Markuleski Direction

page references from (1997) 149 ALR 598)

Brennan CJ (allowing the appeal)

At 601 and 602

The appellant was a gymnasium instructor who conducted a gymnastic academy at Wentworth Falls. The indictment charged him with three acts of sexual intercourse with a female child whom he was instructing at the academy. She was aged 11 during the periods mentioned in the first two counts and 12 during the period mentioned in the third count. The trial took place in February 1996, 5 years after the period mentioned in the first count. The evidence of the child as to the occasions when the alleged acts occurred and the nature of the relationship between the child and her mother on the one hand and the family of the appellant on the other appears in other judgments. So far as the evidence shows, the child made no allegation to any person against the appellant until more than 4 years had elapsed from the first alleged act of intercourse. A feature of the child's allegations is that the acts of intercourse to which she deposed took place when there was nobody present but herself and the appellant. The first two acts allegedly occurred in the gymnasium after training sessions, the third in the appellant's house. On week-night training sessions the appellant was accompanied to the gymnasium by his wife, son and daughter. He also had an assistant, Lucia Darvall, who attended the gymnasium with him on Saturday mornings.

The jury acquitted on the second count, but convicted on the first and third counts. Having regard to the convictions on counts 1 and 3, the only possible explanation of the acquittal on the second count was the existence of at least a reasonable doubt in the mind of the jury engendered by the evidence of the appellant's wife, son and daughter. They gave evidence showing that they were invariably present during the week-night training sessions and travelled home with the appellant afterwards. The week-night training sessions were the occasions on one of which the act of intercourse alleged in the second count related. But Lucia Darvall also gave evidence relating to the Saturday morning training sessions in February 1991. These were the occasions to one of which the act of intercourse alleged in the first count related. Lucia Darvall's evidence, apparently cogent, was that she did not leave the gymnasium before the appellant on any of these occasions and that the appellant invariably drove her home afterwards. However, in cross-examination she gave the following answer…

At 603

The absence of an adequate direction, the acquittal on the second count, the delay in the prosecution and the evidence of the relationship of the child with the appellant and his wife show that the verdicts of guilty on the first and the third counts are unsafe and unsatisfactory. Once the jury decided to acquit on the second count, the only proper verdicts which a reasonable jury could have returned on the first and third counts had they followed the direction that ought to have been given were verdicts of acquittal. In those circumstances, it would not have been reasonably open to them to convict on the first and third counts. Therefore it was necessary to allow the appeal.

For these reasons, I joined in the making of the order allowing the appeal, setting aside the order of the Court of Criminal Appeal, and in lieu thereof ordering that the appeal to that Court be allowed, that the convictions on counts 1 and 3 be quashed and, in lieu thereof, verdicts of acquittal be entered.

Gaudron, McHugh and Gummow JJ (allowing the appeal)

At 608 and 609

The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. The jury may have acquitted because the unshaken evidence of the appellant's wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant's guilt on the second count. They may possibly have acquitted because they were of the view that the complainant had fabricated the circumstances giving rise to the second count. Having regard to the convictions on the first and third counts, the latter alternative seems an unlikely explanation of the verdict on the second count. Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. Having regard to the terms of the second count, we do not think that the complainant's confusion about whether the offence took place on a Thursday or a Saturday could explain the acquittal on that count. If that was the reason the jury rejected her evidence, they would also have acquitted the appellant on the first count.

It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.

At 610

In our opinion, the proper application of the test formulated by the majority of this Court in M required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory. Given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.

Kirby J (would dismiss the appeal)

At 611

I disagree with the conclusions reached by the majority that the convictions of the appellant were unsafe or unsatisfactory. As was pointed out in the Court of Criminal Appeal, from which this appeal comes, such differences of opinion are not infrequent. They exist, for example, in the reasoning of the members of this Court in M v The Queen where the Court explained the way in which an appellate court, evaluating for itself the evidence which was before the jury, should perform its functions mindful of the constitutional role of the jury and the advantages which the jury ordinarily enjoys over the appellate court.

Two points were argued in this appeal. The first related to suggested misdirections, or inadequate directions, given to the jury by the trial judge. The second concerned the argument that the convictions were unsafe or unsatisfactory. It was because the majority concluded that the latter argument was made good that its orders did not direct a retrial. Instead, the Court directed that the appellant be acquitted of the remaining counts. In my view, there was no misdirection or inadequate direction. Nor were the verdicts unsafe or unsatisfactory. The appeal should have been dismissed. The jury's verdicts should have been affirmed.

