New South Wales Court of Criminal Appeal CITATION: Taleb v R [2006] NSWCCA 119 HEARING DATE(S): 5 April 2006 JUDGMENT DATE: 13 April 2006 JUDGMENT OF: Grove J at 1; Simpson J at 13; Howie J at 94 DECISION: Appeal allowed; conviction and sentence set aside; new trial ordered. CATCHWORDS: appeal against conviction - whether summing up to the jury was lacking balance and unfair - function of trial judge in directing a jury - permissible limits of the judge's comment on facts - undermining of defence case in summing up - substantial miscarriage of justice - inappropriate to apply proviso - new trial LEGISLATION CITED: Criminal Appeal Act 1912, s6 Black v The Queen [1993] HCA 71; 179 CLR 44 R v Clewer (1953) CAR 37 R v Heuston (1995) 81 A Crim R 387 R v Hulse (1971) 1 SASR 327 R v Lau and Nguyen [2002] VSCA 157; 5 VR 129 R v Machin (1996) 68 SASR 526 R v Martin (1960) 60 SR NSW 286 CASES CITED: R v Meher [2004] NSWCCA 355 R v Mong [2002] VSCA 203; 136 A Crim R 502 R v O'Neil (1988) 48 SASR 51 R v Pavlukoff (1953) 106 CCC 249 R v RTB [2002] NSWCCA 104 R v Sinanovic [2000] NSWCCA 390 R v Zorad (1990) 19 NSWLR 91 RPS v The Queen [2000] HCA 3; 199 CLR 620 Weiss v The Queen [2005] HCA 81; 80 ALJR 444 PARTIES: Tarek Taleb - Appellant Crown - Respondent FILE NUMBER(S): CCA 2005/2546 COUNSEL: S Odgers SC - Appellant V Lydiard - Crown SOLICITORS: WM Bruce & Associates - Appellant S Kavanagh - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/3172 LOWER COURT JUDICIAL OFFICER: Neilson DCJ IN THE COURT OF CRIMINAL APPEAL 2005/2546 GROVE J SIMPSON J HOWIE J Thursday 13 April 2006 Tarek TALEB v REGINA Judgment 1 GROVE J: I have had the advantage of reading in draft the judgment of Simpson J. I gratefully adopt her summary of the facts, the competing issues at trial, her extracts from relevant portions of the Judge's charge to the jury and references to previous authority. 2 A reading of the transcript conveys to me the impression that this was a strong Crown case. The central incident was accompanied by the expostulation "You shot me you arsehole, you shot me" which was overheard by Mr Zammit, an independent local resident. It is true that he could not identify the source of the utterance but the only candidates were the appellant and Mr Dwyer, the victim of the bullet wound. I consider that it would be an extraordinary assessment of the words overheard to understand them as meaning that Mr Dwyer was referring to being shot in the course of a struggle by a pistol which he himself had produced and was wielding. I would have difficulty in accepting the proposition that there can be a view that what was heard by Mr Zammit was consistent with the appellant's account of the events. 3 However, it was said in R v Clewer 1953 CAR 37: "The more improbable the defence, the more difficult it is for counsel to discharge his duty to his client adequately and, provided that he keeps within the bounds of fair advocacy …..it is highly desirable that he should be allowed to do his best in presenting his case, leaving it to the judge to deal with, and maybe to demolish it, in his summing up." 4 This was cited in this Court by Owen J in R v Martin 1960 60 SR NSW 286. Although his Honour was in the minority in the result, Herron J (as he then was) expressed his agreement with "all that (Owen J) has said" but he joined with Maguire J in ordering the appeal dismissed by application of the proviso to s 6 of the Criminal Appeal Act. 5 Clewer was again cited in this Court in R v Sinanovic [2000] NSWCCA 390 by Hulme J (in dissent) but the majority held in respect of the events of trial which included comments by the Judge that there had been created "an unacceptable risk of prejudice against the accused". 6 In the light of the authorities referred by Simpson J I would observe that in my opinion it can no longer be accepted that a Judge may "demolish" the case of an accused. Senior counsel for the appellant made detailed submissions to advance a proposition that the law was "moving" in this area. Two aspects need to be borne in mind, the necessary balance in a summing up and, specifically, the putting of arguments by a Judge which have not been advanced by the prosecution. 7 There is no need for repetition of the analysis of authority which Simpson J has undertaken. The trend can be identified as indicating that judges will be required to exercise greater restraint in comment than might be thought available by reference to language such as that as was used in Clewer. 8 That is not to say that there does not remain scope for comment even if it is adverse to an accused. A useful recent article (Judicial Reflections on the Defence Case in the Summing Up by G. Taylor (2005) 26 Australian Bar Review 70) has this concluding paragraph: "It would be a shame if, as some recent authorities suggest growing general mistrust of judicial advice to juries on the facts, or unwillingness to leave the question largely to the good sense to trial judges, were to result in the baby being thrown out with the bath water. There is a place for judicial comment adverse to the accused, and a valuable one, if it is truly necessary to ensure that the jury do not overlook, or alternatively exaggerate the true significance of, an important factual point because of their inexperience". 9 In the present case I would regard the principal vice in the summing up to have been the undermining of the defence case when it was being summarized to the jury. Irrespective of the apparent strength of the Crown case as it impresses me, by reason of the imbalance in the summing up, it cannot be safely concluded that the appellant had a fair trial. 10 Although, as her Honour has observed, the High Court in Weiss v The Queen 2005 80 ALJR 444 has reserved for consideration the question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the pre-suppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso, the statement of that reservation was preceded by: "What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind." 11 The undermining of the case being advanced by the appellant in the summing up did, in this case, amount to such a significant denial of fairness that in my opinion the proviso should not be applied. 12 I agree with the orders proposed by Simpson J. 13 SIMPSON J: On 2 March 2005, following an eight-day trial, the appellant was convicted on a charge that he maliciously shot at Anthony Dwyer with intent to cause him grievous bodily harm. He now appeals against that conviction. He has not pursued an application for leave to appeal against the sentence subsequently imposed. 14 One ground of appeal only has been pleaded, in the following terms: "The summing up to the jury was lacking balance and unfair." 