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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
Date: 08 December 2017
Judge(s): Payne JA at [1]; Beech-Jones J at [103]; Fagan J at [141]

Background

The appellant, a freight industry employee working as a Movements Manager, was convicted in the District Court of three serious federal drug offences: importing a commercial quantity of a border-controlled precursor (pseudoephedrine), conspiring to import a commercial quantity of a border-controlled drug, and dealing with over $100,000 in proceeds of crime. The prosecution case rested on evidence that he used his industry access to intercept and facilitate the receipt of drug-laden consignments. Police found $400,150 in cash at his home alongside handwritten notes recording consignment details.

The appellant was sentenced to an overall term of 18 years and 9 months imprisonment with a non-parole period of 11 years and 9 months. He appealed against conviction only, on a single ground.

The sole ground of appeal was that the trial judge's summing up to the jury caused a miscarriage of justice. The appellant argued the cumulative effect of several passages rendered the summing up unbalanced, effectively casting the judge in the role of an additional Crown advocate.

Legal Issues

  • Whether the trial judge's suggestion in summing up that prohibited drugs may have been in the first consignment (a matter not raised by the Crown and inconsistent with a pre-trial ruling) caused a miscarriage of justice.
  • Whether the trial judge's characterisation of the importation scheme as requiring someone like the appellant exceeded a fair summary of the Crown case.
  • Whether the trial judge's description of a text message as "very revealing" and "so obvious" improperly conveyed his personal view of the appellant's guilt.
  • Whether the trial judge's comments about the appellant's gambling evidence belittled defence counsel's submissions and caused a miscarriage of justice.
  • Whether the cumulative effect of these passages, taken together, rendered the summing up so unbalanced as to occasion a miscarriage of justice.
  • Whether, if a miscarriage was established, the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) applied to prevent the appeal succeeding.

Decision

The Court was divided 2:1, with Payne JA and Fagan J dismissing the appeal, and Beech-Jones J dissenting in favour of allowing it, quashing the convictions, and ordering a new trial.

The first consignment (suggestion of drugs): The trial judge raised the possibility that "something" had been removed from the first consignment, a suggestion unsupported by forensic evidence and not made by the Crown. Payne JA found this was an error, but held the trial judge's prompt corrective direction to the jury, telling them there was no evidence of drugs in the first consignment and to disregard any contrary implication, was sufficient. Juries can be expected to follow directions, and no miscarriage of justice arose from this error in isolation (at [75]-[78]). Beech-Jones J accepted the direction addressed the prejudice to some extent, but considered it insufficient to remedy the broader problem of the summing up as a whole (at [106]).

The "sophisticated organisation" remark: Payne JA rejected this complaint, finding the trial judge's remarks about the appellant's indispensable role in a sophisticated importation scheme reflected arguments already put to the jury by the Crown Prosecutor in both opening and closing addresses. Senior counsel for the appellant conceded he could not say the argument was not raised (at [79]-[82]). Beech-Jones J agreed the substance of the point had been raised by the Crown, but noted the language the trial judge used was that of personal persuasion rather than a neutral summary (at [107]-[108]).

The "tape trial" text message: Payne JA found no error. The trial judge prefaced his remarks with "you may think," a phrase indicating the factual finding was for the jury, and he was entitled to comment on significant evidence (at [93]). Beech-Jones J took a markedly different view, finding the passage read like a Crown Prosecutor's address. The trial judge used the first person ("I suggest"), described a conclusion as "so obvious," and invoked "you might think" repeatedly in ways that amounted to personal advocacy against the appellant's credibility rather than a neutral summary. This passage clearly expressed the trial judge's personal opinion that the appellant was lying (at [122]-[124]).

The gambling evidence: Payne JA held the trial judge was entitled to correct what was a potentially misleading defence submission: counsel had suggested documentary gambling records evidenced success, when they in fact showed net losses exceeding $200,000. While the trial judge's rhetorical comment could have been understood as belittling defence counsel, it did not cause a miscarriage of justice in the context of the full summing up (at [86]-[92]). Beech-Jones J characterised the comment as one of eleven instances where the phrase "you might think" or similar was used by the trial judge to suggest adverse findings against the appellant (at [126]).

Cumulative effect: Payne JA and Fagan J, in the majority, held that the summing up as a whole, despite containing individual passages that would have been better left unsaid, did not amount to a miscarriage of justice. The trial judge did not "don the mantle" of prosecution counsel, and the repeated directions that facts were exclusively for the jury were sufficient. The Crown case was also described as very strong (at [95]-[101]). Beech-Jones J in dissent concluded the summing up constituted "a sustained attempt to persuade [the jury] of the appellant's guilt" (at [103]). The trial judge's repeated assertion that he was not endeavouring to express any particular view of the facts was, in Beech-Jones J's assessment, simply incorrect: the summing up emphatically rejected the appellant's evidence throughout, depriving the jury of an adequate opportunity to give effect to the defence (at [130], [137]). On the proviso, Beech-Jones J held that a lack of impartiality in a summing up constitutes a significant denial of procedural fairness such that the proviso is not engaged (at [139]).

Orders Made

  • Appeal dismissed (by majority: Payne JA and Fagan J)

Key Takeaways

  • A trial judge's summing up must put both the Crown and defence cases "accurately and fairly" to the jury; where the summing up instead constitutes a sustained attempt to persuade the jury of an accused's guilt, a miscarriage of justice is occasioned and the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) will not be engaged (at [103], [139]).

  • In the majority's view, an immediate, emphatic corrective direction to a jury can be sufficient to remedy an erroneous implication raised during summing up, particularly where juries are expected to follow clear judicial directions (at [77]-[78]).

  • Repeated use of the phrase "you might think" does not, without more, insulate a summing up from criticism for imbalance: where the phrase is consistently deployed to point the jury toward Crown-favourable conclusions, without suggesting alternatives or reminding the jury that fact-finding is exclusively their function, it may function as a rhetorical device of persuasion rather than a neutral invitation (at [130]).

  • A trial judge is entitled to correct a defence submission that has the potential to seriously mislead the jury about what documentary evidence actually establishes, even if this involves commenting adversely on the defence's characterisation of that material (at [86]-[87]).

  • All three judges on the panel, including those in the majority, emphasised that considerably greater restraint should have been exercised by the trial judge; the majority's conclusion that no miscarriage occurred turned on the cumulative context and the strength of the Crown case, not on any endorsement of the impugned passages (at [76], [92], [96], [98], [141]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- 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 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