Citation: BM v R [2017] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 19 June 2017
Judges: Basten JA at [1]; Adamson J at [40]; Campbell J at [52]
Background
The applicant was the de facto partner of a complainant's aunt. He was convicted on four counts arising from conduct alleged to have occurred when the complainant was between approximately 6 and 9 years old: one count of indecent assault, two counts of acts of indecency, and one count of sexual intercourse with a child under 10. The offences were alleged to have occurred across two separate visits to rural properties in north-west New South Wales in the late 1980s.
The trial was brief. Evidence was completed within two days, with the jury returning guilty verdicts on all four counts after approximately three hours of deliberation. The applicant was sentenced to 5 years and 9 months' imprisonment with a non-parole period of 2 years and 3 months.
Notably, the complainant's aunt gave evidence in the prosecution case and denied witnessing anything resembling the conduct described by the complainant, including the specific incident (count 4) in which the complainant alleged the aunt had entered the room and witnessed the applicant performing oral sex on her.
Legal Issues
- Whether the trial judge misdirected the jury by focusing on the accused's evidence in a way that improperly shifted the evidentiary onus onto the accused, thereby undermining correct directions on the burden of proof.
- Whether the trial judge misdirected the jury as to the significance of the aunt's evidence contradicting the complainant, and whether the so-called "Markuleski direction" (a direction concerning the use of contradictory evidence from witnesses) was formulated in error.
- Whether the verdicts were unreasonable and unsupportable on the evidence under s 6(1) of the Criminal Appeal Act 1912 (NSW).
Decision
Ground 1: Alleged shift of evidentiary onus. The Court refused leave on this ground. The trial judge had, throughout the summing up and in written materials provided to the jury, consistently and repeatedly directed that the prosecution bore the burden of proving each element of each charge beyond reasonable doubt. The two brief passages complained of were embedded in a summary of the accused's own evidence and could not be read in isolation from their context. No objection or request for further directions had been made by trial counsel, which was a relevant consideration in the leave analysis.
Ground 2: Markuleski direction. A Markuleski direction is one that explains to the jury how to approach evidence from one witness that contradicts the account of another, particularly in cases involving multiple counts or mutually corroborating allegations. The Court also refused leave on this ground, finding no error of the kind alleged in the formulation of the direction given.
Ground 3: Unsafe and unsatisfactory verdicts. The Court granted leave to appeal on this ground but dismissed the appeal by majority. Basten JA and Adamson J held that the verdicts were not unreasonable and could be supported by the evidence, notwithstanding the delayed complaint, the complainant's limited recall of surrounding circumstances, and the aunt's contradictory evidence. The majority applied the standard from M v The Queen (1994) 181 CLR 487, which requires the appellate court to ask whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt.
Campbell J dissented on ground 3. His Honour expressed particular doubt about the reliability of count 4 (the oral sex allegation), noting the implausibility of the aunt's alleged presence and reaction, and the limited opportunity for the broader pattern of offending alleged. Campbell J concluded those doubts extended to the other counts and would have allowed the appeal and quashed all convictions.
Orders Made
- Leave to appeal refused on grounds 1 and 2.
- Leave to appeal granted on ground 3.
- Appeal on ground 3 dismissed (by majority, Basten JA and Adamson J; Campbell J dissenting).
Key Takeaways
- A trial judge's isolated passages in a summing up will not constitute a misdirection on the burden of proof where the summing up as a whole, including written directions to the jury, repeatedly and correctly identifies that the prosecution must prove every element beyond reasonable doubt.
- Leave to appeal against a jury direction not challenged at trial is a meaningful gatekeeping step: the failure of trial counsel to object or seek further directions is a relevant factor weighing against the grant of leave.
- Under the M v The Queen standard, an appellate court conducting an unsafe verdict review asks whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt. The court does not simply substitute its own assessment for that of the jury.
- A Markuleski direction, which guides the jury on how to treat evidence from a witness that contradicts the complainant, must be assessed in context. No error was established in its formulation here.
- In dissent, Campbell J demonstrated that the unsafe verdict ground can engage with specific implausibilities in the evidence, such as the circumstances surrounding an alleged eyewitness account, and that doubt about one count may rationally inform doubt about the reliability of a complainant's account across other counts.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61E, 61J, 66A, 578A
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), ss 38, 164
Cases:
- Abbey v R [2017] NSWCCA 109
- AL v R [2017] NSWCCA 34
- Libke v The Queen (2007) 230 CLR 559
- Longman v The Queen (1989) 168 CLR 79
- M v The Queen (1994) 181 CLR 487
- MWJ v R [2005] HCA 74
- ND v R [2017] NSWCCA 70
- R v Johnston (1998) 45 NSWLR 362
- R v Kneebone (1999) 47 NSWLR 450
- R v Markuleski (2001) 52 NSWLR 82
- SKA v The Queen (2011) 243 CLR 400
- The Queen v Apostilides (1984) 154 CLR 563