15 In order to make clear the basis upon which the appellant seeks to make good this ground, it is necessary to set out, in some detail, the competing cases. the Crown case 16 The events that gave rise to the charge occurred in the late afternoon of 18 October 2003, at Narellan Vale in Sydney. In short, the Crown alleged the following. 17 Anthony Dwyer was driving a white Hyundai Lantra in Waterworth Drive, having left the Club Hotel at Narellan after consuming one beer. His vehicle was being followed by two friends, Dean Woolley and Dean Webb, in a white Holden Rodeo utility. 18 The appellant, with his wife as passenger, was driving a green Honda Civic on the same road. He drove closely behind Mr Dwyer, apparently attempting to overtake Mr Dwyer on the near side and then on the off side ("undertaking" and "overtaking", as it was called in the evidence). He was driving erratically and waving his fists. Mr Dwyer pulled over to allow the appellant to pass, but the appellant pulled in behind him. Mr Dwyer then alighted from his vehicle and walked to the appellant's vehicle. An altercation took place in which Mr Dwyer asked the appellant what was wrong, the appellant replied that he should have been allowed to pass, and Mr Dwyer told the appellant that he was "driving like a dickhead". The appellant drove off. Mr Dwyer returned to his vehicle, and drove, still in Waterworth Drive, towards a roundabout where Waterworth Drive intersected with Welling Drive and Henrietta Drive. (A road map shows that, running from the three main roads, there are a series of cul-de-sacs.) The appellant was in front of Mr Dwyer, and turned right at the roundabout. Mr Dwyer drove through the roundabout and into Henrietta Drive. The appellant circled the roundabout, did a three hundred and sixty degree turn, and followed Mr Dwyer into Henrietta Drive. A short distance past the roundabout, Mr Dwyer pulled over, as did the appellant. Mr Dwyer again alighted from his vehicle and again walked towards the appellant's vehicle. Messrs Webb and Woolley drove past and pulled up in front of Mr Dwyer's car. By then Mr Dwyer was at the appellant's vehicle. He spoke to the appellant (in what, it may be inferred, was an aggressive or belligerent manner). At that point the appellant produced a pistol from within his vehicle and pointed it at Mr Dwyer. Mr Dwyer put his hands up. He said to the appellant: "Well, what are you going to shoot me mate are you?" 19 The appellant fired a shot which hit Mr Dwyer in the leg. The appellant drove off. Mr Dwyer returned to his vehicle and armed himself with a heavy piece of cable. The appellant drove off into Henrietta Drive. Mr Dwyer knew that the streets towards which the appellant had driven, running off Henrietta Drive, were all dead ends and that the appellant, in order to exit the area, would have to return and travel past where Mr Dwyer's vehicle was stopped. That was why he armed himself with the cable. He wished to protect himself against any further aggressive conduct by the appellant. Mr Dwyer noted the registration number of the appellant's vehicle. He reported the incident, firstly on a triple 0 call, and then at Camden Police Station. He told police that the gun looked like a semi-automatic slide, black-brown in colour. (In his evidence in chief he said that it was silver.) 20 Evidence was given in the Crown case by Mr Dwyer, Mr Woolley, Mr Webb, and some local residents who had witnessed the latter part of the events. Messrs Woolley and Webb gave evidence essentially consistent with that of Mr Dwyer. One of the local witnesses who gave evidence was Christopher Zammit. His evidence is of some importance in assessing the ground of appeal. He lived in Henrietta Drive. On the afternoon of 18 October he was at home, near the front garden, with his family. His view of the road was obstructed by a fence. He heard a male voice say: "What do you think you're doing back there, you almost hit me." He watched the following events from inside his house. He heard some more argument, some of which he could not make out, but he did hear a male voice say loudly in a mocking tone: "You've got a gun have you, go on shoot me then" or something similar. 21 He heard something that might have been a gunshot. He investigated and saw a white car (Mr Dwyer's Hyundai Lantra was white) parked in the street. A young man was standing next to the white vehicle, gesturing up the street, and holding something black in his hand, an object that might have been a torch or umbrella or something similar. Mr Zammit did not get a clear view of the object. He heard this man say: "You shot me you arsehole, you shot me" and "I've got your registration number". He repeated the accusation of shooting several times. 22 Mr Zammit heard and then saw another, smaller, car (plainly that of the appellant) drive off at high speed. It was followed by the white vehicle. * * * 23 The appellant made extensive formal admissions, which were tendered as Exhibit G in the Crown case. These relevantly (for present purposes) included the following. 24 The appellant was, on 18 October, the driver of the green Honda Civic, the number of which had been noted by Mr Dwyer. On 19 October, the day following the incident, he drove to Forster in NSW, where he stayed overnight. On 25 October he travelled to Perth, Western Australia, where he remained until at least 30 October. During that time he had two telephone conversations (intercepted, pursuant to lawful authority) in which he indicated that he would be away "a few months" or "at least a month". 25 On 30 November he booked into a motel in Casula, NSW, under the name of his wife's brother. On 1 December he (still using his brother in law's name) and his wife flew to Perth. In one intercepted telephone call he said: "The situation got a bit hot today." 26 In another telephone conversation he advised his mother that she did not have to answer any questions by police. This was after she had told him that police had been making inquiries. 27 On 17 January 2004 the appellant significantly changed his appearance by having his hair braided. His wife also changed her appearance. 28 There was a good deal more in Exhibit G that appears to have been tendered as circumstantial material indicative of a consciousness, in the appellant's mind, of his own guilt of the offence, or otherwise inculpatory. It has not been easy to follow how some of the material in Exhibit G was perceived to be relevant, or how it was sought to be used. It is not necessary to take further time in an attempt to unravel that. The appellant himself said that he and his wife remained in Perth until late November, when they returned to Sydney, and stayed for about a week. 29 The Crown relied on the movements of the appellant and his change of appearance as evidence of conduct signifying a consciousness of guilt. There is no ground of appeal that complains of the manner in which his Honour dealt with this. the defence case 30 The appellant gave evidence. He gave a very different account of the events in question. His evidence was to the following effect. 