McIlwraith v The Queen

Case [2020] NSWCCA 274


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: McIlwraith v R [2020] NSWCCA 274
Hearing dates: 5 August 2020. Further written submissions 7, 10, 11, 13 August 2020.
Date of orders: 23 October 2020
Decision date: 23 October 2020
Before: Meagher JA at [1]
Fullerton J at [46]
Button J at [47]
Decision:

(1)   Extend to 5 June 2019 the time within which notice of intention to appeal was required to be given.

(2)   Refuse application to amend ground 1.

(3)   Dismiss ground 1.

(4)   Refuse leave to appeal in relation to ground 2.

(5)   Appeal otherwise dismissed.

Catchwords:

CRIME – appeals – appeal against conviction – where opinion evidence not objected to at trial – whether admission of that evidence involved any error of law – whether there was any miscarriage of justice

CRIME – appeals – unreasonable verdict – where sole issue whether accused possessed drug for personal use – where accused bore onus of proof – whether open to jury to find accused guilty beyond reasonable doubt

Legislation Cited:

Crimes Act 1900 (NSW), s 23A(1)(b)

Criminal Appeal Act1912 (NSW), ss 5, 6, 10

Criminal Appeal Rules (NSW)

Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), schedule 1

Cases Cited:

ARS v R [2011] NSWCCA 266

Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40

Goodridge v R [2014] NSWCCA 37

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

McEwen v R (1998) 99 A Crim R 421

Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37

Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12

Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89

Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229

R v Carey (1990) 20 NSWLR 292

R v Holden [2014] NSWCCA 230

R v Welsh (1996) 90 A Crim R 364

Rasic v R [2009] NSWCCA 202

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Category:Principal judgment
Parties: McIlwraith (Appellant)
Regina (Crown)
Representation:

Counsel:
I McLachlan (Appellant)
M A Kumar (Crown)

Solicitors:
O'Brien Hudson Solicitors (Appellant)
Solicitor for Public Prosecutions NSW (Crown)
File Number(s): 2017/00277112
Publication restriction: N/A
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
25 January 2019
Before:
Mahony SC DCJ
File Number(s):
2015/00258433

Judgment

  1. MEAGHER JA: On 25 January 2019, the appellant was found guilty of two counts of supplying a prohibited drug following a trial in the District Court before Mahony SC DCJ and a jury:

Count 1: Supplying 23.40 grams of methylamphetamine, on 12 September 2017 at Fairlight, contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1).

Count 2: Supplying 69.48…

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AGLC
McIlwraith v The Queen [2020] NSWCCA 274
Case
[2020] NSWCCA 274
Decision Date

CaseChat Overview and Summary

The appellant, McIlwraith, was convicted by a jury of possessing a quantity of a prohibited drug, namely cocaine, for the purpose of personal use. The conviction was appealed to the High Court of Australia, where the primary issue was whether the admission of expert opinion evidence at trial constituted a legal error and, if so, whether such error led to a miscarriage of justice. The appellant did not object to the evidence at trial, raising the issue for the first time on appeal. The court considered whether the admission of this opinion evidence could be said to have led to an unreasonable verdict, given that the jury was required to determine whether the accused possessed the drug for personal use and the onus of proof lay on the appellant.

The court examined the role of expert opinion evidence in criminal trials, acknowledging its importance in assisting the jury to understand complex matters. However, the court emphasised that such evidence must be relevant and necessary for the jury to reach a verdict. The court considered whether the opinion evidence was superfluous to the jury's deliberations, given the other evidence presented. The court found that the opinion evidence was not essential to the jury's conclusion, as the facts from which the jury could infer the accused's possession of the drug for personal use were sufficiently clear and strong.

The court further examined whether the admission of the opinion evidence led to an unreasonable verdict. Given that the appellant bore the onus of proving, on the balance of probabilities, that the accused did not possess the drug for personal use, the court considered whether the jury could have reasonably found the appellant guilty beyond reasonable doubt. The court held that the evidence, both objective and subjective, was such that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. Consequently, the court found that the admission of the opinion evidence did not lead to an unreasonable verdict, and the appeal was dismissed.

The High Court of Australia affirmed the conviction, finding that there was no miscarriage of justice. The court held that the appellant's failure to object to the opinion evidence at trial did not preclude the appeal from being considered on its merits. The court concluded that the opinion evidence, while not necessary, did not prejudice the appellant's case, and the jury's verdict was open to them based on the evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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