At 613 and 614

The trial of the appellant took place in the District Court at Penrith, New South Wales. It was conducted in accordance with the provisions of the Evidence Act 1995 (NSW). That Act abolishes the former requirement of the common law for the court to warn the jury generally about the need for corroboration in cases of this kind. No request was made to the trial judge (O'Reilly DCJ) to provide a warning, as may still be necessary in the particular circumstances of the case. Nevertheless, in several passages of his summing up, his Honour gave the jury strong directions about the significance of the delay of the complainant and the need to scrutinise the complainant's evidence with great care. He said…

At 616

As ultimately formulated, the complaints of misdirection were three-fold. First, it was submitted that the judge had failed to give a warning concerning the significance of the absence of evidence corroborating or confirming the complainant's testimony. Secondly, it was complained that the judge did not direct the jury that the delay in the making of the complaint should be taken into account in assessing the complainant's credibility and in assessing the evidence available to the defence to respond to, and rebut, the complaint. It was argued that the jury should have been directed that it was likely to be difficult for the defence to obtain unequivocal evidence relating to the circumstances of the incidents years after they were alleged to have taken place. Thirdly, it was submitted that the judge should have warned the jury "above all" to be careful about reading too much into the fact that Ms Darvall had conceded the possibility that, in February 1991, she had not always gone home with the appellant.

 page references from (1997) 149 ALR 693

 Brennan CJ, Toohey, Gaudron and Gummow JJ (allowing the appeal)

At 694

The appellant, KBT, appealed to this Court from a decision of the Court of Appeal of the Supreme Court of Queensland. So far as is presently relevant, that Court dismissed his appeal against a conviction for maintaining a sexual relationship with a child under 16 contrary to s 229B(1) of the Criminal Code (Q) ("the Code"). At the conclusion of the hearing of his appeal to this Court, the appeal was allowed and orders were made setting aside the orders of the Court of Appeal as they related to the offence under s 229B(1) of the Code (count 2 in the indictment), allowing his appeal to that Court in part, quashing his conviction for that offence and ordering a new trial. The following are our reasons for joining in those orders.

At 697 and 698

The question whether, in this case, the appellant was deprived of a chance of acquittal that was fairly open is not answered by describing the trial as an "all-or-nothing" contest. To the extent that it was a contest of that kind, that was in large part the result of the evidence which, as already indicated, dealt with general patterns of sexual misconduct rather than specific sexual acts. But more importantly, the trial cannot properly be described as an "all-or-nothing" contest in which there was "no rational basis upon which different members of the jury might have doubted some, different, portions of [M's] account."

As the trial judge correctly instructed the jury in his summing up, it was open to the jury to accept some parts of M's evidence and to reject others. And given the nature of the offence, which is established by proof of acts of a sexual nature on three occasions, there is no basis on which it can be concluded that the jury did accept all her evidence. Moreover, the evidence in the defence case differed according to the different categories of incident to which M deposed. So far as concerned the incidents which, according to M, occurred on the motorcycle and during fruit picking, the defence evidence consisted, in the main, of the appellant's denial that they occurred. However, in the case of incidents which, according to M, occurred of a morning in her bedroom, after morning tea, during afternoon rests and while watching television, the appellant's wife gave evidence which was to the effect that it was improbable, if not impossible, that those events occurred.

Having regard to the evidence, it is possible that individual jurors reasoned that certain categories of incident did not occur at all but that one or two did, and more than once, thus concluding that the accused did an act constituting an offence of a sexual nature on three or more occasions without directing attention to any specific act. It is, thus, impossible to say that the jurors must have been agreed as to the appellant having committed the same three acts. Indeed, it may be that, had the jury been properly instructed, they would have concluded that the nature of the evidence made it impossible to identify precise acts on which they could agree. It follows that the accused was deprived of a chance of acquittal that was fairly open.

At 698

Instead of applying s 668E(1A) of the Code, the Court of Appeal should have allowed the appeal to that Court, so far as it concerned the appellant's conviction for the offence created by s 229B(1), and should have quashed his conviction for that offence and ordered a new trial.

Kirby J (allowing the appeal)

At 704

2.           There is a special danger of unfairness where, as here, a crime which permits imprecise and general evidence to be proved is coupled in the indictment with other sexual offences specified with particularity. This Court has noted the special risks of unfairness where a number of sexual offences are charged together. Although, as a matter of procedure, that course is permitted by the Code[33], the dangers inherent in the possibility that a jury may infer guilt of several offences from the proof of guilt of one or some, requires care in the joinder of counts, attention to the possible need to order separate trials, appropriate judicial warnings against the dangers of propensity reasoning and vigilant consideration of complaints of unfairness when these are brought on appeal following conviction.

