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Court of Criminal Appeal 6 May 2022

Sita v R

[2022] NSWCCA 90

Sexual offences
CONVICTION APPEAL MARKULESKI DIRECTION POINT NOT TAKEN AT TRIAL NO FORENSIC ADVANTAGE TO ACCUSED MISCARRIAGE OF JUSTICE UNREASONABLE VERDICT

Citation: Sita v R [2022] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 6 May 2022
Judge(s): Beech-Jones CJ at CL; Price J; N Adams J

Background

The appellant was tried twice on multiple counts of child sexual assault involving two young complainants, JU and KK, who are cousins. The first trial resulted in directed verdicts and jury acquittals on eleven counts, with the jury unable to reach verdicts on the remaining ten. The second trial proceeded on those ten counts: eight concerning JU and two concerning KK.

The appellant was acquitted on nine of the ten counts at the second trial and convicted on one count under s 66C(1) of the Crimes Act 1900, namely sexual intercourse with a child aged between 10 and 14. That count related to conduct involving JU, and KK gave evidence that also supported that count. The appellant was sentenced to five years' imprisonment with a non-parole period of three years and four months, commencing November 2020.

The appellant sought leave to appeal his conviction on two grounds: first, that the trial judge's jury direction about the use of doubt across complainants was legally flawed; and second, that the guilty verdict was unreasonable in light of the acquittals on all other counts.

  • Whether the trial judge's direction to the jury, based on the principles in R v Markuleski, incorrectly prevented the jury from using any doubts about KK's evidence (arising from her own counts) when assessing the count involving JU that KK's evidence also supported
  • Whether the failure of trial counsel to object to the direction at trial precluded the appellant from raising it on appeal, and whether any forensic advantage was gained by not objecting
  • Whether the guilty verdict on the single count was unreasonable, either because it was inconsistent with the acquittals on the remaining counts or because the offence was inherently improbable given the risk of detection

Decision

Ground 1: The Markuleski direction

The trial judge directed the jury that any doubts they held about one complainant's evidence on counts concerning that complainant could not be used when assessing counts concerning the other complainant. The Court found this was legally correct as a general proposition but, critically, it had the unintended effect of preventing the jury from using doubts about KK's evidence when considering the count involving JU, even though KK's evidence directly supported that count. The jury acquitted on both counts concerning KK, suggesting it did harbour doubts about her evidence, yet the direction precluded those doubts from informing its assessment of the JU count that KK's evidence supported.

The Court accepted that the point was not raised at trial and that there was no deliberate forensic decision by defence counsel to stay silent. The significance of the direction's effect likely became apparent only after the verdicts were returned. The Court held that the misdirection constituted a miscarriage of justice and upheld this ground of appeal.

Ground 2: Unreasonable verdict

The Court rejected the argument that the conviction was unreasonable. It found that the acquittals on other counts did not render the guilty verdict on count 8 logically inconsistent, because each count involved distinct factual circumstances capable of producing different outcomes. The suggestion that the offence was improbable because of the risk of detection in a shared household was also rejected. The Court was satisfied that the evidence, including JU's direct account and KK's supporting evidence, was capable of sustaining the conviction.

Appropriate order

Having allowed ground 1 and rejected ground 2, the Court considered whether to order a retrial or simply quash the conviction. The Court acknowledged the significant personal cost to the appellant, who had already faced two trials and served almost half his non-parole period. Against that, the Court weighed the seriousness of the offence and the apparent cogency of the Crown case. It ordered a new trial, leaving the decision whether to proceed with prosecution to the Director of Public Prosecutions.

Orders Made

  • Leave granted to raise both grounds of appeal
  • Appeal allowed
  • Conviction quashed
  • New trial ordered
  • Matter listed in the Arraignments List, District Court at Parramatta, on 20 May 2022

Key Takeaways

  • A Markuleski direction, though appropriate in multi-complainant trials to prevent one complainant's doubt infecting another's counts, must be carefully tailored where one complainant gives evidence supporting a count concerning the other complainant. Failing to account for that overlap can render the direction a misdirection constituting a miscarriage of justice.
  • Where a ground of appeal involves a direction not objected to at trial, the Court of Criminal Appeal will consider whether the failure to object reflected a deliberate forensic choice. In this case, the Court found no forensic advantage was gained, and the point was properly raised on appeal.
  • Acquittals on related counts do not automatically render a guilty verdict on a separate count unreasonable. Each count must be assessed on its own factual basis, and differing verdicts may be legally consistent where distinct circumstances apply to each charge.
  • In deciding whether to order a new trial after quashing a conviction, the Court weighs factors including time already served, the number of prior trials, the seriousness of the remaining charge, and the strength of the Crown case, without usurping the DPP's independent prosecutorial discretion.
  • Under s 578A of the Crimes Act 1900 and s 15A of the Children (Criminal Proceedings) Act 1987, publication of any information identifying complainants in proceedings of a sexual nature involving persons under 18 is prohibited.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 66A, 66C, 578A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Obeid v R (2017) 96 NSWLR 155
- WX v R [2020] NSWCCA 142
- VP v R [2021] NSWCCA 11
- Martin v R [2020] NSWCCA 192
- SM v R [2022] NSWCCA 13