New South Wales Court of Criminal Appeal CITATION : Regina v Townsend [1999] NSWCCA 294 FILE NUMBER(S) : CCA 60499/98 HEARING DATE(S) : Tuesday 14 September 1999 JUDGMENT DATE : 14 September 1999 PARTIES : Regina v Donald Keith Townsend JUDGMENT OF : Handley JA at 1; 21; Grove J at 2; Hidden J at 22 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/31/0447 LOWER COURT JUDICIAL OFFICER : Nader ADCJ COUNSEL : M.M. Cunneen and M. Bartush-Peek (Crown) T. Game, SC (Applicant) SOLICITORS : S.E. O'Connor (Crown) Peter Ash & Associates (Applicant) CATCHWORDS : Criminal Law and Procedure - Charge to Jury - Obligation To Summarize Case For Accused ACTS CITED : Crimes Act 1900 s 405AA CASES CITED: R v Piazza 1997 94 A Crim R 459 DECISION : Appeal allowed. New trial ordered IN THE COURT OF CRIMINAL APPEAL 60499/98 HANDLEY JA GROVE J HIDDEN J Tuesday 14 September 1999 REGINA V DONALD KEITH TOWNSEND. JUDGMENT 1 HANDLEY JA: I will ask Grove J to give the first judgment. 2 GROVE J: This is an appeal against conviction following a trial at East Maitland before Nader ADCJ and a jury. The appellant was indicted upon eight counts, two of which alleged indecent assault on a person under the age of sixteen years; one, sexual intercourse without consent with a person under the age of sixteen years and five, sexual intercourse without consent. The offences were alleged to have occurred between March 1983 and April 1988. 3 The victim in each case was a girl born in 1970. The appellant was the husband of her mother's sister and was referred to therefore as her uncle. They were part of a family of travelling show people who had a home base in the East Maitland area. A large part of the year was occupied by the family moving with a fleet of vehicles which delivered fairground rides and the like on what might be described as a show circuit. 4 The appellant was convicted by the jury on seven of the eight counts. There was a distinction in the tenor of the evidence relating to consent in relation to the fifth count upon which the verdict of not guilty was found. 5 The ground of appeal as originally filed was limited to the single assertion that in summation to the jury the trial Judge failed to put adequately or fairly the defence case. 6 The appellant has sought to add to those grounds but it is convenient to deal with the original ground filed. 7 The complainant had given evidence of sexual interferences with her by the appellant commencing from an occasion when she was aged seven. This first event was said to have occurred whilst on show tour in a town called Yea in Victoria. The complainant described the appellant putting her through the hole in the wall of a grandstand and then placing a box against the hole so no one could see them. She testified that she was indecently assaulted and that at a point of time while the appellant's erect penis was exposed, his wife (the complainant's aunt) removed the barrier and loudly remonstrated with the appellant and afterwards she turned upon the complainant who remembered her calling her "a little whore" and saying to her, "Don't you know that you will get pregnant, don't you know that's dirty". This event, of course, was said to have occurred outside of the State of New South Wales and was not the subject of any count. The material was admitted as relationship evidence. 8 The event relating to the first count was located at the complainant's grandmother's house in the East Maitland area when the appellant entered her bedroom. They were disturbed by the arrival of the complainant's brother who knocked on the door whereupon the complainant told the appellant to hide under the bed. 9 It is not necessary to detail the events giving rise to all of the counts. It should be noted that counsel appearing at trial was permitted to cross examine the complainant (pursuant to the Crimes Act s 409B(3)(a)) about an incident referred to in her statement to the police that was not raised in her evidence in chief. She had stated that in late July or early August 1984 on tour in the Northern Territory the appellant had driven a particular truck which was towing what was called the octopus ride while the complainant and the appellant's son, Donald junior rode in the carriages of the octopus. The complaint had stated that the appellant handed over the driving to his stepson Arthur and climbed into the octopus ride where he made a sexual proposition to her and threatened to throw her off the side of the truck if she did not comply. She stated that the appellant's son was asleep in an octopus carriage. 10 The appellant gave evidence at trial and denied any sexual impropriety at all towards the complainant. The appellant's wife testified that she was familiar with the grandstand at Yea Showground in Victoria and was unaware of the existence of any hole in it. She testified that she had never seen any sexual activity concerning the appellant and the complainant and she expressly denied the happenings at Yea Showground in which she was said to have in part participated. Some evidence of the complainant had also involved the showing to her by the appellant of pornographic videos and the appellant's wife asserted that so far as she was aware the appellant did not own any such items and that she had never seen any in and about the places that they occupied. 