31 In October 2003 he lived in Waterworth Drive, Narellan. He was recently married and had lived there only a very short time. In the afternoon of 18 October he was driving the green Honda Civic in Waterworth Drive. In front of him was the white Hyundai Lantra driven by Mr Dwyer. As he approached his home he (the appellant) veered towards the left in preparation for turning into his driveway. He did not overtake or attempt to overtake the Lantra. The Lantra, however, swerved towards the left, forcing the appellant off the road and into the gutter. The Lantra was stopped at a forty-five degree angle. Mr Dwyer jumped out of the vehicle, approached the passenger window of the Honda, and demanded: "What the fuck are you doing?" 32 Mr Dwyer called the appellant "a fucking wog" and ordered him to get out of the car. The appellant tried to placate him. Mr Dwyer attempted to hit the appellant and grab him through the window. The appellant tried to use the power control to close the passenger-side window. Mr Dwyer attempted to open the passenger door. The appellant used the central locking system to lock the doors. He reversed the vehicle, while Mr Dwyer was still holding on to it, and shouted at the appellant to get out. The appellant drove off. In his rear vision mirror he saw Mr Dwyer re-enter the Lantra, and follow the appellant. Not wishing Mr Dwyer to know where he lived, he drove past his own house. Mr Dwyer began to catch up so the appellant accelerated. The Rodeo was also following. At the roundabout, at Henrietta, Welling and Waterworth Drives, the appellant stopped because he did not know which way Mr Dwyer was going to go, and he did not know where Welling Drive went. He panicked. He saw the Lantra drive through the roundabout. He turned into Henrietta Drive. He saw the Lantra and the Rodeo both stopped in the middle of that road. Mr Dwyer was walking towards him, gesturing to him to stop. The appellant was forced to stop in the middle of the road. Another confrontation occurred, in which Mr Dwyer was again the aggressor. Mr Dwyer lifted his shirt and the appellant could see what looked like a gun. (In cross-examination the appellant assented to the proposition, the source of which is unclear, that Mr Dwyer had the gun "tucked down his trousers".) Mr Dwyer moved to put his hand on the gun, the appellant grabbed Mr Dwyer's hand and pulled him into the car. They wrestled for the gun. At one point, both had their hands on the gun. 33 The struggle continued. The appellant had one hand on the gun and one hand on Mr Dwyer's wrist. Mr Dwyer pushed himself into the car and as he did so the gun fired. Mr Dwyer continued to try to hit the appellant. The appellant reversed the car and drove off. He did not know then that Mr Dwyer had been shot. He realised that he was in a cul-de-sac and had to return past where Mr Dwyer was. 34 He drove straight to his mother's home in Bringelly. She was not present. He telephoned her. She advised him (contrary to his own inclination) not to go to the police to report the incident. Within the space of an hour and a half, shortly after these events, he made twelve telephone calls to a friend, Mark Moussa. It was at the instigation of his parents, and his wife's parents, that he and his wife left Sydney for a time. While still in NSW, but not living at his own home, the appellant read about the incident in the newspaper and learned that Mr Dwyer had been shot and that police were looking for the driver of the green Honda. He decided he would go to the police but was dissuaded from doing so by family members who advised him to see a solicitor first. He sought advice from a solicitor and then decided to travel to Perth. He stayed in Perth until late November and then returned to Sydney where he saw the solicitor again before returning to Perth. He was asked about the telephone conversation in which he was recorded as saying: "The situation got a bit hot today." In evidence in chief, when asked what he meant by that, he said: "Not much, just it's hot, I guess. I don't really recall much thinking about that." In cross-examination he said that he did not remember whether he was talking about the weather, and would not be drawn on any other possible meaning. 35 Evidence in the defence case was also given by the appellant's wife, by the solicitor whom he had consulted (Mr Murphy), the appellant's mother, and Mr Adam Speyer. 36 The appellant's wife gave an account of events broadly consistent with that given by the appellant. His mother confirmed the appellant's evidence that it was she who had advised him not to go to police, and admitted that she had lied when questioned by police. 37 Mr Speyer was presented as an independent chance witness to the events at the roundabout. (As it happened, Mr Speyer was a friend of Abdullah Moussa, brother of the Mark Moussa whom the appellant had repeatedly telephoned.) He said that he had seen a "blue hatchback" (which, I am prepared to infer, was the green Honda); two people were in the car and one man was outside arguing with the driver. The man outside was poking his finger inside the car and punching. He took a step back, lifted his shirt with his left hand, and pulled out with his right hand a dark object that was about eight inches long. He pointed that object into the car and a tug of war developed. He heard a bang. The vehicle then drove off. * * * 38 At the end of the defence case, short evidence in reply was given. This is not the cause of any complaint in the appeal. Thereafter, the parties made a joint application that the jury be taken to the roundabout for a view, and this was done. 39 The two different accounts given (one on the prosecution side, the other on the defence side) are recognisably accounts of the same incident. They, obviously, differ in material and fundamental respects. There were details which were available to provide support to one version or the other. For example, the appellant and his wife described Mr Dwyer's words and conduct. They attributed to him language such as "fucking wog". Mr Dwyer, in his evidence, but in a different context, attributed to himself epithets of a similar kind. He said, for example, when he spoke to the 000 operator that he said: "Some wog bastard just shot me." 40 The issue for the jury to determine was narrow and relatively simple, but involved a careful assessment of the competing cases. The question, ultimately, was whether the Crown had proved beyond reasonable doubt that the version of events given by Mr Dwyer was substantially correct, or whether the version of events given by the appellant and his witnesses might reasonably have been the truth. If the former, the jury was obliged to convict; if the latter, the jury