Citation: Scahill v Director of Public Prosecutions (Cth) [2019] NSWCCA 190
Court: NSW Court of Criminal Appeal
Date: 14 August 2019
Judge(s): Basten JA; Wright J; Wilson J (all agreeing)
Background
The appellant was an accountant and principal of a Parramatta accounting firm. He was charged with four counts of dealing with money he believed to be proceeds of crime, contrary to the Criminal Code (Cth), involving transactions between May and July 2014. The money was connected to a client who had been paid for handling drug importations at Sydney Airport, although the prosecution did not allege the appellant was involved in those drug activities.
The prosecution's case rested on the appellant's alleged belief that the money he handled was criminally derived. Key evidence included telephone intercepts, large cash deposits into a trust account under a false name, cash found at the appellant's home and office, and the purchase of a mobile phone in a false name on the day police searches were conducted. The appellant's defence relied on the absence of proven knowledge or belief, pointing to legitimate explanations for the cash transactions and relying on witness evidence and a lengthy recorded police interview.
A jury convicted the appellant on all four counts. He appealed, arguing the trial judge's summing-up lacked balance and amounted to advocacy favouring the prosecution, causing a substantial miscarriage of justice.
Legal Issues
- Whether the trial judge's summing-up was so lacking in balance that it constituted impermissible advocacy favouring the prosecution.
- Whether the trial judge's criticism of a key defence witness, in circumstances where the prosecution had not itself attacked that witness, resulted in a miscarriage of justice.
- Whether neutral directions to the jury to disregard the judge's views were sufficient to cure any error.
- Whether the trial judge erred by stating that he was entitled to express views on the evidence, and then directing the jury to ignore those views.
Decision
The Court of Criminal Appeal found that the summing-up miscarried in two principal respects. First, the judge's summary of the prosecution case contained passages that went beyond a balanced recounting of the evidence and instead carried at least hints of advocacy in favour of the prosecution. Second, and more critically, when summarising the defence case, the judge made significant criticisms of the credibility of a witness who had been called by the prosecution but whose evidence was relied upon by the defence. Notably, the prosecutor had not challenged that witness's credibility.
The Court held that introducing credibility attacks on a defence-supporting witness, where the prosecution itself had not raised them, effectively foreclosed the appellant's opportunity to respond. These were not incidental or passing comments. They formed a significant part of the summing-up as a whole and could not be regarded as merely reflecting the objective strength of the prosecution case.
The Court also addressed the trial judge's early direction that he was entitled to express views on the facts and that any such views should be ignored. Basten JA observed that, while a judge may legitimately comment on the evidence in appropriate circumstances, it is generally inadvisable to tell a jury in advance that the judge holds such an entitlement. Subsequent neutral directions were found insufficient to undo the damage done by the imbalanced treatment of the defence witness.
Taking the summing-up as a whole, the Court was satisfied that a substantial miscarriage of justice had occurred. All three judges agreed the convictions should be set aside and a retrial ordered.
Orders Made
- Leave to appeal against conviction granted to the extent necessary.
- Appeal allowed and convictions on all four counts set aside.
- Retrial ordered (the charges in the indictment remaining unresolved).
- Sentence appeal not addressed.
Key Takeaways
- A trial judge's summing-up must present both the prosecution and defence cases with balance; passages that carry even hints of advocacy in favour of the prosecution can constitute a miscarriage of justice.
- Where a judge criticises the credibility of a witness during the summing-up, and those criticisms go beyond anything raised by the prosecution, the accused is effectively denied the opportunity to meet that challenge at trial.
- Subsequent neutral directions to the jury to disregard the judge's views will not necessarily cure the harm caused by earlier imbalanced commentary, particularly where that commentary was substantial.
- The Court of Criminal Appeal confirmed that, while a trial judge retains a discretion to comment on the evidence, announcing to the jury an entitlement to express views is itself problematic and generally to be avoided.
- Convictions will be quashed, and a retrial ordered, where the cumulative effect of a flawed summing-up deprives an accused of a fair chance of acquittal.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Code (Cth), ss 400.4(1), 400.5(1), 400.6(1)
Cases:
- McKell v The Queen (2019) 93 ALJR 309; [2019] HCA 5
- RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
- The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36