McKell v R

Court of Criminal Appeal (NSW)|2017-09-15|Before: Payne JA, Beech-Jones J, Fagan J, Per Payne JA, Per Beech-Jones J

Solicitors: Elie Rahme (Appellant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2013/156342 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 11 November 2016 Before: King DCJ File Number(s): 2013/156342

headnote [This headnote is not to be read as part of the judgment] Mr McKell was found guilty by a jury of importing a commercial quantity of a border-controlled precursor intended or believed to be for manufacture of a border-controlled drug, conspiring to import a commercial quantity of a border-controlled drug and dealing with money to the value of $100,000 or more believing it to be the proceeds of crime. Mr McKell was sentenced to an overall term of imprisonment of 18 years and 9 months with a non-parole period of 11 years and 9 months. Mr McKell appealed against his conviction. The sole issue on appeal was whether the cumulative effect of a number of individual passages in the trial judge's summing up caused a miscarriage of justice. The Court held: Per Payne JA at [100]-[101] (Fagan J agreeing at [141]) (i) the trial judge's summing up was not unfairly lacking in balance and did not cause any miscarriage of justice. Majok v R [2015] NSWCCA 160 applied. (ii) the trial judge gave clear directions that the facts to be established were matters for the jury and if any comment said by the trial judge did not accord with their own view of the facts they should disregard it. Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15; R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177; AW v R [2016] NSWCCA 227 considered. Per Beech-Jones J (dissenting) at [137] (iii) the trial judge's summing up did not exhibit a "judicial balance" such that it deprived the jury "of an adequate opportunity of understanding and giving effect to the [appellant's] defence and the matters relied upon in support of the defence". B v The Queen (1992) 175 CLR 599; [1992] HCA 68 applied. (iv) the trial judge's further instructions to the jury did not remedy the prejudice occasioned by the summing up because there was too great a contrast between what the trial judge asserted he was not doing, i.e. not endeavouring to persuade the jury and what he in fact did to avoid the conclusion that there was a miscarriage of justice.

Judgment

PAYNE JA: The appellant was tried with a co-accused, Mr McGlone, in the District Court before Judge King SC. A jury returned a verdict of guilty with respect to the three counts on the indictment, being: importing a commercial quantity of a border-controlled precursor intended or believed to be for manufacture of a border-controlled drug (count 1); conspiring to import a commercial quantity of a border-controlled drug (count 2); and, dealing with money to the value of $100,000 or more believing it to be the proceeds of crime (count 3).
On 11 November 2016, the appellant was sentenced to an overall term of imprisonment of 18 years and 9 months with a non-parole period of 11 years and 9 months.
By notice of appeal dated 5 June 2017 the appellant appeals against his conviction, relying on the sole ground of appeal that, "The Judge's summing up to the jury caused a miscarriage of justice".

Relevant facts

The relevant facts of this matter are not in dispute and may be summarised briefly.
In January 2013, a joint taskforce commenced investigating the appellant's co-accused's activities. In May 2013, the joint taskforce began intercepting the telephone services of the appellant and co-accused.
The appellant was employed at Wymap Group Pty Ltd (Wymap) as a Movements Manager. Wymap conveyed freight under bond from cargo terminal operators to freight forwarding agencies, including DHL Global Freight Forwarding Pty Ltd (DHL). The appellant's responsibilities included managing Wymap's truck drivers and ensuring their compliance with freight handling security procedures.
On 13 May 2013, the appellant instructed a Wymap employee to make enquiries with respect to three consignments using their airway bill (AWB) numbers. The employee made enquiries with a cargo terminal operator and told the appellant the AWBs did not exist. The appellant asked him to check again the next day. The employee asked why the appellant had asked him to make the enquiries but received no answer.
Police conducted surveillance of the appellant and his co-accused on 14, 16, 18 and 20 May 2013. The appellant and the co-accused arranged to meet through text messages. The appellant and the co-accused were observed meeting at a café and outside a supermarket near the appellant's home. The appellant showed the co-accused an iPad. The appellant used an application on the iPad to track movements of the consignments which arrived over a period of two months in 2013.

First consignment

On 16 May 2013, the first consignment arrived in Sydney aboard an Emirates flight. The consignment, which originated from Chile, contained five boxes labelled "pijamas". DHL was the nominee consignee as the freight-forwarding agency but the ultimate consignee was Reach Ltd. Police made enquiries but no such company was found to exist.
On 17 May 2013, the appellant sent a text message to a Wymap truck driver instructing him to collect the consignment and keep it with him. The appellant phoned the driver the following day and told him not to put the freight in an electronic run sheet. The appellant arranged to meet the driver at the premises of another freight forwarding company. The appellant drove a blue utility vehicle to those premises.
On meeting the driver, the appellant and the driver removed the boxes from the Wymap truck and placed them in the blue utility vehicle. The appellant drove the blue utility vehicle to the car park underneath his unit complex where his co-accused waited in a white utility vehicle.
The appellant then drove the blue utility vehicle to the airport depot of the freight forwarding company where he had loaded the boxes and met the Wymap truck driver again. The appellant told the driver that there had been a mistake and the boxes were to be returned. The appellant and the driver unloaded the boxes from the blue utility vehicle and reloaded them onto the Wymap truck.
After the appellant left, the driver noticed that the shrink-wrap on the boxes had been opened and packing tape had been placed over their AWB labels. The driver phoned the appellant and requested a damage report. The appellant told the driver to say the boxes arrived in that condition if anyone asked. The appellant's fingerprints were later found on the packing tape placed on the boxes.

Second consignment

On 20 May 2013, the second consignment arrived in Sydney aboard a Malaysia Airlines flight. The second consignment comprised 22 boxes, 15 of which each contained five pails labelled "printing transfer adhesive". The consignment originated from Bangladesh. DHL was the nominal consignee as the freight-forwarding agency but the ultimate consignee was T-Shirt Printing Australia. Such a company existed but did not order the consignment.
The 75 pails contained a crystalline substance weighing 77,708.7 grams in total. The substance comprised pseudoephedrine with an average purity of 81.3 per cent. The quantity of pure pseudoephedrine was 63,177.1 grams. The pseudoephedrine could be used to manufacture methylamphetamine. A practical yield of methylamphetamine from such a quantity of pseudoephedrine was 58.885 kilograms. Such a quantity of methylamphetamine was valued at between $11,600,000 and $15,080,000 if sold by the kilogram as crystal methylamphetamine.
The appellant and the co-accused met at a café. A listening device recorded them discussing the consignment. The appellant used an iPad to track the second and third consignments.
The co-accused drove a silver utility vehicle to a shopping centre car park. The co-accused attended a self-storage facility where he purchased flat-packed boxes and packing tape. The appellant sent the co-accused a text message with the following instruction : "Dont forget to tape trial"
The co-accused was observed taping the bases of boxes and loading them into the silver utility vehicle. The co-accused drove the silver utility vehicle to a street where the white utility vehicle was parked. The co-accused transferred the boxes from the silver utility vehicle to the white utility vehicle. The co-accused then drove the white utility vehicle to a car park beneath a shopping centre complex.
The co-accused then sent a text message to the appellant saying he had spoken with a friend who said the "other one" was close or here. The appellant tracked the consignment on the iPad.
The appellant phoned a Wymap truck driver and told him the one last week was the wrong one but he now had the real one. The appellant told the Wymap truck driver to collect a consignment of 22 boxes from a cargo terminal operator. The appellant told the driver not to put the freight in his electronic delivery run sheet. The appellant arranged to meet the driver. The driver phoned the appellant back a short time later and said he had already put the consignment in his electronic delivery run sheet. The appellant told the driver to cancel the entry and leave the freight on the truck. The appellant met the driver outside a logistics business. The appellant and the driver unloaded the boxes from the truck and loaded them into the blue utility vehicle.
The police stopped the blue utility vehicle and arrested the appellant. The appellant told police he collected the goods for a client named "Rick" who told the appellant the boxes contained DVDs and said he would get into trouble if found to be importing DVDs. The appellant said that "Rick" was going to pick up the goods. The appellant denied speaking with Rick before he collected the goods. The Crown relied on the appellant's denial as a lie showing consciousness of guilt.
The police obtained authority to conduct a controlled operation. Empty boxes were substituted for those containing the pails. The appellant's phone was used to arrange to meet the co-accused. The blue utility vehicle was driven into the car park beneath the appellant's unit complex. The co-accused drove the white utility vehicle into the car park. The co-accused lifted the blue utility's tonneau cover and inspected the boxes. The co-accused was then arrested.

Third consignment

On 21 May 2013, the third consignment arrived in Sydney aboard a British Airways flight. The third consignment comprised two boxes of shampoo bottles. The consignment originated from Abidjan. The consignee was "Reach Ltd", the same fictitious company which was used for the first consignment.
The shampoo bottles contained a total of 9,962.7 grams of a crystalline substance, which comprises methylamphetamine with an average purity of 57.2 per cent. The quantity of pure methylamphetamine was 5,698.6 grams and valued between $3,430,000 and $5,390,000 if sold by the kilogram as crystal methylamphetamine.