was obliged to acquit. The question in reality hinged upon one simple fact: which of the two men produced the gun? The answer to that question lay peculiarly within the province of the jury. In performing its task the jury was entitled to have the objective and unbiased assistance of the trial judge. the summing up 41 At the very beginning of the summing up his Honour directed the jury, in conventional terms, as to the respective roles of himself and the jury. Specifically, he said: "I have nothing to do with those facts or your decisions in relation to them. I have nothing to do with what evidence is to be accepted by you as truthful or what evidence is to be rejected by you as being untruthful, nor indeed what weight you might give to any one particular part of the evidence which has been 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 whether you accept that evidence." A little later, he said: "If I happen to express any views upon questions of fact, you must disregard those views unless they happen to agree with your own independent assessment of the evidence. That is what I mean when I say to you that you are the judges and the sole judges of the facts. It is not for me to determine this case, it is for you." He immediately went on to say that, while he was entitled to express a view, he did not intend to persuade the jury one way or the other. 42 Notwithstanding that expressed intention, the contention made on behalf of the appellant is that his Honour transgressed by repeatedly commenting unfavourably upon the case advanced on behalf of the appellant, or upon the evidence given by him or by his witnesses. 43 At the end of the summing up senior counsel who then appeared for the appellant sought a discharge of the jury on the basis that the summing up was not balanced, was biased against the appellant and was unfair. He referred to a number of specific instances of matters dealt with in the summing up which, he argued, favoured the Crown case at the expense of the appellant's case. 44 What happened after the jury retired is of some significance. The jury retired at 3.23 pm on 1 March. At 4.25 pm they were permitted to separate for the day, and resumed deliberations at 10.00 am the following morning. At that time they asked to listen to the audio-tapes of parts of the evidence of some of the witnesses. They were quite specific in identifying what they wanted to hear. They also asked to be redirected on the meaning of intent. Complying with these requests occupied the morning and the jury further retired at 2.55 pm. 45 At 3.28 pm the jury sent a communication to the judge, advising that they were unable to reach a unanimous decision. The judge read the direction prescribed by the High Court in Black v The Queen [1993] HCA 71; 179 CLR 44. At 4.47 pm they returned with their unanimous verdict of guilty. 46 Many, if not all, of the complaints made by senior counsel for the appellant at trial are also the subjects of specific submissions on the appeal. Senior counsel who now appears for the appellant has added a number of additional items to the list. There are numerous matters of detail which, it is contended on behalf of the appellant, show bias and unfairness in the summing up. I do not propose to traverse each of these. A sample will suffice to illustrate the point. 47 I will begin with two specific matters. 48 Mr Dwyer told police that the gun (that he said was produced by the appellant) was black and brown in colour. When he gave evidence he said that he thought the gun was silver. The judge directed the jury: "In the normal course of human experience, you would think that if somebody tells you something today, it would be more accurate than what he might tell about the same thing in a year's time, that is, the closer to an event when you get a description, the more likely it is that that description will be accurate. In Mr Dwyer's mind's eye at the time of giving evidence, he thought the gun was silver, however when he gave the description to police he said it was black and brown in colour. Whether you believe that is an honest mistake or a deliberate misrepresentation is entirely a question for you. " (emphasis added) 49 The submission that was made in this Court was as follows: "He [the trial judge] stated that 'you would think' a description closer to an event is more likely to be accurate. This would have implied to the jury that Mr Dwyer was trying to be accurate and was more accurate when he described the gun to the police – thereby implying that he had made 'an honest mistake' rather than 'a deliberate misrepresentation'. This argument had not been put by the Crown Prosecutor in final address." 50 The direction given in no way supports the submission that the direction was so framed as to suggest to the jury that the discrepancy between what Mr Dwyer had said to police and his evidence should be treated as an honest mistake rather than a deliberate misrepresentation. There is nothing in the direction that could give rise to that interpretation. The final sentence in the direction (not adverted to in the submission) was, in my opinion, completely neutral. 51 In another part of the written submissions, senior counsel for the appellant said: "The trial judge accepted ... that this was a criticism of Mrs Taleb's assertion that she was 'horrified by what she read' ..." 52 It is unnecessary to attempt to explain the full context in which this arises. The submission was made in relation to a direction given to the jury about the account given by the appellant to police on his apprehension. As recorded in the transcript, senior counsel put to his Honour: "You (sic) the way your Honour put it was that it was obviously a criticism of his version and a criticism that what was - -" 53 His Honour interrupted, and said that what he had said was not a criticism. This was followed by senior counsel saying: "Well I can't understand the criticism you Honour was making. Your Honour was making a criticism of the evidence of [the appellant's wife]." To this his Honour's only reply was: "Yes, next objection." 54 For my part, I would construe this as a (somewhat brusque) rejection of the submission. I perceive no acceptance by his Honour that he had made any criticism of the appellant's wife. It reads as anything but – as a summary rejection of the submission. Indeed, on the appeal senior counsel appeared to accept the alternative construction of what his Honour here said. 55 If the complaints made on behalf of the appellant were all of the nature and quality of these two, it would be a simple matter to dismiss the appeal. However, there are instances of more valid complaints. 