High Court of Australia

McKell v The Queen [2019] HCA 5

13 Feb 2019

Case Number: S223/2018


Bell, Gageler, Keane, Gordon, Edelman JJ


Criminal practice – Trial – Summing-up – Where appellant convicted of drug-related offences – Where trial judge made comments on evidence that went beyond arguments advanced by prosecution – Whether comments apt to create danger or substantial risk that jury might be persuaded of appellant's guilt – Whether comments so lacking in balance as to be exercise in persuading jury of appellant's guilt – Whether comments unfair to appellant – Whether comments resulted in miscarriage of justice.

Criminal practice – Trial – Summing-up – Whether trial judge may make comments which convey his or her opinion as to proper determination of disputed issue of fact to be determined by jury.

Words and phrases – "comment on the facts", "discretion to comment", "disputed issue of fact", "duty to give fair and accurate instructions", "fair trial", "fairness", "fundamental task of a trial judge", "lacking in balance", "miscarriage of justice", "overawing the jury", "right to comment", "strong Crown case", "summing-up".


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