McKell v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Bell,Keane,Gordon,Edelman JJ.,Gageler J.
• Judgment Date: 13 February 2019
• Neutral Citation: [2019] HCA 5
• Docket Number: S223/2018
• Date: 13 February 2019

Jason Troy Mckell

Appellant

and

The Queen

Respondent

[2019] HCA 5

Bell, Gageler, Keane, Gordon, and Edelman JJ

S223/2018

HIGH COURT OF AUSTRALIA

Criminal practice — Trial — Summing-up — Where appellant convicted of drug-related offences — Where trial judge made comments on evidence that went beyond arguments advanced by prosecution — Whether comments apt to create danger or substantial risk that jury might be persuaded of appellant's guilt — Whether comments so lacking in balance as to be exercise in persuading jury of appellant's guilt — Whether comments unfair to appellant — Whether comments resulted in miscarriage of justice.

Criminal practice — Trial — Summing-up — Whether trial judge may make comments which convey his or her opinion as to proper determination of disputed issue of fact to be determined by jury.

Words and phrases — “comment on the facts”, “discretion to comment”, “disputed issue of fact”, “duty to give fair and accurate instructions”, “fair trial”, “fairness”, “fundamental task of a trial judge”, “lacking in balance”, “miscarriage of justice”, “overawing the jury”, “right to comment”, “strong Crown case”, “summing-up”.

Representation

D Jordan SC with A L Bonnor for the appellant (instructed by Elie Rahme & Associates Pty Ltd)

W J Abraham QC with L K Crowley QC for the respondent (instructed by Director of Public Prosecutions (Cth))

ORDER

• 1. Appeal allowed.

• 2. Set aside the order made by the Court of Criminal Appeal of the Supreme Court of New South Wales on 8 December 2017 and, in its place, order that:

  • (a) the appellant's appeal to that Court be allowed;

  • (b) the appellant's conviction be quashed; and

  • (c) a new trial be had.

1 Bell, Keane, Gordon and Edelman JJ. In Rps v The Queen 1, Gaudron A-CJ, Gummow, Kirby and Hayne JJ, while discussing “the difficult task trial judges have in giving juries proper instructions”, adverted to the view that “has long been held that a trial judge may comment (and comment strongly) on factual issues” 2. Their Honours went on to say that 3:

“although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.” (emphasis in original)

2 This statement in favour of judicial circumspection was made after their Honours had acknowledged that “[t]he fundamental task of a trial judge is … to ensure a fair trial of the accused” 4. This fundamental task falls to be performed within a framework in which it is “for the jury, and the jury alone, to decide the facts” 5.

3 A trial judge's “broad discretion” 6 to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put “accurately and fairly” to the jury 7. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judge's summing-up

is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment

4 In the present case, statements by the trial judge during the course of his summing-up were so lacking in balance as to be seen as an exercise in persuading the jury of the appellant's guilt. The statements were unfair to the appellant and gave rise to a miscarriage of justice. As a result, the appeal must be allowed and the appellant's conviction quashed.

5 In addition, it should be clearly understood that the risk of such unfairness is such that a trial judge should refrain from comments which convey his or her opinion as to the proper determination of a disputed issue of fact to be determined by the jury.

The trial

6 The appellant was tried with a co-accused, Mr McGlone, in the District Court of New South Wales on an indictment charging him with: importing a commercial quantity of a border-controlled precursor intended or believed to be for manufacture of a border-controlled drug contrary to s 307.11(1) of the Criminal Code (Cth); conspiring to import a commercial quantity of a border-controlled drug contrary to ss 307.1(1) and 11.5(1) of the Criminal Code; and dealing with proceeds of crime contrary to s 400.4(1) of the Criminal Code 8.

7 The appellant was convicted upon the verdict of the jury and was subsequently sentenced to imprisonment for 18 years and nine months, with a non-parole period of 11 years and nine months 9.

8 The appellant appealed against his conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales (“the CCA”). The sole ground of appeal was that “[t]he Judge's summing up to the jury caused a miscarriage of justice” 10. The CCA (Payne JA, Fagan J agreeing and Beech-Jones J dissenting) dismissed his appeal.

