Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Holcroft v R [2013] NSWCCA 45 Hearing dates: 12 December 2012 Decision date: 01 March 2013 Before: McClellan JA at [1] Rothman J at [125] Adamson J at [141] Decision: 1. Grant leave to the applicant to appeal against his conviction. 2. The appeal is dismissed. Catchwords: CRIMINAL LAW - appeal against conviction - murder - whether summing-up involved a substantial miscarriage of justice Legislation Cited: Evidence Act 1995 Cases Cited: Abdel-Hady (SA) v R [2011] NSWCCA 196 Green v The Queen (1971) 126 CLR 28 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Category: Principal judgment Parties: Benjamin Wayne Holcroft (Applicant) Crown Representation: Counsel: J Stratton SC (Applicant) P G Ingram SC (Crown) Solicitors: Forsters Solicitors (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2008/60735 Decision under appeal Date of Decision: 2010-09-24 00:00:00 Before: Mr Justice R S Hulme Judgment 1McCLELLAN CJ at CL: The applicant was tried with a co-accused, Kodie Rozilannie Beaudean for the murder of Danny Ralph. The indictment alleged that the relevant events happened in Queanbeyan in the early hours of the morning of 29 March 2008. The indictment pleaded that the co-accused was an accessory after the fact of murder. 2The jury found the applicant guilty of murder but acquitted the co-accused. 3The applicant was sentenced to imprisonment for a term of 22 years comprising a non-parole period of 17 years and a balance of term of 5 years. 4There is one ground of appeal which is concerned with the summing-up of the trial judge. It is expressed in the following terms: The response of his Honour in the summing up to the final address of defence counsel resulted in an unfair trial, thereby occasioning a miscarriage of justice. Evidence at the Trial 5Before turning to consider the summing-up it is important to understand the essential elements of the Crown case. 6In the early hours of 29 March 2008 the deceased, Danny Ralph, was brutally assaulted on a pedestrian bridge commonly referred to as the "sway bridge" which crosses a river in Queanbeyan. The deceased's blood was found at three locations on the bridge. The severely injured body of the deceased was found in the waters of the river below the bridge. Although he initially expressed doubts about the matter the forensic pathologist Dr Duflou expressed the opinion in his evidence at the trial that the cause of death was probably drowning. Certainly, although the assault had occasioned severe injuries to the deceased, drowning could not be excluded as the cause of death. Accordingly, the prosecution accepted that unless it could prove that the applicant had caused the deceased to fall into the water the offence of murder could not be proved. 7The Crown case left to the jury was that the applicant had inflicted injuries upon the deceased whilst they were on the bridge and then when the deceased had probably lost consciousness, pushed him off the bridge with the intention to kill or inflict grievous bodily harm. The Crown case accepted that the applicant may have been assisted by another person or persons although this was not an essential element of it. 8The applicant did not give evidence. However, through his counsel he did not deny that he had assaulted the deceased on the bridge. It was accepted by the applicant in this Court that the scientific evidence that he had been part of an assault was "very powerful." However, the applicant denied that he was the cause of the deceased falling into the river either alone or with assistance. The applicant's case was that having brutally assaulted the deceased he left the scene and some other person or persons must have thrown the deceased into the water. The applicant's case was that after he left the scene he returned to find the deceased gone. 9The applicant's position was supported by evidence of a telephone call which he made to his sister after he had assaulted the deceased in which he asked her to come and pick him up from the vicinity of the bridge. According to her evidence the applicant said to her during the telephone call: "I've been in a fight. I think I might have killed him. ... When I went back he wasn't there." 10Because the applicant did not give evidence he could not be tested in relation to this statement. However, it came to form the basis of the essential hypothesis of the defence case. 11The defence theory of the case required credence to be given to a remarkable coincidence. On the same night that the deceased was severely assaulted by the applicant he was shortly thereafter thrown into the river by some other person or persons who must have known that as a consequence he would certainly die. The evidence to support that defence theory was minimal. 12In an effort to strengthen the prospect of the jury accepting this coincidence defence counsel sought to lead evidence of other attacks upon the deceased by different persons. One of these incidents was an occasion when the deceased was chased by three men, one of whom was calling him a paedophile and threatening to kill him. This came to be referred to as the "Felton incident." 13Bruce Felton, who had been a friend of the deceased for a number of years gave evidence that "a good six weeks give or take a week" around late January/early February he was woken at home at about 2.00am by "a lot of yelling and banging" coming from his front yard. He said that he heard a voice saying "I'm going to kill you ... you're a paedophile." He said that another voice was saying to the people to go away and stop belting the motor car. Felton said he went outside armed with a baseball bat and saw two men near his car with the deceased standing behind a short fence level with the front door. He said that when he swung the bat the men dispersed. Mr Felton said that as one man left he said "You can't run for ever ... I'll kill you ... I know where you live now ... you can't run. I'll kill you." 14Felton said he later saw the deceased and asked him if the issue had been fixed. The deceased told him that it had been. 15There was evidence of the deceased having previously been injured. Amanda Schultz gave evidence of seeing his face cut, swollen and bruised and experiencing difficulty breathing because of injuries to his ribs about a fortnight before he died. The deceased apparently told Ms Schultz that there were three people who were "after him." She referred to another incident which the deceased had reported to her of a random attack in which he said he was bashed. 16Sharyn Obi also gave evidence of having been told by the deceased that he had been accosted by a man who accused him of being a paedophile. 17Michael Padey who commonly drank at the same hotel as the applicant said that there was an occasion at the hotel when he was very intoxicated. He said that as he walked from the hotel he was followed by the deceased who he said had jumped into someone's yard and banged on the door. He said that the occupant of that premises came out swinging a bat and the deceased left. Mr Padey was unsure about when the event had occurred. 18The defence position was significantly weakened by the fact that Michelle St Claire, who heard noise emanating from the bridge that night, and said that the sounds of the assault were audible. Following which, and after only a very short interval, she heard a sound which was undoubtedly the body of the deceased hitting the water. 19There was also evidence of letters written by the applicant from prison and the content of a telephone conversation he had with his mother, which was recorded, and which very significantly weakened the applicant's position. 20Professor Duflou, a forensic pathologist, conducted the autopsy upon the deceased. He concluded that he had suffered a combination of serious blunt force injuries to the head and neck which were likely to have caused loss of consciousness making it inevitable that he would drown when immersed in the river. The deceased was found to have suffered a total of 15 injuries. There was extensive bruising and bleeding at various locations on the head and neck, the lips, the scrotum, all aspects of the face, into the whites of the eyes, to the side of the tongue on both the arms and shoulders and on the left heel and shin. There were bruises to the mid part of the arm, which Professor Duflou said typically result from being grabbed by another with some force. There was also multiple impact injuries occasioned by blows from a range of different angles. The deceased suffered multiple bruises to the frontal and temporal lobes of his brain. There was bleeding in the brain stem and the pons and there was bleeding in the corpus callosum and a subarachnoid haemorrhage. 21It is plain from Professor Duflou's evidence that the attack upon the deceased was violent and brutal. 