Citation: RN v R [2024] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 22 February 2024
Judge(s): Ward P, Lonergan J, Sweeney J
Background
The applicant was convicted after a District Court jury trial of three sexual offences (inciting sexual touching without consent and two counts of sexual intercourse without consent) and one count of intimidation. The sexual offences were alleged to have occurred on 18 May 2020; the intimidation offence on 21 June 2020. The complainant was the applicant's wife at the time of the offences and his former wife by the time of trial in March 2023.
The complainant gave evidence with the assistance of an interpreter. A central issue at trial was whether the sexual offences had in fact occurred on 18 May 2020, a date treated as essential to the Crown case. The defence also challenged the complainant's credibility, pointing to her failure to report the sexual assaults despite multiple prior police attendances at the family home, and alleging she and her daughter had a motive to fabricate allegations to remove the applicant from the home.
The applicant sought leave to appeal all four convictions on grounds relating to jury directions, an alleged misdirection about the complainant's evidence, and the reasonableness of the verdicts.
Legal Issues
- Whether the trial judge was required to give a Markuleski direction, instructing the jury that a reasonable doubt on one count could be taken into account when considering other counts, and that doubts about a witness's reliability on one count could inform the assessment of that witness on other counts
- Whether the trial judge erred in directing the jury that the complainant's evidence was "consistent" regarding the date of the sexual offences
- Whether the jury's verdicts were unreasonable and incapable of being supported by the evidence
Decision
Grounds 1 and 2: Absence of a Markuleski direction
A Markuleski direction (from R v Markuleski [2001] NSWCCA 290) is a jury instruction that a reasonable doubt about one count, or about the reliability of a witness on one count, can be considered when assessing the evidence on other counts. The Court found the trial judge had sufficiently conveyed to the jury that the complainant's credibility was in issue. In those circumstances, fairness did not require a formal Markuleski direction. The Court was satisfied the applicant was not deprived of a chance of acquittal and that no miscarriage of justice resulted.
Ground 3: Description of the complainant's evidence as "consistent"
The applicant argued the trial judge's characterisation of the complainant's evidence as "consistent" on the date of 18 May 2020 was inaccurate and prejudicial. Sweeney J found the description did not deprive the applicant of a chance of acquittal or cause a miscarriage of justice. The complainant's evidence about the date had been clear and consistent throughout her evidence in chief and re-examination. An ambiguous question from the trial judge during the evidence, while described as "unnecessary and unwise," did not constitute an abandonment by the complainant of the nominated date, and the jury was not required to treat it as such.
Ground 4: Unreasonable verdict
The Court applied the test in M v The Queen (1994) 181 CLR 487, independently assessing the evidence while bearing in mind the jury's advantage in observing the complainant give her evidence. The Court found the evidence was straightforward and in short compass. The complainant's explanation for her lack of prior complaint to police was capable of acceptance, and her evidence on the intimidation count was supported by the daughter's evidence. All three judges independently concluded it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on all four counts.
Orders Made
- Leave to appeal granted
- The appeal dismissed
Key Takeaways
- A Markuleski direction is not mandatory in every multi-count trial involving credibility issues; whether fairness requires such a direction depends on the circumstances of the particular trial, including how credibility issues were otherwise conveyed to the jury.
- No miscarriage of justice arises from the absence of a Markuleski direction where the jury was sufficiently informed that the complainant's credit was in issue and the applicant was not deprived of a chance of acquittal.
- In applying the unreasonable verdict test from M v The Queen, the Court of Criminal Appeal conducts its own independent assessment of the evidence while giving appropriate weight to the jury's advantage in observing witnesses directly.
- A trial judge's intervention that generates ambiguity in a witness's evidence is not automatically fatal to a conviction; the Court assessed the complainant's evidence as a whole, including her consistent account in chief and re-examination, and found the jury was entitled to accept it.
- Delayed complaint, where a complainant offers an accepted explanation such as fear of the accused, does not necessarily undermine the reasonableness of a guilty verdict.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW)
Cases
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- RWC v R [2013] NSWCCA 58
- Keen v R [2020] NSWCCA 59
- Passmore v R [2023] NSWCCA 65
- Zhou v R [2021] NSWCCA 278
- Saunders v R [2022] NSWCCA 273