R v Tong (a pseudonym)

This case concerns an appeal against conviction following a jury trial. Ground 2 of the appeal argued the trial judge’s comments in summing-up unfairly emphasised the difficulties faced by prosecution witnesses, including the child-complainant, and thus constituted a miscarriage of justice inconsistent with the principle in McKell v The Queen. The Court of Appeal dismissed ground 2, though for different reasons. McMurdo JA and Applegarth J agreed that ordinarily such comments are not advisable because there is a risk these comments may lead the jury to view these as the judge indicating his/her own opinion of the evidence. Their Honours found no such risk had arisen in this case, so dismissed the appeal. Meanwhile, Sofronoff P considered the trial judge’s comments to merely be appropriate warnings to the jury which emphasised the ultimate determination as to reliability was for the jury to make. His Honour therefore dismissed the appeal. The other grounds of appeal and appeal against sentence are not the subject of this note.

Sofronoff P and McMurdo JA and Applegarth J

3 December 2021

Background

The applicant was convicted by a jury of four counts of rape against an 11-year-old girl. [1]–[2]. The applicant sought leave to appeal the convictions and sentence. [1]. The second ground of appeal against conviction was that the trial judge “gave the jury an unbalanced summing up” by “unnecessarily emphasi[sing] the difficulties that the prosecution witnesses, particularly the complainant, might have experienced when giving evidence due to age, culture and the passage of time’”. [24].

During the summing-up, the trial judge told the jury to bear in mind that the complainant and two other witnesses were children when they were interviewed by police and gave pre-recorded evidence. [25]. The trial judge also told the jury to “‘bear in mind that when the adult witnesses gave their evidence here in court … they were asked about conversations that they had … more than two and a half years before’”. [25]. Further, the trial judge noted that “‘[s]ome inconsistency is to be expected’” and would not necessarily mean the jury should find the complainant or other witnesses’ evidence unreliable. [26]–[28].

“The [applicant] submitted that these statements by her Honour undermined a major plank of the defence case, which was to suggest that inconsistencies in the complainant’s accounts rendered her evidence unreliable.” [29]. The applicant relied on the High Court decision of McKell v The Queen (2019) 264 CLR 307 where it was held that “the trial judge’s comments suggestive of his own views about the [disputed] facts had resulted in a miscarriage of justice” as this was inconsistent with the proper judicial function, as questions of fact are to be determined by the jury. [31].

Decision of the Court of Appeal

The Court of Appeal dismissed the appeal against conviction, but for different reasons. [38], [53].

The majority (McMurdo JA; Applegarth J agreeing) considered the trial judge’s directions were not necessary warnings. [53], [61]. McMurdo JA explained:

“In my respectful opinion, the preferable course for a trial judge is not to provide advice of this kind, because of the risk that, on occasion, a jury will read too much into it and interpret it as an indication of the judge’s own opinion about the facts. As McKell v The Queen demonstrates, such a risk will not be avoided, in every case, by a trial judge also saying to the jury that it is the trier of the facts” [53].

Ultimately, their Honours did not consider such a risk had arisen in this case, and thus dismissed the appeal. [53]–[54], [61].

Meanwhile, Sofronoff P found the trial judge had merely made appropriate warnings to the jury in respect of the evidence. [37]. His Honour emphasised that “[a] judge’s comments about the facts, which are forbidden, are to be contrasted with a judge’s warnings to a jury, which are often required.” [32]. Indeed, in some cases, a trial judge may have to warn against fallacious reasoning to enable the jury to perform their function as arbiters of fact. [32]. In cases of sexual offences where the credibility of child witnesses is in issue, warnings are ordinarily required. [34].

Sofronoff P considered the trial judge’s comments to be “orthodox warnings about the dangers inherent in assessing the complainant’s evidence” and not “expressions of her [Honour’s] personal views about [the complainant’s] credit”. [35]. His Honour considered it was “necessary and not unfair” to point out to the jury that if they found inconsistencies in the complainant’s evidence, that did not necessitate the rejection of her evidence. [36]. His Honour found the trial judge had appropriately made such a warning to the jury and told them the complainant’s reliability was a matter for the jury to decide. [36]–[37]. His Honour also noted that no redirection had been sought at the time in respect of the imputed errors in summing-up. [37].

A Hughes of Counsel