22A forensic examination was conducted of the bridge. The evidence indicated that on the deceased's face there were five areas of regularly spaced linear imprints which were possibly caused by his face being forcefully pushed into the surface of the bridge, which had planks of a similar pattern and appearance. 23The wooden surface of the bridge had three distinct areas of blood staining which were referred to as Sites 1, 2 and 3. There was extensive blood staining and spatter on the bridge itself, the handrails and other supporting parts of the structure. The evidence of blood spatter was consistent with the degree of violence which was found to have been occasioned to the deceased. 24The wooden planking of the bridge showed extensive blood staining in two distinct areas. Site 1, as it came to be known, the larger of the two areas of staining was about 27 metres from the eastern end of the bridge. Site 2, a smaller area, was a further 31 metres away. Site 3 was on the southern side of the bridge, about 700mm east of Site 1. In addition there was extensive blood staining and spatter on the white painted metal sides and safety rails and, to a lesser extent, on the suspension cables. Most of the blood was from the deceased. The applicant's blood appeared on the outer edge of the northern railing very near to Site 1. The applicant's blood was also identified on the inside/top of the northern handrail. 25The evidence from Detective Sergeant Moon suggested that the deceased was first assaulted in the vicinity of Site 3. It is likely that his head was in contact with the walkway at this point and at some stage he was lying with his body orientated towards the east. The evidence indicates that multiple violent acts then occurred at Site 1. The deceased was either moved or moved himself and it was at Site 2 that the deceased went over the northern side of the bridge into the river. 26There were some imprints from the soles of shoes detected on the bridge. These appeared to travel from Site 1 to Site 2. Three imprints were found to be similar in manufacture and size to a pair of "Duff" brand shoes found in the car owned by the mother of the applicant. 27Various witnesses gave evidence of the deceased's movements on the night he died. He was employed as a "handyman" at the Royal Hotel in Queanbeyan. After finishing his work duties he stayed on drinking at the hotel with friends. He was described as being in "very good spirits". At one stage the deceased was involved in a conflict around the pool table. At about 1.30am Sharyn Obi drove him to his home but he realised he had left his house keys at work and needed to retrieve them. Ms Obi drove him back to the Hotel where he continued drinking. 28When the deceased arrived back at the bar one of the attendants, Stephanie Boyle, asked him to cover the employee shirt he was wearing. The deceased's friend Glenn Homan gave evidence in which he said that the deceased was not permitted to drink while wearing the shirt, Mr Homan leant the deceased one of the shirts he had been wearing. 29As the Hotel was closing there was evidence that the deceased was "moderately intoxicated, but he was still in control and was happy" although he was upset at having been accused of stealing a packet of cigarettes. Two members of the staff (Allan Gee and Shannon Heckenberg) both said that last drinks were generally called around 2.30am, however, Ms Boyle said they were called around 3.30am. Mr Gee, a bartender, said that he saw the deceased leaving with most of the other patrons around 3.15am and then talking to the security staff at the front of the hotel for about 15 minutes. There was no evidence of the deceased's movements after he left the hotel. However one convenient route took him across the sway bridge. 30Ms Michelle St Claire lived in a block of home units situated near to the river and the sway bridge. When she gave her evidence in chief she said that at about 3.00am she heard from the direction of the bridge male voices "yelling." She believed there were three voices, one was softer than the other two. She then heard thumping and footsteps on the bridge then "something that sounded like a firecracker, then I heard a splash" followed by the creaking of the bridge. 31During cross-examination Ms St Claire was taken to her police statement where she had said "I remember looking at the clock at about 2.30am and again at 4.30am." In re-examination she gave evidence that this event took place more than 10 minutes but less than an hour before she looked at her clock at 4.30am. Ms St Claire said that she had told the police "I also looked at the clock at about 3.00am." This event is almost certainly when the deceased was assaulted and thrown into the river. 32Ms St Claire also said that at about 1.30am she heard the words "fuck off, I'm going to get you. Fucking cunt" in a male voice. The deceased was known to be alive until after 3.00am probably until at least 3.30am and accordingly this event appears to have no connection with the deceased's death. 33At about 1.15am Paul Izzard heard "a yelling and a loud cracking noise ... like something had been thrown into the river." He heard what sounded like three young people yelling "get him, get him, yeah hit him." He also heard a vehicle not long after that, he said that it revved a lot and headed towards the road bridge. Again the timing of this incident is too early to be related to the death of Mr Ralph. 34James Cullimore said that during the early hours of Saturday he heard "loud voices, yelling, breaking bottles" from the direction of the bridge - and then a noise "like wood banging." Almost immediately afterwards he saw a car on the grass by the bridge which then sped off. 35It would seem most likely that Mr Cullimore's evidence related to the same event as that about which Mr Izzard gave evidence. Because of its reported time it must be separate to the event related to the assault and death of the deceased. This was probably the earlier event reported by Ms St Claire. 36When the deceased's body was retrieved from the river he was wearing a T-shirt. The shirt was extensively blood stained and there was a shoe print on the front of it. There was a zigzag pattern on the shirt consistent with either the front or back portion of the sole of a shoe. A similar pattern was made by the sole of the "Duff" brand shoes retrieved by the police from the applicant's mother's car. It was also similar to three footprints identified in the blood stains on the bridge. 37I have previously referred to the letters which the applicant wrote. They were tendered at his trial. One letter addressed to "Mummy and Stinky" included the following: "I'm going to ask my lawyer to pull that file if he is aloud to show that when I was assaulted by Jason that when I was ripped out of the car I defended myself and it was him that was left on the ground and that I went to get back in my car and drive off cause I didn't want to get in trouble and the same thing happened with danny so I left him there on the bridge cause I didn't want to get in trouble, so that not my fault what had happened too [sic] him when I left." 38In another letter which commenced "Gday mum" he said the following: "... things would have been so much different I wish that fuckwit was killed years ago. We wouldn't have had any of these fears or worries about anything or having to watch our backs all the time and been able to live normal lives just like everyone else." 39In a third letter which commenced with the words "Hey Phil" the applicant said: "Ive just been going through my brief and reading all this shit. Yesterday I wrote out what happened after I finished work on the Friday and what I done up until he was found in the river. And I don't even believe what I wrote down. So I don't know how I'll get the jury to believe me but they might think that because its too unbelievable that it must be true ... There are too many unanswered questions in my mind about what happened and too many people that would rather him dead than alive so even though I had played a part in his death I'm not responsible for it and that's what I have to prove and then, if I can prove that I'm going home and it's the truth that will set me free so I've got a bit of homework to do by going through this brief everyone that's seen it can't believe it ..." 40Teneeka Beaudean is the applicant's sister. She was originally charged with being an accessory after the fact to murder but later pleaded guilty to accessory after the fact to manslaughter. 41Teneeka knew the deceased through her mother dating him when she was aged about 10-11. She had no contact with him after that. The applicant called Teneeka on her mobile telephone early in the morning of 29 March 2008. She was staying at her boyfriend's place. She said the call took place before 6.00am. The applicant wanted her to collect him and they arranged to meet. The applicant asked his sister to bring him some clothes. 