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Court of Criminal Appeal 13 March 2013

RWC v R

[2013] NSWCCA 58

Sexual offences
APPEAL APPEAL AGAINST CONVICTION UNREASONABLE VERDICT CRIMINAL APPEAL ACT 1912 (NSW), S 6(1) FAILURE TO GIVE DIRECTION TO JURY JURY'S VERDICT NOT UNREASONABLE

Citation: RWC v R [2013] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 13 March 2013
Judge(s): McClellan CJ at CL, Latham J, Adamson J

Background

The appellant was convicted at a second trial of two counts of aggravated sexual intercourse without consent with his daughter when she was under 16 years of age (counts 3 and 4 on the indictment). He had faced four charges in total, relating to two separate occasions occurring within the same period. The jury acquitted him on counts 1 and 2, which concerned an earlier occasion, but convicted him on counts 3 and 4, which concerned a later occasion approximately a month apart.

The case was the appellant's second trial. His original convictions on all four counts had been quashed by the Court of Criminal Appeal in 2010 and a new trial ordered on unrelated grounds. The second trial, held in May 2011, proceeded largely on the basis of recorded evidence from the first trial and police interviews.

The prosecution case rested heavily on the complainant's account. The appellant called no evidence and relied on his record of interview with police. The different verdicts, with acquittals on two counts and convictions on two others, gave rise to both grounds of appeal.

  • Whether the convictions on counts 3 and 4 were unreasonable under s 6(1) of the Criminal Appeal Act 1912 (NSW), given the jury's acquittals on counts 1 and 2
  • Whether the trial judge erred by failing to give the jury a direction in accordance with R v Markuleski [2001] NSWCCA 290, requiring the jury to assess the complainant's credibility and reliability across all counts in light of any doubts arising on any individual count
  • Whether the absence of that direction denied the appellant a fair trial

Decision

First ground: Unreasonable verdict

The Court rejected the argument that the convictions were unreasonable. The different verdicts on the four counts did not produce any legal inconsistency. The jury was entitled to accept parts of the complainant's evidence while harbouring doubt about other parts. Latham J, with whom McClellan CJ at CL and Adamson J agreed, held that it was open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt of guilt on counts 3 and 4.

Second ground: Absence of a Markuleski direction

The Court upheld this ground. A Markuleski direction requires a trial judge to instruct the jury that, if it has doubts about the complainant's credibility or reliability on any one count, it must consider the effect of those doubts on its assessment of the complainant's evidence across all counts. In a case that turned almost entirely on the complainant's word, the jury's acquittals on counts 1 and 2 necessarily reflected some doubt about her account.

Without the direction, there was a real risk that the jury compartmentalised its doubts rather than allowing those doubts to inform its assessment of the remaining counts. The Court found that the appellant was denied the chance of an acquittal on all counts by this omission. The proviso (which allows a court to dismiss an appeal despite an error where no substantial miscarriage of justice has occurred) was not applied, as this was not an appropriate case for its use.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Convictions on counts 3 and 4 quashed
  • Sentences imposed by O'Connor QC DCJ on 4 November 2011 set aside
  • New trial ordered on counts 3 and 4

Key Takeaways

  • A Markuleski direction is required in a "word against word" case where the jury must assess a single complainant's credibility across multiple counts, so that any doubts about reliability on one count are properly carried through to the assessment of all counts.
  • Mixed verdicts, with acquittals on some counts and convictions on others in relation to the same complainant, do not automatically render the convictions unreasonable or legally inconsistent; the question is whether the guilty verdicts were open on the evidence as a whole.
  • Absence of the Markuleski direction, in the particular circumstances of this trial, denied the appellant a fair trial and constituted a ground for quashing the convictions.
  • The Court of Criminal Appeal declined to apply the proviso to preserve the convictions, finding the case insufficiently clear-cut to conclude that no substantial miscarriage of justice had occurred.
  • Where mixed verdicts reflect doubt about a complainant's reliability, the Markuleski direction serves to balance the separate consideration of each count by ensuring that credibility doubts are not siloed to the count on which they most directly arise.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules (NSW)

Cases:
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- RWC v R [2010] NSWCCA 332
- AE v R [2008] NSWCCA 52
- DF v R [2012] NSWCCA 171
- Jones v The Queen [1997] HCA 56; 191 CLR 439
- M v R [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- R v Ford [2006] QCA 142