Police searches

Police executed a search warrant at the appellant's home. In the appellant's bedroom, a handwritten note recording details of the third consignment and $400,150 in cash in a lock box were located.
Several rolls of packing tape and two mobile phones were found in the blue utility vehicle. A note in one of the mobile phones recorded details of the second and third consignments.
Police executed a search warrant at the co-accused's home. Pails identical to those in the second consignment but containing an inert substance were located in the garage.
The police also located $4,000 cash in a robe and $38,550 cash in a box, 18 plastic bags containing cocaine, five tablets of 2C-B, and a set of electronic scales in the co-accused's bedroom. This evidence was not admitted in the case against the appellant.
Police searched the white utility vehicle. A backpack containing gloves, a box cutter, rolls of packing tape and a dispenser were located in the interior. A handwritten note recording details of the three consignments was located in the console. In the rear of the utility cardboard boxes containing 75 pails identical to those in the second consignment were located. The pails contained an inert substance weighing 80,043.8 grams in total.

Issues on appeal

The appellant submitted that the trial judge's summing up resulted in a miscarriage of justice by the cumulative effect of a number of individual passages in the summing up which effectively: 1. implicated the appellant in an importation of drugs in the first consignment; 2. raised arguments beyond those relied upon by the Crown against the appellant's evidence and submissions that the cash the subject of the money laundering charge was from gambling winnings; and 3. conveyed to the jury that the trial judge considered the appellant was knowingly involved in the importations when making comments about the "tape trial" text message sent by the appellant to the co-accused.

Legal principles

Section 6(1) of the Criminal Appeal Act 1912 (NSW) provides: "6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. (2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5 (1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered. (3) On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
The principles relating to a trial judge's obligations in summing up are well known and were referred to by both parties. They were summarised by R A Hulme J (Hoeben CJ at CL and Hall J agreeing) in Majok v R [2015] NSWCCA 160 at [26]-[31]: "[26] The overarching principle is that "the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury": Domican v The Queen [1992] HCA 13; 173 CLR 555 at 560-561. [27] In Robinson v R [2006] NSWCCA 192; 162 A Crim R 88, Johnson J stated (at [140]) the following as to the need for impartiality and balance in a summing up: '[T]he judge's role in a criminal trial is to hold the balance between the contending parties without himself taking part in their disputations; the judge does not exercise an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side, nor is it part of the function of the trial judge to don the mantle of prosecution or defence counsel: Whitehorn at 682. The fundamental task of a trial judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at paragraph 76. Trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Crown case - first, it is inconsistent with judicial impartiality and secondly, to do so denies the prosecution and the defence the opportunity either to disavow, or to meet the argument: R v Meher at paragraphs 87-93.' [28] As to the ability of a judge to express a view about the facts, in R v Zorad (1990) 19 NSWLR 91, the Court stated (at 106-7): 'A judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he [or she] makes it clear that it is the jury's function (and not his [or hers]) to decide the facts and that it is their duty to disregard the view which he [or she] has expressed (or which he [or she] may appear to hold) if it does not agree with their own independent assessment of the facts.' (Citations omitted) [29] In RPS v The Queen [2000] HCA 3; 199 CLR 620 Gaudron ACJ, Gummow, Kirby and Hayne JJ stated at [42]: '… it has long been held that a trial judge may comment (and comment strongly) on factual issues. But 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'. [30] As to a judge going beyond the arguments that were presented by the Crown, Wood CJ at CL said in R v Meher [2004] NSWCCA 355: '[87] Finally, it may be observed that trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. It is one thing to bring to the attention of a jury an alternative lesser count, that is fairly open on the evidence, or an available defence, even though it was not mentioned by the Crown Prosecutor and defence counsel, in their closing addresses, for example manslaughter in a case where the accused was indicted on a count for murder. It is quite another thing for a judge to advance an argument, on behalf of the Crown in support of the Prosecution case, which the judge considers was available, but was either overlooked, or not used by the Prosecution. [88] There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Prosecution case. First it is inconsistent with judicial impartiality. Secondly, to do so denies the Prosecution and the defence the opportunity either to disavow, or to meet the argument. [89] The observations of this Court in a joint judgment (Spigelman CJ, Wood CJ at CL, and Kirby J) in R v RTB [2002] NSWCCA 104 are apposite: '[55] In the present case, both of the issues that have arisen were of a character that could have been put by the Crown as a suggestion to the jury. In neither case was there any necessity for the trial judge to say anything to the jury. There was no suggestion of any unfairness to the Crown in the way the case was conducted. Nor was there any other reason for the trial judge to put an argument not advanced by counsel. (see e.g. R v Heuston (1995) 81 A Crim R 387 at 393). … [59] In each of the two respects of which complaint is now made, the intervention of the trial judge urged upon the jury a particular mode of thought. His Honour suggested that there could have been an explanation for the deficiency in the complainant's evidence, of a character which was not of itself based on any evidence but which, to a legal mind, would appear to be in each case a logical possibility. Juries are not required to think like that. [60] The fact that each of these 'possibilities' was put to the jury by the trial judge, rather than by the Crown, may have directed that the jury's collective mind in assessing credibility in a particular way. Specifically, the thrust of the trial judge's directions, on each of the two occasions, was that, notwithstanding the appearance of inconsistency in each of the two respects, there was a possible explanation. Such matters of speculation, whilst perhaps appropriate for counsel, should not receive the added weight of the intervention of the judicial officer. In each respect the jury could have understood the trial judge to be suggesting that, because there may have been an explanation as a matter of logic, they should not take these matters into account in determining the credibility of the complainant. [61] In the event, in our opinion, the directions to the jury were, in a critical respect, lacking in the appropriate balance.' [90] The permissible area within which a trial judge may draw to the jury's attention an argument that was not put by Counsel, was conveniently noted by Hunt CJ at CL in R v Heuston (1995) 81 A Crim R 387 at 393: 'Sometimes, of course, a judge is obliged - even in what might be described as the ordinary case to draw the attention of the jury to an argument which has not been put by counsel, if it is necessary to do so in order to ensure that the jury has sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Some such occasions are obvious - where, for example, the principal "defence" is one of alibi, yet there is clear evidence of intoxication which would be relevant to specific intention in the event that the alibi fails. Everyone realises that, from a tactical point of view, if counsel were to address upon such an issue of intoxication it would weaken the strength of his client's case on alibi, and trial judges should usually discuss the need to give directions as to such matters with counsel (in the absence of the jury) before the summing up commences. Other such occasions are not always so obvious, and - again, stated in very general terms in relation to the ordinary case - there will be no miscarriage of justice if arguments which may have been available on the evidence are not put by the judge in the summing up if they had not already been put by counsel. Sometimes, indeed, it may produce positive mischief if the judge raises arguments which could have been but which were not put or requested by counsel.' [91] Additionally, occasion might arise for the judge to draw attention to some matter which had not been dealt with by the Crown, where that is necessary to restore a balance to the trial, and where the Crown Prosecutor had no reason to foresee it, or any opportunity to deal with it. [92] As Blanch CJ also said in R v Malone: 'In this case it is clear that the remarks complained of were made by the trial judge in the context of criticisms made of the Crown case not foreshadowed during the course of the trial and not anticipated by the Crown Prosecutor in his address. This Court has drawn attention before to the fact that judges may find it necessary to become involved in forensic argument insofar as it is necessary to deal with matters raised by defence counsel who make the last address to the jury - see for example R v O'Donoghue (1988) 34 A. Crim. R. 397, R v William Booth, (C.C.A. (N.S.W.) unreported 29 September, 1993 and R v Gluscheski (1987) 33 A. Crim. R. 193.' [31] It is important to bear in mind as well that 'in order to determine whether a summing up is unfairly balanced, it is necessary for it to be considered in its entirety and in the context of the issues and the evidence led in the trial': R v Sukkar [2005] NSWCCA 54 at [90] (Wood CJ at CL)."
It is clear that the task of this Court is to examine each of the complaints in the context of the trial judge's summing as a whole in order to determine if the trial was fair. In addressing the three overlapping and cumulative complaints the appellant makes about the trial judge's summing up it is convenient to set out the relevant parts of the transcript and the parties' submissions before considering the cumulative effect of a number of individual passages in the summing up about which complaint was made.