11 The appellant's stepson Arthur Townsend gave evidence that there was never an occasion in which he was travelling in a truck with the appellant conveying the octopus ride and when the complainant and her brother were travelling in the carriages. He denied changing driving position with his father so that his father could climb on to the back. 12 The appellant's son Donald testified that he had never travelled in a carriage of the octopus ride with the complainant and he also denied witnessing other events of which the complainant had spoken as occurring in his presence. He also said that he had never seen his father with a pornographic video nor any sexual activity between him and the complainant. 13 As asserted by the Crown Prosecutor in submissions in this court it might be said that the defence case was patently clear and very simple in that the appellant denied all of the complainant's allegations and in regard to some of the incidents making up the allegations he was supported in his denial by witnesses. 14 In the course of his charge to the jury the learned Judge made no reference to the ambit of the defendant's case nor, it should be said in specific terms did he seek to summarise the prosecution case but in elaborating upon written directions as to the elements of the various counts which he had supplied to the jury his Honour summarised from time to time the essence of the Crown allegations in respect of them. 15 In assessing the adequacy of the content of a charge to the jury regard needs to be paid to s 405AA of the Crimes Act which provides: "405AA. Summary By Judge (1) A Judge of the Supreme Court or District Court need not summarise, at the end of a criminal trial before a jury, the evidence given in the trial if the Judge is of the opinion that, in all the circumstances of the trial, the summary is not necessary. (2) This section applies despite any rule of law or practice to the contrary. (3) Nothing in this section affects any aspect of a Judge's summing up function other than the summary of evidence in a trial. (4) This section extends to trial commenced, but not concluded, before the commencement of this section. " 16 In R v Piazza (1997) 94 A Crim r 459 that the statutory provision was the subject of some reference. Part of what I said in a judgment in that case was recapitulated in the Crown's submissions but the extract should be seen in its context: "Subsection (3) preserves other obligations of the Judge and the provision does not detract from the duty to communicate to the jury of what the respective cases being presented on behalf of the Crown and accused consist, and how it is that cases are claimed to be supported (or not) by the evidence. The Judge is not required to restate every argument put on behalf of an accused but he must ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence: Domican v The Queen (1992) 173 CLR 555. " 17 In the same case Hunt CJ at CL wrote: "I wish to add to what Grove J has said concerning s 405AA of the Crimes Act 1900. The section was inserted in the Crimes Act late in 1990, by Act 74 of that year, following repeated criticisms by this court of trial Judges who apparently believed that they were obliged to read out to the jury the evidence which had been given chronologically, starting with the first witness and going through the evidence in chief, the cross examination and then the re examination of each witness before turning to the next witness and so on, and who also apparently believed that by doing so they had presented to the jury the issues of fact which they had to determine. Subsection (1) of s 405AA relieved trial Judges of any such perceived obligation to summarise all of the evidence. In truth, there never was such an obligation. The obligation has always been, and remains, that to which I have already referred, to present to the jury the issues of fact which they have to determine, and to do so with such reference to the facts of the case as is necessary to assist them in that task. In Regina v Zorad , decided earlier in 1990, this court said: '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 maybe 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 argument which have been put in relation to that evidence'. A respectable body of long stand authority was cited for that proposition. It is a proposition which has been restated many times since. The obligation asserted by that long standing authority was maintained by subsection (3) of s 405AA. The trial Judge must still present to the jury the issues of fact which they have to determine." 18 Nothing further need really be said other than that in the present case beyond defining the essential ingredients of the charges in the various counts and reference to the way in which the Crown sought to make them out there was no compliance with the requirements of which the above extracts from Piazza are but exemplars of what has been stated and restated many times. In that circumstance I am of the opinion that, regrettable though it is, a new trial is inevitable. 19 The additional grounds now sought to be advanced on behalf of the appellant do not involve assertions which, even if sustained, would lead to judgment of acquittal. 20 Accordingly, I propose that the appeal be allowed, the convictions and sentences quashed and a new trial be ordered upon those counts in respect of which convictions were entered. 21 HANDLEY JA: I agree. 22 HIDDEN J: I agree. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.