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McKell v R

McKell v R

Case [2017] NSWCCA 291 8 December 2017

Appeal

Criminal Liability

Miscarriage of Justice

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: McKell v R [2017] NSWCCA 291
Hearing dates: 15 September 2017
Decision date: 08 December 2017
Before: Payne JA at [1];
Beech-Jones J at [103];
Fagan J at [141]
Decision:
(1) Appeal dismissed

Catchwords: CRIME – appeal – conviction – importing a commercial quantity of a border-controlled precursor intended or believed to be for manufacture of a border controlled drug – conspiring to import a commercial quantity of a border-controlled drug – dealing with money to the value of $100,000 or more believing it to be the proceeds of crime – whether trial judge’s summing up caused a miscarriage of justice – whether summing up unbalanced or unfair
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Ahern v R (1988) 165 CLR 87; [1988] HCA 39
AW v R [2016] NSWCCA 227
B v The Queen (1992) 175 CLR 599; [1992] HCA 68
Broadhurst v The Queen [1964] AC 441 at 464
Domican v The Queen (1991-1992) 173 CLR 555
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Majok v R [2015] NSWCCA 160
R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177
Tootle v R [2017] NSWCCA 103
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Category: Principal judgment
Parties: Jason Troy McKell (Appellant)
Regina (Crown)
Representation:
Counsel:
D Jordan SC (Appellant)
L Crowley (Crown)
Solicitors:
Elie Rahme (Appellant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2013/156342
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

11 November 2016

Before:

King DCJ

File Number(s):

2013/156342

headnote

[This headnote is not to be read as part of the judgment]

Mr McKell was found guilty by a jury of importing a commercial quantity of a border-controlled precursor intended or believed to be for manufacture of a border-controlled drug, conspiring to import a commercial quantity of a border-controlled drug and dealing with money to the value of $100,000 or more believing it to be the proceeds of crime.

Mr McKell was sentenced to an overall term of imprisonment of 18 years and 9 months with a non-parole period of 11 years and 9 months.

Mr McKell appealed against his conviction. The sole issue on appeal was whether the cumulative effect of a number of individual passages in the trial judge’s summing up caused a miscarriage of justice.

The Court held:

Per Payne JA at [100]-[101] (Fagan J agreeing at [141])

(i) the trial judge’s summing up was not unfairly lacking in balance and did not cause any miscarriage of justice.

Majok v R [2015] NSWCCA 160 applied.

(ii) the trial judge gave clear directions that the facts to be established were matters for the jury and if any comment said by the trial judge did not accord with…

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 McKell v R

Details

AGLC: McKell v The Queen [2017] NSWCCA 291
Case: [2017] NSWCCA 291
Decision Date: 08 December 2017

CaseChat Overview and Summary

McKell v R was an appeal against a conviction in the Federal Court of Australia. The appellant, McKell, was convicted of importing a commercial quantity of a border-controlled precursor intended or believed to be for the manufacture of a border-controlled drug, conspiring to import a commercial quantity of a border-controlled drug, and dealing with money to the value of $100,000 or more believing it to be the proceeds of crime. The issue before the court was whether the summing up by the trial judge caused a miscarriage of justice by being unbalanced or unfair.

The court considered whether the summing up by the trial judge was balanced and fair. The appellant argued that the summing up caused a miscarriage of justice because it did not properly direct the jury on the requisite mens rea for the importation charge, failed to adequately distinguish between the importation and conspiracy charges, and did not properly direct the jury on the requisite mens rea for the money-dealing charge. The court held that the summing up was not unbalanced or unfair and did not cause a miscarriage of justice. The court found that the trial judge had properly directed the jury on the requisite mens rea for the importation and conspiracy charges, and that the summing up was not unfair to the appellant.

The court also considered whether the trial judge’s summing up was unfair to the appellant in relation to the money-dealing charge. The court held that the summing up was not unfair to the appellant because it was not necessary for the trial judge to direct the jury on the requisite mens rea for the money-dealing charge. The court found that the trial judge had properly directed the jury on the requisite mens rea for the importation and conspiracy charges, and that the summing up was not unfair to the appellant. The appeal was dismissed.

Orders