Pre-trial ruling of Baly DCJ

It is important briefly to identify the purpose for which the evidence of the first consignment was permitted to be led at trial. The appellant made a pre-trial application to have the evidence in relation to the first consignment excluded under ss 135 and 137 of the Evidence Act 1995 (NSW).
In considering the application, Baly DCJ observed : "There's no evidence that consignment 1 contained drugs"
Baly DCJ rejected the application. Her Honour held that the evidence was relevant and probative because : 1. it showed a relationship between the appellant and the co-accused; and 2. it demonstrated an agreement between the appellant and co-accused in relation to counts 1 and 2 of the indictment.
The Crown did not rely upon the evidence as evidence of a tendency. Baly DCJ was not satisfied that there was potential for the jury to engage in tendency reasoning or give it more weight than it deserved. Her Honour went on to characterise the evidence as in some ways "quite neutral" : "It has relevance and has probative value but its neutrality means it is not prejudicial in the same way that, for example, uncharged criminal conduct is, and further, there is nothing that is unfairly prejudicial about the evidence."
The evidence was ruled admissible as contextual evidence and relationship evidence for the purpose of establishing a system for interception of consignments.

Trial judge's summing up

The relevant parts of the trial judge's summing up are as follows : "There is no evidence that any drug was contained in consignment 1, but you do know that it was removed from the Wymap truck, taken to the underground garage and opened; you do not know, in fact, whether anything was taken out of it unless you accept what Mr McKell said, that he looked and he only saw clothing, but then he had his back to it while he was in the lockup and he did not see all that happened in respect of it, just that he was told that it did not contain any DVD by Mr McGlone. The reality is, ladies and gentlemen, apart from that, there is a reference when Mr McKell returns consignment 1 to the Wymap truck so it can deliver it to the bonded warehouse that he tells Mr Savo Miljevic. I am going to give up on the surname, like Mr Howell, and I am going to call him Savo. He returns it to Savo and says to him that it was the wrong cargo. You know it was in fact the right consignment because that was the consignment number that was given to him; that was the consignment. The fact that he said it is the wrong goods or the wrong delivery does not mean that it was. You really have, depending on what you make of the evidence, the possibility that there was something in it which was taken out but, of course, never discovered because the police authorities at that stage were still playing catch-up. They did not know that the delivery had been made until some later time. What you have is the possibility in respect of that consignment that there was something in it that was removed. You would think there would be little point in arranging for this to happen unless there was something in it, but, as I say, there is actually no evidence that there was anything in it. Nonetheless, what you have is an organisation of great sophistication. It is able to source drugs in various countries. You know that at least from Bangladesh and from Abidjan two different substances were sourced. These were not small quantities. There was a gross weight of approximately 77 kilos of pseudoephedrine in its impure form; there was a gross weight of 9.96 kilos of methamphetamine sourced from a different country. There were, as I would suggest to you, and it seems to be accepted by the parties, matters involving very significant quantities from which very substantial profits could be made in Australia, as you heard. Even though very substantial profits can be made in Australia, obviously, there had to be a substantial cost to obtaining this material, whatever it was, overseas. So you might think that a sophisticated organisation capable of doing that would want to ensure before it arranged to purchase the drugs overseas, presuming no one gives them away for free, to arrange a system whereby it may be able to get them into Australia without them being detected. So that requires forethought and you would think you would at least want to know it was all in place before you sourced the drugs, before you had someone pack them overseas, before you had someone overseas take them to DHL or some forwarding company to put them into the chain to get them delivered to Australia. You would want to make sure that before you did that, you knew how you were going to obtain them with the lowest prospect possible in Australia of being detected in doing so. As part of this sophisticated operation, you need to contemplate all of those matters in advance. …" (italics added)
After referring to exhibits establishing the date of each consignment the trial judge continued : "Do you send drugs, whatever they may be, from various foreign countries without knowing how you are going to access it when it arrives? As I have said, you would need to be reasonably certain that you had a system in place. The Crown case here is that there was a system in place. The system in place was to intercept consignment 1 and consignment 2 in between the cargo terminal operator and the DHL in-bond warehouse. The cargos were easy to move from the container terminal by way of a system which was intercepted part way through by the boxes being taken off the Wymap truck. Could you do this in circumstances where, unless you had some firm arrangement in place, it would not occur? You would need to ensure that Mr McKell, since he was the man who took the consignments off the Wymap truck, you would need to know he was not going to be on holiday, he was not going to be in hospital, and that if he was available he would do it. You need to know in advance how you might do it: that is, you might think you would need to know from someone intimately involved in the industry how this might be accomplished. The object, obviously, you might think, was to intercept the cargo before it got to the in-bond warehouse and might be later checked by Customs, and before it was cleared, to get the substance out of the consignment to either send it on without replacing it or to substitute something else for it so that when it got to the DHL warehouse, if it was checked, everything would be - to use Mr McKell's phrase - kosher: that is, nothing would be detected. Of course, that does not necessarily mean that Mr McKell was the person who came up with the scheme for how it could be gotten in, but certainly, the system needed to have someone like Mr McKell to actually intercept the cargo and do what did happen. You might think it needed to have premises where a removal or a substitution could take place not too far away because of the need to return the cargo to the Wymap truck in order to get it to the warehouse before anyone might detect that somehow it was not, having left the cargo terminal operator, reached the in-bond warehouse. You need to be fairly certain about how it is going to be done and who is going to do it. You need certainty, because there is too much at risk. Ladies and gentlemen, I do not intend to, as I have said, take you through all of the material that the Crown has referred to. As I have said, this was a sophisticated operation; it had to have some certainty about it, otherwise, you waste all the money you spend overseas, you do not make the profits here, and it fails."
Counsel for the appellant applied for a discharge of the jury as a consequence of the trial judge's summing up to the jury in relation to the first consignment. Senior Counsel for the co-accused also made such an application.
The trial judge rejected the applications and immediately gave the following directions to the jury : "I should remind you of something that I said yesterday, which is that it is your function to decide the facts in this case, and not my function. While I am entitled to express a view about the facts, that is a view that you should ignore unless it happens to accord with your own independently arrived-at view. I have not been endeavouring to express any particular view of the facts. If you think that is so, then please ignore what you think I have expressed in relation to any facts. In relation to the first consignment, I should remind you, and I think I did refer to there being a possibility of it having had drugs in it, that there is in fact no evidence of any drugs in relation to consignment 1. The relevance of consignment 1 in this trial is, really, as to system, and how it was removed from the Wymap truck and later returned, being evidence of the particular system in relation to that cargo which, it is a matter for you, you might find has some relevance to what happened in relation to consignment 2. But consignment 1 was forensically examined after it was obtained by the federal police, and there was no evidence at all that it did or had contained any prohibited precursor drug or illegal substance. As I said, the relevance of consignment 1 is really as to system."

Appellant's submissions

Mr Jordan SC, who appeared for the appellant in this Court, in a careful and helpful oral address effectively made two submissions about the trial judge's summing up of the evidence of the first consignment.
First, it was submitted that the trial judge raised a suggestion implicating the appellant in an importation of drugs by raising the "possibility" that there were drugs in the first consignment in circumstances where: 1. there was no evidence that drugs were in the first consignment; and 2. following a pre-trial ruling, the evidence of the first consignment was permitted to be adduced for a limited purpose.
The appellant submitted that such a suggestion invited tendency reasoning and impermissible speculation, which was inimical to the basis for which the evidence was allowed by Baly DCJ.
The appellant submitted that he was denied the opportunity to address the suggestion that drugs had been in the first consignment because it was raised for the first time in summing up.
Secondly, the appellant submitted that the trial judge's remarks that an "organisation of great sophistication" would not have proceeded without "someone intimately involved in the freight consignment industry, such as the appellant, that the consignments could be successfully intercepted and substituted" caused a miscarriage of justice in circumstances where it was never the Crown's case that the involvement of somebody like the appellant (who worked in the freight industry) was essential to the success of a sophisticated drug operation.
The appellant emphasised that this complaint is directed towards the way the propositions were expressed to the jury. That is, they were not framed as a summary of the Crown's submissions, but rather they were expressed as a "rhetorical flourish" and were effectively an extension of the Crown argument by the trial judge.

Crown's submissions

The Crown submitted that the trial judge's summing up was consistent with the pre-trial ruling by Baly DCJ. The trial judge made it clear that the evidence was relied upon by the Crown as evidence of an organised and planned system that had been devised for the interception of the drug contained in the second consignment and therefore as evidence from which it may be inferred, when viewed together with other evidence, that the appellant was a willing and knowing participant in that enterprise.
The Crown submitted that the trial judge did not suggest to the jury (expressly or implicitly) that there were drugs in the first consignment. His Honour repeatedly told the jury that there was no evidence that the first consignment contained the drugs.
The Crown further submitted that the trial judge took appropriate steps to correct and rectify any wrong impression that the jury may have had with respect to the evidence of the first consignment.

