Citation: Regina v Lee [2004] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 7 May 2004
Judges: Sully J, Dowd J, Smart AJ
Background
The appellant was convicted in the District Court of one count of aggravated sexual assault, specifically that he inserted a hard object into the complainant's vagina without her consent and in circumstances causing her actual bodily harm. The offence was alleged to have occurred in a car park at Fairfield Showground in the early hours of 14 December 2001, following the appellant's abduction of the complainant from a street near Fairfield Police Station.
The complainant had spent the evening at Fairfield Police Station waiting for her boyfriend, who was in custody. After attempting to withdraw money from a nearby ATM, she was grabbed from behind, carried to a car, and driven to the showground. Medical examination conducted promptly after the incident confirmed actual bodily harm consistent with her account.
The jury acquitted the appellant on two other counts: count 1, alleging abduction with intent to obtain an advantage, and count 3, alleging a further aggravated sexual assault by digital penetration following the insertion of the hard object. Only the conviction on count 2 was appealed.
Legal Issues
- Whether the guilty verdict on count 2 was unreasonable having regard to the evidence and the inconsistent not-guilty verdicts on counts 1 and 3
- Whether the trial judge erred by failing to direct the jury that a reasonable doubt on one count should be taken into account when assessing the complainant's credibility across other counts (the so-called "Markuleski direction")
Decision
The Court of Criminal Appeal dismissed both grounds of appeal. On the question of whether the verdict was unreasonable, the Court considered whether it was open to the jury on the whole of the evidence. The complainant's account was supported by medical evidence confirming actual bodily harm and by police observations of her distressed condition both before she left the police station and when she returned at approximately 3 am. The Court was satisfied the verdict on count 2 was reasonably open on that evidence.
On the inconsistency between the verdicts, the Court considered how the jury may rationally have approached counts 1 and 3. The acquittal on count 1 was explicable by reference to a body of evidence creating reasonable doubt about the abduction element. The acquittal on count 3 was explicable by the fact that the digital penetration allegation had less supporting evidence than the hard object insertion in count 2. The Court was satisfied the verdicts were not truly inconsistent in a legal sense.
Regarding the Markuleski direction, the Court held that such a direction was not required in the circumstances of this case. The trial judge's summing-up had extensively canvassed the weaknesses in the complainant's evidence, the attacks on her credit, and the need for the jury to scrutinise her account with care. The jury could not have failed to appreciate that the complainant's reliability and truthfulness were the central issues at trial.
Orders Made
- Appeal against conviction dismissed
Key Takeaways
- A verdict of guilty is not unreasonable merely because a jury acquits on related counts, provided the conviction is independently supported by the evidence, including corroborating medical findings.
- Apparent inconsistencies between jury verdicts do not automatically render a conviction unsafe where a rational explanation exists for the different outcomes on separate counts.
- A Markuleski direction (instructing the jury to carry reasonable doubt on one count across to the assessment of a witness's credibility on other counts) is not required in every multi-count sexual assault trial; its necessity depends on the overall adequacy of the summing-up.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a thorough and balanced judicial summary of the evidence, which fairly exposes the weaknesses in the Crown case and the attacks on the complainant's credit, may satisfy the requirement to assist the jury in properly approaching inconsistent verdicts.
- No error was established in the trial judge's charge to the jury where the summing-up, taken as a whole, left the jury in no doubt about the need for careful assessment of the complainant's evidence.
Legislation and Cases Referenced
Cases:
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53
- R v Markuleski (2001) 52 NSWLR 82
Legislation: None cited.