McKell v R [2017] NSWCCA 291

McKell v R [2017] NSWCCA 291

Majority (Payne JA, Fagan J) held the summing up was not unfairly lacking in balance and did not cause a miscarriage of justice; the trial judge gave clear directions emphasizing that the facts were for the jury to decide and any comments should be disregarded if they did not accord with their own view of the evidence. Dissent (Beech-Jones J) found the summing up lacked judicial balance, overawed the jury, and deprived them of an adequate opportunity to give effect to the defence, thus causing a miscarriage of justice.

Jurisdiction
Australia
Judgment Date
08 December 2017
Procedural Posture
Criminal Appeal / Appeal Against Conviction
Outcome
Appeal dismissed (majority); Dissent: appeal allowed and new trial ordered.
Legal Topics
['importation of Commercial Quantity of Border Controlled Precursor' 'conspiracy to Import Border Controlled Drug' 'dealing With Proceeds of Crime' 'appeal Against Conviction' 'summing Up by Trial Judge' 'miscarriage of Justice']
['criminal Law'] ['importation of Commercial Quantity of Border Controlled Precursor' 'conspiracy to Import Border Controlled Drug' 'dealing With Proceeds of Crime' 'appeal Against Conviction' 'summing Up by Trial Judge' 'miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Conviction

Legal Issues

  1. 1 ["Whether the trial judge's summing up caused a miscarriage of justice" 'Whether summing up was unbalanced or unfair']

Ratio Decidendi

Majority (Payne JA, Fagan J) held the summing up was not unfairly lacking in balance and did not cause a miscarriage of justice; the trial judge gave clear directions emphasizing that the facts were for the jury to decide and any comments should be disregarded if they did not accord with their own view of the evidence. Dissent (Beech-Jones J) found the summing up lacked judicial balance, overawed the jury, and deprived them of an adequate opportunity to give effect to the defence, thus causing a miscarriage of justice.

Court Disposition

Appeal dismissed (majority); Dissent: appeal allowed and new trial ordered.

Orders

  • ['Appeal dismissed (Payne JA and Fagan J)' 'Beech-Jones J would allow the appeal, quash the convictions and order a new trial']