then direct questions to [him/her]. They will be … [refer here to so much of the procedure and the questions which the foreperson will be asked as is appropriate to the particular case].
[In trials involving multiple counts or accused, it may be worth suggesting that the foreperson have the verdicts written down to assist him/her.]
Before I ask you to retire, I will ask counsel if there is anything they wish to raise.
[Ask counsel in turn. It may be expected that if there is a matter that is uncontroversial, counsel may announce the subject matter and it may be dealt with in the presence of the jury. Otherwise the jury should be asked to leave while the matter is discussed.]
[If there is nothing raised, or after further directions have been given as a result of counsel’s submissions, proceed as follows:]
I now ask that you retire to consider your verdict(s). The exhibits will be sent to you shortly.
[It is wise to have counsel check that all is in order and nothing extraneous is with the exhibits before they go to the jury room.]
Section 161 Criminal Procedure Act 1986
The above suggested directions are given upon the basis that the judge intends to summarise the evidence during the course of the summing-up. However, s 161 Criminal Procedure Act provides that the judge need not summarise the evidence if of the opinion that, in all of the circumstances of the trial, a summary is not necessary. In the case of a short trial with narrow issues and other relevant factors, the trial judge may decide in the exercise of his or her discretion not to summarise the evidence: R v DH  NSWCCA 360; Alharbi v R  NSWCCA 130 at –.
Importantly, s 161 does not relieve the judge of the obligation to put the defence case accurately and fairly to the jury and instruct the jury about how the law applies to that case: Wong v R  NSWCCA 101 at ; AS v R  NSWCCA 218 at ; Condon v R (unrep, 9/10/95, NSWCCA). This does not require that it be done at length but there needs to be sufficient to highlight the evidence most relevant to the defence case: Alharbi v R at , , . When putting the defence case to the jury, it must be made clear that the onus of proof remains on the prosecution: Wong v R at .
Desirability of the judge raising the identification of the relevant legal issues with counsel at the conclusion of the evidence
At the conclusion of the summing-up, it should be the invariable practice of the trial judge to enquire of counsel, in the absence of the jury whether he or she has overlooked any directions of law and appropriate warnings which should have been given to the jury as well as hearing submissions on the correctness or otherwise of directions of law which have in fact been given. If this practice is sedulously followed, it should go a long way to avoid the recurring cost, inconvenience and personal distress associated with a new trial: R v Roberts (2001) 53 NSWLR 138 at . Notwithstanding counsel may take a position with respect to particular directions and request that no direction be given, as occurred in DC v R  NSWCCA 234 where the trial judge was asked not to give a direction about lies, the obligation to ensure the accused receives a fair trial may require the judge to do so: DC v R at  ff. In such cases this should be raised with the parties first: at .
The responsibility of counsel to assist the trial judge in this regard was stressed in R v Roberts at , R v Mostyn  NSWCCA 97 at – and R v Gulliford  NSWCCA 338 at –.
In R v Micalizzi  NSWCCA 406 at , the view was expressed that, generally speaking, counsel appearing for either party is required to formulate the direction, warning or comment required by the trial judge, where counsel believes that what the trial judge has said to the jury is insufficient to ensure a fair trial for the accused or the Crown.
Essential elements of a summing-up
Generally, the summing-up should be as concise as possible so the jury is not “wearied beyond the capacity of concentration”: Alharbi v R at . In R v Williams (unrep, 10/10/90, NSWCCA), the court said that a summing-up:
… should involve no more and no less than a clear and manageable explanation of the issues which are left to the jurors in the particular case before them. There is no need to venture beyond a clear statement of the relevant legal principles as they affect the particular case and against which they are to apply their decisions on the factual questions which arise.
See also R v Chai  HCA 12 at .
Alternative charges and arguments not put
A judge has a special judicial obligation to leave manslaughter to the jury where it is an available verdict: James v The Queen (2014) 253 CLR 475 at . A judge is obliged to instruct the jury on any defence or partial defence where there is material raising it regardless of the tactical decisions of counsel as part of ensuring a fair trial. However, it is wrong to equate this obligation with leaving alternative verdicts: James v The Queen at . The test is what justice to the accused requires: James v The Queen at ; The Queen v Keenan (2009) 236 CLR 397 at 438. If neither party relies on an included offence then the judge may conclude that it is not a real issue in the trial: James v The Queen at .
See the discussion in Alternative verdicts and alternative counts at [2-210].
If the judge advances an argument in support of the Crown case that was not put by the Crown this can occasion a significant forensic unfairness to the accused where his counsel is unable to address the jury on the new point: R v Robinson  NSWCCA 192 at – where Johnson J set out the relevant principles.