42Teneeka arranged to borrow some clothing from her boyfriend and drove to where the applicant was located. She gave evidence that the applicant said to her: "I've been in a fight. I think I might have killed him." 43He then said something Teneeka could not recall followed by "when I went back he wasn't there." Teneeka did not recall seeing any blood on the applicant. 44Teneeka drove the applicant from the area. After they had driven a distance she stopped the car and the applicant lit a fire and burned the clothes which he had been wearing at the time of the incident. 45The matter was investigated by the police and a listening device was installed which recorded a conversation between the applicant and his mother. The transcript uses their first names, Kodie and Ben: "Kodie: so what else did they ask you Ben: they just asked me like my name like I pretty much got out of it like I said... I went in there and they asked me I said I'm on Zoloft and when I go out cause I said I don't drink.... so when I do go out like I go out and I get real drunk she was like alright Ben: just tell them I never get taxis back home from there.... Kodie: picked up.... that's right Ben: should I say that I don't walk home or that I always get a lift I should say I always get a lift Kodie: right are you going to say anything about when you get bashed up you're always gettin bashed up Ben: well I can say that well what I was going to say is I said alright you think that I've done this find one person that I've had a fight with Kodie: that you've started.... Kodie: that's why he doesn't go out you need some friends and goes into the pit for you Ben: no but I don't start nothing Mum Kodie: yeah you don't start nothin Ben: that's Kodie: that's why you 're going self defence you gotta .... back of the head Kodie:.. .say that Danny's harassing ya.. .he blamed you for wrecking his car that time when you were in Brisbane on a footy trip Ben: well you need ...I dunno you need to tellem whatever you got to tell em but I dunno see after then like if something happens and you have to come in and tell them that... .I don't think you tell them too much... Ben: -Monsey won't tell me to do he won't tell me I need to lie and then you go and tell .... about Danny and tell him that's the way you want to Kodie: why don't you go and tell him .... you 're getting charged I'm just...- Ben: -you you go and tell him cause I don't have say nothing till I see a lawyer.... Kodie: because he [Danny] used to stalk Teneeka to school on the bus.. ..asking people for money so he could get on that bus so he was with her on that bus and anything could've happened she said... Ben: see Neeki and tell her... .everyone would know you're frightened of him Kodie: well its not actually a lie it happened Ben: Yeah but like it like it'd make it even more dramatic you know what I mean ... Ben: 'cause they just are like it doesn't say what happened he died before he was thrown off the bridge the reports say and he was dead on the bridge before he was he was but it's not Kodie: what's not Ben:.... witnesses didn't see anything... gang of people but... it's all bullshit cause no one wants to reckon no one wants to know Kodie:.... shotgun.... Ben: yeah the shotgun would like the sound of a shot would have been like the water hitting like (makes noise) the water cause they wouldn't of Kodie: was there witnesses Ben: there I don't know there could have been someone somewhere but I don't think so cause Kodie: aren't they anonymous witnesses Ben: yeah cause at that time they wouldn't have seen the bashing if they seen me and then if not they would have seen if there was witnesses and they were up on the bridge side of Queanbeyan they would have seen me walking and spew and then keep walking then ring Teneeka and waited for her to come and pick me up Kodie: mmm Ben: but they wouldn't have her car Kodie: alright listen come here the ones that you wore ....the shoes you wore . ...they're not here are they Ben: yeah Kodie: ... prints .... pair of shoes like always go out with those other soft ones Ben: well you go and you put them somewhere then Kodie: you'll have to get 'em for me Ben: they're right there Kodie: where those Ben: those one's there Kodie: are those the same as the other ones Ben: mmm Kodie: you sure show me Ben: they are there exactly the same that's it just a size smaller.... Kodie: another pair I'll put them in the car so them in the car in the back Ben: cause if they get done the other ones if there's any like you know how they get grime and shit out of the footprints and that.. . Kodie:.. to check on his girlfriend.... across the bridge and you're coming across ... you 're only going to have your footprints .. .your foot and your handprints there's going to be no one else's there except for Luke they might have something of Luke's .... Ben: well all I can say is that I do what every other person does grab the bridge and shake it... Kodie: mmm does it shake that bridge Ben: yeah not as much as it used to but it does shake Kodie: so say I bet if you went along you'd find my fingerprints probably all the way along that bridge Ben: no they did go all along Kodie: oh did they I thought it was just in that in that Ben: yeah every spot Kodie: every spot Ben: that's why I kept saying I should go back down there Kodie: you never go back to the scene of the crime." (Emphasis added) 46When interviewed by the police the applicant initially denied any involvement in the incident. He said he had no recollection of where he was on the relevant night and denied that he had been on the bridge, although he said that he had later heard that there was "blood everywhere" on it. He denied ever having a physical altercation with the deceased. The applicant's submissions 47Although the issues in the trial were relatively straightforward, considerable time was consumed in argument in relation to various matters. The trial judge attempted to confine the debate much of the argument being repetitive and unproductive. The level of interaction between the trial judge and defence counsel increased after the completion of defence counsel's address to the jury and intensified during the course of the trial judge's summing-up. It is apparent that controversy surrounded the accuracy of the submissions made by defence counsel in relation to some of the evidence which had been given at the trial. In particular the evidence of Detective Sergeant Moon and Dr Duflou caused difficulties. Detective Sergeant Moon was a blood spatter expert. 48As I have previously mentioned [25] Detective Sergeant Moon gave evidence that there were three main areas where blood was found on the bridge. There was blood on the bars of the railings of the bridge. He said that there was a transfer pattern of blood on the metal suspension wire located above where the deceased was found in the river. The type of blood staining at this location was consistent with the deceased being thrown from the bridge at that point. He said there was a third site at which the deceased was apparently assaulted before he collapsed. Accordingly, the sequence of events which he said the evidence of blood staining supported was that the deceased was assaulted at one site before he was moved or moved himself to a second site where he was thrown off the bridge. 49There were difficulties stemming from the prosecutor's address to the jury. He initially contemplated asking the jury to accept that the applicant may have been accompanied by another person when carrying out the assault and the applicant may then have left with the other person throwing the deceased from the bridge. After discussion with the trial judge the prosecutor was confined to a case which argued that the applicant was responsible for the deceased's death and was present when he was thrown off the bridge although he may have been accompanied by another person. 50During the course of defence counsel's address the prosecutor indicated that he had some concerns about the accuracy of some of the statements the defence counsel had made. His Honour also said that he had concern about some matters. However, his Honour did not respond to defence counsel's request to be told what his concerns were. His Honour said "your obligation is to get them right to start off with." 51Complaint is made in this Court that although the Crown Prosecutor was allowed to supplement his final address, and in particular to more carefully define the way the Crown case was presented, this opportunity was denied to defence counsel because he was not made aware of the possible inaccuracies in his address to the jury. The submission to this Court was framed as a denial of procedural fairness. 