Trevascus v R [2021] NSWCCA 104
Trevascus v R [2021] NSWCCA 104 · Read the judgment on AustLII
Catchwords: Jury directions – question trails and other written directions – necessity of oral directions
In this decision, the CCA held that oral jury directions are always necessary, even if written directions are provided. If a written document is given to the jury, it needs to be read out and explained, and ordinarily the jury should not be asked to read the document on their own outside of court.
The applicant was convicted at trial of a range of offences including robbery in company. The trial lasted only two days. The judge’s summing up started immediately after the defence closing address. Near the beginning of his summing up, the trial judge gave the jury two documents (one in respect of each count on the indictment) described as ‘question trails’. They consisted of a series of yes / no questions which had to be answered in order to reason to the guilt of the accused (the content of the documents are extracted at [37] and [38] of the judgment). The jury were then sent out to read the documents on their own. Despite flagging that he was going to explain the question trails to the jury, in fact the judge made no further substantive reference to them in his summing up.
Following the guilty verdict, the applicant appealed his conviction, on grounds including that the trial judge erred in his directions to the jury as to the elements of each offence. He also appealed – successfully – on the basis that the defence case was not sufficiently put to the jury, but that ground is not further summarised here.
The CCA (Bellew J, Hoeben CJ at CL and Hidden AJ agreeing) upheld this ground. There is no issue that s 55B of the Jury Act entitled the judge to provide question trails to the jury (at [49] and [64]). Indeed, the practice of providing written directions had been endorsed in NSW by the common law at least as long ago as 1980 (see [52]-[55]). However, it was clear from those earlier decisions that the directions document was not to be regarded as a substitute for oral directions (at [55]). Authority in other jurisdictions, including South Australia, was at pains to point out the need for written directions to be supplementary to, and not in substitution for, oral directions (at [59]-[62]).
Nothing in the terms of s 55B of the Jury Act provides any support for the conclusion that in enacting that section, the Parliament intended to abrogate the clear obligation imposed by the common law on a trial judge to give oral directions to the jury. The section does not permit a trial judge, having reduced directions of law to writing, to provide them to the jury, have the jury read them for themselves, and then say nothing more about them; oral directions are always necessary. Accordingly, the failure on the part of the trial judge to give oral directions regarding the contents of the question trails was an error (all at [65]). Although the full bounds of the trial judge’s obligations to give directions cannot be prescribed, if a judge has provided a written document to the jury, the obligation of the trial judge to give oral directions will require, at the very least, that such directions be read and explained to the jury in their entirety (at [67]). It will probably also require the judge to differentiate between the element(s) that are in issue from those that are not. It will also be necessary for the judge to emphasise that the written directions are not a substitute for the oral directions which are given, and a reiteration of that proposition within the written document would be prudent (at [67]). The practice of having the jury retire to the jury room and read written directions to themselves should not be encouraged because it runs contrary to the fundamental obligation on the part of the trial judge to assist the jury (at [68]).
Accordingly, this ground (and the other ground, not summarised) were made out, and a new trial was ordered.