Rowan Leigh McCabe v The Queen

Case [2022] VSCA 139

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2021 0081
ROWAN LEIGH MCCABE Applicant
v
THE QUEEN Respondent

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JUDGES: MAXWELL P, McLEISH and MACAULAY JJA
WHERE HELD: Melbourne
DATES OF HEARING: 4, 23 May 2022
DATE OF JUDGMENT: 15 July 2022
MEDIUM NEUTRAL CITATION: [2022] VSCA 139
JUDGMENT APPEALED FROM: [2019] VCC 1808 (Judge Dean)

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CRIMINAL LAW – Appeal – Conviction – Jury directions – Identification of matters in issue – Role of trial counsel – Trafficking by possession for sale – Knowledge of presence of drug – Large quantities of drug and cash found in storage unit – Applicant leased and used unit – Whether directions required on exclusivity of applicant’s possession, control, access to unit – Exclusivity not put in issue – Directions not requested – Whether ‘substantial and compelling reasons’ for giving unrequested directions – Whether photograph of applicant invited tendency reasoning – Whether reliance on presence of cash permissible – Whether evidence accurately identified for jury – No error – Extension of time refused – Dunn (a pseudonym) v The Queen [2017] VSCA 371, James v The Queen (2013) 39 VR 149, R v Falzon (2018) 264 CLR 361 applied – Jury Directions Act2015, ss 11, 12, 15, 16, 65.

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Counsel
Applicant: In person
Respondent: Mr G Buchhorn

Solicitors
Applicant: ---
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
MCLEISH JA
MACAULAY JA:

Summary

  1. After a trial in the County Court, the applicant was convicted on one charge of trafficking MDMA in not less than a large commercial quantity. He was sentenced to 11 years’ imprisonment, with a non-parole period of 7 years.

  2. The applicant now seeks leave to appeal against his conviction. Because his leave application was filed more than 18 months out of time, he also seeks an extension of time within which to file it. The respondent opposes the extension application.

  3. At trial, the applicant was represented by experienced counsel, senior and junior. On this application, he appeared unrepresented. His written submissions were nevertheless detailed and clear, with helpful references to the trial transcript and to relevant case law, and his oral argument was articulate and fluent.

  4. The applicant does not contend that the guilty verdict was unreasonable. That is, he accepts that it was reasonably open to the jury, on the evidence presented to it, to conclude that he was guilty of the offence. Rather, his complaint is that he was denied a fair trial. His complaints are directed at what was said, and not said, by the trial judge and the prosecutor to the jury and, in particular, at what he contends was the judge’s failure to give necessary directions to the jury.

  5. All of the applicant’s proposed grounds confront a very substantial threshold difficulty, namely, that none of the matters he now complains of was the subject of objection by his counsel during the trial. Both at common law and now under the Jury Directions Act 2015 (‘JDA’),…

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Rowan Leigh McCabe v The Queen [2022] VSCA 139
Case
[2022] VSCA 139
Decision Date

CaseChat Overview and Summary

In the case of Rowan Leigh McCabe v The Queen, McCabe appealed against his conviction for trafficking by possession for sale. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. McCabe argued that the trial judge erred in the directions given to the jury regarding the identification of matters in issue, particularly concerning the role of trial counsel, the exclusivity of McCabe's possession, control, and access to the storage unit, and the relevance of the presence of cash. The central issue before the court was whether the trial judge should have provided unrequested directions to the jury concerning the exclusivity of McCabe's possession of the storage unit, and whether the directions given were sufficient.

The court considered whether there were substantial and compelling reasons for giving unrequested directions, and whether the photograph of McCabe invited tendency reasoning, which could have been prejudicial. Additionally, the court examined whether the trial judge's reliance on the presence of cash was permissible and whether the evidence was accurately identified for the jury. The court found that no error was made in the jury directions and that the trial judge had provided adequate directions to the jury. The court concluded that there was no substantial and compelling reason for the trial judge to give unrequested directions, and that the photograph of McCabe did not invite tendency reasoning. The court also held that the presence of cash was a relevant factor in establishing McCabe's knowledge of the presence of the drug, and that the evidence was accurately identified for the jury.