Evidence at trial

The appellant gave evidence in relation to the money the subject of count 3, contending that it was from his gambling winnings which he had accumulated over a number of years.
Evidence was adduced at trial by the Crown of the appellant's online betting accounts with Tabcorp and William Hill/Sportingbet without objection (Exhibits 71 and 72). Exhibit 72 revealed that the appellant had deposited about $131,000 into an online William Hill account, making "total bets" of $676,117.12. His "total wins" are recorded as $539,939.39. Exhibit 71 showed that in 2012 and 2013, the appellant deposited $112,000 into an online Tabcorp account. He made "total bets" of $386,905.50. His "total dividends" were $268,970.62.
Each online account in fact shows very substantial losses, being the difference between the "total bets" and the lesser amount of "total wins/dividends". For example, in considering the net effect on the account, over an 18 month period (from 28 February 2012 - 29 August 2013), in respect of the Tabcorp account, the appellant lost over $100,000.
In cross-examination of the appellant the following exchange took place: "Q. The difference between those, would you agree, it's a loss of about 117 grand or so that you made on that account in that just over a year period or almost 18 month period. See that? A. Yes"
The appellant said that although he made very substantial losses on his online accounts, he made a substantial cash profit betting at the TAB for which he had no records: "Q. If we look at the only independent evidence that we have in this trial of the success of your gambling, if we, look at exhibits 72 and 71, the records from your online account. It's showing losses of about $250,000, isn't it? A. Well it shows in one there was over a half a million dollar in wins. And yeah, I've re-punted that but it still shows that there's a fair bit of success. And in the other one there's a quarter of a million wins."

Trial judge's summing up

The relevant parts of the trial judge's summing up are as follows: "Mr Howell [Counsel for the appellant below] was putting to you in relation to those accounts that they indicated that the accused, Mr McKell, was a successful gambler because of those substantial winnings shown in each of the accounts. Certainly, by comparing the deposits to the total bets, he would seem to have done very well. But you have to take into account what the net effect on the account was. He had in fact over the 18 month period in respect of the Tabcorp account lost $117,934.88, and that was in the period from 28 February 2012 to 29 August 2013. He had actually lost all of that money which he had had to put into the account in order to make the bets. In respect of the William Hill gambling account, you were referred to the fact that he had deposited $131,280 odd for total wins of $539,939, apparently another indication that he was a successful gambler. The difficulty with that, you might find, is that he had in fact lost and had to put into the account in order to do that gambling $136,177.73. So between those two accounts and, of course, the Hill Smith account was from December 2006 to May 2013, but between those two accounts, he had lost and had to actually put in the money, had lost that money, the total being $254,112.61, a quarter of a million dollars. If that is an indication, as put to you by Mr Howell that he was a successful gambler, having lost over a quarter of a million dollars, then, you certainly would not want to be an unsuccessful gambler, would you? When you think about it, to have lost that much and to still have the $400,000 in cash and to have been able to deposit approximately $50,000 in cash over time into his bank account, those are the cash deposits as referred to by the Crown, not his salary and so on, he would seem to have to have made something in the vicinity of $700,000 in order to have sustained that loss and still have that much left in the tin box and the $50,000 actually put into his account. Of course, the Crown's point in relation to those two accounts is that they indicate that in fact he was not a successful gambler at all, whatever evidence you may have heard from those who have seen him apparently have some fairly spectacular wins on occasion. They may be able to tell you about the wins, but they cannot tell you about the losses. They remember what has happened on occasions when they have been with him on these visits to Queensland, or elsewhere, but, of course, Mr Howell also relies on the fact that he had, apparently in March or April, he had some significant amount of money in his bedroom because he showed it to his then girlfriend, Amanda Porter. She could not say how much it was, but, certainly, she believed he had a substantial amount in his bedroom and it should not have been there or he should have taken steps to look after it more securely. …" (italics added)

Appellant's submissions

The appellant submitted that the trial judge's statement with respect to the "difficulty" in the accused's counsel's submissions in relation to the appellant's gambling successes posed a rhetorical question belittling counsel's submission. The appellant submitted that the import of the trial judge's remarks was that the jury should reject the submissions of counsel for the appellant below.
Senior counsel for the appellant emphasised in oral submissions that it was the specific context of the "rhetorical flourish" which the trial judge put to the jury that caused a miscarriage of justice.
The appellant further submitted that the fact that there were substantial losses in the appellant's online banking account was relevant but not determinative in circumstances where the defence case was that the appellant gambled with cash in different circumstances, and effectively used the cash as a bank for successful horse betting.

Crown's submissions

The Crown submitted that the records clearly demonstrate that the appellant had lost more than a quarter of a million dollars through online gambling. Further, the records did not establish that the appellant achieved a total profit of $800,000 from gambling.
The Crown submitted that the trial judge's comments were made in circumstances where the appellant's counsel had only invited the jury to consider part of the records and not the net effect.

Evidence at trial

Evidence of the relevant text message was contained in Exhibit 17. It was sent by the appellant to his co-accused, Mr McGlone, on Monday 20 May 2013 at 8:39:46. It stated: "Dont forget to tape trial"
The appellant gave evidence in chief about the text message: "Q. There's then an entry at 59 at 8.39 for a message that was sent by you to Mr McGlone that read, 'Don't forget to tape trial.' I failed to ask you a question about that yesterday. What do you recall were the circumstances in which you sent that message to Mr McGlone at that time, at 8.39? A. I have no idea, I have no idea. I don't know why. I'm talking horses, like I don't know why I sent that."
In cross-examination the following exchange took place: "Q. You sent him a text message at 8.39am that said, 'Don't forget to tape trial'? A. Yes. Q. Do you recall that? A. Well, it's there but yeah, I can't recall what it means. Q. So this is the message that you say you don't recall sending but you accept that it's part of the records that have been obtained? A. Yes. Q. And in fact you don't really have any idea about what that message meant, is that right? A. Yeah, I can't - yeah, I don't know why or what it was in reference to."
The Crown put to the appellant that what the text message really meant was that Mr McGlone should not forget to tape up the boxes that were going to be used in the substitution of the pseudoephedrine in the second consignment. The appellant denied those suggestions.

Trial judge's summing up

While summarising the closing address of defence counsel at trial, in particular the evidence with respect to the second consignment, the trial judge made the following observations about the appellant's assertions that he was acting on behalf of a customer when he was arrested by police : "You might well think that in circumstances of being pulled up so urgently, having just removed the 22 cartons from the truck, surrounded by police with guns and vehicles, that, of course, he might have thought that they were there for a purpose, and that they knew something about what was happening. There is one matter in relation to that: did he appreciate that what was going to happen in the garage was the substitution of the pails of plastic powder for the pseudoephedrine, and that the system that had been used in relation to consignment 1 was to happen? Was he doing another of these deliveries where, when he got it to the person who he believed was the owner because he was able to give him the consignment number, was going to take it and take it away, as you would expect, or was he in the knowledge that what would happen was a substitution? Of course, you do have the evidence of Mr McGlone after he was arrested that what was in the pails was the substitute, but you cannot use what Mr McGlone said to the police about that. It is only tendered in the Crown case in respect of Mr McGlone. Mr McKell is not responsible for that comment. But did Mr McKell know that that was what was going to happen, and you might find some clue to that in relation to the calls and the very circumstances. Obviously, Mr McGlone was there with I think 80 kilos of substance in pails, ready to put it back into the boxes once the pseudoephedrine was taken out. Was he somehow going to accomplish this with all those pails in the absence of Mr McKell, without Mr McKell being aware of it. You might think that would be unlikely. Why did he have a substitute? Was he just going to take it all away and do it somewhere else and then bring it back somehow? Because if you are doing a substitution, the only purpose can be to put the goods back on the Wymap truck so they can be taken to the bonded warehouse, and so that nothing would be detected when it was there because it was a substitute by that stage. Was Mr McKell aware that that was what was in train, the same sort of process as with consignment 1, at least in terms of its return to the Wymap truck and continued delivery to DHL?."
The trial judge in summing up referred to the text message in the following terms: "You have, of course, on Monday 20 May 2013 as part of Exhibit 17, a message from Mr McKell using the 655 phone in the false name to Mr McGlone, using the 687 line in the false name, a message you might think which is very revealing in relation to what Mr McKell expected to happen. He says to him, 'Don't forget to tape trial'. What was that in relation to, ladies and gentlemen? Mr McKell, when he was asked about this when he gave his evidence, said he had no idea; he did not know why, 'I talk in horses; I don't know why'. That may not be a precise quote of what he said. Is not that, I suggest to you, a very revealing text, 'Don't forget to tape trial'? What is it that Mr McGlone did that day at Kennards? He bought cardboard boxes and, as you can see in the CCTV, he bought tape, clear tape this time, not brown tape that might show up or, perhaps, be more obvious, but clear tapes. What was the tape for? Why did he say, 'Don't forget to tape trial?' He is obviously not talking about horses, you might think, despite the fact that that is what he said. Why did he say he had no idea; he did not know why he had said that? Because it is so obvious ladies and gentlemen, you might think that it is a reference to making sure that Mr McGlone gets tape for the repackaging so that the substitution can be made and the cargo delivered back to the Wymap truck and onto the DHL warehouse under bond and so that on one will realise, in fact, the drugs have been removed. Whatever happens to the cargo thereafter does not matter. It is not going to obviously find some person to be delivered to because the eventual consignee did not exist, but that does not matter; the cargo in terms of the records, if it is inspected by Customs in the DHL warehouse or at any time thereafter, there would not have been anything other than a number of pails with an innert [sic] plastic substance, not a prohibited drug." (italics added)

Appellant's submissions

Senior Counsel for the appellant submitted that the trial judge's remarks with respect to the text message being "very revealing" and "so obvious" conveyed to the jury that the trial judge considered the appellant was obviously knowingly involved in the importation of drugs in circumstances where knowledge as to whether or not the second and third consignments contained prohibited drugs was a central issue at trial.
The appellant submitted that "[i]s not that, I suggest to you, a very revealing text" was entirely inappropriate as it was framed as effectively the Crown Prosecutor's address and from this point the trial judge's summing up was irreparably damaged in the context of the trial judge's preceding remarks.
The appellant further submitted that the remarks were expressed as the trial judge's views of defence counsel's submissions rather than a reprisal of the Crown's closing address.

