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6
Court of Criminal Appeal 17 April 2020

Keen v R

[2020] NSWCCA 59

Also reported as (2020) 102 NSWLR 178
Drugs
CRIME APPEALS APPEAL AGAINST CONVICTION ALLEGEDLY INCONSISTENT VERDICTS APPEALS APPEAL AGAINST CONVICTION

Citation: Keen v R [2020] NSWCCA 59
Court: NSW Court of Criminal Appeal
Date: 17 April 2020
Judges: McCallum JA (principal judgment); Wilson J and Cavanagh J agreeing

Background

The appellant was charged on a 15-count indictment alleging the supply and manufacture of prohibited drugs (amphetamine and methylamphetamine), as well as related offences. In the presence of the jury panel, he pleaded guilty to all counts except four manufacturing charges. His defence at trial was that, while he admitted involvement in drug supply, he denied any part in the actual manufacture of those drugs.

The Crown case rested heavily, though not exclusively, on the evidence of an accomplice witness. After deliberation, the jury acquitted the appellant on three of the four manufacturing counts (counts 11, 12 and 13) but convicted him on the fourth (count 14). He sought leave to appeal against that conviction.

  • Whether the guilty verdict on count 14 was unreasonable because it was factually inconsistent with the not-guilty verdicts on counts 11, 12 and 13
  • Whether the trial judge's failure to give a direction of the kind considered in R v Markuleski (2001) 52 NSWLR 82 resulted in a miscarriage of justice, in circumstances where no such direction was sought at trial
  • Whether, where leave is required under rule 4 of the Criminal Appeal Rules (NSW), subjective evidence from trial defence counsel is admissible on the question of why the direction was not sought

Decision

Inconsistent verdicts (Ground 3). The court confirmed that where multiple counts all rest on the evidence of a single witness, a conviction on one count alongside acquittals on others does not automatically demonstrate inconsistency. The applicable test is one of logic and reasonableness. Here, other weaknesses and anomalies in the Crown case provided a rational explanation for the differing verdicts, independent of any rejection of the accomplice's truthfulness. The court found no fatal inconsistency.

The Markuleski direction (Grounds 1 and 2). A "Markuleski direction" is a direction telling a jury that any doubt they form about one aspect of a witness's evidence on one count ought to be considered when assessing that witness's overall credibility across other counts. McCallum JA confirmed that the principle is not confined to sexual assault cases, but equally that no general rule requires such a direction to be given in every word-against-word case. The proper inquiry is whether, in all the particular circumstances, such a direction is necessary to ensure a balance of fairness.

The present case was not a pure word-against-word case. The trial judge gave strong directions warning the jury that the key Crown witness was an accomplice whose evidence might be unreliable and should be approached with considerable caution. Those directions sufficiently addressed the fairness concerns underlying Markuleski. No miscarriage of justice resulted from the omission.

Admissibility of trial counsel's evidence (Rule 4). Where rule 4 requires leave to raise a ground based on a failure to seek a direction at trial, evidence from trial defence counsel about their subjective reasons for not seeking that direction may be admissible on the question of whether leave should be granted. However, such evidence does not inform the separate question of whether a miscarriage of justice has actually occurred.

Orders Made

  • Leave granted under rule 4 of the Criminal Appeal Rules (NSW) to rely on grounds 1 and 2
  • Leave granted under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to rely on ground 3
  • Appeal dismissed

Key Takeaways

  • A conviction on one count is not necessarily inconsistent with acquittals on related counts, even where all counts depend on the same witness. A court must examine the surrounding circumstances to determine whether a rational and reasonable explanation exists for the different verdicts.

  • No general rule can be derived from Markuleski requiring such a direction in every word-against-word case. The principle applies beyond sexual assault matters, but the direction is neither mandatory nor automatically "crucial" in all cases where it might be relevant.

  • The proper question is whether, having regard to all the circumstances of the particular trial, a Markuleski-style direction was necessary to achieve a balance of fairness. Robust accomplice warning directions may satisfy that requirement without a separate Markuleski direction.

  • Cavanagh J clarified that Spigelman CJ's reference in Markuleski to "the crucial matter" was directed at the content of the direction, not the circumstances in which it must be given. Absence of the direction is not automatically fatal.

  • Evidence from trial defence counsel about their subjective reasoning for not seeking a direction is admissible on a rule 4 leave application, but plays no role in the miscarriage of justice analysis.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 93T(4A), 193B(2)
- Criminal Appeal Act 1912 (NSW) ss 5(1)(b), 6(1)
- Criminal Appeal Rules (NSW) r 4
- Drug Misuse and Trafficking Act 1985 (NSW) ss 24(2), 25(1)
- Evidence Act 1995 (NSW) s 128

Cases:
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Ganiji v R [2019] NSWCCA 208
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- Hajje v R [2006] NSWCCA 23
- SM v The Queen [2016] NSWCCA 171
- RWC v R [2013] NSWCCA 58
- R v Hines (1991) 24 NSWLR 737
- RGM v R [2012] NSWCCA 89
- Wong v R [2009] NSWCCA 101
- Mortada v R [2014] NSWCCA 36
- Amos v R [2014] NSWCCA 302
- Haidari v R [2015] NSWCCA 126
- JPM v R [2019] NSWCCA 301
- R v Stone (UK Court of Criminal Appeal, 13 December 1954, unreported)