52Beyond these matters, as reflected in the grounds of appeal, the fundamental submission of the applicant to this Court was that the summing-up as a whole was unfair and for that reason the trial miscarried. It was asserted that a substantial part of the trial judge's summing-up was critical of defence counsel. Although this Court was invited to read and assess the summing-up in its entirety, and I have undertaken that task, particular passages were emphasised by the applicant. Those passages and counsel's comments on them are set out below. Not all of them concern criticisms of the trial judge (I have numbered the paragraphs in the submissions to assist in their later reference): (i) At page 3 paragraph 1, of the summing-up, his Honour said "Thirdly, you are entitled to disregard any views you think I may have as to the evidence or the facts. Indeed, you should disregard them unless by the end of your deliberations you are persuaded by the evidence to a similar view." (ii) In the subsequent paragraph, his Honour said "Fourthly, your decision must be based on only the evidence given in this courtroom, that is, the exhibits and what the witnesses have said. Except to the extent that an answer may incorporate a question, the evidence does not include questions or what counsel or I say about the evidence during the trial." (iii) At page 6 paragraph 3, his Honour said "Firstly let me say that I am entitled to express views. That said, it is certainly not my intention to indicate any view on the question of what your verdicts should be. However, for a case of this length and the number of witnesses, you are likely to be assisted if I concentrate on the matters that seem to me important rather than referring to all of the evidence that has been given." (iv) In the following paragraphs, paragraph 4 of page 6 and the paragraph after that, his Honour discussed the role of the jury in fact finding and how that was to be approached in light of the aspects of the evidence that his Honour proposed to highlight. (v) At page 7 paragraph 3, his Honour said "I would also say that the evidence does not include counsel's summaries of it during the course of their addresses. Indeed, it does not include my summary of it in the course of this summing-up. Now, I will say more about some of these matters later, but you may think that not all the references during the course of counsel's addresses were accurate or complete. Rely on the evidence." (vi) At page 14 paragraph 4, having provided the jury with written directions as to the elements of the offences which became MFI 43, his Honour said, "Now I rather think, though I have not checked the transcript since, that some of the things that counsel said to you on the topic of consequences of Mr Ralph being thrown off the bridge or being dropped off the bridge (meaning the legal consequences) do not accord with what I have said here. If there is difference what I say goes, as indeed counsel acknowledged." (vii) At page 65 paragraph 3, his Honour said "Next let me say something about the topic of intent because both Mr Wallach [defence counsel for the applicant] and Mr White were wrong in the number of things they said to you on the topic of intent, and as I think all counsel said, and as I said at the beginning of my summing up what I say on questions of law, and this is a question of law, binds everyone." (viii) At page 69 paragraph 5, his Honour said "Now, the next thing I want to say is simply a suggestion as to the drawing of inferences, and this is not an instruction of law; you can ignore it if you want to, but I would suggest it is probably worth your while paying significant regard to it." (ix) At page 71 commencing at paragraph 4, his Honour said "Firstly, it is important that you base your decisions on the evidence, not counsels summaries or references to it. Unfortunately it seems to me that parts of what counsel said in their references to the evidence were wrong or misleading. (x) Now, in saying that, I do not intend to invite you to disregard all counsel said. Their arguments should be considered but, when it comes to the question of evidence, rely on what you heard rather than the summaries. (xi) Secondly, it is your duty to have regard to all of the evidence and see whether that evidence leads you to the conclusion that the accused are guilty. (xii) Mr Wallach suggested that it was not your function to see how you can work out a way that it all fits. Mr Wallach was wrong. You can fairly expect assistance from the Crown, but it is your function to determine whether, on the whole of the evidence presented to you, the accused, or either of them, is guilty." (xiii) At page 72 commencing at paragraph 3, his Honour said, "Mr Wallach also said (transcript 541 line 30), and I quote: "Now all of this evidence about the other shoe marks, and marks which could not have been made by Mr Holcroft, came up during the trial. The prosecution is left in a sort of hard place." (xiv) "Our system involves providing to the defence, well before the trial, all of the significant documents and statements upon which the Crown proposes to rely. You may remember strident protest from Mr Wallach at one stage when the Crown sought to tender one of the charts with the overlays on it on the basis that he said he had not been given a copy previously." (xv) "Now, one accepts that sometimes what is provided pre-trial is supplemented by something during the course of the trial, but it would not be right for you to go away with the impression that the first time there was any reference in the material which has been placed before you, or used by the lawyers in this case concerning the presence of someone else, was during this trial. It must have been revealed beforehand to the defence, and obviously also available to the Crown, and I include in that the evidence of the presence of another shoe print, the record of the intercepted conversation suggesting the presence of Luke, the statement of Teeneka, suggesting someone else may have done something, the evidence as to the absence of blood between sites 1 and 2 and the evidence of the deceased's weight." (xvi) From page 75 until page 81, his Honour reviewed the evidence in the "Felton incident". At the end of that analysis, on page 81 about 10 lines down, his Honour said, "There is, I think, apart from the statement on the night after he had been drinking at the hotel 'you're a paedophile' no evidence that any one else used the expression 'you're a paedophile' and no evidence that I am conscious of of any one of the one, two or three persons who chased the deceased on that occasion actually believing the deceased was a paedophile." (xvii) At page 90 last line, in the context of discussing the evidence of Detective Sergeant Moon, the blood splatter expert, his Honour said "Now, particularly in my coming to this sort of material because there was a deal of criticism or disparaging by Mr Wallach of Detective Moon's conclusion, and I just want to be fair to bring it to your attention what the detective said and any reasons he gave." (xviii) At page 100 paragraph 2, his Honour said "The second bit of forensic evidence that I want to bring to your attention is that of Detective Langsford. During the course of his address Mr Wallach, somewhat critically, you may think, said, "well, why did they only apply this LCV chemical to the area between the stains? Why didn't they look at the whole bridge?" (xix) At pages 102 to 104, his Honour discussed the evidence of the sister of the applicant. It is noteworthy that, just as there was no challenge to her evidence by defence counsel, she having been called by the Crown prosecutor, there was no application made by him to cross-examine the witness under any one of the bases contained in s 38 of the Evidence Act 1995. (xx) At page 148, his Honour delivered a judgment (the second judgment of 22 April 2010), in which his Honour gave the reasons for his Honour's decision to specify the fact that, in his reference to inaccurate summaries of evidence, his Honour was referring only to Mr Wallach. (xxi) From page 159 to page 161, his Honour put into effect what had been foreshadowed in the judgment to which I have just referred. In particular at the last line of page 159, his Honour said "Firstly, I have been asked to say that my reference to counsel there was intended to refer specifically to Mr Wallach and not to Mr White or the Crown." (xxii) At page 167 paragraph 5, in the context of discussing the intercepted conversation between the applicant and his mother, his Honour said "65, the second passage attributed to Ben: 'they wouldn't have seen the bashing if they seen me;' this is a passage relied upon by Mr Wallach but, insofar as it suggests that a bashing of the deceased and Mr Holcroft were at two different places, you may think it is hard to reconcile with what he told Teeneka." (xxiii) At page 169, his Honour commenced to summarise the arguments of counsel. At paragraph 4, his Honour said "I now want to briefly summarise the arguments that counsel have put to you. Before I do so it is proper to remind you that counsel's addresses are essentially arguments in