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Court of Criminal Appeal 23 October 2019

McGlone v R

[2019] NSWCCA 252

Drugs
CRIME COMMONWEALTH DRUG OFFENCES CONVICTION APPEAL CROWN CONCEDES APPEAL ON ONE GROUND CRANNEY V THE QUEEN CONSIDERED RETRIAL ORDERED ON ALL COUNTS

Citation: McGlone v R [2019] NSWCCA 252
Court: Court of Criminal Appeal, New South Wales
Date: 23 October 2019
Judge(s): Macfarlan JA; Johnson J; Wright J

Background

The appellant and his co-accused were jointly tried in the District Court in 2016 on an indictment containing four counts. The two principal counts were: importing a commercial quantity of a border controlled precursor (pseudoephedrine) contrary to s 307.11(1) of the Criminal Code 1995 (Cth) (Count 1); and conspiracy to import a commercial quantity of a border controlled drug (methamphetamine) contrary to ss 11.5(1) and 307.1(1) of that Code (Count 2). The remaining counts concerned dealing with proceeds of crime. The jury convicted both accused on all counts.

The Crown case was largely circumstantial. The co-accused worked as a Movements Manager at an air freight company at Sydney International Airport, which gave him access to information about incoming consignments. The Crown alleged that the two men operated as part of a sophisticated scheme to intercept three international air freight consignments in transit, before they reached a Customs-approved warehouse. The co-accused's alleged role was to track and orchestrate interception of the consignments; the appellant's alleged role was to liaise with unknown third parties, provide information about arrivals, and take possession of the goods.

After the appellant's co-accused appealed to the High Court, the High Court found that the trial judge's summing-up at the joint trial was so unfair in its lack of balance that a miscarriage of justice had occurred. The Crown conceded that the same conclusion applied to the appellant, requiring all his convictions to be quashed. The appellant then pressed two additional grounds aimed at obtaining outright acquittals rather than a retrial.

  • Whether the verdict on Count 1 was unreasonable or unsupported by the evidence, specifically:
  • whether there was sufficient evidence that the appellant was party to an agreement to import a substance believed to be a border controlled precursor; and
  • whether there was sufficient evidence that the appellant and co-accused believed another person intended to use the substance to manufacture a controlled drug.
  • Whether the verdict on Count 2 was unreasonable or unsupported by the evidence, particularly as to whether the appellant intended to import a border controlled drug.
  • Whether, if those grounds succeeded, acquittals should be entered rather than a retrial ordered.

Decision

Ground 4 (unfair summing-up): The Crown conceded this ground in light of the High Court's decision in McKell v The Queen [2019] HCA 5, which held that the trial judge's summing-up was so lacking in balance as to constitute a miscarriage of justice. All four convictions were accordingly quashed. The Court accepted the Crown's concession as appropriate.

Ground 1(i) (knowledge that the substance was a border controlled precursor): By majority, the Court held it was open to the jury to conclude that the appellant and co-accused knew the substance in the relevant consignment was a border controlled precursor. The Court assessed the totality of the circumstantial evidence rather than considering individual pieces in isolation, applying the test from M v The Queen and The Queen v Hillier: the question was not whether the jury could have had a reasonable doubt, but whether it should have had one.

Ground 1(ii) (belief that another person intended to manufacture a controlled drug): Johnson J and Wright J (by majority, with Macfarlan JA dissenting on this point) held that it was open to the jury to find the requisite belief. The majority accepted that s 307.11(1)(b)(ii) requires a presently held belief, at the time of the agreement, that another person then or in the future intends to use the substance to manufacture a controlled drug. The appellant's dissent on this sub-ground did not carry the day; the majority was satisfied the evidence supported a guilty verdict on Count 1.

Ground 3 (Count 2, conspiracy to import methamphetamine): The Court unanimously rejected this ground. It was open to the jury to infer the requisite state of mind from the whole of the evidence, and the verdict was not unreasonable.

Because the verdicts on Counts 1 and 2 were not unreasonable, acquittals could not be entered and a retrial was ordered on those counts, together with Count 4. Count 1 was the exception: Macfarlan JA's proposed orders would have entered an acquittal on Count 1, but the majority view was otherwise, with the result that a retrial was ordered on Counts 2 and 4, while the majority approach on Count 1 produced the outcome recorded in the final orders.

Orders Made

  • Leave to appeal granted.
  • Convictions on Counts 1, 2 and 4 quashed.
  • Verdict of acquittal entered on Count 1.
  • New trial ordered on Counts 2 and 4.

Key Takeaways

  • An appellate court assessing whether a verdict is unreasonable must consider the totality of the evidence and ask whether the jury should have had a reasonable doubt, not merely whether it could have had one.
  • Under s 307.11(1)(b)(ii) of the Criminal Code 1995 (Cth), the prosecution must prove a presently held belief, at the time of the relevant agreement, that another person then or in the future intends to use the substance to manufacture a controlled drug. Proof that the accused believed the substance would be used is a higher standard than the section strictly requires.
  • Where a co-accused's conviction has been set aside following a successful High Court appeal on the ground of an unfair summing-up, a jointly tried accused will ordinarily be entitled to the same concession from the Crown in relation to the corresponding ground of appeal.
  • A miscarriage of justice arising from an unfair summing-up leads to quashed convictions and, ordinarily, a retrial rather than an acquittal, unless the evidence is found to be insufficient to support a guilty verdict at all.
  • In dismissing the unreasonable verdict grounds on Counts 2 and 4, the Court confirmed that a largely circumstantial Crown case can still be sufficient to support guilty verdicts where all inferences, taken together from the whole of the evidence, point to guilt beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 11.2A, 11.5, 300.5, 307.1, 307.11, 400.4
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules (NSW), r 4

Cases
- McKell v The Queen [2019] HCA 5; (2019) 93 ALJR 309
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
- The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618
- The Queen v Keenan [2009] HCA 1; (2009) 236 CLR 397
- Cranney v The Queen [2017] NSWCCA 234; (2017) 269 A Crim R 449
- Romolo v The Queen [2018] NSWCCA 3
- Bahri Kural v The Queen (1987) 162 CLR 502
- Anil Suri v Director of Public Prosecutions (Cth) [2014] VSCA 260
- The Queen v LK (2010) 241 CLR 177; [2010] HCA 17
- Osland v The Queen (1998) 197 CLR 316
- Standen v Director of Public Prosecutions (Cth) [2011] NSWCCA 187; (2011) 218 A Crim R 28