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221
Court of Criminal Appeal 1 August 2001

REGINA v MARKULESKI [2001] NSWCCA 290 revised - 19

[2001] NSWCCA 290

Also reported as (2001) 52 NSWLR 82
Sexual offences
CRIMINAL LAW SEXUAL OFFENCES APPEAL AGAINST CONVICTION JONES V THE QUEEN (1997) 191 CLR 439 CRIMINAL LAW SEXUAL OFFENCES

Citation: Regina v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82; 125 A Crim R 186
Court: NSW Court of Criminal Appeal
Date: 1 August 2001
Judge(s): Spigelman CJ, Wood CJ at CL, Grove J, Simpson J, Carruthers AJ

Background

The appellant was convicted in the District Court of five sexual offences against a young girl, comprising four counts of indecent assault and one count of sexual intercourse, all involving a complainant under the age of 16. The offences were alleged to have occurred in 1981 and 1982. The jury acquitted on a sixth count (a second count of sexual intercourse).

The trial was substantially a credibility contest between the complainant and the appellant. There was a significant delay between the alleged offending and the complaint being made. During deliberations, the jury sent a question to the trial judge asking why the complainant had come forward after such a long period.

The appellant appealed against conviction on three main grounds: that the five guilty verdicts were unreasonable given the one acquittal; that the trial judge's directions about delay in complaint were inadequate; and that the trial judge's response to the jury's question was insufficient.

  • Whether the five guilty verdicts were unreasonable in circumstances where the jury acquitted on one count, given that all counts depended on the same complainant's credibility
  • Whether the trial judge was required to direct the jury that delay in complaint could be taken into account when assessing the complainant's credibility
  • Whether the jury's question about the complainant's motivation for coming forward indicated a risk of impermissible reasoning, and whether the trial judge's response adequately addressed that risk
  • Whether the trial judge was required to direct the jury that reasonable doubt about the complainant's evidence on any one count should inform its assessment of her credibility on all counts

Decision

Unreasonable verdicts. The majority (Spigelman CJ, Grove J, and Carruthers AJ, with Wood CJ at CL broadly agreeing) held that the jury's differentiation between counts was justified. The majority distinguished Jones v The Queen (1997) 191 CLR 439 and held that mixed verdicts in a multi-count sexual offence trial do not necessarily render the guilty verdicts unreasonable. Several prior NSWCCA decisions were expressly not followed on this point. Simpson J dissented, taking the view that the jury's doubt on the acquitted count necessarily affected the complainant's general credibility and should have carried across to the remaining counts.

Delay in complaint direction. The majority (Spigelman CJ, Wood CJ at CL, Simpson J, and Carruthers AJ) held that the trial judge was required to direct the jury that the complainant's delay in making her complaint was a matter it could take into account when assessing her credibility. No such direction was given. Grove J dissented, considering that the directions actually given, viewed in the context of the trial as a whole, were adequate.

Jury's question about motivation. The majority (Spigelman CJ, Grove J, and Carruthers AJ) held that the jury's question did not, of itself, suggest an impermissible reasoning process. They considered the trial judge's response to the question adequate. Simpson J dissented. She identified a real danger that the jury would reason from the absence of any evidence of a motive to lie to an enhancement of the complainant's credibility, a process of reasoning that the law does not permit. In her view, the trial judge's response failed to head off that danger by explicitly directing the jury that the absence of evidence of a motive to lie was neutral and did not strengthen the Crown's case.

Direction on acquittal and credibility. The majority (Spigelman CJ, Wood CJ at CL, and Carruthers AJ) confirmed that, as a general rule, a trial judge should direct the jury that reasonable doubt about a complainant's evidence on any count ought to be taken into account when assessing that complainant's credibility across all counts. No such direction was given at this trial. This failure, combined with the inadequate delay direction, led the majority to allow the appeal, quash the convictions, and order a new trial.

Orders Made

  • Convictions on each count on which the appellant was convicted set aside
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that, in multi-count sexual offence trials, a trial judge should ordinarily direct the jury that a reasonable doubt about the complainant's evidence on any one count is relevant to the assessment of the complainant's credibility on all counts.
  • Where there has been significant delay between alleged offending and complaint, a direction that the delay may be taken into account in assessing the complainant's credibility is required; failing to give such a direction constitutes a misdirection capable of vitiating the trial.
  • Mixed verdicts in a multi-count sexual offence trial do not automatically render the guilty verdicts unreasonable; the majority distinguished Jones v The Queen and declined to follow several earlier NSWCCA decisions that had taken a contrary approach.
  • Where a jury question during deliberations raises the possibility of impermissible reasoning (such as treating the absence of evidence of a motive to lie as affirmatively strengthening the Crown case), there is an obligation on the trial judge to give a corrective direction addressing that risk directly.
  • Absent of evidence of a motive to concoct a false allegation is a neutral consideration; it neither enhances the complainant's credibility nor advances the Crown's case, and a jury must be directed accordingly when the issue arises.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Mental Health (Criminal Proceedings) Act 1990 (NSW)

Key Cases
- Jones v The Queen (1997) 191 CLR 439
- Crofts v The Queen (1996) 186 CLR 427
- Kilby v The Queen (1973) 129 CLR 460
- M v The Queen (1994) 181 CLR 487
- MacKenzie v The Queen (1996) 190 CLR 348
- Osland v The Queen (1998) 197 CLR 316
- Farrell v The Queen (1998) 194 CLR 286
- Palmer v The Queen (1998) 193 CLR 1
- Longman v The Queen (1987) 168 CLR 79
- R v Jovanovic (1997) 42 NSWLR 520
- R v Davies (1985) 3 NSWLR 276
- R v RAT (2000) 111 A Crim R 360 (disapproved)
- R v Barnett [2000] NSWCCA 283 (not followed)
- R v Carbone [2000] NSWCCA 387 (not followed)
- R v Dixon [2001] NSWCCA 39 (not followed)
- R v S [2001] NSWCCA 204 (not followed)
- KRM v The Queen (2001) 75 ALJR 550
- Crampton v The Queen (2000) 75 ALJR 133