Summing up

The proper exercise of this task requires a careful review of the evidence and the law, to ensure that the jury is properly instructed as to the matters they must consider.

In R v Meher [2004] NSWCCA 355, Wood CJ at CL (with whom Buddin J and Shaw AJ agreed) said that “the fundamental task of a trial judge is to ensure a fair trial. That will involve not only instructing the jury about the law. It extends to identifying the issues, relating the law to those issues, and assisting the jury to understand how it is that the accused may be guilty of the offence charged in the indictment, or of any alternative offence open upon that indictment.”

Principally, this process occurs through the judge’s summing up, at the end of the trial. The proper exercise of this task requires a careful review of the evidence and the law, to ensure that the jury is properly instructed as to the matters they must consider.

Plainly, any lack of balance has the potential to be productive of a miscarriage of justice. This is particularly important where the judge wishes to comment on the facts, a matter given considerable attention in RPS v R [2000] HCA 3

 

Zorad

R v Zorad (1990) 19 NSWLR 91

“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.”