56 A useful starting point is the summing up so far as it relates to the evidence given by the appellant himself. His Honour began by recounting the appellant's evidence of what happened just before the commencement of the altercation. He said: "He [the appellant] said he pulled up to the left to turn into the driveway of his house. He said that Mr Dwyer swerved, cut across him and pulled up at forty-five degrees in front of him. This raises some matters that you must consider. According to the accused he did not drive improperly, he did not seek to undertake or overtake, did not weave and did not tailgate. Why then did the altercation, which undoubtedly occurred at point 2 on exhibit B, occur? According to the accused there was no erratic driving, nothing to suggest road rage. Yet something must have occurred to stir up Mr Dwyer. The second thing is if Mr Dwyer was driving at 60 KPH along Waterworth Drive and the accused was slowing down to turn into his driveway, why would Mr Dwyer not keep going? You might think that if the accused was slowing down to turn into his driveway, which is common, then Mr Dwyer would just be getting further ahead. Why would he suddenly swerve across and park at forty-five degrees to him? You might think that because of the undoubted incident that occurred at point 2 on the map, or thereabouts, that something must have occurred which antagonised, to put it bluntly, Mr Dwyer." 57 A little later, he said: "He [the appellant] also said that he saw the utility behind him and he said that Dwyer was standing in the middle of the road holding his hands up indicating him to stop. You have been to the scene. You might think that wherever the cars were that they could be seen from the roundabout. It, of course, is the evidence of [the appellant's wife], that they could not see the cars from the roundabout, but you might think otherwise. You might think it odd the accused would drive in the same direction as this person of whom he said he was in fear. You might think it odd that he would immediately pull up at Dwyer if Dwyer was standing in the road with both his hands out saying 'stop'. However, people do funny things when they are in panic. There are a number of things that the accused could have done and did not do. He could have braked suddenly, put the car into reverse and got the hell out of there. He could have turned into Eskdale Close, that is the street on the right-hand side before you get to Pomara, gone up there and made a u-turn and come back and sped away. He did not do any of those things." 58 In dealing with the evidence of Mr Zammit about the words he claimed to have heard spoken, his Honour directed the jury: "The question for you to determine is who spoke those words: was it the accused or was it Mr Dwyer? You might think that it may have been hard for Mr Zammit to have heard those words if they were spoken by the accused from within his vehicle looking in the direction of Mr Dwyer, which was away from Mr Zammit. A question for you." 59 In another passage, his Honour was directing the jury about the evidence of the production of the gun by Mr Dwyer. He said: "I stressed the suggestion put to Mr Dwyer that he had a gun down the front of his trousers. That, as I understand it, is consistent with the evidence of the accused that the gun was down the front of his trousers. However, the evidence, as I understand it, of the accused's wife and of Mr Speyer is that the gun was on Mr Dwyer's right hand side. ... The inconsistency between whether the gun was in front of his shorts or in his right hand side may be of some moment to you. The suggestion that Mr Dwyer had a loaded gun tucked into the front of his shorts may, you might think, be somewhat implausible. If the gun accidentally discharged, Mr Dwyer could do himself a very painful injury." 60 In relation to the evidence given by the appellant about the struggle over the gun, his Honour quoted the appellant as saying: "He kept hitting me. I put the car in reverse and I took off." He immediately followed this by saying: "A question for you whether you think Dwyer would have continued to hit the accused after the gun had been discharged and Dwyer was wounded." 61 These samples are sufficient to show that there is some basis in the criticism that, in recounting evidence in the appellant's case, his Honour provided something of a commentary which almost invariably cast doubt upon the defence case. In many cases that commentary was not a reflection of what had been put by the Crown Prosecutor in his final address. 62 Another example followed immediately upon that last extracted. His Honour said: "The accused said that there was a bruise and cuts to his lip but there is no corroborative evidence of that, not from his wife or his mother or not from a photograph that you think may have been taken or could have been taken. Photographs are fairly common in today's society, you can even get them on your telephone I understand." 63 Many things may be said about this direction. For example, it proceeds on an assumption that the appellant knew, and adverted to, the potential importance of photographic corroborative evidence. Why it is to be assumed that he knew that is not apparent to me. 64 This direction was the subject of express complaint by senior counsel who then appeared for the appellant and resulted in a redirection which was an attempted correction. His Honour said: "The other thing that I must tell you is that I made a comment about the scar – the bruises and cuts on the accused's lip and I fell into the fatal error that I myself directed you about, that is, the accused has no onus of proof." He went on to repeat what he had already said. 65 The correction, however, was, the appellant contends, inadequate because it did not include a direction that the jury should not draw any adverse inference from the absence of corroborative evidence of injury to the appellant. 66 His Honour made a specific reference to the evidence of the appellant about that passage in the intercepted telephone conversations in which he had said that the situation got "a bit hot". As to this, his Honour said: "The accused says that the situation being a bit hot today, was probably a reference to the weather. You can believe that if you wish ." (italics added) 67 Although a transcript does not necessarily convey the tone in which words are spoken, and can be misleading, the second sentence of this passage reads as though it was intended to convey, and would have conveyed, heavy scepticism. It reads as an invitation to the jury not to believe what the appellant said. And what precedes it is not really a fair account of the whole of the appellant's evidence on that issue. In his evidence in chief he brushed off the question, when asked what he meant by saying the situation was a bit hot , by saying: "Not much, just it's hot, I guess. I don't really recall much thinking about that." But in cross-examination he maintained that he did not remember what he was talking about, except that he had said the day before in evidence in chief that he may have been talking about the weather; he continued to say that he was unsure about what he had meant. 