The court further found that the proposed grounds of appeal did not have reasonable prospects of success. As a result, the application for an extension of time was refused. The court applied the principles established in Dunn v The Queen [2017] VSCA 371, James v The Queen (2013) 39 VR 149, and R v Falzon (2018) 264 CLR 361, as well as the provisions of the Jury Directions Act 2015, ss 11, 12, 15, 16, 65.

Orders

Orders of the court

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Background

Background to the litigation

Since the proposed grounds of appeal do not have reasonable prospects of success, the application for an extension of time will be refused.Factual background On 29 May 2017, a search warrant was executed at Unit 203 of Fry’s Self Storage Facility in Fitzroy. The unit was secured by a padlock. A quantity of MDMA, 5.3 kilograms, was seized from a Fox Racing backpack located to the right of the storage unit, under a desk, and 37 grams of methylamphetamine was seized from a Bells Beach sports bag under the same desk. The applicant was arrested on 2 June 2017 and charged with the trafficking offence. The applicant was in possession of a key to the unit padlock, found on his bedside table on 2 June 2017. He admitted to filling out the forms for the storage unit agreement. He had completed the lease agreement on 11 December 2015, in the name of Jordan Mehfeld, a convicted drug trafficker. He signed the agreement using Mehfeld’s name and using Mehfeld’s genuine driver’s licence as identification. The applicant resembled the person in the photo on the driver’s licence used to rent the unit. That licence was found in the Bells Beach bag in the unit. The storage unit was under surveillance by police between 12 February and 25 April 2017. The applicant was observed to enter the unit on a number of occasions, and was the only person observed entering in that period. On 12 April 2017, the investigators gained covert access to the unit and observed the following in it:•a Bells Beach bag containing drug preparation material;•a Faraday bag containing hundreds of thousands of dollars in cash;[3] and•a Fox Racing bag containing a large quantity of drugs made up of pills, powder, digital scales and so on. [3]A Faraday bag is constructed so as to prevent electronic connection with the contents of the bag. At the time of gaining access, investigators installed an optical surveillance device in the unit. On 25 April 2017, the device captured the applicant using the key to unlock and enter the unit. Once inside, he handled the Faraday bag, and he took a substance from somewhere underneath the desk and weighed it on digital scales. He then left the storage unit with the Faraday bag (the cash bag) and the weighed substances. When the applicant was arrested on 29 May, the Faraday bag and a set of keys including the key to the padlock to the storage unit were found at his house, but no cash was found. In his charge, the judge summarised the elements of the circumstantial case on which the prosecution relied to prove that the applicant possessed the MDMA for sale:•he had rented the unit in a false name;•in doing so he had used the Mehfeld driver’s licence, there being a resemblance between himself and the photo of Mehfeld on the licence (suggesting it was a deliberate ploy to adopt a fake identity);•he admitted in evidence that he had filled in the agreement and signed it;•he had access to the unit, as demonstrated by the sign-in book, the PIN code records of the gate, the CCTV footage and the surveillance device footage;•the large amount of money found in the unit (some hundreds of thousands of dollars);•the large (valuable) amount of MDMA (and methylamphetamine) found in the unit (at the time of arrest), making it highly unlikely that anyone other than the owner of the cash and drugs would have access to the unit;•the applicant used scales to weigh a drug, as depicted in the surveillance footage;•the applicant’s admission that he had opened the Bells Beach bag and the Faraday bag located inside the unit;•his admission that he owned the Faraday bag which he claimed to have used to convey cash to and from a drug trafficker (‘Jack’);•the Bells Beach bag contained items consistent with drug trafficking, the applicant had access to it and removed items from it, including methylamphetamine;•he had parked his car some distance from the storage unit, showing that he was being ‘cautious’ in relation to his movements in the vicinity of the unit;•he was the only person to enter the unit while it was under constant video surveillance.

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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