9 The appellant now appeals to this Court, pursuant to a grant of special leave to appeal by Bell and Keane JJ, on the ground that “[t]he CCA erred in finding that the summing up to the jury by the trial judge did not give rise to a miscarriage of justice”.

10 In order to appreciate the arguments agitated in this Court it is necessary to understand the evidence adduced by the parties at trial and the trial judge's summing-up to the jury in relation to important aspects of that evidence.

The evidence at trial

11 The appellant was the movements manager of Wymap Group Pty Ltd (“Wymap”), a company that transported freight under bond from cargo terminal operators at the airport to freight-forwarding agencies. On 16 May 2013, a consignment of five cardboard boxes labelled “pijamas” arrived in Sydney, from Chile, on an Emirates flight (“the first consignment”). The ultimate consignee was “Reach Limited”, an entity which did not exist. The appellant instructed a Wymap truck driver to collect the consignment and keep it with him, and not to put it in an electronic run sheet. The appellant collected the boxes from him, then drove to meet Mr McGlone at a car park beneath the appellant's residence. The appellant returned with the boxes and told the driver there had been a mistake. The driver noticed that the shrink-wrap on the boxes had been opened and packing tape placed over their labels 11.

12 On 20 May 2013, a consignment of 22 boxes arrived in Sydney (“the second consignment”). Fifteen boxes, each containing five pails labelled “printing transfer adhesive”, contained crystalline pseudoephedrine weighing 77,708.7 g in total. The ultimate consignee was “T-Shirt Printing Australia”, an entity which had not ordered the consignment. Shortly after its arrival, the appellant and Mr McGlone met at a cafe to discuss the second consignment 12.

13 Mr McGlone left and purchased flat pack boxes and tape. The appellant then sent a text message to Mr McGlone saying, “Don't forget to tape trial” (“the tape trial text message”). Mr McGlone was observed taping the bases of boxes and loading them into a vehicle. After transferring them to a different vehicle, Mr McGlone drove to a car park beneath a shopping centre complex. He then

sent a text message to the appellant saying that he had spoken with a friend who said the “other one” was “close or here” 13

14 The appellant phoned the Wymap truck driver and told him that the “one last week” was wrong, but that he now had the “real one”. He told him to collect a consignment of 22 boxes and not to put it in his electronic run sheet. The appellant then met the driver and they transferred the boxes to the appellant's vehicle. A short time later police arrested the appellant 14.

15 On 21 May 2013, a third consignment, of two boxes of shampoo bottles, arrived in Sydney. The ultimate consignee was “Reach Limited”. The bottles were found to contain 9,962.7 g of crystalline methylamphetamine 15.

16 Subsequently, in the course of a search of the appellant's home, police found $400,150 in cash in a tin box in the appellant's bedroom 16.

17 The appellant's case was that he was an “innocent dupe” in the importation of the prohibited substances by others. He gave evidence denying all knowledge of the contents of the consignments in question.

18 The appellant said he knew Mr McGlone as a former Wymap employee whom he had encountered from time to time at the races. He said that in March 2013, Mr McGlone had suggested to the appellant that Wymap collect clothing freight for Mr McGlone's business. The appellant said that he had previously delivered consignments for other clients on an ad hoc basis, and that his involvement with Mr McGlone was no different.

19 The appellant was cross-examined in relation to the tape trial text message. The appellant's evidence was that he had no idea why he sent that text message. He said that he was “talking horses”.

20 The appellant gave evidence that the cash located in the tin box in his bedroom was the product of his success as a gambler. He also gave evidence that he won large amounts gambling in cash. Those winnings were said to be the

cash in the tin box. The appellant also held a number of online betting accounts which recorded substantial wins and losses. His counsel, in addressing the jury, relied upon the online betting accounts as evidence of the appellant's success as a gambler. In this his counsel was plainly in error, in that the net effect of the wins and losses was that the appellant lost money in the course of his online gambling activities

The summing-up

21 The...