Citation: R v Lebler [2003] NSWCCA 362
Court: New South Wales Court of Criminal Appeal
Date: 11 December 2003
Judges: Meagher ACJ, Kirby J, Shaw J (Meagher ACJ agreeing with Kirby J; Shaw J dissenting)
Background
The appellant stood trial in the District Court at Lismore on three counts of sexual intercourse without consent under s 61I of the Crimes Act 1900. All three counts arose from a single night in December 1999 when the appellant and the complainant drove together to Nimbin. The alleged acts occurred in the appellant's car, parked in a remote area outside town.
The complainant gave evidence that the appellant had engaged in frightening and coercive behaviour before the alleged assaults. The appellant denied any non-consensual conduct and maintained the complainant had been willing throughout. The accounts of what happened after they left a park in Nimbin diverged sharply.
The jury acquitted the appellant on count 1 (penile penetration) but convicted him on counts 2 (cunnilingus) and 3 (penile penetration). The trial judge, noting the apparent tension in those verdicts, issued a certificate that the case was a fit one for appeal.
Legal Issues
- Whether the guilty verdicts on counts 2 and 3 were unreasonable in light of the acquittal on count 1, such that no reasonable jury could have reached them
- Whether the trial judge was required to give a direction (known as a Markuleski direction) telling the jury that any doubt formed on one count should be used when assessing the other counts
- Whether the trial judge placed impermissible pressure on the jury to reach a verdict, contrary to the principles in Black v The Queen
- Whether the jury received adequate directions on recklessness in the context of consent to sexual intercourse
- Whether the trial judge erred in failing to direct the jury that the appellant's denials were admissible on the same basis as the complainant's complaint evidence
Decision
The majority (Meagher ACJ and Kirby J) dismissed the appeal, finding no error warranting intervention. Kirby J, delivering the leading judgment for the majority, concluded that the verdicts could be reconciled. The jury was entitled to accept part of the complainant's account and reject other parts, including by accepting the appellant's own admission to police that only one act of penile penetration occurred. That acceptance could rationally explain the acquittal on count 1 without undermining the convictions on counts 2 and 3.
On the Markuleski direction, Kirby J accepted that such a direction can be required where counts are factually intertwined, but concluded it was not mandatory on the facts here and its absence did not result in a miscarriage of justice. The remaining grounds, including the pressure to verdict complaint, the recklessness directions, and the complaint evidence directions, were each examined and rejected.
Shaw J dissented. His Honour took the view that once the jury rejected a crucial element of the complainant's account by acquitting on count 1, it could not rationally retain sufficient confidence in her evidence to convict on the other two counts beyond reasonable doubt. Shaw J considered both the verdicts unreasonable and the absence of a Markuleski direction a miscarriage of justice, and would have allowed the appeal and entered acquittals on counts 2 and 3.
The divergence between Kirby J and Shaw J centred on how much weight the jury's partial acceptance of the appellant's account ought to carry when assessing the overall reliability of the complainant's evidence on the remaining counts.
Orders Made
- Appeal dismissed (per majority: Meagher ACJ and Kirby J)
Key Takeaways
- Inconsistent verdicts do not automatically warrant appellate intervention. The majority confirmed that a jury may rationally accept parts of one witness's account and reject others, and that apparent inconsistency can be reconciled where there is a logical, evidence-based explanation for different outcomes on related counts.
- A Markuleski direction (instructing the jury to carry any reasonable doubt from one count into its assessment of other counts) is not automatically required whenever multiple counts arise from the same incident. Its necessity depends on the specific factual relationship between the counts.
- Where an accused's own out-of-court admissions support one version of events, a jury may treat that admission as a partial basis for an acquittal without being obliged to discount the complainant's evidence entirely on the remaining counts.
- Shaw J's dissent illustrates that the boundaries of unreasonable verdict reasoning remain contested. His Honour concluded that once a jury rejected a central plank of the complainant's account, it could not rationally sustain convictions that depended on the same complainant's credibility regarding the appellant's knowledge of non-consent.
- The decision involved consideration of directions on recklessness in the consent context under s 61I of the Crimes Act 1900, and on the use of complaint evidence alongside an accused's denials, both areas where the adequacy of jury directions will be assessed against the particular facts and issues at trial.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Evidence Act 1995 (NSW)
Cases:
- Black v The Queen (1993) 179 CLR 44
- M v The Queen (1994) 181 CLR 487
- MFA v R (2002) 193 ALR 184
- MacKenzie v The Queen (1996) 190 CLR 348
- R v Markuleski (2001) 52 NSWLR 82
- R v Crisologo (1997) 99 A Crim R 178
- R v Kirkman (1987) 44 SASR 591
- Regina v ITA [2003] NSWCCA 174
- R v Colville [2003] NSWCCA 23
- R v Kitchener (1993) 29 NSWLR 696
- R v Tolmie (1995) 37 NSWLR 660
- Graham v The Queen (1998) 195 CLR 606
- Kilby v The Queen (1973) 129 CLR 460
- Crofts v The Queen (1996) 186 CLR 427
- Jones v The Queen (1997) 191 CLR 439