Spigleman CJ (finding that a direction should have been given, and allowing the appeal)

1. Tomislav Markuleski ("the appellant" or "TM") appeals against his conviction in the District Court on 23 August 2000 in respect of five offences of a sexual nature against B P ("the complainant"). The appellant was arraigned in relation to six offences against the complainant alleged to have occurred between 29 January 1981 (count 1) and 4 February 1982 (count 6). There were four counts pursuant to s76 of the Crimes Act 1900 alleging indecent assaults of a person under 16 years (counts 1-4) and two counts pursuant to s61D(1), alleging sexual intercourse without consent with a person under 16 years (counts 5-6).

2. The case, as is usual in these situations, was in large measure one of word against word, i.e. that of the complainant against that of the appellant. The verdicts of the jury were guilty in relation to the first five counts and not guilty in relation to the sixth count. The course of the trial and the issues on the appeal are set out in the judgment of Simpson J, which I have read in draft.

Unreasonable Verdicts

3. The first ground of appeal is that the verdicts of guilty in relation to counts 1-5 are "unreasonable and cannot be supported" in terms of s6 of the Criminal Appeal Act 1912, in the light of the not guilty verdict in relation to count 6. Reliance was placed on the High Court's decision in Jones v the Queen (1997) 191 CLR 439.

…

31. Nothing in Jones casts any doubt on the appropriateness of a jury accepting a witness' evidence in one respect, whilst retaining a reasonable doubt about the commission of events about which that same witness is the only substantive witness.

32. Indeed, in a case handed down by the High Court exactly one week after Jones (KBT v The Queen (1997) 191 CLR 417) Brennan CJ, Toohey, Gaudron and Gummow JJ at 424 emphasised the importance of the instruction traditionally given in this respect:

"As the trial judge correctly instructed the jury in his summing up, it was open to the jury to accept some parts of M's evidence and to reject others."

…

80. In a number of other cases, courts of criminal appeal have concluded that in the circumstances of the case, an acquittal contrary to the complainant's evidence did not necessarily mean that the complainant's general credit was undermined (see e.g. R v KET supra at [29]; R v Hilsley [1998] VCSA 143 at [78]; R v Maddox supra at [1]; R v R [2000] QCA 27 at [28]; R v AT [2000] NSWCCA 342 at [18]; R v AG & RJM [2000] NSWCCA 86 at [51]; Williams v R [2000] TASSC 182 at [4]; R v McNamara (QCA, 1 December 1998, unreported)).

81. It is usual in such cases to give a strong warning about the dangers of acting on the uncorroborated evidence of the complainant. Where the jury accepts and implements such a direction, it does not necessarily mean that the jury ought to have had a doubt about the complainant's credibility generally.

…

143. Even if the jury did have some doubt based on the evidence of the appellant, his wife and the son about the identity of the bed, the not guilty verdict does not necessarily indicate that they ought to have had a doubt about the complainant's evidence of a character which would have required them to have a doubt about her evidence with respect to the other counts.

144. It is possible for the jury to have decided that a conviction of the appellant on five out of six counts was sufficient to reflect the total criminality of his conduct and that there was no point in deciding the issue as to whether or not the contrary evidence did give rise in their minds to a reasonable doubt with respect to the complainant's evidence about this count based only on the question of the nature of the bed.

…

179. The appellant put its submissions with respect to the appropriate direction in the event of a mixture of acquittals and convictions in a number of ways. At first, the appellant sought, but eventually resiled from, a direction in the form propounded by Dunford J in RAT, which I have set out in full above. For the reasons I have given above, such a direction was based on a misunderstanding of Jones.

…

186. In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count.

187. Some form of direction assisting the jury in this respect should be given, to employ the terminology found in Kilby and Davies "as a general rule". Its absence is not necessarily fatal (as it was not in Davies itself). Furthermore, as the joint judgment in Crofts affirmed, the "general rule" does not apply "where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness" (at 451).

188. It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally.

189. On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count.

190. Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.