Crown's submissions

The Crown submitted that it is clear the trial judge did not refer to any of the Crown's arguments with respect to the text messages and it was not appropriate for him to refer to the appellant's evidence on that issue. The Crown submitted that his Honour dealt with the summary of the Crown case in a more generalised way, leaving some of the specific aspects of the Crown case to be dealt with when summing up the appellant's case.
The Crown further submitted that the trial judge's remarks reiterated matters put to the appellant in cross-examination. His Honour's reference to the text message being "very revealing" served to convey the trial judge's view that it was a very important piece of evidence that the jury should consider in context. There was no suggestion that the jury should conclude as a fact that the Crown's argument was correct or that his Honour had formed that opinion. So much is clear from his Honour's repetition of the phrase "you might think" to the jury.

Consideration

As noted at the outset, it is the fairness of the summing up as a whole which is the subject of complaint here. Before addressing that issue, however, it is necessary to record my findings about each of the individual complaints before the summing up as a whole can be considered.
The first issue is the one raised about drugs in the first consignment. In summing up, the trial judge did not specifically raise the possibility that any drugs were in the first consignment. His Honour did, however, suggest that "something" was in the first consignment.
The forensic evidence at trial did not reveal any trace or indication that there were drugs in the first consignment. It would have been far preferable if the trial judge did not make the remarks which have been italicised at [39] above.
I have concluded, however, that his Honour's remarks to the jury did not, of themselves, cause a miscarriage of justice. The correction made by the trial judge was close in time to the italicised remarks and was an emphatic withdrawal of the inappropriate implication.
Juries can be expected to follow directions: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at 425 [31]; R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177 at [17]-[21]; AW v R [2016] NSWCCA 227. The jury was told in clear terms that there was no evidence that the first consignment contained drugs and that to the extent that they understood the trial judge to imply to the contrary, they should disregard what he said.
The complaint directed to the trial judge's remarks with respect to the appellant playing an important role in a "sophisticated organisation" should be rejected. Indeed, the Crown relied upon the evidence of the first consignment to establish a "system". Contrary to the appellant's submissions, the trial judge was not taking this matter further than how the Crown Prosecutor put it to the jury at trial. This is illustrated in the Crown Prosecutor's opening address to the jury: "The Crown says that you would look at the relationship between the accused McGlone and the accused Mr McKell, the use of the phones subscribed to in false subscriber details, the context of the accused McKell's fingerprints being on the tape that was the subject of consignment 1, to infer that the accused McKell had opened consignment 1 only a few days before picking up consignment 2, and think that the accused McKell is very involved in what is going on to such a degree that you will be satisfied that he knew or believed that another person was going to use what was in those boxes to manufacture a controlled drug and of course the Crown also points to the value of what was imported, and you will hear some evidence in relation to the value of pseudoephedrine to support the inference that if somebody somewhere in the world has sent this very valuable substance to Australia and someone is picking it up, that they know what is in there and what it will be used for."
This argument was echoed by the Crown Prosecutor in closing submissions in the context of establishing that a sophisticated system is essential when a commodity of considerable value is at stake: "The next part of the evidence that I want to move to which supports the Crown case in relation to the accused's McKell's belief is that the substance imported could be used to manufacture a controlled drug and that he believed or was at the very least reckless as to it being a border controlled precursor is the extraordinary valve [sic] of what was actually imported in consignment 2. So you heard evidence from Detective Scholtes, a very experienced police officer, one of the last witnesses, that pseudoephedrine is highly sought after on the black market to manufacture methamphetamine and can command up to $90,000 a kilo on the black market. He estimated the worth of the pseudoephedrine in consignment 2 as being of itself in the millions and millions of dollars. If it was used to manufacture methamphetamine, Detective Scholtes said on his calculations it would yield an amount of methamphetamine that would be worth millions and millions of dollars if it was sold by the kilo. So no matter what way you look at it, what we are really talking about in consignment 2 is a very, very valuable commodity indeed. You might think how does that work, how can I take that into account when I'm looking at Mr McKell's state of mind in relation to the contents of this consignment? The value of this drug, as the Crown says, is relevant for this reason: Someone somewhere in the world has invested a lot of money in sending this product overseas and that those entrusted with taking control of it, like McKell, the Crown says, would know what it was to be used for. So somebody has gone to a lot of effort packaging it in pales [sic], producing some fake labels and can I suggest to you that somebody doesn't part with things that are worth millions of dollars without knowing that there is going to be some security, that is, without knowing that the people who are going to be looking after their valuable item at the other end are in fact going to look after it. It would defy belief, the Crown says, that somebody would do that with something worth that amount of money and entrust it to somebody who was not in on it and didn't know anything about it, didn't know that what they were taking delivery of was very valuable indeed. Again the Crown says that you would accept the inference from the evidence about the way Mr McKell conducted himself in relation to the consignment, consignment 2, but also consignment 1; the inference that he did appreciate that there was a substance in consignment 2 that could be used to manufacture a controlled drug and, at the very least, appreciated the risk that it was a border controlled precursor." (italics added)
In my view, what the trial judge did on this topic was doing no more than summarising an argument which had been made to the jury by the Crown and which, in essence, was the reason that Baly DCJ had correctly left this evidence to the jury.
It was the Crown's case before Baly DCJ that the evidence about the first consignment was part of evidence of a system. The underlying fact proven by the first consignment was that the appellant was a crucial part of the system of importation used for the second and third consignments. That was a submission made by the Crown, and Mr Jordan SC frankly conceded, "I can't say that it was not".
It will be recalled that in the trial judge's re-direction he relevantly stated: "In relation to the first consignment, I should remind you, and I think I did refer to there being a possibility of it having had drugs in it, that there is in fact no evidence of any drugs in relation to consignment 1. The relevance of consignment 1 in this trial is, really, as to system, and how it was removed from the Wymap truck and later returned, being evidence of the particular system in relation to that cargo which, it is a matter for you, you might find has some relevance to what happened in relation to consignment 2. But consignment 1 was forensically examined after it was obtained by the federal police, and there was no evidence at all that it did or had contained any prohibited precursor drug or illegal substance. As I said, the relevance of consignment 1 is really as to system."
A few observations can be made about this re-direction. First, the trial judge addressed the jury as if he in fact had earlier suggested to the jury that there were drugs in the first consignment. This is important as his Honour thereby squarely addressed what was perhaps one possible inference able to be drawn by the jury from his remarks about "something" being in the first consignment. Secondly, in context, the trial judge explained to the jury, and underlined that explanation in his conclusion, that there was no evidence of drugs in the first consignment. Thirdly, the trial judge emphasised the importance of the evidence as relevant to evidence of system, which it clearly was on the Crown case.
The trial judge's initial error in summing up to the jury was immediately corrected. That error did not, of itself, give rise to any miscarriage of justice. I will return to this topic after having addressed the other individual complaints about the summing up.
As to the complaint about the trial judge's summing up concerning the appellant's gambling "winnings", the problem for the appellant was that the submissions made on his behalf at the trial about the documentary evidence of gambling losses was presented to the jury by the defence in a way which was misleading. Fairness dictated that the trial judge correct that impression.
It was put to the jury by counsel for the appellant at trial that Exhibits 71 and 72 were evidence that the appellant was a successful gambler. That submission had the potential seriously to mislead the jury. Properly understood, as Mr Jordan SC accepted in this Court, those documents demonstrated that the appellant had lost over $100,000 in each of two accounts in online gambling over an 18 month period. The trial judge was permitted to correct this defence submission and no miscarriage of justice was occasioned by him doing so.
The true cash position of the appellant, based on what was said to be cash winnings separate from the online horse gambling was, on the evidence, quite unclear. The submission advanced on the appellant's behalf was that despite being unsuccessful to the extent of over $200,000 in 18 months of online gambling, said to be limited to "multi" bets on horses (where apparently the winners of multiple horse races must be selected), the appellant was nonetheless a remarkably successful cash punter on individual horses. There was no documentary support for this latter contention. The appellant's submission is that despite losing over $200,000 on multiple bets on horses, the appellant was nonetheless able to select sufficient winning horses in the same period to make a cash profit of approximately $800,000.
The Crown case at trial was that this suggestion was risible: "… You might also think that his claims of success as a gambler, and I don't just mean the occasional big win here or there but a pattern of winning over time and no commensurate losses, according to Mr McKell, is also not believable. You know the expression the house always wins, the gambler always loses. Mr McKell would have you believe that he was the exception to that rule, in effect, and that he had the self-discipline that he had devised some system or was using some system where he could win money, come out on top and also that he had the self-control to squirrel away his winnings which allowed him to accumulate all that money in that time in that way in that box. Mr McKell doesn't produce any ledger of the wins that he had of his gambling activities, any record of the gambling activities that we can use to check off the amounts of money available to him and how it was that he came to be earning, in effect, all of this money from gambling, but what we do have in the Crown case is some very concrete evidence of losses that he made from gambling, so evidence that suggests he is not the successful gambler who is able to, at the end of the day, have about $400,000 sitting there in cash as a result of his successful gambling. What I am referring to there is exhibits 72 and 71. Exhibit 72 was some records from his Sportingbet account. There's no contest that Mr McKell was a gambler. The Crown isn't saying that Mr Gambler didn't gamble, and you heard the evidence from various witnesses that were called on behalf of Mr McKell that he was a gambler. There's no contest about that. The question is whether or not he was able to accumulate that amount of money from gambling."
The only evidence of successful gambling by the appellant was in terms of generality. With respect to the online betting account there were debits, credits, and an answer, in numbers, which demonstrated that the appellant had lost considerable sums on horse punting over an 18 month period. With respect to the suggested successful cash gambling on horses the only evidence was the oral evidence of the appellant and evidence of friends, expressed at a high level, that they had witnessed large "wins".
The defence address created an issue that the trial judge needed to correct in his summing up about the relevance of documentary evidence of "wins" and the related confusion about the evidence concerning online betting. The real issue for the jury was what the available evidence showed about the appellant's success, or otherwise, as a gambler. In the light of the clear documentary evidence of considerable losses suffered by the appellant on horse racing during the relevant period, the trial judge was entitled to comment sceptically in the way that he did about the evidence of successful gambling on horse racing for which there was no documentary support.
It would, however, have been far preferable if the trial judge had not engaged in the rhetorical flourish about the gambling losses which I have cited above. The trial judge's remark could have been understood by the jury as belittling defence counsel's submissions. More care should have been taken by the trial judge to avoid this possibility. Nonetheless, viewed in the context of the issue the trial judge was addressing and the submission that documentary evidence of large losses was in fact evidence of significant gambling winnings, the trial's judge's remarks did not give rise to a miscarriage of justice.
So far as the "tape trial" text message is concerned, there was no error in the trial judge addressing this issue with the jury in the way he did. The trial judge was entitled to comment on the evidence given in the trial. The appellant was in close contact via text with the co-accused. He had no explanation for the message. The trial judge prefaced his remarks with "you may think", a clear indication that the appropriate factual finding was one for the jury, in the context of directions the trial judge had earlier given about the jury's role as sole arbiters of the facts.
The appellant's real complaint is that the cumulative effect of each of these matters, the suggestion of drugs in the first consignment, the comments about gambling "success" and the "tape trial" text message, gave rise to an unbalanced summing up and occasioned a miscarriage of justice.
I have given careful consideration to this submission but have concluded that viewed as a whole the trial judge's summing up did not give rise to a miscarriage of justice.
It would have been far preferable if the trial judge had not initially implied that evidence of the first consignment could be used for any purpose beyond that suggested by the Crown. His Honour's subsequent directions to the jury, however, corrected the impression that may otherwise have been given and no miscarriage was occasioned. When put together with the remarks made by the trial judge to the jury about gambling, and the tape trial, no different conclusion emerges.
The first error, relating to the first consignment, was corrected immediately and fully. It should be assumed that the jury followed his Honour's clear direction to dismiss completely any earlier suggestion that drugs were involved in the first consignment. There is no substance in the complaint about the trial judge's reference to a sophisticated system of importation. The evidence about the first consignment aptly met that description and it was the reason the evidence was led by the Crown and allowed by Baly DCJ.
The second matter, the trial judge's remarks about gambling winnings, whilst unfortunate, in the context of a long and detailed summing up were of no real significance. One unfortunate remark, in a summing up such as this, did not give rise to a miscarriage of justice, even when considered together with the other matters here addressed.
The third matter, the trial judge's remarks about the "tape trial" text message, comprised no more than a typical and permissible comment by the trial judge about a finding of fact that he carefully explained was a matter for the jury.
Putting these three matters together does not lead me to conclude that the trial judge stepped outside his role in holding the balance between the contending parties without himself taking part in the dispute. In the context of a long and detailed summing up, these three matters do not lead me to conclude that the trial judge exercised an inquisitorial role in which he sought to remedy deficiencies in the Crown case. Neither did the trial judge's comments on various factual issues cause, reading the summing up as a whole, any miscarriage of justice in the light of the clear and oft repeated directions to the jury that the facts to be found were matters for the jury and if any comment by the trial judge did not accord with their view of the facts they should disregard it. The trial judge did not, in language borrowed from Robinson, "don the mantle" of prosecution counsel.
This was a very strong Crown case. The summing up as a whole was not unfairly lacking in balance. When considered in its entirety and in the context of the issues in the trial, the summing up did not give rise to a miscarriage of justice.
I propose the following order: 1. Appeal dismissed.
BEECH-JONES J: One component of the fair trial to which the appellant was entitled was a summing up by the trial judge which put his case and the prosecution case "accurately and fairly" to the jury (Domican v The Queen (1991-1992) 173 CLR 555 at 561; Broadhurst v The Queen [1964] AC 441 at 464). The summing up is the last substantive discussion of the issues in the trial that the jury hears before they retire to consider their verdict. However, as explained below, instead of delivering an accurate and fair summing up, the trial judge in this case made an address to the jury the substantive parts of which were a sustained attempt to persuade them of the appellant's guilt. This rendered his trial unfair. A miscarriage of justice was occasioned.

