McKell v The Queen [2019] HCA 5

McKell v The Queen [2019] HCA 5

The trial judge’s summing-up was so lacking in balance and so favoured the prosecution as to have created a substantial risk that the jury was persuaded to convict by the judge’s comments. Such imbalance denied the appellant a fair trial and amounted to a miscarriage of justice, requiring the conviction to be quashed and a new trial ordered.

Parties
Appellant: Jason Troy McKell; Respondent: The Queen
Jurisdiction
Australia
Judgment Date
13 February 2019
Procedural Posture
Criminal Appeal / Appeal From the Court of Criminal Appeal of the Supreme Court of New South Wales to the High Court of Australia
Outcome
Appeal allowed; conviction quashed; order for a new trial.
Legal Topics
Criminal Procedure, Trial Procedure, Summing Up, Judicial Comment, Fair Trial, Miscarriage of Justice
Criminal Law Criminal Procedure Trial Procedure Summing Up Judicial Comment Fair Trial Miscarriage of Justice

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Parties

Jason Troy McKell

Appellant

The Queen

Respondent

Procedural Posture

Criminal Appeal / Appeal From the Court of Criminal Appeal of the Supreme Court of New South Wales to the High Court of Australia

Legal Issues

  1. 1 Whether the trial judge's summing-up to the jury caused a miscarriage of justice by lacking balance and favouring the prosecution
  2. 2 Whether a trial judge may make comments conveying an opinion on disputed issues of fact to be determined by the jury

Ratio Decidendi

The trial judge’s summing-up was so lacking in balance and so favoured the prosecution as to have created a substantial risk that the jury was persuaded to convict by the judge’s comments. Such imbalance denied the appellant a fair trial and amounted to a miscarriage of justice, requiring the conviction to be quashed and a new trial ordered.

Court Disposition

Appeal allowed; conviction quashed; order for a new trial.

Orders

  • Appeal allowed.
  • Order of the Court of Criminal Appeal of the Supreme Court of New South Wales set aside.