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Court of Criminal Appeal 13 October 2021

Shiv v R

[2021] NSWCCA 245

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION UNREASONABLE VERDICT INCONSISTENT VERDICTS NO OTHER WITNESSES APPEAL ALLOWED AND CONVICTION QUASHED

Citation: Shiv v R [2021] NSWCCA 245
Court: NSW Court of Criminal Appeal
Date: 13 October 2021
Judges: Leeming JA at [1]; Hamill J at [144]; Lonergan J at [150]

Background

The appellant was charged with multiple sexual offences alleged to have been committed against a single complainant on the evening of 13 June 2017, when she was affected by alcohol. The counts included three charges of indecent assault and two charges of sexual intercourse without consent. All events occurred in the same apartment on the same evening.

The jury returned a guilty verdict on count 2 (sexual intercourse without consent by way of cunnilingus) but acquitted the appellant on counts 1, 4, 5, and 6. Count 4 was a second charge of sexual intercourse without consent (penile-vaginal intercourse), alleged to have occurred shortly after the conduct described in count 2. The complainant gave unequivocal evidence of both counts 2 and 4.

Following conviction, the trial judge continued the appellant's bail, recognising the arguability of the appeal. The appellant was sentenced to 29 months' imprisonment with a non-parole period of 19 months.

  • Whether the guilty verdict on count 2 was unreasonable or could not be supported having regard to the jury's not guilty verdicts on counts 1, 4, 5, and 6, in circumstances where all counts arose from the same evening and involved the same complainant.
  • Whether the jury direction concerning the relevance of doubts about the complainant's credibility on one count to the consideration of other counts (a so-called "Markuleski direction") was inadequate, and whether leave to rely on that ground should be granted.

Decision

On the primary ground, the Court of Criminal Appeal found that the guilty verdict on count 2 could not be reconciled with the not guilty verdict on count 4. The complainant had given equally clear and unequivocal evidence of both alleged acts of sexual intercourse. There were no other witnesses, and no other evidence capable of distinguishing the quality or strength of the complainant's account on count 2 from that on count 4. All three judges independently concluded that the acquittal on count 4 must have reflected a reasonable doubt about the reliability or credibility of the complainant's evidence in respect of an act she described as occurring very shortly after the act the subject of count 2.

Because no rational basis existed for accepting the complainant's account on count 2 but rejecting it on count 4, the conviction on count 2 was found to be unreasonable. The court applied the established principle that inconsistent verdicts will warrant the quashing of a conviction where the guilty verdict and the acquittal cannot rationally be reconciled on any available view of the evidence.

On the second ground concerning the Markuleski direction, all three judges declined to grant leave. Two obstacles stood in the way. First, the appellant's trial counsel had been consulted on the direction, had an opportunity to object, and had ultimately expressed satisfaction with it. Under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021, leave to challenge such a ruling faces a high threshold. Second, the direction as actually given was mandatory in character: the words "you would have to consider" left the jury no discretion, and the court found it difficult to identify any material difference from a direction in terms of "you must consider." The appellant also explicitly disavowed reliance on this ground as a freestanding basis for a retrial, which the Court noted was a prudent concession given its weakness.

Orders Made

• Leave to rely on ground 2 should be refused
• Leave to appeal to rely on ground 2 should be refused
• The orders proposed by Leeming JA should be made (specific orders not detailed in this excerpt)

Key Takeaways

  • A conviction will be unreasonable and must be quashed where no rational basis exists to reconcile a guilty verdict on one count with a not guilty verdict on a closely related count, particularly where both counts rest on equally unequivocal evidence from the same complainant with no other distinguishing evidence.
  • Where an accused is charged with multiple counts arising from a single occasion involving a single complainant, a jury's doubt about the complainant's reliability on one count will ordinarily bear directly on the verdict on another count supported by evidence of the same character and quality.
  • A Markuleski direction instructs the jury that any doubt formed about a complainant's credibility or reliability in relation to one count must be carried across to its assessment of other counts. The Court of Criminal Appeal confirmed that a direction framed in mandatory terms ("you would have to consider") satisfies this requirement, even if stronger wording might be preferable.
  • Failure to object to a jury direction at trial creates a significant procedural barrier to obtaining leave to appeal on that ground, particularly where trial counsel was consulted on the wording and expressed satisfaction with it.
  • Continuing bail after conviction, pending a conviction appeal, requires the accused to have already filed an appeal and to establish special or exceptional circumstances under s 22 of the Bail Act 2013 (NSW). The trial judge's assessment that the appeal was arguable supported that finding here.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), s 22
- Crimes Act 1900 (NSW), ss 61H, 61I, 61L, 578A
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), s 356
- COVID-19 Legislation (Emergency Measures) Act 2020 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021, r 4.15

Cases:
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Caleo v R [2021] NSWCCA 179
- Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59
- Shi v R [2020] NSWCCA 258
- AH v R [2019] NSWCCA 152
- Dellow v R [2020] NSWCCA 301
- Nguyen v R [2021] NSWCCA 85
- Roos v R [2019] NSWCCA 67
- White v R [2019] NSWCCA 168
- Youkhanis v R [2014] NSWCCA 220
- Kurdi v R [2011] NSWCCA 179
- Burrell v R [2009] NSWCCA 193
- Ganiji v R [2019] NSWCA 208