The Ground of Appeal

The Crown and defence cases are summarised in the judgment of Payne JA which I need not repeat. The sole ground of appeal is that the trial judge's summing up to the jury caused a miscarriage of justice. In his oral submissions, Senior Counsel for the appellant, Mr Jordan SC, identified four aspects of the summing up which he contended cumulatively caused a miscarriage of justice. Although the identification of those four aspects was useful that should not obscure the fact that his overall complaint was that the "clear impression conveyed by the [trial judge] was that his Honour was firmly of the view that the correct result was for the jury to find the appellant guilty".
The first aspect of the summing up that was said to be unfair was the trial judge making the suggestion that prohibited drugs may have been removed from the first consignment before the authorities intervened. This was said to be unfair because it did not reflect any contention raised by the Crown Prosecutor and was inconsistent with a pre-trial ruling of another judge which lead to the evidence of that consignment being lead in the trial.
It is correct that in that part of the summing up set out in [39] the trial judge raised the possibility that drugs were removed from the first consignment. It is also correct that that suggestion had not been made in the trial by the Crown Prosecutor and was inconsistent with a pre-trial ruling given by another judge that enabled evidence of that consignment to be adduced. However, to an extent the harm occasioned by the suggestion was addressed by a direction given by the trial judge later in the summing up as set out below at [128].
The second aspect of the summing up that was said to be unfair was the suggestion raised by the trial judge that the relevant drug importation scheme was undertaken by an "organisation of great sophistication" which would not have proceeded without the assistance of "someone intimately involved in the freight consignment industry" such as the appellant. This was said to be unfair because it was not a suggestion raised by the Crown Prosecutor and the appellant was denied the opportunity to address it. However as explained by Payne JA at [79] to [80] the point ultimately being made by the trial judge largely reflected an argument that was raised by the Crown Prosecutor in his closing address.
Nevertheless, these conclusions do not exhaust the relevance of these parts of the summing up to the ground of appeal because the appellant contends that the language employed by the trial judge in these sections of the summing up (and elsewhere) support his overall complaint as described at [104].
The third aspect of the summing up that was said to be unfair were certain passages in the summing up concerning a text message sent by the appellant which it is said conveyed the trial judge's belief that the appellant was guilty (see [122]).
The fourth aspect of the summing up that was said to be unfair were certain passages in the summing up in which the trial judge is said to have "belittled submissions" of the appellant's Counsel which sought to explain the presence of a large amount of cash at the appellant's home by reference to his alleged gambling winnings. In particular it was contended that the trial judge used "rhetorical flourish[es]" to "crush" the submission made on behalf of the appellant (see [57]).
The relevant principle governing the third and fourth aspects of the complaints about the summing up (and what remains of the first and second aspects) was stated by Brennan J in B v The Queen (1992) 175 CLR 599; [1992] HCA 68 at 605: "A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury (…). It must exhibit a judicial balance (…) so that the jury is not deprived "of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence" (…). I agree with the observations of the Full Court of the Supreme Court of South Australia in Reg. v. Hulse ((1971) 1 SASR 327, at p 335): "(T)o use the words of the Privy Council in Broadhurst's Case ((7) (1964) AC, at p 464), there is a danger of the jury being overawed by the judge's views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge's views." Whether his Honour went too far in deprecating the defence case depends on the impression gained by reading the summing up as a whole [citing Green v The Queen (1971) 126 CLR 28; [1971] HCA 55 at 34]."
It follows that to address this ground, the summing up as a whole must be considered.