68 There were other examples (indeed, on behalf of the appellant a litany of complaints was made), but the above is, in my opinion, sufficient to give the flavour of the summing up. On a number of occasions the judge put what can only fairly be described as arguments, inimical to the defence case, that had not been the subject of address by the Crown Prosecutor. 69 The comments were frequently introduced by the words "you might think". These were frequently followed by a reminder, variously expressed, that determination of the issues posed was "a matter for you". 70 Both of these phrases are familiar in criminal trials. The first, in particular, is one frequently used by counsel. It usually signifies a proposition that counsel is urging the jury to adopt. That is, it is a term of advocacy. 71 In my experience the phrase is used less frequently by judges. When it is used by judges, it is usually in the context of a proposition that is uncontroversial – e.g. "You might think that you can accept that piece of evidence because it was not challenged". It is not, in my opinion, appropriately used by a judge when putting argumentative or controversial propositions. Its tenor is to suggest acceptance of the proposition it precedes. 72 The function of a trial judge in directing a jury in a criminal trial was identified in Cleland v The Queen [1982] HCA 67; 151 CLR 1 as follows: "It is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence. In what manner, and in what detail, this should be done must of course depend on the circumstances of each case." 73 There is considerable authority that a judge is entitled to comment, and even do so strongly, on factual issues in a trial: see R v Sinanovic [2000] NSWCCA 396; R v Zorad (1990) 19 NSWLR 91; RPS v The Queen [2000] HCA 3; 199 CLR 620. So much was pressed on behalf of the Crown and accepted on behalf of the appellant. In Zorad it was emphasised that any such comment must be made with moderation and must be accompanied by a clear direction that it is the jury's function to decide the facts, and the jury's duty to disregard any view, expressed or apparent, if it does not accord with their own independent assessment of the facts. 74 Senior counsel who appeared for the appellant sought to show that there has been some shift as to the principles concerning the availability to a trial judge of comment on factual matters. A useful starting point is the decision of this Court in Zorad. There the following appears: "It was submitted that a trial judge should always refrain from expressing his view on such an issue (at least where it was contrary to the accused), and that he should be all the more careful not to appear to do so where the accused is unrepresented. We do not accept either of those submissions. A judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he makes it clear that it is the jury's function (and not his) to decide the facts and that it is their duty to disregard the view which he has expressed (or which he may appear to hold) if it does not agree with their own independent assessment of the facts ..." 75 In RPS v The Queen [2000] HCA 3; 199 CLR 620 the majority (Gaudron ACJ, Gummow, Kirby and Hayne JJ) said: "42 And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues." However, their Honours immediately went on to say: "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." 76 In R v Machin (1996) 68 SASR 526 Olsson J distilled from the authorities a number of principles adherence to which ought to achieve a fair summing up. These include the need to explain, in a detached and dispassionate manner, the substance and legal implications of the defence; the need for the judge to appear to be neutral; the danger that the expression of personal views by a judge will overawe the jury, even in the face of conventional directions that the determination of the facts is entirely for the jury; and the need to take care in the mode of expression. His Honour then quoted from a Canadian decision in R v Pavlukoff (1953) 106 CCC 249 as follows: "It seems an absurdity for a judge after telling the jury the facts are for them and not for him, then to volunteer his opinion of facts followed then or later by another caution to the jury that his own opinion cannot govern them and ought not to influence them. If his opinion ought not to govern or influence the jury then why give his opinion to the jury. To a person who is not a lawyer, but has some training in the science of correct thinking and some knowledge of the workings of the human mind, a judge who expresses his own opinions to the jury is in effect unconsciously perhaps but nevertheless subtly and positively undermining the plain instruction he has given the jury that 'the facts are for them and not for him'; in reality he is in true effect attempting to persuade the jury not to exercise their own minds freely (as in law he has told them they must do) but instead to be guided by the factual conclusions he volunteers to them." 77 His Honour went on the quote from a judgment of King CJ in R v O'Neil (1988) 48 SASR 51, and then to make the following observation of his own: "I venture to suggest that such dictum was not intended to constitute a carte blanche for a trial judge to emphasise unduly the particular strengths of a prosecution case in a manner which is inconsistent with a fair, balanced and impartial analysis of the issues which a jury must consider. True it is that balance must, in one sense, constitute a reflection of the relative strengths of the Crown and defence cases, but it will rarely be appropriate for a trial judge to proffer what is tantamount to an expression of his or her personal assessment of the matter." 78 Senior counsel also made particular reference to authorities concerning the restraint that must be exercised by trial judges in putting to the jury responses to aspects of the defence case which are not drawn from the case expressly and explicitly put on behalf of the Crown. For example, in R v Heuston (1995) 81 A Crim R 387, Hunt CJ at CL said: "Sometimes, of course, a judge is obliged - even in what might be described as the ordinary case - to draw the attention of the jury to an argument which has not been put by counsel, if it is necessary to do so in order to ensure that the jury has sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Some such occasions are obvious - where, for example, the principal 'defence' is one of alibi, yet there is clear evidence of intoxication which would be relevant to specific intention in the event that the alibi fails. Everyone realises that, from a tactical point of view, if counsel were to address upon such an issue of intoxication it would weaken the strength of his client's case on alibi, and trial judges should usually discuss the need to give directions as to such matters with counsel (in the absence of the jury) before the summing up commences. Other such occasions are not always so obvious, and - again, stated in very general terms in relation to the ordinary case - there will be no miscarriage of justice if arguments which may have been available on the evidence are not put by the judge in the summing up if they had not already been put by counsel. Sometimes, indeed, it may produce positive mischief if the judge raises arguments which could have been but which were not put or requested by counsel." 