Trevascus v R [2021] NSWCCA 104

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Trevascus v R [2021] NSWCCA 104 Hearing dates: 28 April 2021 Date of orders: 24 May 2021 Decision date: 24 May 2021 Before: Hoeben CJ at CL at [1] Bellew J at [2] Hidden AJ at [94] Decision: 1. Leave to rely upon ground 1(a) in support of the appeal against conviction is granted. 2. Leave to rely upon ground 1(b) in support of the appeal against conviction is granted. 3. The appeal against conviction is allowed. 4. The convictions and sentences imposed in the District Court are quashed. 5. The proceedings are remitted to the District Court for a new trial.

6. The proceedings are listed in the District Court Arraignments List at 9.30am on 28 May 2021. Catchwords: CRIMINAL LAW – Appeal against conviction – Juries – Directions to jury – Where applicant was found guilty by a jury of robbery in company and attempting to take and drive a vehicle without consent – Where Crown case was based upon a joint criminal enterprise between the applicant and one other – Where trial judge provided written directions to the jury regarding the elements of each offence in the form of question trails – Where jury retired to the jury room to read the question trails after they were provided – No oral directions subsequently given to the jury in respect of the elements of the offences set out the question trails – No substantive reference to the question trails in the summing-up by the trial judge – Necessity for oral directions to be given – No issue taken by trial counsel – Miscarriage of justice – Error established PRACTICE AND PROCEDURE – Juries – Observations as to the practice of providing written directions to the jury – General necessity for oral directions to accompany written directions – Necessity for a trial judge to emphasise that written directions are supplementary to and not a substitute for oral directions – Observations as to the practice of allowing the jury to retire to the jury room part way through the summing-up to read the written directions for themselves – Practice not one to be encouraged – Necessity to ensure that the jury comprehend directions – Necessity to ensure that a trial be transparent and conducted in public CRIMINAL LAW – Appeal against conviction – Juries – Summing-up of trial judge – Whether trial judge adequately put the defence case to the jury – Where counsel for the accused made a number of substantive submissions to the jury regarding aspects of the evidence – Defence case not adequately put to the jury even giving full weight to the fact that the evidence in the trial had been completed in two days and where the summing-up to the jury followed immediately upon the final address of counsel for the accused – Summary of principles regarding the obligation of a trial judge to put the defence case – No issue taken by trial counsel – Matter going to the root of the proceedings justifying a grant of leave – Miscarriage of justice – Error established Legislation Cited: Crimes Act 1900 (NSW) 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 Cited: Condon v R (1995) 83 A Crim R 335 Dixon v R [2017] NSWCCA 299 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 El-Jalkh v R [2009] NSWCCA139 Greenhalgh v R [2017] NSWCCA 94 McGuiness v R [2021] NSWCCA 80 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 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 Davis [1999] NSWCCA 15 R v Dunn (2006) 94 SASR 177; [2006] SASC 58 R v Kerr (No. 2) [1951] VLR 239 R v Malone (Court of Criminal Appeal (NSW)), 20 April 1994, unrep) R v McGuiness; R v Trevascus [2020] NSWDC 90 R v Meher [2004] NSWCCA 355 R v Thompson (2008) 21 VR 135; [2008] VSCA 144 R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260 RPS v R (2000) 199 CLR 620; [2000] HCA 3 RR v R [2011] NSWCCA 235; (2011) 216 A Crim R 489 Van Leeuwen v The Queen (1981) 55 ALJR 726 Willmont v R (1914) 10 Cr App R 173 Wong v R [2009] NSWCCA 101 Texts Cited: Explanatory Memorandum to the Jury (Amendment) Act 1987 (NSW) Parliamentary Debates NSW Legislative Assembly, 19 November 1987 Category: Principal judgment Parties: Ryan Trevascus – Applicant Regina – Respondent Representation: Counsel: I McLachlan – Applicant E Wilkins SC – Respondent