The Summing Up

The summing up commenced on the afternoon of 14 July 2016 and then resumed on 15 July 2016. The transcript of the summing up on 14 July 2016 comprises 28 pages. It included the standard directions concerning the jury's functions, a detailed description of the elements of the offence and the operation of the co-conspirator's rule (Ahern v R [1988] HCA 39; (1988) 165 CLR 87). Two matters should be noted about this part of the summing up.
The first is that the jury were told that they and not the trial judge were the judges of the facts. They were given the usual admonition that if the trial judge "happen[ed] to express any views upon questions of fact you must ignore those views". The trial judge also stated that he did not "propose to try to persuade you one way or the other in the case".
The second is the jury were instructed about the significance of the evidence given by the appellant. They were told that if they accepted the appellant's evidence he had to be acquitted. They were also instructed that if the Crown "failed to eliminate [the] reasonable possibility that the version presented by the [appellant was] true then the Crown had failed" to demonstrate his guilt beyond reasonable doubt and he had to be acquitted. Thus, the jury were told that the credibility of the appellant's evidence was crucial, that the task of assessing it was a matter for exclusively for them to consider and the trial judge would not seek to persuade them on that or any other matter.
The transcript of the summing up on 15 July 2016 comprises 48 pages. The first four pages completed the trial judge's directions on matters of law including directions as to drawing inferences and circumstantial evidence.
The trial judge then told the jury that he would not "spend a day repeating the Crown's case" but would instead provide "in effect, a common sense overview" being an outline of the Crown case "in a different manner to which the Crown has done it". The "common sense overview" occupies some six pages. It was during this "common sense overview" that the trial judge raised with the jury the possibility that prohibited drugs were removed from the first consignment and made the reference to a "sophisticated organisation" that needed someone to arrange receipt of the drugs such as the appellant. These portions of the summing up are set out in the judgment of Payne JA at [39] to [40]. As stated, other than the particular complaints noted in [105] and [107], Mr Jordan SC argued that these parts of the summing up were expressed in the language of persuasion rather than as a summary of the Crown argument. In this respect Mr Jordan SC is correct.
During the "common sense overview" the trial judge only stated once that it was the Crown's argument or the Crown's case. Otherwise the overview including the parts extracted at [39] to [40] was expressed in terms that conveyed an argument that the trial judge was himself putting to the jury ("What you have is the possibility … that there was something in it that was removed"; "As I have said, this was a sophisticated operation …"). At five points in the "common sense overview" the trial judge used the phrase "you would think" or "you might think". Each of these references was followed by a suggested conclusion that reinforced the Crown case (eg "The object, obviously you might think, was to intercept the cargo before it got to the in-bond warehouse …"). None of these references were followed by any reference to an alternative conclusion that was inconsistent with the Crown case. The jury were not reminded that the facts were exclusively for them to find.
The next part of the summing up dealt with the address of Counsel for the appellant. This occupied some 19 pages. His Honour identified ten "points" as having been made on behalf of the appellant by his Counsel. The first five points were a neutral recitation of Counsel's arguments. Unlike the "common sense overview" of the Crown argument, at every point of this part of the summing up the trial judge made it clear that he was restating the appellant's Counsel's argument ("He went on to say ..."; "He also referred you …"). The phrase "you might think" or similar is invoked three times in this part of the summing up. The first invocation is merely part of a discussion over whether Counsel for the appellant made a separate point or a subpoint. With the other two invocations of the phrase "you might [well] think", his Honour made it clear that he was recounting Counsel's argument ("He then came back …You might well think"; "So he said you might think that it is crucial ...").
The next part of the summing up dealt with what the trial judge identified as points 8 and 9 made on behalf of the appellant. The trial judge stated: "His point number 8 was that there was nothing about the appearance of the boxes on the Monday that would have indicated to [the appellant] the contents. His point number 9 was in respect of his co-operation with the police, that when he was arrested… he was then co-operative in that he gave his name, various other details, et cetera…… You might well think that in circumstances of being pulled up so urgently, having just removed the 22 cartons from the truck, surrounded by police with guns and vehicles, that, of course, he might have thought that they were for a purpose, and that they knew something about what was happening. There is one matter in relation to that: did he appreciate that what was going to happen in the garage was the substitution of the pails of plastic powder for the pseudoephedrine, and that the system that had been used in relation to consignment 1 was to happen? Was he doing another of these deliveries where, when he got it to the person who he believed was the owner because he was able to give him the consignment number, was going to take it and take it away, as you would expect, or was he in the knowledge that what would happen was a substitution? Of course, you do have the evidence of Mr McGlone after he was arrested that what was in the pails was the substitute, but you cannot use what Mr McGlone said to the police about that. It is only tendered in the Crown case in respect of Mr McGlone. Mr McKell is not responsible for that comment. But did Mr McKell know that that was what was going to happen, and you might find some clue to that in relation to the calls and the very circumstances. Obviously, Mr McGlone was there with I think 80 kilos of substance in pails, ready to put it back into the boxes once the pseudoephedrine was taken out. Was he somehow going to accomplish this with all those pails in the absence of Mr McKell, without Mr McKell being aware of it. You might think that would be unlikely. Why did he have a substitute? Was just going to take it all away and do it somewhere else and then bring it back somehow? Because if you are doing a substitution, the only purpose can be to put the goods back on the Wymap truck so they can be taken to the bonded warehouse, and so that nothing would be detected when it was there because it was a substitute by that stage. Was Mr McKell aware that that was what was in train, the same sort of process as with consignment 1, at least in terms of its return to the Wymap truck and contained delivery to DHL?." (emphasis added)
The first paragraph of this extract recounts Counsel for the appellant's argument. The rest of the extract is devoted to rebutting it. None of the rebuttal is expressed as a recount or summary of the Crown's argument. Instead the rebuttal is comprised of statements, observations and questions posed by the trial judge to the jury, all responsive and contrary to the argument of Counsel for the appellant. The phrase "you might think" or similar is invoked twice. Each invocation is followed by a suggested conclusion of fact favourable to the Crown but nothing is said to convey that it is a recitation of the Crown argument. No alternative conclusions consistent with innocence are suggested. The jury are not reminded that these are issues of fact solely for them to determine.
The next part of the summing up is at the core of Mr Jordan SC's argument. It deals with the text message sent by the appellant to his co-accused, Mr McGlone, which included the words "don't forget to tape trial". In respect of this, the trial judge stated: "You have, of course, on Monday 20 May 2013 as part of Exhibit 17, a message from Mr McKell using the 655 phone in the false name to Mr McGlone, using the 687 line in the false name, a message you might think which is very revealing in relation to what Mr McKell expected to happen. He says to him, 'Don't forget to tape trial'. What was that in relation to, ladies and gentlemen? Mr McKell, when he was asked about this when he gave his evidence, said he had no idea; he did not know why, 'I talk in horses; I don't know why'. That may not be a precise quote of what he said. Is not that, I suggest to you, a very revealing text, 'Don't forget to tape trial'? What is it that Mr McGlone did that day at Kennards? He bought cardboard boxes and, as you can see in the CCTV, he bought tape, clear tape this time, not brown tape that might show up or, perhaps, be more obvious, but clear tapes. What was the tape for? Why did he say, 'Don't forget to tape trial?' He is obviously not talking about horses, you might think, despite the fact that that is what he said. Why did he say he had no idea; he did not know why he had said that? Because it is so obvious ladies and gentlemen, you might think that it is a reference to making sure that Mr McGlone gets tape for the repackaging so that the substitution can be made and the cargo delivered back to the Wymap truck and onto the DHL warehouse under bond and so that on one will realise, in fact, the drugs have been removed. Whatever happens to the cargo thereafter does not matter. It is not going to obviously find some person to be delivered to because the eventual consignee did not exist, but that does not matter; the cargo in terms of the records, if it is inspected by Customs in the DHL warehouse or at any time thereafter, there would not have been anything other than a number of pails with an innert [sic] plastic substance, not a prohibited drug." (emphasis added)
This extract from the summing up reads like a Crown Prosecutor's address. Contrary to the statement in the opening part of the summing up noted in [114], in this passage the trial judge clearly did seek to persuade the jury to adopt a particular view of the facts and did so emphatically ("I suggest"). The use of the personal pronoun was reinforced by the twice repeated suggestion that the text message was "revealing" and the suggestion that a particular conclusion was "so obvious'. This was the language of persuasion. Nowhere in this passage is it suggested that this was the Crown's argument as opposed to the trial judge's personal view. Considered in context each of the three references to "you might think" in this passage were clearly invitations to the jury to draw the conclusion suggested by the trial judge favourable to the Crown. Alternative modes of thinking were not suggested. The jury were not reminded that it was solely their function to make findings of fact.
In considering the potential effect of this intrusion by the trial judge into the jury's function it is important to note that these comments were strongly adverse to the appellant's credit. The reference in the second paragraph of the extract in [122] to the appellant stating that "he did not know why" was to the evidence given by the appellant at his trial that he did not know why he sent the text message. The trial judge told the jury in no uncertain terms that it was his personal opinion that the appellant was lying when he stated in his evidence that he did not know why he sent the text message, and the appellant did so because he knew the truth would incriminate him.
After the passage noted in [122] the trial judge gave the jury an Edwards direction (Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63) in respect of certain alleged lies the appellant told the police when he was apprehended by the police. In contrast to the above passages, in this part of the summing up the trial judge expressly stated that it was the Crown's contention that he lied to the police (the "Crown says"). (Arguably the trial judge's own comment in [122] also required an Edwards direction but this was not a complaint made on appeal.)
The trial judge then addressed the tenth point that was said to have been made on behalf of the appellant which concerned the $400,150 in currency found at the appellant's premises and his explanation that it was winnings from gambling. The direction on that topic is set out in [57]. The first paragraph of that extract sets out the argument of Counsel for the appellant. The third paragraph sets out the Crown's argument. The middle paragraph is solely the trial judge's opinion. As noted by Payne JA at [92] it contains a rhetorical flourish that could have been understood as a belittling of Counsel's address. Further, in referring to what the jury "might find" the trial judge invited the jury to make a particular finding. This was the fourteenth time during the summing of the case for and against the appellant that the trial judge utilised that phrase or a similar one. One of those invocations was neutral and two made it clear that it was a recitation of the appellant's Counsel's argument. The other eleven were strong suggestions by the trial judge to the jury to make adverse findings against the appellant.
After this part of the summing up there was an adjournment. During the adjournment Counsel for the co-accused and the appellant complained about the statements made to the jury about the possibility that there were drugs in the first consignment. Counsel for the appellant also complained about the references in the summing up to a "sophisticated, international operation", the attack on the appellant's credit in referring to the text message about the "tape trial" and the comments made about his gambling winnings. Both Counsel applied to discharge the jury. These applications were refused.
After the adjournment His Honour returned to complete his summary of the appellant's case. At the conclusion his Honour stated: "I should remind you of something that I said yesterday, which is that it is your function to decide the facts in this case, and not my function. While I am entitled to express a view about the facts, that is a view that you should ignore unless it happens to accord with your own independently arrived-at view. I have not been endeavouring to express any particular view of the facts. If you think that is so, then please ignore what you think I have expressed in relation to any facts. In relation to the first consignment, I should remind you, and I think I did refer to there being a possibility of it having had drugs in it, that there is in fact no evidence of any drugs in relation to consignment 1. The relevance of consignment 1 in this trial is, really, as to system, and how it was removed from the Wymap truck and later returned, being evidence of the particular system in relation to that cargo which, it is a matter for you, you might find has some relevance to what happened in relation to consignment 2. But consignment 1 was forensically examined after it was obtained by the federal police, and there was no evidence at all that it did or had contained any prohibited precursor drug or illegal substance. As I said, the relevance of consignment 1 is really as to system." (emphasis added)
The second paragraph of this extract seeks to address the problem caused by his Honour inviting the jury to speculate that there were drugs in the first consignment. I have already accepted that, to an extent, this direction addressed the prejudice occasioned by that suggestion.
However, the problem with the summing up, one might think, is exemplified by the first paragraph of the extract in [128] specifically the assertion by the trial judge that he had not "been endeavouring to express any particular view of the facts". As noted a statement to similar effect was made by the trial judge at the commencement of the summing up. Both assertions were incorrect. Throughout the summing up the trial judge emphatically expressed a "particular view of the facts" namely one which involved a rejection of the appellant's evidence. No reasonable jury hearing the trial judge's summing up would have been left with any doubt that the trial judge was telling them that the Crown case should be accepted and the accused's evidence should be rejected. According to the trial judge, the "common sense overview" demonstrated the strength of the Crown case. It was "I suggest", said the trial judge, "so obvious" that the appellant was not telling the truth in his evidence in stating that the he could not remember why he sent the text message which referred to the "tape trial". Considered in context the phrase "you might think" was a rhetorical device used by the trial judge to emphatically suggest to the jury not just what they "might think" but what they should think and what they should find.
The trial judge then summarised the address of Counsel for the appellant's co-accused. Throughout that summary his Honour made it clear that it was Counsel's points that were being referred to.
At the conclusion of that summary his Honour reminded the jury that it was their duty to "determine the facts in this trial, not my duty" and "[i]f you believe that I have expressed any opinion about the facts in this trial, then you should ignore that opinion". His Honour then provided the jury with a number of directions concerning access to exhibits and the procedure for verdicts before they retired to consider their verdict. They deliberated for over four days before returning guilty verdicts.

