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Court of Criminal Appeal 12 September 2025

PM v R

[2025] NSWCCA 139

Sexual offences
CRIMINAL APPEAL MIXED VERDICTS WHETHER VERDICTS FACTUALLY INCONSISTENT TEST OF LOGIC AND REASONABLENESS RELEVANCE OF JURY BEING UNABLE TO AGREE FACT SPECIFIC INQUIRY

Citation: PM v R [2025] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 12 September 2025
Judges: McHugh JA, Hamill J, Yehia J

Background

The applicant stood trial in the District Court at Dubbo in late 2024, facing 14 counts of sexual offences allegedly committed against his stepdaughter in and around Bourke, NSW, between June 1997 and June 2005. The complainant was a child during the relevant period, and the offences spanned a number of years and locations.

The jury returned a complex set of verdicts. It found the applicant guilty on counts 1, 2 and 3 (two counts of indecent assault on a child under 16, and one count of sexual intercourse with a child aged between 10 and 16). The jury acquitted on four counts, the trial judge had earlier directed acquittals on three others, and the jury was unable to reach a verdict on the remaining four. The applicant was sentenced to an aggregate term of four years and three months imprisonment, with a non-parole period of two years and three months. He did not appeal the sentence.

The applicant sought leave to appeal against the three guilty verdicts, arguing the mixed outcomes were logically irreconcilable, that the verdicts were unreasonable on the evidence, and that the trial judge had failed to give a complete direction to the jury about the significance of the complainant's credibility across multiple counts.

  • Whether the guilty verdicts on counts 1, 2 and 3 were factually inconsistent with the acquittals on counts 6, 7, 11 and 13, and with the jury's failure to agree on counts 4, 5, 12 and 14, applying the "test of logic and reasonableness"
  • Whether the guilty verdicts were unreasonable or unable to be supported having regard to the whole of the evidence
  • Whether the trial judge erred by failing to give a complete "Markuleski direction," which would have told the jury that if it doubted the complainant's credibility on one count, it may be difficult to accept her evidence on other counts

Decision

Ground 1: Inconsistent verdicts. The Court granted leave to appeal on this ground but dismissed it. Applying the established test, the Court found the applicant had not discharged the onus of demonstrating that the verdicts failed the test of logic and reasonableness. There were subtle differences in the evidence relating to the first three counts, and the complainant's evidence received support from complaint evidence that bore on her general credibility. The jury's inability to agree on four counts, and its acquittals on others, indicated it was engaging carefully with the individual charges rather than reaching an impermissible compromise.

Ground 2: Unreasonable verdicts. The Court again granted leave but dismissed the ground. It accepted that the advantages enjoyed by the jury, having observed witnesses directly over the course of the trial, were manifest and substantial. Aspects of the defence witnesses' evidence were found to be implausible, and the complaint evidence provided broader support for the complainant's account. Having reviewed the whole of the evidence, the Court was not left with a reasonable doubt as to the applicant's guilt on the three counts, and found it was open to the jury to convict on those counts while giving the benefit of the doubt on others.

Ground 3: Deficient Markuleski direction. The Court refused leave to appeal on this ground. A Markuleski direction is a warning to a jury in multi-count trials that, where each count depends substantially on the same witness, a doubt about that witness's truthfulness on one count may be difficult to separate from findings on others. The direction given at trial addressed the complainant's reliability but did not squarely engage with her truthfulness or the difficulty of reaching different verdicts across counts. The Court acknowledged a fuller direction would have been preferable, but noted that defence counsel at trial raised no objection and was plainly satisfied the direction was sufficient in the context of the trial. Leave was refused on this ground, though the Court took the directional deficiency into account when considering the inconsistent verdicts ground.

Orders Made

  • Leave to appeal granted under grounds 1 and 2
  • Leave to appeal refused under ground 3
  • Appeal dismissed

Key Takeaways

  • The "test of logic and reasonableness" for inconsistent verdicts requires the applicant to demonstrate that no rational jury could have returned the combination of verdicts in question; subtle evidentiary differences between counts and a careful pattern of deliberation can make mixed verdicts defensible.
  • A jury's failure to agree on some counts, alongside acquittals on others, can affirmatively indicate the absence of an impermissible compromise verdict, rather than supporting an inference of inconsistency.
  • In dismissing the unreasonableness ground, the Court of Criminal Appeal confirmed the well-established principle that where a jury's advantages in assessing witnesses are manifest and substantial, an appellate court must give significant weight to those advantages before substituting its own assessment of credibility.
  • A Markuleski direction should address both the reliability and the truthfulness of a complainant whose evidence underpins multiple counts; a direction focused only on reliability may be incomplete, though the absence of a fuller direction will not automatically warrant leave where trial counsel raised no objection.
  • Complaint evidence that does not attach to a specific count can still provide legitimate support for a complainant's general credibility across a trial, and a jury may properly draw on it when evaluating individual charges.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Criminal Procedure Act 1986 (NSW), Pt 5
- Evidence Act 1995 (NSW), s 165B
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Saunders v R [2022] NSWCCA 273
- Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- The King v ZT [2025] HCA 9; (2025) 99 ALJR 676
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- Dabboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191
- R v Jovanovic (1997) 42 NSWLR 520
- Browne v Dunn (1893) 6 R 67