Summing Up
'[I]t is the duty of the court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make.' s 620 Criminal Code. See Judges Benchbook 24.1.
On the law:
* Need only direct regarding matters which are in issue
* Need not direct regarding defences unless evidentiary burden is discharged
On the facts/evidence:
* May make observations on weight of evidence as long as jury is directed it need not accept the judge's opinion.
What is/is not permitted (cited in Bentley (Deceased) [1998] EWCA 2516)?
'[A] judge, when directing a jury, is clearly entitled to express his opinion on the facts of the case, provided that he leaves the issue of fact to the jury to determine.' O'Donnell (1917) 12 Cr. App. R 219, 221
'A judge...is not entitled to comment in such a way as to make the summing up as a whole unbalanced...It cannot be said too often or too strongly that a summing up which is fundamentally unbalanced is not saved by the continued repetition of the phrase that it is a matter for the jury.' Gilbey (unreported) 1990
Australian Comments (discussed in R v Fullgrabe [2002] QCA 366)
[22] Obiter in RPS v The Queen (2000) 199 CLR 620 that 'a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.'
[24] Per R v Bolic and Judd [1969] Qd R 295 - reminding the jury that questions of fact are for them may not always prevent an unbalanced summing-up
[25] Case where summing up found imbalanced: R v Durham [2000] QCA 88.
On the law:
* Need only direct regarding matters which are in issue
* Need not direct regarding defences unless evidentiary burden is discharged
On the facts/evidence:
* May make observations on weight of evidence as long as jury is directed it need not accept the judge's opinion.
What is/is not permitted (cited in Bentley (Deceased) [1998] EWCA 2516)?
'[A] judge, when directing a jury, is clearly entitled to express his opinion on the facts of the case, provided that he leaves the issue of fact to the jury to determine.' O'Donnell (1917) 12 Cr. App. R 219, 221
'A judge...is not entitled to comment in such a way as to make the summing up as a whole unbalanced...It cannot be said too often or too strongly that a summing up which is fundamentally unbalanced is not saved by the continued repetition of the phrase that it is a matter for the jury.' Gilbey (unreported) 1990
Australian Comments (discussed in R v Fullgrabe [2002] QCA 366)
[22] Obiter in RPS v The Queen (2000) 199 CLR 620 that 'a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.'
[24] Per R v Bolic and Judd [1969] Qd R 295 - reminding the jury that questions of fact are for them may not always prevent an unbalanced summing-up
[25] Case where summing up found imbalanced: R v Durham [2000] QCA 88.