Conclusion

The appellant's written submissions contended that the summing up "conveyed unequivocally that the [trial] judge considered the appellant" to be guilty. It was submitted that the summing up was "expressed as the [trial] judge's view of defence Counsel's submissions rather than a reprisal of the Crown prosecutor's closing address" and that overall the summing up was "imbalanced and lacked impartiality" in that it "both advanced the Crown case and undermined the appellant's case, but not the converse". It was contended that the objectionable remarks in the summing up were expressed in such strong terms that the trial judge's further instructions would not have been effective to "remediate the prejudice caused to the appellant".
The bulk of the Crown's submissions were directed to establishing that the substantive points made by the trial judge in the summing up reflected the manner in which the Crown ran its case and were otherwise justified because of the strength of the Crown case and weakness of the appellant's case including his own evidence. However, that does not address the complaint presently under consideration. It can be accepted that the obligation of a trial judge to provide an accurate and fair summing up does not mean that a weak case for an accused should be somehow improved. Equally even if an accused's case is weak, it is not the function of a trial judge to convey their opinion to that effect to the jury much less to endeavour to persuade them to accept that view.
The Crown also submitted that the trial judge's comments about the text message noted in [122] did not suggest that the jury should conclude as a fact that the Crown's argument was correct or that his Honour had formed that opinion. With respect that is impossible to reconcile with the trial judge's use of the personal pronoun ("I suggest") and the rhetoric that was employed to persuade the jury to reject the appellant's evidence ("so obvious" and "revealing").
The Crown also submitted that the repeated use of the phrase "you might think" or similar made "it plain that the conclusions to be reached about the text messages were matters for the jury". It can be accepted that the jury in this trial understood that the task of making findings of fact and rendering a verdict was theirs. Amongst other matters they would have deduced that from the emphatic efforts of the trial judge to persuade them as to what facts they should find including his use of the phrase "you might think" or similar eleven times in the way that he did. However, as the above passage from B v The Queen makes clear, a recognition that the jury were the trier of facts does not address a complaint about an unbalanced summing up, specifically one that seeks to persuade a jury as to what facts they should find.
The submissions noted in [133] should be accepted. To adopt the phraseology of Brennan J in B v The Queen, the summing up did not exhibit a "judicial balance" such that it deprived the jury "of an adequate opportunity of understanding and giving effect to the [appellant's] defence and the matters relied upon in support of the defence". The instructions to the jury noted in [114], [128] and [132] did not remedy the prejudice to the appellant occasioned by the summing up. There is simply too great a contrast between what the trial judge asserted he was not doing, ie not endeavouring to persuade the jury, and what he in fact did to avoid the conclusion that there was a miscarriage of justice. The ground of appeal is made out

The Proviso

In its written submissions the Crown submitted that even if the ground of appeal was established the appeal should be dismissed because "no substantial miscarriage" actually occurred (Criminal Appeal Act 1912, s 6(1)).
The Crown's contention should be rejected. A lack of impartiality in a summing up amounts to a "a significant denial of procedural fairness at trial" and "a serious breach of the presuppositions of the trial" such that a significant miscarriage of justice has occurred and the proviso is not engaged (see Tootle v R [2017] NSWCCA 103 at [92] to [95] per Fagan J citing Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81).
I would allow the appeal, quash the convictions and order a new trial.
FAGAN J: I agree with Payne JA. Whilst I have concluded for the same reasons as expressed by his Honour that no miscarriage of justice occurred, I wish to add emphasis to the observations that it would have been "far preferable" for the learned trial judge to have refrained from saying a number of the things he did say. I refer to Payne JA's judgment at [76], [92], [96] and [98]. With respect, considerably greater restraint and care should have been exercised by the trial judge to ensure that no criticism of the summing up, as exhibiting advocacy or lack of balance, would be arguable.

Amendments 18 February 2019 - Removal of superfluous "a" in [103]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 August 2020

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