2. Set aside the order made by the Court of Criminal Appeal of the Supreme Court of New South Wales on 8 December 2017 and, in its place, order that:
(a)the appellant's appeal to that Court be allowed;
(b)the appellant's conviction be quashed; and
(c)a new trial be had.
On appeal from the Supreme Court of New South Wales
Representation
D Jordan SC with A L Bonnor for the appellant (instructed by Elie Rahme & Associates Pty Ltd)
W J Abraham QC with L K Crowley QC for the respondent (instructed by Director of Public Prosecutions (Cth))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
McKell v The Queen
Criminal practice – Trial – Summing‑up – Where appellant convicted of drug‑related offences – Where trial judge made comments on evidence that went beyond arguments advanced by prosecution – Whether comments apt to create danger or substantial risk that jury might be persuaded of appellant's guilt – Whether comments so lacking in balance as to be exercise in persuading jury of appellant's guilt – Whether comments unfair to appellant – Whether comments resulted in miscarriage of justice.
Criminal practice – Trial – Summing‑up – Whether trial judge may make comments which convey his or her opinion as to proper determination of disputed issue of fact to be determined by jury.
Words and phrases – "comment on the facts", "discretion to comment", "disputed issue of fact", "duty to give fair and accurate instructions", "fair trial", "fairness", "fundamental task of a trial judge", "lacking in balance", "miscarriage of justice", "overawing the jury", "right to comment", "strong Crown case", "summing‑up".
BELL, KEANE, GORDON AND EDELMAN JJ. In RPS v The Queen[1], Gaudron A‑CJ, Gummow, Kirby and Hayne JJ, while discussing "the difficult task trial judges have in giving juries proper instructions", adverted to the view that "has long been held that a trial judge may comment (and comment strongly) on factual issues"[2]. Their Honours went on to say that[3]:
"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." (emphasis in original)
This statement in favour of judicial circumspection was made after their Honours had acknowledged…
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.
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Details
AGLC
McKell v The Queen [2019] HCA 5
Case
[2019] HCA 5
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, McKell, against his conviction for drug-related offences. The dispute centred on the conduct of the trial judge during the summing-up to the jury. The appellant argued that the judge's comments on the evidence were unfair and created a substantial risk that the jury might be persuaded of his guilt, thereby leading to a miscarriage of justice.
The legal issues before the High Court were whether the trial judge's comments on the evidence, which extended beyond the arguments presented by the prosecution, were so lacking in balance as to constitute an exercise in persuading the jury of the appellant's guilt. The Court also had to determine whether such comments were unfair to the appellant and whether they resulted in a miscarriage of justice, considering the fundamental task of a trial judge to ensure a fair trial and provide accurate instructions on the law.
The High Court allowed the appeal, quashed the appellant's conviction, and ordered a new trial. The Court reasoned that the trial judge's summing-up contained comments on the evidence that were not balanced and were apt to create a danger or substantial risk that the jury might be persuaded of the appellant's guilt. These comments were found to be unfair to the appellant and resulted in a miscarriage of justice, as they went beyond the judge's duty to provide fair and accurate instructions and instead appeared to convey an opinion on the proper determination of disputed issues of fact.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order made by the Court of Criminal Appeal of the Supreme Court of New South Wales on 8 December 2017 and, in its place, order that:
(a) the appellant's appeal to that Court be allowed;
(b) the appellant's conviction be quashed; and
(c) a new trial be had.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
In order to appreciate the arguments agitated in this Court it is necessary to understand the evidence adduced by the parties at trial and the trial judge's summing‑up to the jury in relation to important aspects of that evidence.The evidence at trial The appellant was the movements manager of Wymap Group Pty Ltd ("Wymap"), a company that transported freight under bond from cargo terminal operators at the airport to freight‑forwarding agencies. On 16 May 2013, a consignment of five cardboard boxes labelled "pijamas" arrived in Sydney, from Chile, on an Emirates flight ("the first consignment"). The ultimate consignee was "Reach Limited", an entity which did not exist. The appellant instructed a Wymap truck driver to collect the consignment and keep it with him, and not to put it in an electronic run sheet. The appellant collected the boxes from him, then drove to meet Mr McGlone at a car park beneath the appellant's residence. The appellant returned with the boxes and told the driver there had been a mistake. The driver noticed that the shrink‑wrap on the boxes had been opened and packing tape placed over their labels[11].[11]McKell v The Queen [2017] NSWCCA 291 at [6], [9]‑[13]. On 20 May 2013, a consignment of 22 boxes arrived in Sydney ("the second consignment"). Fifteen boxes, each containing five pails labelled "printing transfer adhesive", contained crystalline pseudoephedrine weighing 77,708.7 g in total. The ultimate consignee was "T-Shirt Printing Australia", an entity which had not ordered the consignment. Shortly after its arrival, the appellant and Mr McGlone met at a cafe to discuss the second consignment[12]. [12]McKell v The Queen [2017] NSWCCA 291 at [14]‑[16]. Mr McGlone left and purchased flat pack boxes and tape. The appellant then sent a text message to Mr McGlone saying, "Don't forget to tape trial" ("the tape trial text message"). Mr McGlone was observed taping the bases of boxes and loading them into a vehicle. After transferring them to a different vehicle, Mr McGlone drove to a car park beneath a shopping centre complex. He then sent a text message to the appellant saying that he had spoken with a friend who said the "other one" was "close or here"[13].[13]McKell v The Queen [2017] NSWCCA 291 at [17]‑[19]. The appellant phoned the Wymap truck driver and told him that the "one last week" was wrong, but that he now had the "real one". He told him to collect a consignment of 22 boxes and not to put it in his electronic run sheet. The appellant then met the driver and they transferred the boxes to the appellant's vehicle. A short time later police arrested the appellant[14].[14]McKell v The Queen [2017] NSWCCA 291 at [20]‑[21]. On 21 May 2013, a third consignment, of two boxes of shampoo bottles, arrived in Sydney. The ultimate consignee was "Reach Limited". The bottles were found to contain 9,962.7 g of crystalline methylamphetamine[15]. [15]McKell v The Queen [2017] NSWCCA 291 at [23]‑[24]. Subsequently, in the course of a search of the appellant's home, police found $400,150 in cash in a tin box in the appellant's bedroom[16].[16]McKell v The Queen [2017] NSWCCA 291 at [25].
Decision
Reasons for decision
BELL, KEANE, GORDON AND EDELMAN JJ
(dissent)
GAGELER J