favour of their clients. You should consider them carefully but critically. That said I do not for one moment suggest that you should discount or discard any of the arguments, and I draw a distinction between the arguments and the statements of law or the summaries of facts. I do not for one moment suggest you should discount any of the arguments that have been advanced. Consider them on their merits and decide what weight you give to them." (xxiv) At page 171, his Honour commenced to summarise the defence case. In that context at page 172 paragraph 3, his Honour said "Mr Wallach called in support of that proposition the agreement of Dr Duflou to that effect, and Mr Wallach in fact submitted that that was Dr Duflou's preferred view, but I leave you to determine that from the transcript of the doctor's evidence which you have had for some time." (xxv) Finally, at page 190 paragraph 2, his Honour said this "The next thing I have been asked to add is this: To remind you, as I reminded you of some of the fundamental principles at the beginning of my summing up, that it is your decision on the facts of the case that matters and you should disregard any views you think I have, unless at the end of your deliberations you come up with the same conclusion." (xxvi) Throughout the summing-up, defence counsel repeatedly objected to what was being said. He had also repeatedly requested notice of what he had allegedly done wrong, and the chance to correct himself in the presence of the jury whatever errors he had made. 53The applicant accepted that before he could succeed in the appeal this Court must be satisfied that there were inadequacies or irregularities in the summing-up or otherwise in the course of the trial which resulted in a miscarriage of justice. 54The applicant accepted that the trial judge had accurately put to the jury the matters which the Crown had relied on. Furthermore it was not suggested that the trial judge had failed to properly put the defence case to the jury. The submission was confined to the proposition that the summing-up lacked balance and was unfair due to a sustained attack on the applicant's counsel by the trial judge. 55The applicant referred to the decision of the High Court in Green v The Queen (1971) 126 CLR 28 where the High Court found that the trial judge's summing-up was unfair, lacking in judicial balance and so partaking of partiality as to render the trial a miscarriage of justice (p 34). 56Similarly it was submitted that in the present case the summing-up of the trial went beyond anything which a trial judge was entitled to do in correcting the submissions of counsel. The applicant accepted that the relevant principles were those discussed by this Court in Abdel-Hady (SA) v R [2011] NSWCCA 196 from [134]-[141]. 57It was submitted that when the trial judge sought to place the correct evidentiary position before the jury his Honour was excessively critical of defence counsel to the point where the trial miscarried. It was submitted that the concerns which his Honour had with respect to the accuracy of statements by defence counsel should have been brought to counsel's attention at a time when he had an opportunity to correct, withdraw or modify any matter that he saw fit to deal with. It was submitted that only if defence counsel had refused to amend the position after it had been brought to his attention was his Honour entitled to have "embarked upon a trenchant criticism." It was submitted that the summing-up became something of a continuing criticism of defence counsel and that in particular the reference to disregarding the summaries of the evidence of counsel generally but then later naming defence counsel for the applicant was "an extreme example of that phenomenon." It was submitted that the ameliorative remarks by his Honour to which I refer below did not sufficiently correct the situation. 58Turning to specific matters, it was submitted that the reference to the jury being entitled to expect assistance from the Crown without any reference to defence counsel was likely to cause the jury to give the submissions of defence counsel much less weight. It was submitted that although defence counsel complained about that remark it was not corrected by his Honour. 59Furthermore, it was submitted that the submission made by defence counsel about the "Felton incident" was not erroneous and was not deserving of express or implied criticism. It was submitted that it was quite open to ask the jury to infer that the other two assailants shared the same views and intention as those expressed by the main assailant and that if those three men were on trial based on principles of accessorial liability, it would have been quite open to a Crown Prosecutor to submit that they were all acting together in concert. It was submitted that the extended view of the evidence by his Honour that culminated in the criticism of the submission of defence counsel on this topic was unwarranted. 60In short, it was submitted that the summing-up read as a whole, and even accepting that some ameliorative statements were made by his Honour, would have caused the jury to accord the submissions of defence counsel little or no weight. It was submitted that even if there were failings or imperfections in the final address of defence counsel, they could and should have been dealt with in another way. The result was that the applicant did not have a fair trial according to law. Applicable principles 61The principles relevant to the obligations falling upon the trial judge when summing-up are well known. They were discussed by this Court in Abdel-Hady. They may be summarised in the following manner: The summing-up must be fair to both the prosecution and to the accused having regard to the evidence which is before the court. Provided the trial judge makes plain to the jury that they are not bound to accept the view of the judge, a judge may express a view of the facts. To further the object of a fair trial the trial judge should bring the jury's attention to significant portions of the evidence. This will include corrections to any inaccurate summary or statement of the evidence by either the prosecutor or defence counsel. Irrespective of the submissions of counsel a trial judge has an overriding duty to bring to the jury's attention those parts of the evidence that reflect significantly on the factual issues in the case and how the evidence relates to them. Because of the potential difficulty for jurors in understanding the evidence of experts it will often be necessary for a trial judge to take the jury through that evidence in some detail. To consider whether a summing-up is fair it must be read as a whole. Conclusions on the applicant's submissions 62A reading of the transcript of the trial in the present case reveals some of the difficulties experienced by the trial judge. In particular the submissions by counsel for the applicant on issues arising from counsel's address and his Honour's summing-up were lengthy and repetitive. It is apparent, and this is not surprising, that his Honour felt some frustration at being unable to move the trial forward efficiently and was rightly concerned about the inconvenience which delays were causing to individual jurors. His Honour was also concerned, and in my opinion was entitled to be concerned, about some of the inaccuracies in the applicant's address to the jury. Apart from debate about the parameters of the "Felton incident" I did not understand the applicant to submit otherwise. 63The fundamental and often repeated submission by trial counsel was a complaint that before the trial judge reminded the jury of evidence which had been wrongly summarised by counsel, necessitating a correction from the trial judge, his Honour was obliged to tell counsel of his concern and provide an opportunity for trial counsel to correct the position. It was submitted that to do to otherwise was to deny the applicant procedural fairness. 64I do not believe that this submission correctly states the law. As the submission recognises and is undoubtedly the case a trial judge is required to ensure the trial is fair. Where there are problems with the accuracy of the submissions of counsel whether prosecution or defence, and they relate to significant issues in the trial the judge is obliged to bring the correct position to the attention of the jury. Provided this is done in a manner, which having regard to the issues and the manner in which they have been addressed by trial counsel, effectively deals with the problem and does not occasion unfairness to a party no difficulty will arise. It may be that in many cases the trial judge will bring the problem to counsel's attention and provide an opportunity for counsel to make a correction. This may be the prudent course but I do not believe it to be essential if the trial is to be fair. Of course, depending on the nature of the misstatement by counsel and the significance of the issue in the trial an appropriate correction from the trial judge may either expressly or implicitly carry with it a criticism of counsel. If a statement made by counsel is "wrong" there can be no error in the judge pointing out that it is wrong, where the error lies and reminding the jury of the correct position. It is the duty of counsel to firmly and at times forcefully put their client's position before the jury. However, they carry an obligation to remain faithful to the evidence, be it oral or documentary, which has been admitted at the trial. If they fail in that duty there must always be a risk that following correction by the trial judge the jury may think less of other parts of counsel's argument. 