Judge’s Summing Up Amounted to “a Second Address by the Prosecution”

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By Paul Gregoire and Ugur Nedim

On 16 May 2013, a consignment of five cardboard boxes marked “pijamas” arrived in Sydney from Chile. The movements manager of freight transport company Wymap, Jason Troy McKell, told a driver to put the boxes in a truck and not to enter them into the electronic run sheet.

Mr McKell later collected the boxes and drove them to meet Mr McGlone in the carpark underneath his residence. McKell subsequently returned the boxes to the driver, stating that there had been a mistake. The driver noticed that the shrink-wrap the boxes were covered in had been opened.

A second consignment of 22 boxes arrived in Sydney on 20 May. Fifteen of these contained a total of 77,708.7 grams of pseudoephedrine. Shortly after its arrival, Mr McKell met with Mr McGlone in a café to discuss the consignment.

McGlone then left the meeting and purchased flat pack boxes and tape. McKell sent him a text message at the time that read, “Don’t forget to tape trial.” McGlone was then seen taping the bases of the boxes and placing them into a vehicle.

A week later, McKell once again collected another consignment of 22 boxes from the truck driver. And a short time later he was arrested by police. The boxes contained 9,962.7 grams of methamphetamine held in shampoo bottles. And a subsequent search of his home turned up $400,150.

Some very serious offences

A NSW District Court jury found McKell guilty of three crimes. The first was one count of importing a commercial quantity of a border-controlled precursor, contrary to section 307.11(1) of the Criminal Code (Cth). It carries a maximum penalty of 25 years imprisonment and/or a fine of $1,050,000.

The second offence was one count of conspiring to import a commercial quantity of a border-controlled drug, contrary to section 307.1(1) of the Criminal Code. The maximum penalty for this offence is life imprisonment and/or a fine of $1,575,000.

And the third crime McKell was convicted of was one count of dealing with the proceeds of crime, contrary to section 400.4(1) of the Criminal Code. This can land an individual in prison for up to 20 years, as well as a fine of $252,000.

The claims of the accused

McKell said he was an “innocent dupe” in the importation of illicit substances by others. He gave evidence denying that he had any knowledge of what was contained in the boxes. And he further stated that he ran into McGlone occasionally at the races, and he’d delivered consignments before.

In relation to the “tape trial” text message, he said he had no idea how he’d sent it and he must’ve been referring to horses. And in regard to the cash located in a tin in his bedroom, he put this down to his success as a gambler.

Mr McKell’s lawyers relied on the existence of their client’s multiple online gambling accounts to show that he was a successful gambler. Although, the net effect of his wins and losses was that he’d overall lost a lot of money.

Suspect sentencing remarks

NSW District Court Judge Michael King began his summing up by stating, “If I happen to express any views upon questions of fact you must ignore those views.” Then his Honour went onto imply to the jury that even though there was no evidence the first consignment contained drugs, it could have.

“You would think there would be little point in arranging for this to happen unless there was something in it,” the sentencing judge remarked in relation to the first consignment. And he continued on to describe the setup as “a sophisticated operation”.

These comments were made despite another judge having made a pre-trial ruling that the first consignment couldn’t be used as tendency evidence. His Honour further said that such an “organisation of great sophistication” would need a person in a position like McKell’s to ensure its success.

Regarding the “tape trial” text, Judge King told the jury that it was “so obvious, ladies and gentlemen, you might think it is a reference to making sure that Mr McGlone gets tape for the repackaging so that the substitution can be made”.

And in considering the cash that was found at McKell’s home, his Honour explained that McKell had actually lost a quarter of a million dollars, so “if that is an indication… that he was a successful gambler… then, you certainly would not want to be an unsuccessful gambler, would you”?

And following the jury’s delivery of a guilty verdict, on 11 November 2016, Judge King sentenced Mr McKell to 18 years and 9 months behind bars, with a non-parole period of 11 years and 9 months.

Taking it all the way

Mr McKell appealed his criminal conviction to the NSW Criminal Court of Appeal (NSWCCA) in September 2017, as he claimed the trial judge’s summing up remarks to the jury caused a miscarriage of justice.

However, whilst Justice Robert Beech-Jones agreed that Judge King had overstepped the mark, the majority of the court – Desmond Fagan and Anthony Payne – ruled that the trial judge’s remarks hadn’t affected the trial adversely and the appeal was dismissed on 8 December 2017.

So, McKell then sought leave to appeal in the High Court of Australia and it was granted. The case was before a panel of five justices comprised of Virginia Bell, Stephen Gageler, Patrick Keane, Michelle Gordon and James Edelman.

A wink to the Crown

And the High Court granted the appeal, as the panel of justices found that Judge King’s summing up of the case effectively amounted to a “second address by the prosecution”, as his comments lacked any balance.

Their Honours made clear that the question was whether Judge King’s comments posed a risk of influencing the jury. And they found that his remarks “were so lacking in balance as to be seen as an exercise in persuading the jury of the appellant’s guilt”.

“Where a trial judge’s summing-up so favours the prosecution as to deny the accused a fair trial, the miscarriage of justice that results cannot be justified or excused by invoking the judge’s “right” to comment on the facts,” the panel of High Court justices reasoned.

And on 13 February, the High Court granted the appeal and ordered that the finding of the NSWCCA be set aside. And the panel of justices ordered that Mr McKell’s conviction be quashed and that he should stand trial once more.

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