191. The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts.

Wood CJ at CL (finding that a direction should have been given, and allowing the appeal)

214. The kind of direction mentioned, and the reasoning behind it, are matters of common sense which tend, if anything, in favour of an accused so far as they discourage tendency reasoning and invite specific focus on the evidence in relation to each count. Moreover, such a direction allows the jury to bring to their task matters such as the conviction, or apparent persuasiveness, with which complainants describe events of which they have a clear recollection, and the lesser certainty which they may display in relation to other events, of which their recollection may be less clear or where there may be a reasonable possibility of them being mistaken, for example as to dates or places.

215. This to my mind, reflects the practical, commonsense approach to fact finding which is expected of jurors, as well as the necessity, in some cases, for the prosecution to fit an alleged event within the territorial reach of the relevant statutory provision, or within a specific time frame (as may occur where there have been amendments to the Section defining the offence).

…

256. Caution needs to be exercised in giving any direction of that kind, lest the jury see it as an encouragement to a process of reasoning in the obverse way previously mentioned. For them to assume that a tendency or propensity to similar behaviour has been established by proof of some counts, which might then make it more likely that the accused offended similarly in relation to the remaining counts, would involve a prohibited line of reasoning.

257. On the other hand, there is merit, as a matter of common sense, in reminding the jury that the existence of a question mark in their minds concerning the credibility, or reliability of the evidence given by a complainant or central witness in relation to one count, may properly be taken into account, in conjunction with all the other circumstances of the case, when they consider the reliability or credibility of the evidence of that complainant or witness in relation to the other counts.

…

263. In some cases, where it is obvious that the witness's reliability or credibility has been seriously undermined, in relation to one count, a strong comment may be appropriate. In other cases, it may be appropriate to indicate to the jury that they may have a difficulty in accepting the witness's evidence on some counts, or on particular counts, if they have a reasonable doubt about his or her reliability in relation to the other counts. In other cases a more neutral reminder of the entitlement of the jury to take such matter into account may suffice. In yet other cases, it may not be necessary to say anything.

Grove J (finding that a direction would be prudent “in some cases”, but dismissing the appeal)

279. Nevertheless he concluded that it is desirable to supplement the direction as to treating each count separately in a word against word case and that reference ought to be made to the effect on credibility if the jury found itself unable to accept the complainant's evidence on any one count. I recognize, as his Honour does, that the absence of such a direction would not necessarily be fatal but a final conclusion was:

"The crucial matter is to indicate to the jury that any doubt that they may form with respect to one aspect of the complainant's evidence ought be considered by them when assessing the overall credibility of the complainant, and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts."

280. It is self evident that a trial judge must make a decision whether to give such an indication before it is known whether the jury will discriminate in its verdicts upon separate counts. Whilst I consider that it would be prudent to give such a direction in some cases I am apprehensive that language incorporating the concept of cruciality will be interpreted as mandatory. For my part I would refrain from expression in any terms which might be so interpreted. There may be cases in which it could be necessary to assist a jury by way of an instruction such as is under discussion but in some way it may not. In my view it would suffice to commend the matter for consideration of trial judges.

…

283. With every respect to the contrary conclusions reached by Spigelman CJ, Carruthers AJ and Wood CJ at CL, I am unpersuaded that the directions and responses of the learned trial judge were inadequate to the circumstances. The first instance judge was in an advantaged position to assess the extent of need for assistance to the jury in the atmosphere of the issues at trial and the manner in which they were fought with the particular reference to the addresses of counsel. The latter were also in a position to seek additional explicit directions if such were thought necessary or desirable. I do not consider that miscarriage is to be perceived.

Simpson J (finding that appellant should be acquitted due to the inconsistent verdicts)

…

322. The same reasoning must apply in this case. Once it could be seen that the jury experienced a doubt about the complainant's credibility in relation to the sixth count, the count on which the appellant was able to produce some positive evidence in response to the complainant's assertions, her reliability suffered an irremediable blow. The circumstances did not permit the jury reasonably to doubt her credibility or reliability on the one count which the appellant was in a position to answer, and not the other counts.

323. On the Jones principles alone, in my view, the appeal must succeed. For this reason, I propose that the appeal be allowed, the convictions quashed and a judgment of acquittal entered.

Carruthers AJ (agreeing that a direction should have been given, and allowing the appeal)

344. I have had the benefit of reading the judgment of the Chief Justice in draft form. I am in complete agreement with the orders which he proposes and his reasons therefor.

Hoeben JA

Ground of Appeal 1

7. That the trial miscarried as the trial judge erred by failing to give an appropriate direction in accordance with the principles set out in Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at 132-135 regarding the effect on the complainant's credibility of the directed verdict of not guilty in respect of count 3 on the indictment.

