McKell v The Queen [2019] HCA 5

HIGH COURT OF AUSTRALIA

BELL, GAGELER, KEANE, GORDON AND EDELMAN JJ

JASON TROY McKELL APPELLANT

AND

THE QUEEN RESPONDENT

McKell v The Queen [2019] HCA 5 13 February 2019 S223/2018

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.

On appeal from the Supreme Court of New South Wales

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))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

McKell v The Queen

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".