Requirements of fairness
On the other hand if a judge refers to the evidence on a crucial issue, fairness requires that there be reference to the competing versions, and the competing considerations, including the inferences arising: Cleland v The Queen (1982) 151 CLR 1 per Gibbs CJ at 10; Domican v The Queen (1992) 173 CLR 555 at 560–561; R v Zorad (1990) 19 NSWLR 91 at 105; El-Jalkh v R  NSWCCA 139 at ; RR v R  NSWCCA 235 at ; Buckley v R  NSWCCA 85 at –. It is therefore essential, if a summing-up is to be fair and balanced, that the defence case be put to the jury: Abdel-Hady v R  NSWCCA 196 at ff.
The defence case must be fairly and accurately put during the summing-up so that the jury can properly consider the issues raised. If that opportunity is not given, then there has been a miscarriage of justice: Wong v R  NSWCCA 101 at ; AS v R  NSWCCA 218 at ; R v Malone (unrep, 20/4/94, NSWCCA); R v Meher  NSWCCA 355 at . This extends to explaining any basis upon which the jury might properly return a verdict in the accused’s favour: Castle v The Queen (2016) 259 CLR 449 at . Reference to the defence case encompasses any challenge to the prosecution evidence and submissions: Dixon v R  NSWCCA 299 at .
Circumstances in which judge may express his or her view of the facts
The High Court has made clear that while a judge may comment on the facts during a summing-up, it is preferable not to do so, unless it is necessary to maintain fairness between the parties.
Four members of the High Court said in RPS v The Queen (2000) 199 CLR 620 at , that:
… it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.
In McKell v The Queen (2019) 264 CLR 307 the plurality reiterated that a trial judge’s discretion to comment on the facts should be exercised with circumspection and that comments conveying a trial judge’s opinion of the proper determination of any disputed factual issue to be determined by the jury should not be made: at , , –; The Queen v Abdirahman-Khalid  HCA 36 at . However, there are circumstances where judicial comment is necessary to maintain the balance of fairness between the parties by, for example, correcting errors in a closing address: at –. Lai v R  NSWCCA 305 is an example of a case where the trial judge crossed the line of permissible comment by conveying his opinion of disputed facts which created a substantial risk the jury might actually be persuaded of the accused’s guilt: .
Directions where counsel overlooks/breaches the rule in Browne v Dunn
A trial court must always endeavour to demonstrate flexibility in its response to a breach of the rule in Browne v Dunn, which is to be determined by the particular circumstances of the case and the course of the proceedings: Khamis v R  NSWCCA 179 at ; MWJ v The Queen (2005) 80 ALJR 329 at . A non-exhaustive list of possible responses by a court to a breach of the rule appears in Khamisv R at – including that if the accused’s evidence is allowed and there has been a breach of the rule the trial judge may fashion appropriate and careful directions to the jury: see also RWB v R  NSWCCA 147 at , .
In general, it is dangerous for a trial judge to give a jury direction critical of the failure of counsel to put a proposition to a witness (in accordance with the rule in Browne v Dunn (1893) 6 R 67)): RWB v R at ; Llewellyn v R  NSWCCA 66 at . If any direction is given, it is important for the jury also to be told that there may often be reasons, of which the jury are unaware, why such a thing was not done: R v Banic at  and R v Liristis  NSWCCA 287 at –. It is unfair to suggest to a jury that the only inference that they should draw is that the witness failed to include the contentious matter in his or her statement or instructions: RWB v R at , . In some cases it is necessary to instruct the jury that oversights by counsel occur: Llewellyn v R at .
Brief reference to majority verdicts in summing-up
The suggested direction makes a brief reference to a majority verdict.
A brief reference to majority verdicts in the summing-up has been held not to undermine the direction that a unanimous verdict is required: Ingham v R  NSWCCA 88 at . However, if any reference is made in the summing-up it must not give the jury an indication of the time when a majority verdict will be accepted by the court: Hunt v R  NSWCCA 152 at . McClellan CJ at CL in Ingham v R at , said that a brief reference to a majority verdict in the summing-up has the “advantages referred to by the Victorian Court of Appeal” [in R v Muto  1 VR 336 at 339] which “are equally applicable to criminal trials in NSW”. The advantages referred to in Muto include: being frank with the jury from the start; not pretending that majority verdicts are not possible; not confusing the jury with premature and largely irrelevant information about the effect of the majority verdict section; making clear that their verdict should be unanimous; and finally, to put the possibility of a majority verdict out of their minds. Macfarlan JA in Doklu v R  NSWCCA 309 at  was inclined to the view that “it is better not to mention the possibility unless there is a reason to do so” but this approach was not taken or endorsed in Ingham v R  NSWCCA 88: see brief reference to Doklu v R at . Apart from Victoria, a brief reference to majority verdicts is made in England and Wales (The Consolidated Criminal Practice Direction — Criminal Procedure Rules at IV.46.1) and Archbold (2005) at 4-433, p 504. As to the position in other States and Territories, see discussion in Ingham v R  at –.
If after the summing-up the jury indicate that it cannot agree: see Prospect of disagreement at [8-050]ff.