79 In R v RTB [2002] NSWCCA 104, this Court, constituted by Spigelman CJ, Wood CJ at CL and Kirby J, in a joint judgment, dealt with a case in which the trial judge had proposed for the benefit of the jury an explanation for an ambiguous piece of evidence given by a complainant in a sexual case, an explanation that had not been proffered by the Crown Prosecutor; the judge had also offered an explanation for the failure of the complainant to give a crucial piece of evidence, as a consequence of which a verdict of not guilty was directed. This explanation, also, had not been proffered by the Crown Prosecutor. The Court said: "59 In each of the two respects of which complaint is now made, the intervention of the trial judge urged upon the jury a particular mode of thought. His Honour suggested that there could have been an explanation for the deficiency in the complainant's evidence, of a character which was not of itself based on any evidence but which, to a legal mind, would appear to be in each case a logical possibility. Juries are not required to think like that. 60 The fact that each of these 'possibilities' was put to the jury by the trial judge, rather than by the Crown, may have directed that the jury's collective mind in assessing credibility in a particular way (sic). Specifically, the thrust of the trial judge's directions, on each of the two occasions, was that, notwithstanding the appearance of inconsistency in each of the two respects, there was a possible explanation. Such matters of speculation, whilst perhaps appropriate for counsel, should not receive the added weight of the intervention of the judicial officer. In each respect the jury could have understood the trial judge to be suggesting that, because there may have been an explanation as a matter of logic, they should not take these matters into account in determining the credibility of the complainant." The Court held, in that case, that the directions were, in a critical respect, lacking in the requisite balance. 80 In R v Lau and Nguyen [2002] VSCA 157; 5 VR 129, the issue that arose concerned the extent to which the Crown Prosecutor and defence counsel had drawn, in closing addresses, the attention of the jury to the contents of a vast bulk of transcripts of intercepted telephone conversations. The Crown Prosecutor declined to spend a great deal of time reminding the jury of what was contained in the transcripts. Not so counsel for the appellants, each of whom read passages from the transcripts to the jury. Of this, Buchanan JA said: "The trial judge evidently thought that the effects produced by the applicants' counsel's recitation of and commentary upon transcripts of conversations and the Prosecutor's failure to refer to any significant number of transcripts needed redressing. In a charge consisting of 155 pages his Honour devoted 63 pages to quotations from transcripts and inference arising from them which were favourable to the Crown case. ... In my opinion the trial judge was mistaken in thinking that he was obliged to fill the gap which he perceived was created by the Prosecutor's decision not to traverse the detail of the transcripts in his final address. The issues of the identity of the participants to the conversations and the topics to which they obliquely referred were clearly before the jury. The Prosecutor chose to deal with those issues in general terms, leaving the jury to determine whether the words in the transcripts bore out his contention. I do not think that the different approach to the transcripts by the applicants' counsel in their final addresses required an answer by the trial judge. It was for the Prosecutor to decide the ground upon which he would contest the issue of the inferences to be drawn from the transcript. It was not a matter in which the trial judge should have interfered. In any event the circumstances that a substantial part of the charge took the form of a response to the cases of the applicants' counsel and that the inferences suggested by the trial judge were overwhelming those which bolstered the Crown case in my opinion were likely to have created the impression in the minds of the jury that the trial judge disagreed with the applicants' interpretation of the transcripts and was urging the jury to infer guilt. Not doubt his Honour did not intend to create that impression. As he said, he was attempting to address an omission in the presentation of the Crown so that the jury would properly consider all the relevant evidence. Nevertheless, I think it likely his words did create the impression that he was convinced of the applicants' guilt. In my view the trial judge's reference to the jury being the ultimate finders of fact would not have negated that impression." His Honour then referred to R v Hulse (1971) 1 SASR 327 in which the danger of the jury being overawed by the judge's views was referred to. 81 And in R v Mong [2002] VSCA 203; 136 A Crim R 502, the same Court (differently constituted) dealt with a summing up, again in a trial on charges of drug trafficking, in which the trial judge had referred to the evidence of a Crown witness who had proved to be so unfavourable to the Crown, and so favourable to the defence, that he was not cross-examined. The trial judge referred to some apparently uncontested facts and then said: "Let us test Mr Tang's evidence against that." He then directed the jury in terms that might have cast doubt upon the evidence of that witness. He then invited the jury to: "... test it further by looking at that evidence from the point of view of a supplier of heroin. Ask yourselves ..." 82 Callaway JA, with whom Winneke P and Batt JA agreed, declared himself persuaded that the comments went too far. He said: "The judge's comments left his evidence in tatters. True it is that they included two reminders that it was a matter for the jury and that the jury may well have disbelieved Tang in any event, but his Honour's analysis was devastating and all the more effective for being expressed as a series of examples of how to test Tang's evidence. It was included in the charge with the best of intentions, but, in my respectful opinion, the passage as set out ... caused the trial to miscarry. The applicant was deprived of a chance of acquittal that was fairly open to him having regard to the course of the trial." 