…

15. On the sixth and seventh days of the trial, the complainant substantially recanted her evidence in respect of count 3. In the course of cross-examination, she had been reminded of another assault by young persons, unrelated to these offences, which the appellant had witnessed. As a result of that, the complainant expressed some doubt as to the accuracy of her recollection with respect to count 3. In particular, she was no longer sure of the precise details and she was not sure whether the appellant was circumcised or not.

16. Following the giving of that evidence by the complainant, his Honour withdrew count 3 from the jury and with the consent of the Crown, his Honour directed the jury to enter a verdict of not guilty in respect of count 3 at the close of the Crown case.

17. The fact of the directed verdict was relied upon by both the Crown and the defence in closing addresses. Counsel for the appellant submitted that the unreliability of the complainant's evidence in respect of count 3 in a number of significant respects undermined all of her evidence in relation to the other counts and that her evidence should be disregarded. The appellant's evidence was that he was circumcised at the relevant time. The Crown, however, submitted that the complainant's willingness to admit her lack of certainty in relation to count 3 was a matter which supported her credibility generally.

…

23. The appellant submitted that his Honour should have given a direction regarding the use or impact of the directed verdict on the credibility of the complainant. This was because the Crown's case relied upon a common set of facts. The directed verdict on count 3 would logically have impacted upon the credibility of the complainant in relation to her evidence in respect of all of the counts. This was because the complainant's evidence generally followed a structure of referring to generic common facts and then to additional evidence regarding the specific incident set out in that count.

…

31. The basis for the different verdicts in this case is quite different to that which arose in Markuleski. In Markuleski the not guilty verdict indicated that the jury must have rejected the complainant's evidence on that count. In this case, the complainant herself expressed uncertainty about count 3 and the count was then withdrawn from the jury. Unlike Markuleski, the directed not guilty verdict did not necessarily indicate a rejection of the complainant's evidence or shed any light on the jury's attitude to the complainant's credibility.

32. In those circumstances, the direction given by the trial judge was adequate and appropriate. Moreover, the issue of the complainant's credibility and the effect upon it of the directed verdict, was forcefully and somewhat dramatically put to the jury by counsel for the appellant at trial. There was no doubt that the jury was well aware of this challenge to the complainant's credibility. This was not one of those cases where the authority of the judge was required to make sure that the issue was properly considered by the jury.

Johnson J

81. I agree with Hoeben JA.

Button J

82. I agree with Hoeben JA.

McClellan CJ at CL

1. I agree with Latham J.

Latham J

2. The appellant appeals against his conviction after trial on two counts of sexual assault upon his daughter when she was under 16 years of age. The appellant was tried on four charges but was acquitted in respect of the first two counts on the indictment. There is no appeal against sentence.

3. There are two grounds of appeal, both of which arise out of the different verdicts. The first ground claims that the convictions are unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 and the second ground alleges error in the trial judge's failure to give a direction to the jury in accordance with R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82. That direction requires the jury to assess the credibility and reliability of the complainant's evidence on all counts, having regard to any doubts they experience in relation to her credibility or reliability with respect to any one count.

…

54. While this direction drew attention to the twin aspects of credibility, honesty and reliability, it is important to appreciate that the defence case at trial was that the complainant's allegations were lies, fabricated by her with the assistance of "leading questions" from the police. It was squarely put that the complainant was merely attention-seeking when she wrote to Mr Turner, and that her maintenance of the lie was a feature of her characterisation of herself as a victim. The complainant's veracity was the real battleground at trial, not her reliability. The complainant's reliability was nevertheless called into question by the nature of the cross-examination and counsel's closing address.

…

69. There are a number of distinguishing features of the complainant's account of the first and second episodes. The first was at night and the complainant was unsure of a number of matters, including whether she was wearing clothes, how the appellant placed his hand inside her clothing and whether it was in fact the appellant's penis that penetrated her. The complainant associated penetration of her vagina with pain, but could not say with any degree of particularity how that came about.

70. Accepting that the terms of the complaint conveyed that the complainant believed the appellant had penile/vaginal intercourse with her on this occasion, the complainant's evidence of this episode nonetheless introduced a measure of doubt. The jury may well have drawn back from acting upon the complainant's evidence of forceful penetration in the absence of medical evidence tending to confirm that penetration did occur.

