Citation: Golding v R [2024] NSWCCA 129
Court: NSW Court of Criminal Appeal
Date: 17 July 2024
Judges: Basten AJA at [1]; N Adams J at [59]; Huggett J at [68]
Background
The applicant was convicted by a jury in the District Court on a single count of indecently assaulting his step-grandchild, who was approximately six years old at the time of the alleged offence. The charged incident was said to have occurred at the applicant's home in Cranebrook, western Sydney, between March and June 2017.
At trial, the complainant also gave evidence of a second, uncharged incident said to have occurred at the applicant's Queensland home approximately two years later. This evidence was admitted as both tendency evidence and context evidence. The trial judge directed the jury to disregard the Queensland incident if they were not satisfied it had occurred.
No objection was raised at trial to the judge's direction on this point, and no further direction was sought by defence counsel. The applicant therefore needed leave to raise the ground on appeal, pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021.
Legal Issues
- Whether the trial judge's direction concerning the uncharged Queensland incident was a misdirection
- Whether a direction modelled on the principle in R v Markuleski was required, specifically that any doubt about the uncharged incident should be carried into the jury's assessment of the complainant's evidence on the charged count
- Whether, in the absence of any objection at trial, the applicant could demonstrate a miscarriage of justice sufficient to warrant leave to appeal under r 4.15
- Whether the failure to give any such direction deprived the applicant of a real chance of acquittal
Decision
The court refused leave to appeal. Basten AJA, with whom N Adams J and Huggett J agreed, held that the Markuleski direction had no application in this case. The Markuleski principle addresses situations involving multiple counts and multiple complainants, where doubts about one complainant's evidence might need to be brought to bear on other counts. Here, there was a single count and a single complainant, and the uncharged incident was admitted as tendency and context evidence.
The court reasoned that directing the jury to carry any doubt about the Queensland incident into its assessment of the charged count would have been inconsistent with the proper use of tendency and context evidence. Such evidence, once admitted, is capable of supporting the Crown's case. A direction that uncertainty about the uncharged incident must reduce confidence in the complainant's evidence generally would have undermined the legitimate probative purpose of the tendency and context evidence.
The jury had in any event received a range of general directions about assessing the complainant's credibility and reliability. These included a direction that the jury was not obliged to accept the whole of any witness's evidence, a Murray direction requiring satisfaction beyond reasonable doubt as to the complainant's honesty and reliability, and a direction under s 293A of the Criminal Procedure Act 1986 (NSW) that any differences in the complainant's account were a matter for the jury in assessing her truthfulness.
N Adams J added observations to the effect that no departure from the correct legal framework had occurred, and that the decisions in Sita v R and RWC v R, on which the applicant relied, were distinguishable. Those cases involved mixed verdicts and multiple complainants, giving the Markuleski principle direct relevance. The present case did not share those features, and the applicant's reliance on them was unavailing.
Orders Made
- Leave to appeal refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021.
Key Takeaways
- The Markuleski direction, which requires a jury to carry doubt about one incident into its assessment of other counts, does not automatically apply where evidence of an uncharged incident is admitted on a single-count indictment as tendency and context evidence.
- A direction requiring the jury to discount the complainant's evidence on the charged count because of uncertainty about the uncharged incident would be inconsistent with the proper probative use of tendency and context evidence admitted under the Evidence Act 1995 (NSW).
- In refusing leave under r 4.15, the court reaffirmed that an applicant who failed to object at trial or seek a redirection faces a high threshold: it is necessary to establish a miscarriage of justice in the sense that the irregularity had a real chance of affecting the verdict.
- Decisions such as Sita v R and RWC v R, in which Markuleski directions were relevant, turned on the presence of multiple counts and multiple complainants, and do not extend to single-count proceedings involving a single complainant.
- General credibility directions, including a Murray direction and a s 293A direction, may adequately address the jury's assessment of a complainant's evidence even where an uncharged incident has been placed before the jury.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), ss 161A, 293A(2)
- Evidence Act 1995 (NSW), ss 97, 101
- Jury Directions Act 2015 (Vic), ss 61, 62
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- Day v Rex (No 2) [2023] NSWCCA 312
- Zhou v R [2021] NSWCCA 278
- Sita v R [2022] NSWCCA 90
- RWC v R [2013] NSWCCA 58
- Astill v R [2024] NSWCCA 118
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Greenhalgh v R [2017] NSWCCA 94
- Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
- R v Birks (1990) 19 NSWLR 677
- R v Murray (1987) 11 NSWLR 12
- Regina v GAR [2003] NSWCCA 224
- Roos v R [2019] NSWCCA 67