65Although, when criticism is made of a trial judge's summing-up it is necessary to read the summing-up as a whole it is also necessary to carefully consider those particular aspects of it which it is submitted contributed to an unacceptable lack of balance. With respect to the applicant's particular criticisms of the trial judge's summing-up there is nothing unexceptional, quite the contrary, in a trial judge reminding the jury that it is the evidence and not counsel's summary of it to which they must have regard when deciding the case. Where, as counsel before this Court accepted, defence counsel has made errors in summarising any part of the evidence it was inevitable that his Honour would point out the error and remind the jury of the correct evidence. If this reflected adversely on trial counsel this was but a consequence of counsel's approach to his task. There is no ground of appeal that the trial miscarried because of counsel's incompetence. 66There was an unfortunate consequence from his Honour's attempt to avoid confining any implicit criticism to the applicant's counsel. When referring to the inaccuracies in counsels' submissions his Honour initially generalised the position referring to all counsel. Later in the summing up, it was on the following day and in response to the reasonable protests of other counsel, his Honour confined his criticisms to counsel for the applicant. However, as part of his summing-up his Honour also emphasised to the jury that he was not making a personal criticism of counsel. The relevant passage is: "Members of the jury, before I continue with my summing up there are a number of things I want to say to you arising out of, in large part, things I said yesterday. One of the things I said at page 68 of the summing up was that it was important you base your decisions on the evidence, not counsel's summaries or references to it. Unfortunately it seems to me that parts of what counsel said in their references to the evidence were wrong or misleading. Firstly, I have been asked to say that my reference to counsel there was intended to refer specifically to Mr Wallach and not to Mr White or the Crown. Secondly, I want to make it clear to you that my use of the term 'misleading' was intended to encompass something that was wrong and significant so that it might have the effect of misleading you in your consideration of the case." 67His Honour also told the jury that: "Anyone attempting to effectively summarise what is now well over one thousand pages of transcript can readily make mistakes. Counsel do it. Judges do it from time to time. So please understand that when I made that reference, and some other reference to errors I saw in specific other parts of Mr Wallach's summing-up, my criticism was directed to the accuracy of what he said, not against him personally." 68Counsel before this Court raised complaint about the exchange which is recorded in para (xii) above. Particular complaint was made about the statement "you can fairly expect assistance from the Crown" which may seem to implicitly diminish the assistance which the jury may receive from defence counsel. 69I do not believe that complaint is justified. As it happens this direction was prompted by defence counsel's submission to the jury that it was not their task to sort out the Crown case. If read out of context his Honour's statement would require careful consideration. However, all that his Honour was saying was that in understanding the Crown case and how it may prove that the applicant was guilty, the jury was entitled to expect the assistance of the prosecutor. So much is plain. That after all, is the prosecutor's task in a criminal trial. His Honour was also correct to remind the jury that whatever assistance they may have received from the prosecutor in understanding the Crown case it remained their job to consider the whole of the evidence, whether or not referred to by the prosecutor when determining whether the applicant was guilty. 70The applicant also complained about his Honour's statement in para (xiv) reminding the jury of the "strident protest" of defence counsel when he suggested that a document which the Crown sought to tender had not previously been provided to the defence. If, and this does not seem to be contested, the protest was "strident" then no doubt as his Honour seemed to reason this attitude was taken deliberately by counsel to build an impression in the jury's mind that the prosecutor was unfair. It was not submitted that his Honour's view of counsel's motive was wrong. In these circumstances I have no concern about his Honour, in the interests of a fair trial, pointing out the true position to the jury. 71With respect to issues relating to the circumstances of the "Felton incident" his Honour believed it appropriate to remind the jury of the detail of the evidence which had been given. The event had significance because it gave support to the applicant's assertion that other persons had reason to do harm to the deceased. 72Defence had told the jury that all three men involved in the incident believed that the deceased was a paedophile. This was not the evidence. 73As it happens his Honour told the jury that they "may well think [the evidence] falls significantly short" of defence counsel's submission. His Honour reminded them that apart from the statement "you're a paedophile" directed to the deceased on the night of that incident, there was no evidence that anyone else used that expression or that any one or more of the three assailants of the deceased had believed he was a paedophile. 74The evidence of Mr Felton was that the deceased had reported one man using the term "paedophile." There was no evidence whether any of the three assailants who participated in this incident in fact believed the deceased was a paedophile. 75To my mind his Honour was entitled to remind the jury of this evidence and invite them to reflect on its significance as he did. 76The applicant's counsel filed with his written submissions a table which was provided as a summary of the complaints made about the trial judge's summing-up. It is convenient to look at each of these matters. The individual matters formed part of the overriding submission that the remarks of the trial judge had the consequence that the submissions of defence counsel would be given little or no weight by the jury. Issue 1 77This issue concerns the submissions of defence counsel in the final address that Detective Sergeant Moon refused to allow for the possibility that the deceased might independently have moved between Site 1 and Site 2 on the bridge and that his evidence on that subject cannot stand with the evidence of Dr Duflou that the deceased might have been able to do so. 78In fact the evidence of Detective Sergeant Moon did not preclude the possibility that the deceased might have independently moved between Site 1 and Site 2. He said that the evidence of blood spattering did not demonstrate that such movement had occurred. The trial judge took the jury to the portions of the evidence of Detective Sergeant Moon relevant to that issue. 79As it happens his Honour also reminded the jury of the evidence of Dr Duflou that the deceased could have moved independently between the sites on the bridge, his Honour then contrasted and compared some aspects of the opinions of Dr Duflou and Detective Sergeant Moon. 80It follows that it was not open to defence counsel to submit that the evidence of Detective Sergeant Moon could not stand with the evidence of Dr Duflou. The evidence of both witnesses left open the possibility that the deceased could have independently moved between the two sites. 81It was appropriate for the trial judge to deal with this issue as he did. Issue 2 82This issue concerns the submission of defence counsel in his final address that Detective Sergeant Moon was giving an opinion that fitted a nice simple prosecution case that the applicant did it. It was a direct and forceful attack on Detective Sergeant Moon's credit. 