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Court of Criminal Appeal 8 December 2017

McKell v R

[2017] NSWCCA 291

Drugs
CRIME APPEAL CONVICTION CONTROLLED DRUG WHETHER SUMMING UP UNBALANCED OR UNFAIR

Citation: McKell v R [2017] NSWCCA 291
Court: Court of Criminal Appeal, NSW
Date: 8 December 2017
Judge(s): Payne JA (at [1]); Beech-Jones J (at [103], dissenting); Fagan J (at [141])

Background

The appellant was convicted by a jury in the District Court of three serious federal drug offences: importing a commercial quantity of a border-controlled precursor intended for the manufacture of a border-controlled drug; conspiring to import a commercial quantity of a border-controlled drug; and dealing with money exceeding $100,000 believed to be the proceeds of crime. He was sentenced to an overall term of 18 years and 9 months' imprisonment, with a non-parole period of 11 years and 9 months.

The offences arose from a 2013 investigation into the importation of pseudoephedrine into Australia. The appellant, a movements manager at a freight company, used his position to divert and intercept incoming consignments. Police surveillance, intercepted phone calls and text messages, fingerprint evidence, and tracking data from an iPad application all formed part of the prosecution case.

The appellant appealed solely against conviction. The single ground of appeal was that the trial judge's summing up to the jury caused a miscarriage of justice, with the appellant arguing that the cumulative effect of several passages rendered the summing up unfairly unbalanced.

  • Whether the cumulative effect of specific passages in the trial judge's summing up caused a miscarriage of justice.
  • Whether the summing up was sufficiently imbalanced or lacking in judicial restraint as to deprive the jury of a fair opportunity to understand and give effect to the appellant's defence.
  • Whether any remedial directions given by the trial judge to the jury were sufficient to cure any prejudice caused.
  • Whether the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) could apply to dismiss the appeal even if the ground were established.

Decision

The majority (Payne JA, with Fagan J agreeing) dismissed the appeal, holding that the summing up, taken as a whole, was not unfairly lacking in balance and did not cause a miscarriage of justice. The trial judge had given clear directions that findings of fact were matters for the jury alone, and that the jury should disregard any comment from the judge that did not accord with their own view of the evidence. Those directions, the majority found, were adequate to address any risk of prejudice.

Fagan J added a note of caution, observing that it would have been "far preferable" for the trial judge to have refrained from several of the remarks identified by Payne JA. Fagan J acknowledged that considerably greater restraint should have been exercised, even though no miscarriage ultimately resulted.

Beech-Jones J dissented. In his Honour's view, the summing up did not exhibit the judicial balance required to give the appellant a fair trial. Drawing on the High Court's reasoning in B v The Queen (1992) 175 CLR 599, Beech-Jones J concluded that the summing up deprived the jury of an adequate opportunity to understand and give effect to the appellant's defence. The remedial directions the trial judge gave were insufficient: there was too stark a contrast between the judge's assertion that he was not trying to persuade the jury and what the summing up in fact did.

Beech-Jones J also rejected the Crown's fall-back submission that the proviso under s 6(1) of the Criminal Appeal Act 1912 should apply. Citing Tootle v R [2017] NSWCCA 103 and Weiss v The Queen (2005) 224 CLR 300, his Honour held that a lack of impartiality in a summing up constitutes a significant denial of procedural fairness and a serious breach of the presuppositions of trial, such that the proviso is not engaged.

Orders Made

• Allow the appeal
• Quash the convictions
• Order a new trial

Key Takeaways

  • By majority, the Court of Criminal Appeal confirmed that a trial judge's summing up will not cause a miscarriage of justice where clear and adequate directions are given reminding the jury that findings of fact are theirs alone, and that they may disregard any comment by the judge that does not accord with their own assessment of the evidence.
  • A direction that the jury are the sole judges of fact does not, on its own, answer a complaint that a summing up was unbalanced: under B v The Queen, the relevant question is whether the summing up deprived the jury of an adequate opportunity to understand and give effect to the defence.
  • Where a trial judge's remedial directions stand in sharp contrast to the overall tenor of the summing up, those directions may be insufficient to cure the prejudice caused, at least in the view of the dissent.
  • The proviso under s 6(1) of the Criminal Appeal Act 1912 is not available where a summing up is found to be genuinely imbalanced, because such a defect amounts to a significant denial of procedural fairness at trial.
  • All three judges, including the majority, noted that the trial judge's remarks fell short of the standard of restraint expected, with Fagan J expressly observing that greater care should have been taken to ensure no arguable criticism of advocacy or imbalance could arise.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW)

Cases
- 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
- 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