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Court of Criminal Appeal 19 November 2004

R v Tolmie

[2004] NSWCCA 396

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW VERDICT MULTIPLE OFFENCES ONE COMPLAINANT WHETHER VERDICT UNREASONABLE S 6 CRIMINAL APPEAL ACT 1912 (NSW)

Citation: Tolmie v R [2004] NSWCCA 396
Court: NSW Court of Criminal Appeal
Date: 19 November 2004
Judge(s): Tobias JA; Hulme J; Adams J

Background

The appellant was tried jointly with a co-accused in the District Court on three counts arising from a single incident in Kings Cross in the early hours of 29 January 2001. The complainant alleged she accepted a lift from the pair, was driven to a laneway, beaten with a gun, sexually assaulted, had money taken from her bra, and was pushed from the vehicle while her bumbag remained inside and was driven away.

The appellant and co-accused denied the Crown's account. They gave evidence that the complainant had entered their vehicle voluntarily to conduct a drug transaction, that a physical altercation broke out between the co-accused and the complainant over a prior drug deal, and that the complainant was not assaulted or robbed in the manner she described.

The jury returned a guilty verdict on Count 1 (detaining the complainant with intent to steal her money) but acquitted both accused on Count 2 (aggravated sexual assault) and Count 3 (armed robbery of the bumbag). The appellant appealed against his conviction on Count 1, arguing the mixed verdicts were irreconcilable and that the trial judge had failed to give a required direction.

  • Whether the guilty verdict on Count 1 was unreasonable or unsupportable under s 6 of the Criminal Appeal Act 1912 in light of the acquittals on Counts 2 and 3
  • Whether the acquittals on Counts 2 and 3 were logically inconsistent with the guilty verdict on Count 1, such that the jury must have disbelieved the complainant generally
  • Whether the trial judge was required to give a so-called Markuleski direction, warning the jury that rejecting the complainant's evidence on one count as dishonest or unreliable could affect the assessment of her credibility on the other counts

Decision

On the inconsistency ground, the Court found the verdicts were capable of rational explanation without any conclusion that the jury had disbelieved the complainant. The acquittal on Count 2 (sexual assault) could be explained by the jury entertaining a reasonable doubt as to consent or knowledge of non-consent, without necessarily finding the complainant dishonest. The acquittal on Count 3 (armed robbery of the bumbag) was similarly explicable: Hulme J observed that a layperson could reasonably take the view that the bumbag, left on the floor of the van as the complainant was pushed out, did not obviously fall within the ordinary understanding of armed robbery at that moment, even if the complainant's broader account was accepted.

The Court emphasised that acquitting on one count in a multi-count trial does not automatically mean the jury disbelieved the complainant. A jury may accept the complainant's evidence in substance while entertaining doubt about a specific legal element of a particular charge. The mixed verdict here was therefore not unreasonable within the meaning of s 6.

On the Markuleski direction ground, the Court held that no such direction was required on the facts. The Markuleski direction is relevant where the jury, in acquitting on one count, would necessarily have concluded the complainant was dishonest or unreliable in a way that must affect credibility on the remaining counts. Because the acquittals here were explicable on bases that did not require a finding of dishonesty, the absence of that direction did not give rise to any unfairness to the appellant.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a mixed verdict in a multi-count trial is not automatically inconsistent or unreasonable merely because one count results in acquittal and another in conviction.
  • Verdicts across multiple counts are only genuinely inconsistent where no rational explanation exists for the different outcomes; where the acquittal can be explained by doubt about a specific element rather than by wholesale disbelief of the complainant, no inconsistency arises.
  • A Markuleski direction (warning the jury that rejecting a complainant's evidence as dishonest on one count may affect credibility on others) is not required in every multi-count trial involving a single complainant. The obligation to give such a direction depends on whether the acquittal would necessarily imply the jury found the complainant to be dishonest.
  • Sufficient rational grounds existed for the jury to acquit on the armed robbery count (Count 3) without disbelieving the complainant, because the specific circumstances of the bumbag being driven away did not obviously satisfy the ordinary understanding of taking property from a person or from under their immediate personal care and protection while armed.
  • Under s 6 of the Criminal Appeal Act 1912, an appellate court will set aside a verdict as unreasonable only where it was one that a properly instructed jury, acting rationally, could not have reached. That threshold was not met here.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 90A, 97(1)
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules

Cases
- R v Markuleski (2001) 52 NSWLR 82
- M v The Queen (1994) 181 CLR 487
- MacKenzie v The Queen (1996) 190 CLR 348
- Jones v The Queen (1997) 191 CLR 439
- MFA v The Queen (2002) 77 ALJR 139