83As it happens defence counsel conceded that such a proposition had not been put to the witness and indicated that it was merely a comment being made to the jury. 84Although the matter was raised as it happened the trial judge made no adverse remark concerning this aspect of the evidence and address during the summing-up. Issue 3 85This issue concerns the submission of defence counsel in his final address that it had only become apparent for the first time during cross-examination that Detective Sergeant Moon had said in his initial report that the sole characteristics of the "Duff" shoe associated with the applicant "matched" the shoe sole marks left in blood on the bridge. The trial judge rejected the complaint of the Crown and accepted that it was open to defence counsel to make that submission. 86The trial judge made no adverse remark concerning this aspect of the evidence and address during the summing-up. The issue is of no present relevance. Issue 4 87This issue relates to the submission of defence counsel in his final address that Dr Duflou's initial impression was that the marks on the forehead of the deceased do not match the profile of the timber boards on the footway of the bridge. Defence counsel initially disputed that his reference to this aspect of the evidence of Dr Duflou was wrong. 88However, it would seem from the written submissions that the applicant concedes that this reference by defence counsel to Dr Duflou having an initial impression that the marks on the forehead did not match the boards was wrong since Dr Duflou did not give that evidence. 89In any event the trial judge made no adverse remark concerning this aspect of the evidence and address during the summing up. The issue no longer has any relevance. Issue 5 90This issue concerns the submissions of defence counsel in his final address that Teneeka Beaudean had not said in her evidence that the applicant had made any other remarks or statements apart from those of which she was giving evidence. In the absence of the jury, the trial judge had spoken with defence counsel in respect of this submission suggesting that it was premised on a selective consideration of Teneeka Beaudean's evidence. Defence counsel indicated that he would redress the position later in the address. 91Defence counsel subsequently made further submissions to the jury which reminded them that Teneeka Beaudean had said she could not recall all the conversation she had with the applicant. 92This issue was raised again by the Crown during the summing up. When the trial judge later addressed the issue, defence counsel submitted that he had later in his final address rectified any misleading impression left by the earlier reference to this issue. 93Later in the summing up before the jury, his Honour indicated that he would be referring to the evidence Teneeka Beaudean had given rather than a summary of it and related the evidence of the "admissions." 94The other remarks made by his Honour concerning the evidence of Teneeka Beaudean rehearsed the admissions and the exculpatory remark made by the applicant as well as the qualification that Teneeka Beaudean had placed on her account that the applicant had said he had been in a fight in that he had said "something close to that" or "a little bit different to those words." 95His Honour also reminded the jury that while the weight to be afforded to the evidence of Teneeka Beaudean concerning her conversation with the applicant was a matter for them, they should bear in mind both the qualifications that Teneeka Beaudean had put on her recollection of the words and her indication that she could not recall all of the conversation. 96I am satisfied that his Honour's remarks were appropriate and reminded the jury of matters that they ought to have considered as relevant to the weight to be placed upon the evidence of Teneeka Beaudean. They were not unfair to the applicant. Issue 6 97This issue concerns the submissions of defence counsel in his final address that Teneeka Beaudean had given evidence that the applicant was always going to the golf club. 98Teneeka Beaudean gave evidence that the applicant used to attend the golf club all the time, that he would go there for dinner "every week" and sometimes she would accompany him. 99The trial judge appears to have accepted the defence submission that the evidence supported the submission and made no adverse remark concerning this aspect of the evidence and address during the summing-up. The issue does not support the ground of appeal. Issue 7 100This issue concerns the submissions of defence counsel in his final address that Teneeka Beaudean had not needed the headlights of her car to see the applicant as she arrived to pick him up after the attack on the deceased on the sway bridge. 101Teneeka Beaudean did not give evidence that she did not need the headlights to see the applicant. Rather, her evidence was that she was not sure about not needing her headlights and that she could not remember exactly. 102As it happens, the trial judge made no adverse remark on this aspect of the evidence and addresses during the summing-up. 103Issue 7 does not provide any support for the applicant's appeal. Issue 8 104This issue concerns the submissions of defence counsel in his final address that Teneeka Beaudean had not noticed blood on the applicant when she picked him up in her car after the attack on the deceased on the sway bridge. 105When she was asked whether she had observed blood "all over" the applicant she said that she had not noticed this or anything unusual about the applicant when she picked him up in her car. 106It appears from the written submissions that the applicant now concedes that the submission by defence counsel in his final address was "not a fair and non-misleading representation of Teneeka Beaudean's evidence." 107In any event the trial judge made no adverse remark concerning this aspect of the evidence and address during the summing up. Issue 9 108This issue concerns the submissions of defence counsel in his final address that the evidence of Detective Sergeant Moon suggested a clean lift of the deceased over the hand railing of the sway bridge without leaving any significant blood mark or stain. 109Detective Sergeant Moon gave evidence that there was "no or minimal blood" evident on the handrail of the sway bridge above the location in which the body of the deceased was found, which was consistent with the body of the deceased being lifted over the railing and dropped but that the evidence does not exclude the possibility that the deceased may have been in some contact with the hand rail as he went over it and into the water below. 110When defence counsel subsequently explained the evidentiary and logical bases for the submission, the trial judge said, "Very well." 111The trial judge made no adverse remark concerning this aspect of the evidence and address during the summing up. Issue 10 112This issue concerns the submissions of defence counsel in his final address that the letters of the applicant that were intercepted had been written in private and the applicant would have expected them to remain so. 113The Crown brief included a copy of some intercepted letters that had been written by the applicant while in custody. The applicant had been served with a copy of the brief at the time that he wrote the further letters that are the subject of the submission by the defence counsel that the latter had been written in private. 114When defence counsel subsequently explained the evidentiary and logical bases for the submission that had been made to the jury, he indicated that he would not seek to take the matter further if the learned trial judge did not mention the issue in the summing up. His Honour said, "Very well." 115The trial judge made no adverse remark concerning this aspect of the evidence and address during the summing up. Issue 11 116This issue is dealt with in relation to Issue 5. 117It follows that apart from the criticisms otherwise made of the trial judge's summing-up, which I do not believe are justified, the particular matters raised in the table to the submissions do not support a conclusion that the trial miscarried. The proviso 118I have previously discussed the evidence in the Crown case. The key elements of the case, which to my mind establish the applicant's guilt, are within a small compass. 119The applicant conceded that he had carried out a significant assault on the deceased. The significance of the assault was plain both from the wounds to the deceased and the presence of blood at the site at which the assault undoubtedly occurred. The applicant says that he then left the scene and some unknown person or persons must have come along and thrown the deceased into the water. 