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Court of Criminal Appeal 8 July 2026

MacGill v R

[2026] NSWCCA 102

Drugs

Citation: MacGill v R [2026] NSWCCA 102
Court: Court of Criminal Appeal, NSW
Date: 8 July 2026
Judge(s): Payne JA (with Rigg J and Roberts J agreeing)

Background

The appellant is a retired sportsman who was charged with knowingly taking part in the supply of a large commercial quantity of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The charge arose from a single supply of cocaine for $330,000, arranged between the appellant's partner's brother and a drug dealer (referred to as Person A), who regularly supplied cocaine to the appellant himself.

At trial, the sole question was whether the appellant knew about the drug deal. He denied any knowledge of the transaction, the quantity involved, or the money paid. A jury found him not guilty of the charged offence but guilty of the statutory alternative of supply simpliciter under s 25(1), an offence with an upper quantity limit of 250 grams.

The appellant was sentenced to 1 year and 10 months' imprisonment, to be served by way of an Intensive Correction Order with a 495-hour Community Service Order. He sought leave to appeal both his conviction and his sentence.

  • Whether the tendency notice was properly formulated and the tendency evidence was correctly admitted under s 97 of the Evidence Act 1995 (NSW), including whether its probative value outweighed the danger of unfair prejudice
  • Whether the admission of the tendency evidence resulted in a miscarriage of justice
  • Whether the jury was materially misdirected regarding the statutory alternatives to the offence on the indictment
  • Whether the sentencing judge relied on factual findings not proved beyond reasonable doubt and inconsistent with the jury's verdict

Decision

Ground 1: Admission of tendency evidence

The tendency evidence concerned the appellant's practice of introducing his acquaintances to Person A for the purpose of Person A supplying them with small amounts of cocaine. The Court held that the tendency notice was properly formulated. Probative value is assessed by reference to the extent to which evidence could rationally affect the probability of a fact in issue, taken at its highest. The trial judge correctly identified the common features between the tendency evidence and elements of the charged offence, including the appellant's facilitation of cocaine supply between Person A and the appellant's friends and associates.

The Court confirmed that the threshold of "significant probative value" in s 97(1)(b) requires that the evidence make significantly more likely the facts making up the elements of the offence charged. It was open to the trial judge to conclude this threshold was met, even though the tendency evidence involved smaller amounts of cocaine than the indictment alleged and concerned supplies by Person A rather than to him. The jury directions on tendency evidence, which were governed by the principles applicable to circumstantial reasoning, were correct and any residual danger of misuse was adequately addressed.

Ground 2: Miscarriage of justice from admission of tendency evidence

The Court found no miscarriage of justice. The tendency evidence was relevant to rebut the appellant's denial of any involvement in or knowledge of Person A's drug activities. It also functioned as relationship evidence of the kind described in Harriman v The Queen, and served additional non-tendency purposes at trial, including demonstrating consciousness of guilt and the character of the appellant.

Ground 3: Misdirection on statutory alternatives

The appellant argued the jury should have been directed to exclude from consideration a supply of less than a traffickable quantity. The Court rejected this. The deeming provision in s 29 of the Drug Misuse and Trafficking Act did not apply to the offence of supply simpliciter, which was a statutory alternative rather than a separate offence on the indictment. The Court found the appellant failed to establish any misdirection, let alone a material one.

Ground 4 (Sentence): Impermissible factual finding

The sentencing judge found that the appellant knew the amount to be supplied was of a non-specific but considerable quantity, necessarily under 250 grams, warranting a payment of $330,000. The Court held this finding was reasonably open on the evidence and consistent with the jury's verdict: the jury acquitted on the charge involving a quantity over 250 grams but convicted on the lesser alternative. The sentencing judge's reference to an upper limit of 250 grams reflected the need for her findings to be consistent with the acquittal. No impermissible use of facts adverse to the appellant was established.

Orders Made

  • Leave to appeal against conviction granted; conviction appeal dismissed
  • Leave to appeal against sentence granted; sentence appeal dismissed

Key Takeaways

  • Tendency evidence has "significant probative value" under s 97(1)(b) of the Evidence Act 1995 (NSW) where it makes significantly more likely the facts making up the elements of the charged offence; differences in scale or direction of the conduct do not automatically defeat that assessment.
  • Directions to the jury on tendency evidence are governed by the principles applicable to circumstantial reasoning, consistent with Shepherd v The Queen (1990) 170 CLR 573 and The King v AR [2026] HCA 10.
  • A sentencing judge following a jury trial must adopt factual findings consistent with the jury's verdict, and cannot use facts adverse to an offender unless they are proved beyond reasonable doubt, as confirmed in The Queen v Olbrich (1999) 199 CLR 270.
  • In dismissing the sentence appeal, the Court confirmed that a finding about the approximate value and scale of a drug transaction can be consistent with a jury's acquittal on a quantity-based count and conviction on the statutory alternative, provided the finding respects the upper quantity limit implied by the acquittal.
  • Tendency evidence may be admissible for multiple purposes simultaneously: as tendency evidence under s 97, as relationship evidence under Harriman, and for other non-tendency purposes such as demonstrating consciousness of guilt.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 130A, 161A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29, 30, 31
- Evidence Act 1995 (NSW), ss 94, 97, 101, 110, 128

Cases
- Director of Public Prosecutions v Roder (a pseudonym) (2024) 281 CLR 18; [2024] HCA 15
- Fisher v The King [2026] NSWCCA 27
- Hancock v The King [2025] NSWCCA 213
- Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
- House v The King (1936) 55 CLR 499
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Bauer (2018) 266 CLR 56; [2018] HCA 40
- R v Burton [2013] NSWCCA 335; 237 A Crim R 23
- R v Isaacs (1997) 41 NSWLR 374
- R v Storey [1998] 1 VR 359
- Shepherd v The Queen (1990) 170 CLR 573
- The King v AR [2026] HCA 10; 100 ALJR 545
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- TL v The King (2022) 275 CLR 83; [2022] HCA 35