83 Finally, in R v Meher [2004] NSWCCA 355, Wood CJ at CL, with whom Buddin and Shaw JJ agreed, reviewed and acknowledged, and appeared to endorse or accept, the authorities that held that a judge may comment, and even comment strongly, on factual issues (so long as the comment is fair and appropriate), but then went on to say: "87 Finally, it may be observed that trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. It is one thing to bring to the attention of a jury an alternative lesser count, that is fairly open on the evidence, or an available defence, even though it was not mentioned by the Crown Prosecutor and defence counsel, in their closing addresses, for example manslaughter in a case where the accused was indicted on a count for murder. It is quite another thing for a judge to advance an argument, on behalf of the Crown in support of the Prosecution case, which the judge considers was available, but was either overlooked, or not used by the Prosecution. 88 There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Prosecution case. First it is inconsistent with judicial impartiality. Secondly, to do so denies the Prosecution and the defence the opportunity either to disavow, or to meet the argument." 84 One difficulty as I perceive it in the present case is that the questioned passages in the summing up are not presented in clear terms as the judge's view. They are framed in terms of directions undermining facts and matters put in the defence case. In some passages the summing up reads rather like a Crown address. They would therefore not readily be perceived by the jury as the kind of comment to which the earlier direction, that the jury should discard any expression or view of the judge on the facts (unless it accorded with their own), applied. Even the time honoured direction (that the jury should discard the judge's view unless it happened to accord with their own) suffers from the logical flaw identified so eloquently and clearly in Pavlukoff. Why should the jury not ignore the judge's comment where it does accord with their own, independently arrived at, view? The direction, to me, implies that the jury might use the judge's view to support, or bolster, their own similar view. 85 I have come to the view that, partly because of the repeated nature of the comments, and partly because of their consistency in undermining the defence, but not the Crown, case, the directions cannot be seen as within the permissible limits of expression of the judge's view of the facts. These directions have a more subtle impact than that. 86 A further, and important, question in my mind is whether the repeated references to the fact that the determinations were within the jury's province in any sufficient way ameliorated the effect of the comments. My own opinion is that they did not. 87 The question which then arises is whether this Court ought to set aside the conviction and order a new trial. That depends upon whether the court reaches the view that no substantial miscarriage of justice has actually occurred. That is because, while s6 of the Criminal Appeal Act 1912 provides for setting aside a conviction where, inter alia, a miscarriage of justice has been shown, the proviso to that section is as follows: "... provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 88 In Weiss v The Queen [2005] HCA 81; 80 ALJR 444 the High Court reviewed the accumulated law in relation to the proviso, which has counterparts in all Australian states and territories. The conclusion to which the Court came is that the task of a court of criminal appeal asked to apply the proviso is to examine the whole of the evidence in the trial, to judge that evidence for itself, and to determine whether the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty. It is for that reason that I have set out, so extensively, the evidence in the trial. Included in the assessment is the fact that jury returned a guilty verdict. Their Honours said: "...there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial." Their Honours then added: "Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt." 89 To my mind, a serious question arises as to whether the flaw I have identified in the present trial is such as to render the appeal amenable to the exercise of the proviso. The High Court in Weiss reserved for consideration a question whether: "... some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso." 90 It is unnecessary to decide whether this is such a case. Even if, in some analogous case, a trial affected by an unfair summing up could be saved by the application of the proviso, this case is not in that category. While there are two features of the Crown case, being evidence properly admitted, that are compelling indicators of the appellant's guilt, there are contrary indicators. The evidence in support of the conviction is the evidence of what Mr Zammit said he heard Mr Dwyer say at the scene; and the evidence of the appellant's conduct in the weeks and months after the events. I would largely leave out of consideration the evidence of the appellant's telephone conversations; but his flight and his change of appearance are of great significance. As against that, Mr Zammit's evidence favoured the appellant in that he said he saw Mr Dwyer with an object in his hand, an object which, it would be reasonable to infer, may have been the gun. Moreover, his evidence that he heard Mr Dwyer say – "You've shot me, you arsehole" – is, on one view, consistent with the appellant's account – that Mr Dwyer produced the gun, a struggle for its possession ensued, and that Mr Dwyer was shot. Further, I have read the appellant's own evidence. I fully recognise the disadvantages of an appellate court in not being able to see the witness and evaluate his credibility; nevertheless, doing the best I can, and operating within the directives of Weiss, he appears to have provided a powerful and detailed account of the events he described. And it cannot be overlooked that, on both versions, it was Mr Dwyer who left his car and approached the appellant, who remained in his car. That is consistent with Mr Dwyer's having been the aggressor. 91 This is not a case in which this Court can substitute its own view of the facts for that of a jury properly instructed. 92 Accordingly, I have reached the view that this is not a case for the application of the proviso. 93 In my opinion the ground of appeal has been made good. I would allow the appeal, set aside the conviction and sentence and order a new trial. 94 HOWIE J: I agree with the orders proposed by Simpson J for the reasons given by Grove J. ********** 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.