120The argument of the applicant invited supposition which, to my mind, is entirely fanciful. Of necessity it contemplates a serious assault of the deceased by the applicant who then leaves the scene and almost immediately another person or persons comes along and instead of helping the deceased, who must have been in extreme distress, throws him into the water. Although there had been other occasions when other people had shown animosity toward the deceased there was no evidence to suggest that anyone else was present when he died. 121Furthermore the argument is contradicted by the evidence of Ms St Claire who said that there was a very short interval between when she heard sounds consistent with the assault and when she heard what must have been the body of the deceased hitting the water in the river. 122There are other matters which support the Crown case. The applicant reported to his sister that having assaulted the deceased he went back to the bridge and "he wasn't there". However, he said to his sister that he thought he had killed the deceased. Footwear impressions leading from Site 1 to Site 2, where the deceased went over, had "similar manufacturing characteristics and size characteristics" to the "Duff" shoes found in the applicant's mother's vehicle indicating that the applicant had moved in that direction when blood was falling onto, or was present on, the bridge. There was evidence of the animus that the applicant held for the deceased. In correspondence with his mother the applicant said that he "wished[ed] that fuckwit was killed years ago." 123Even if I am not correct in my conclusions in relation to the ground of appeal I am in no doubt that the applicant was rightly convicted of murder. There could not have been a substantial miscarriage of justice. 124I would make the following orders: 1. Grant leave to the applicant to appeal against his conviction. 2. The appeal is dismissed. 125ROTHMAN J: I have had the advantage of reading the judgment, in draft, of McClellan CJ at CL and agree with his Honour's conclusions and the orders his Honour proposes. 126In the perfect trial, were there no time pressures and were the inconvenience of jurors not a matter to be considered, counsel should be expected to prepare addresses free of error such that trial judges would not need to be prompted to correct them. Likewise, were it not for such pressures and the necessity to ensure that jurors are engaged in the trial process including attending to counsel's addresses, judges could allow counsel the time to correct errors put to the jury before the addresses concluded. 127However, in the real world, it would impose an intolerable burden on a trial judge to identify each occasion on which counsel's submission overstates the evidence or conveys a wrong impression of the evidence. A trial judge, to the extent necessary, must be able to summarise the evidence (and the case of each party) without first providing counsel with an opportunity of "correcting" that which they have put that differs from the trial judge's summary of the evidence. 128The fundamental task of a trial judge is to ensure a fair trial. Sometimes that is best achieved by allowing counsel to correct any error that may have infected counsel's address. On the other hand, often such correction in this way can highlight issues that causes even greater unfairness to the accused and, perhaps, the Crown, and a fair summary of the evidence by the trial judge is the better method of bringing to the jury's attention the accurate state of the evidence. This is particularly so when, the statements of the trial judge refer the jury to the transcript of the evidence (or exhibit) and stress the importance of relying on the primary material, namely, what the jury has seen and heard. When, as now usually occurs, transcript is provided to juries, it is less important for judges to summarise the evidence, except in the context of summarising the respective cases or putting in context the directions of law. 129The foregoing is intended to stress my concurrence and agreement with the reasons for judgment of McClellan CJ at CL at [64]. 130For my own part, telling a jury that it "can fairly expect assistance from the Crown", without making a similar comment of defence counsel, implicitly informs the jury that it can rely on the Crown for assistance, but not defence counsel. When a trial judge also states that defence counsel has misrepresented the evidence in his summary, the trial judge is reinforcing that impression to the prejudice of the accused. Studies of juries in New Zealand indicate that jurors already possess such a prejudice. There is no reason to expect any different view in Australia. 131The foregoing is not a criticism of the trial judge. Rather, it points to the difficulty all judges have in dealing with a submission by counsel to a jury that is contrary to the evidence, or a wrong statement about the evidence. It also points to the care that counsel must take when addressing. 132The jury is entitled to expect counsel to do their best to summarise the evidence accurately and offer arguments about it. That is the function of counsel. That the Crown has a duty to put its case fairly is not a matter that should inform the jury's assessment of the strength of the prosecution. Nor should the jury be informed of that duty, directly or indirectly. 133The defence counsel's submission to the jury to the effect that it was not their task to sort out the Crown's case, in my view, was an infelicitously expressed attempt to draw to the jury's attention that it was not able to fill gaps in the Crown case by guessing what probably happened. In this case, any "gap" in the evidence did not affect the strength of the Crown case, but counsel's submission did not require one out of the three counsel to be singled out for the attention he was given. 134Further, I am not convinced that counsel's submission about the victim being chased by three people needed correction. The evidence was that the victim had been chased, on a different occasion to the date of his death, by three persons, one of whom yelled "paedophile" at the victim. The only relevance of the evidence was the suggestion that persons other than the accused held significant animosity towards the victim. 135If defence counsel were seeking to poison the jury's mind about the victim, that would have been improper and would have required correction. I do not take the view that defence counsel was so acting. It is difficult to understand what fact in issue the paedophile comment renders more probable. The motive for the animosity is at best peripheral. 136That defence counsel chose to ascribe, to all three of the persons, the motive (or words) of one of them is even less significant and, in my view, did not require correction. However, that is a matter upon which judges will reasonably differ. In those circumstances, the manner of correction needed even more careful attention to ensure that the summing-up remained balanced and fair to the accused, and did not give greater significance to the error than it otherwise deserved. The degree to which it required correction, and the terms of that correction, depend to a significant extent on the manner in which counsel addressed and the effect of that part of the address. For that reason, it must be a rare occasion when an appellate court can intervene on such a basis, because it is difficult for the appellate court to be aware of those aspects, and this Court should not intervene now. 137The reasons for judgment of McClellan CJ at CL at [61] set out the principles relevant to the obligations on judges in summing-up, with which summary I agree. The overall objective in a summing-up is to assist the jury to reach its verdict by understanding the role it must play and the issues it must consider. This must be done fairly to both the prosecution and the accused. In my view, reading the summing-up as a whole, his Honour could have maintained greater balance. 138Nevertheless, there were errors in the address of counsel and it was necessary for the jury to be assisted by an accurate summary of the evidence. The trial judge considered that the remarks of counsel and the incorrect statements required correction. It is the method used that is challenged on appeal. 139I agree with the reasons and conclusions of McClellan CJ at CL on each of the enumerated issues to which his Honour refers at [77]-[117]. I also agree that in its entirety the summing-up did not involve a substantial miscarriage of justice. Nor do I consider that a more balanced summing-up would have altered the result. 140I also agree with the reasons of McClellan CJ at CL at [118]-[124]. I have no reasonable doubt, on the evidence adduced at trial, as to the guilt of the applicant. On the whole of the evidence, making due allowance for the limitations on an appellate court which has not seen and heard the evidence, the accused was proved guilty of the offence beyond reasonable doubt: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300. I agree with the orders proposed. 141ADAMSON J: I agree with Justice McClellan. ******* 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. Decision last updated: 19 April 2013