McKell v The Queen - [2018] HCATrans 257

[2018] HCATrans 257

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S223 of 2018

B e t w e e n -
JASON TROY McKELL
Appellant
and
THE QUEEN
Respondent

BELL J
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 DECEMBER 2018, AT 9.45 AM

MR D. JORDAN, SC: May it please the Court, I appear for the appellant with MS A.L. BONNOR. (instructed by Elie Rahme & Associates Pty Ltd)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MR L.K. CROWLEY, QC, for the respondent. (instructed by Director of Public Prosecutions (Cth))

BELL J: Yes, Mr Jordan. Mr Jordan, just as a preliminary matter, can I raise this with you?

MR JORDAN: Yes, your Honour.

BELL J: I saw the estimate of three and a half hours and I thought I might just indicate, not only have we read your submissions, Mr Jordan, but we have read his Honour’s summing‑up.

MR JORDAN: I can indicate, your Honour, that we are at cross‑purposes. We thought by that we were indicating the total estimate ‑ ‑ ‑

BELL J: I understand.

MR JORDAN: ‑ ‑ ‑ and that is our mistake.

BELL J: Not at all. Yes, thank you, Mr Jordan.

MR JORDAN: Your Honours, the issue for determination on this appeal is whether or not expressions of opinion which were made by the trial judge during summing‑up to the jury and which went to the determination of facts in dispute at the trial resulted in a miscarriage of justice. The majority of the Court of Criminal Appeal were critical of several of the comments made by the trial judge but were not persuaded that overall the summing‑up was so unfairly lacking in balance as to result in a miscarriage of justice. In dissent, Justice Beech‑Jones came to a firmly different view which his Honour explained, and we will come to that. In summary and overall we seek to advance five essential contentions which we have identified by italics in the written outline of argument.

First, the summing‑up was unfair because it did not exhibit a judicial balance, such that it deprived the jury of an adequate opportunity to understand and give effect to the appellant’s defence and the matters relied upon in support of the defence. Secondly, the summing‑up resulted in a miscarriage of justice which, on established principles, requires that the appellant’s convictions be set aside. Thirdly, and it follows from the second, the majority of the Court of Criminal Appeal erred in failing to find that the summing‑up resulted in a miscarriage of justice.

Fourthly, it should be made clear that, as a general rule, a judge should not indicate to the jury any opinion on the determination of a question of fact that is in dispute. Finally, such clarification by this Court would be confined and incremental…

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 The Queen

Details

AGLC: McKell v The Queen [2018] HCATrans 257
Case: [2018] HCATrans 257
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, McKell, against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial and the subsequent appeal to the Court of Criminal Appeal of New South Wales.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence of the applicant's prior convictions and prior bad character. This involved a determination of the proper application of the rules of evidence, particularly concerning the admissibility of such material when it might prejudice the jury against the accused. The Court also considered whether the Court of Criminal Appeal had correctly applied these principles in dismissing the applicant's appeal.

The High Court analysed the principles governing the admission of evidence of prior convictions and bad character, emphasising the need to balance the probative value of such evidence against its prejudicial effect. The Court affirmed that evidence of prior convictions is generally inadmissible unless it has a specific relevance to a fact in issue in the current proceedings, beyond simply demonstrating a propensity to commit crime. In this instance, the Court found that the evidence admitted had not met the required threshold of relevance and was therefore improperly admitted, leading to a miscarriage of justice.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders