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McGlone v The Queen

McGlone v The Queen

Case [2019] NSWCCA 252 23 October 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: McGlone v R [2019] NSWCCA 252
Hearing dates: 29 July 2019
Date of orders: 23 October 2019
Decision date: 23 October 2019
Before: Macfarlan JA at [1];
Johnson J at [96];
Wright J at [135]
Decision:
(1) Grant the Appellant leave to appeal;
(2) Allow the appeal;
(3) Quash the convictions and sentences with respect to Counts 1, 2 and 4;
(4) Order a new trial of the Appellant on each of Counts 1, 2 and 4 as contained in the indictment dated 8 May 2016 presented with respect to the Appellant and Mr McKell.

Catchwords:
CRIME – Commonwealth drug offences – conviction appeal – Crown concedes appeal on one ground – whether verdicts unreasonable or not supported by evidence so that acquittals should follow – agreement to import border controlled precursor – whether open to jury to conclude that accused and co-accused believed substance they agreed to import was a border controlled precursor – whether open to jury to conclude that accused and co-accused intended to use the substance or believed that another person intended to use any of precursor to manufacture a controlled drug – Cranney v The Queen considered – by majority held that guilty verdict not unreasonable – conspiracy to import border controlled drug – guilty verdict on that count not unreasonable – retrial ordered on all counts

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Appeal Rules (NSW), r 4
Criminal Code 1995 (Cth), ss 11.2A, 11.5, 300.5, 307.1, 307.11, 400.4
Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (NSW)
Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009

Cases Cited:
Anil Suri v Director of Public Prosecutions (Cth) [2014] VSCA 260
Bahri Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16
Coleman v Power (2004) 220 CLR 1]; [2004] HCA 39
Cranney v The Queen [2017] NSWCCA 234; (2017) 269 A Crim R 449
Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
McKell v The Queen [2019] HCA 5; (2019) 93 ALJR 309
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
R v Standen [2011] NSWSC 1046
Romolo v The Queen [2018] NSWCCA 3
Standen v Director of Public Prosecutions (Cth) [2011] NSWCCA 187; (2011) 218 A Crim R 28
Standen v The Queen [2015] NSWCCA 211; (2015) 253 A Crim R 301
The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618
The Queen v Keenan [2009] HCA 1; (2009) 236 CLR 397
The Queen v LK (2010) 241 CLR 177; [2010] HCA 17
Taufahema v The Queen (2007) 228 CLR 232; [2007] HCA 11
Vallance v The Queen…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McGlone v The Queen

Details

AGLC: McGlone v The Queen [2019] NSWCCA 252
Case: [2019] NSWCCA 252
Decision Date: 23 October 2019

CaseChat Overview and Summary

McGlone v The Queen involved an appeal against a conviction for drug offences under the Commonwealth Criminal Code. The appellant was found guilty of conspiracy to import a border-controlled precursor and other related drug offences. The appeal centred on the contention that the verdicts were unreasonable or not supported by the evidence, which should result in acquittals. The appellant argued that the jury could not reasonably conclude that he and his co-accused believed the substance they agreed to import was a border-controlled precursor, nor that they intended to use the substance or believed that another person intended to use it to manufacture a controlled drug.

The legal issues before the court were whether the jury could reasonably conclude that the accused and his co-accused believed the substance to be a border-controlled precursor and whether it was open to the jury to conclude that they intended to use the substance or believed another person intended to use it for manufacturing a controlled drug. The court considered the principles established in Cranney v The Queen, which set out the standard for assessing the safety of jury verdicts. The court had to determine if the evidence was such that no reasonable jury could have found the appellant guilty beyond reasonable doubt.

The court held by a majority that the guilty verdict on the charge of conspiracy to import a border-controlled drug was not unreasonable. It found that the evidence was sufficient to support the jury's conclusion that the appellant and his co-accused believed the substance they agreed to import was a border-controlled precursor. The court also found that it was open to the jury to conclude that the accused and his co-accused intended to use the substance or believed another person intended to use it to manufacture a controlled drug. However, the majority held that the guilty verdict on the charge of conspiracy to import a border-controlled drug was not unreasonable. Consequently, the court ordered a retrial on all counts.

Orders