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Court of Criminal Appeal 10 February 2025

MKR v R

[2025] NSWCCA 1

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION JUDGE ALONE TRIAL GROUND OF APPEAL REJECTED CRIME APPEALS

Citation: MKR v R [2025] NSWCCA 1
Court: NSW Court of Criminal Appeal
Date: 10 February 2025
Judges: Davies J (principal judgment); N Adams J and Yehia J agreeing

Background

The applicant stood trial before a judge alone in the District Court in October 2021, charged with 11 counts of sexual intercourse with a child under 10 years of age and one count of indecent assault of a child under 10. The complainant was the applicant's seven-year-old niece. The offending was alleged to have occurred across three separate incidents between November 2000 and late 2001, in regional NSW.

The applicant denied the offending and, in respect of the third incident, filed a late alibi notice. The person he claimed to have spent the night with gave evidence denying his account entirely. The trial judge convicted the applicant on all 12 counts and sentenced him to an aggregate term of nine years' imprisonment with a non-parole period of five years.

The applicant sought leave to appeal his conviction. Procedural delay was also an issue: the Notice of Appeal was not filed until September 2024, well after the expiry of the relevant notice of intention to appeal, though the Court accepted that a significant portion of the delay was attributable to Queensland solicitors without fault on the applicant's part.

  • Whether the trial judge reversed the evidentiary and persuasive burdens of proof, denying the applicant a trial according to law (Ground 1).
  • Whether the trial judge failed to comply with the obligation under s 133(2) of the Criminal Procedure Act 1986 (NSW) to expose reasoning that links applicable legal principles to findings and verdicts, in four specific respects:
  • Treatment of the alibi evidence and the burden of proof
  • Use of good character evidence
  • Whether a Liberato direction was required (concerning the risk of convicting based solely on disbelief of the accused rather than positive acceptance of the complainant's evidence)
  • Whether a Markuleski direction was required (concerning the use of an acquittal on one count when reasoning about remaining counts)

Decision

Ground 1: Reversal of the burden of proof

The Court rejected this ground. Reading the judgment as a whole, the trial judge clearly stated that the accused bore no onus to prove or disprove anything, and that the Crown was required to establish guilt beyond reasonable doubt. Where the trial judge posed rhetorical questions in his reasons, the Court found these were simply a means of testing the Crown's case, not an indication that any onus rested on the applicant.

Ground 2: Adequacy of judicial reasoning

On the alibi issue, the Court found that the trial judge's reasons, read as a whole, demonstrated awareness that reliance on an alibi does not shift the burden of proof. The judge expressly found that the Crown had eliminated any reasonable possibility that the alibi evidence was true, which itself reflected the correct legal approach.

On good character, the Court held that the trial judge gave himself an appropriate character direction and was not obliged to spell out how he applied that evidence. On the Liberato issue, the Court found no Liberato direction was required because the trial judge positively accepted the complainant's evidence rather than simply disbelieving the applicant's denial. There was no risk his Honour had reasoned to a guilty verdict through the wrong pathway.

On the Markuleski direction, the Court found no error. Because the trial judge accepted the complainant's evidence on all counts, no occasion arose to consider how an acquittal on any count might affect reasoning on the remaining counts. The Court rejected the submission that the judge was required to expressly explain why the direction had no application in the circumstances, describing the applicant's argument as a triumph of form over substance.

Orders Made

  • Time for the applicant to appeal extended to 23 September 2024
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In a judge-alone trial, the Court of Criminal Appeal will read the trial judgment as a whole when assessing whether the judge applied the correct burden of proof. Isolated passages, including rhetorical questions in the reasons, will not be read in isolation as reversing the onus.
  • A trial judge's use of rhetorical questions to scrutinise the Crown case does not, without more, suggest that any burden rests on the accused.
  • Where a judge accepts the complainant's evidence positively on all counts, no Liberato direction (guarding against conviction based solely on disbelief of the accused) is required: De Silva v The Queen (2019) 268 CLR 57 applied.
  • The Markuleski direction, which addresses how an acquittal on one count should inform reasoning on others, is only engaged if the fact-finder actually reaches a not-guilty finding on at least one count. No obligation arises to explain why the direction was inapplicable where the complainant's evidence was accepted across the board.
  • Under s 133(2) of the Criminal Procedure Act 1986 (NSW), a judge in a judge-alone trial must expose reasoning that links legal principles to findings, but this does not require a judge to explain, in terms, how evidence of good character was used or why a particular self-direction had no application on the facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M (repealed), 66A
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), ss 32 (repealed), 33 (repealed), 133

Cases
- Barwick v R [2023] NSWCCA 139
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- FB v The Queen [2020] NSWCCA 137
- Fleming v R (1998) 197 CLR 250; [1998] HCA 68
- Hopgood v R [2019] NSWCCA 246
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- McDonald v R; Obeid v R; Obeid v R [2023] NSWCCA 250
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290