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McIlwraith v The Queen

McIlwraith v The Queen

Case [2020] NSWCCA 274 23 October 2020

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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

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…

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 McIlwraith v The Queen

Details

AGLC: McIlwraith v The Queen [2020] NSWCCA 274
Case: [2020] NSWCCA 274
Decision Date: 23 October 2020

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