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February 2017

Cases

• When evidence of exculpatory statement is wrongly left as an admission; Fairness of the summing-up – Castle v The Queen (2016) 91 ALJR 93; [2016] HCA 46

CASES

Updated 28 February 2017

When evidence of exculpatory statement is wrongly left as an admission; Fairness of the summing-up

Criminal law – Appeal against conviction – Application of proviso – Where appellants convicted of murder arising out of joint criminal enterprise – Where evidence of exculpatory statement by one appellant wrongly left to jury as evidence of admission – Where remaining evidence circumstantial – Whether no substantial miscarriage of justice occurred

Criminal law – Summing-up – Where one appellant gave evidence – Where trial judge referred jury to aspects of appellant’s evidence but did not summarise it – Whether appellant’s case fairly left to jury

Castle v The Queen (2016) 91 ALJR 93; [2016] HCA 46 – 16 November 2016 High Court of Australia Kiefel, Bell, Gageler, Keane, Nettle JJ

Facts: The deceased was shot dead. The appellant Castle was present at a time when the deceased was killed. The Crown case was that the appellant Castle lured the deceased into a vehicle that she was driving. Further, it was alleged that the appellant Bucca laid in wait for the deceased in the car and it was this appellant that fired the weapon that killed the deceased.

The prosecution case was largely circumstantial. One of the pieces of evidence was a statement made by the appellant Bucca. The appellant Bucca was overheard to say, “he didn't mean to do it”. The witness who heard this statement was asked whether she formed any view as to who Bucca was talking about when he said, “he didn't mean to do it” and the witness responded “no, I didn’t form any view”. Further, in re-examination, the witness said, “I don’t know who he was speaking about”.

The Crown left the statement made by the appellant Bucca as an admission by him that he shot the deceased. When the trial judge summed up the cases for the appellants at trial, his Honour left the statement made by the appellant Bucca as an admission made by him of having been involved in the shooting of the deceased. When counsel for the appellant Bucca sought a re-direction to remind the jury of the context of the evidence including reference to the evidence of the witness to the effect that she did not know who Bucca was referring to when he said, “he didn't mean to do it”, the trial judge refused that application.

The Court of Criminal Appeal concluded that the statement was incapable of being viewed as an admission. Despite that, that Court concluded that the other evidence in the case was so strong that the conviction of the appellant Bucca was inevitable and should stand.

Held: The High Court noted in a joint judgment, “The Court of Criminal Appeal’s view that the admission was “overwhelmed” by the circumstantial case may be understood as reflecting a conclusion that apart from the admission the other evidence was of such strength that a reasonable jury properly instructed would inevitably have convicted the appellants and accordingly that no substantial miscarriage of judged actually occurred. But what was left to the jury was, unequivocally, an exculpatory statement. The question was not whether the circumstantial case was so strong as to overwhelm the weight of the admission, but whether the jury might regard the exculpatory assertion as itself a sufficient basis to entertain a doubt as to the strength of the circumstantial case.” Consequently, the convictions were overturned and a fresh trial ordered.

The appellant Castle also complained about the trial judge’s summing-up. It was submitted that comments made by the judge made the summing-up unbalanced. The High Court took the opportunity to restate the principles that govern a trial judge’s comments to a jury in summing-up. The Court noted:

A trial judge may comment on the evidence provided he or she makes clear that the determination of the facts is entirely within the jury’s province. However, unless there is a need for coment – as, for example, in dealing with an extravagant submission by counsel – the wise course will often be not to do so. Where the judge chooses to comment the following statement of Brennan J in B v The Queen is to be kept in mind:

“[The comment] must exhibit a judicial balance so that the jury is not deprived ‘of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence.’ (footnotes omitted)”

Ultimately, the High Court concluded that the Court of Criminal Appeal did not err in holding that the trial judge’s summing up fairly left Castle’s defence for the jury’s consideration.

Comment: Even a very strong Crown case is unlikely to be sufficient to allow a Court of Criminal Appeal to find that no miscarriage of justice occurred if evidence is wrongly admitted which, of itself, is capable of leading a jury to convict an accused. In those circumstances, it cannot be excluded that the jury simply relied on the admission to find the appellant guilty and as such its wrongful admission led the High Court to conclude that the guilt was not proved beyond reasonable doubt.

Further, the case provides a timely reminder to trial judge’s of the need for caution when commenting on the evidence in a summing-up. Generally, it is unnecessary for a trial judge to comment on, as opposed to merely outlining, the evidence and that such comments, if they are made, must be balanced.

Some content sourced from FirstPoint powered by Australian Digest.

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