71. By way of contrast, the complainant's evidence of the second episode was not attended with the same qualifications. It occurred in daylight, albeit they were under the bedclothes. The complainant described the appellant "touching" her in her vagina with his fingers. The absence of forensic evidence for the purposes of this offence would arguably not have troubled the jury, particularly where the complainant's description of the assault did not include the experience of pain. Her description of the appellant rubbing himself, the movement of the sheets and her evidence of ejaculation was clear and unequivocal. Obviously, even if forensic evidence of this event were available, it was not necessarily probative of the complainant being in the appellant's bed.

…

78. Here, the trial judge gave an appropriate direction on the effect of delay in complaint. However, there was no reference to the interconnection of credibility issues and the trial judge's directions to the jury on the subject of its separate consideration of the charges was not supplemented by any form of words that drew to the jury's attention the relevance of a doubt about one aspect of the complainant's evidence to its assessment of the complainant's credibility generally. Whilst it may not be strictly correct to say that this was a "word against word" case, given the availability of the tendency evidence, the complainant's reliability loomed large in the trial.

…

80. I have come to the view that there was, in the circumstances of this trial, a risk that the appellant was denied the chance of an acquittal on all counts by the absence of the Markuleski direction. Such a direction was required, in order to balance the direction to the jury that it consider each count separately, particularly where the verdicts of not guilty were the product of doubts about the complainant's reliability.

Beech-Jones CJ at CL

1. This is an application for leave to appeal under s 5(1) of the Criminal Appeal Act 1912 against a conviction on one count of sexual intercourse with a child aged between 10 and 14 contrary to s 66C(1) of the Crimes Act 1900. The maximum penalty for that offence is imprisonment for 16 years. The offence carries a standard non‑parole period of 7 years’ imprisonment.

2. The applicant was found guilty of the offence in late 2020 following his second trial. On 12 February 2021 he was sentenced to imprisonment for 5 years commencing 13 November 2020 with a non-parole period of 3 years and 4 months.

3. As explained below, the applicant stood trial on multiple counts alleging sexual offending against two young girls who are cousins, JU and KK, but was only convicted on one count. The applicant raises two grounds of appeal against his conviction. His first ground concerns a direction given by the trial judge concerning the use by the jury of any doubts they may have had about the evidence of JU or KK in relation to a particular count or counts concerning them, in determining the other counts which included one count concerning JU, which was supported by evidence from KK. His second ground contends that the jury’s verdict of guilty on the one count was unreasonable having regard to the evidence and, in particular, the jury’s verdict on those counts of which he was acquitted. For the reasons that follow I would uphold ground 1 but reject ground 2

...

The Crown and Defence Cases

5. In September 2019, the applicant stood trial on an indictment that charged him with 21 child sexual offences relating to the two complainants JU and KK (the “first trial”). The first trial resulted in a directed verdict of not guilty for seven counts and verdicts of not guilty on four counts. The jury was unable to reach a verdict on the remaining 10 counts.

6. On 20 October 2020, the applicant was arraigned for the second trial on an indictment containing the remaining 10 counts. Eight of the counts concerned JU and two of the counts concerned KK. As explained below, KK gave evidence that supported counts 7 and 8 concerning JU. Of the eight counts concerning JU, three were offences under (former) s 61M(2) of the Crimes Act, two were offences under s 66A, one count was an offence under s 61M(1), count 7 charged an offence under s 66C(2) and the alternative count 8, of which he was convicted, charged an offence under s 66C(1). The two counts concerning KK alleged offences under s 61M(2).

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Ground 1: Markulesi Direction

35. Ground 1 of the notice of appeal contends that her Honour erred in failing to give a complete direction to the jury on the effect of having a reasonable doubt about a complainant’s evidence on one count on the indictment in considering the other counts on the indictment.

...

37. In this case, counts 1 to 8 concerned JU and counts 9 to 10 concerned KK. KK gave evidence that supported JU on counts 7 and 8. At the second trial it was accepted before and by the trial judge that a Markuleski direction was appropriate. Her Honour directed the jury as follows:

“This direction I am giving you relates to the fact that there is more than one allegation relating to each complainant. There are seven allegations relating to [JU], though there are eight charges, as you know, and there are two allegations and two charges relating to [KK].

If you were to find the accused not guilty on any one count that involved a particular complainant, and if that was because you had doubts about the reliability or credibility of that particular complainant’s evidence, you would have to consider how that conclusion affected your consideration of the remaining count or remaining counts involving that complainant and that it might affect the complainant’s reliability more generally. In other words, if in considering her reliability and credibility you decided that she was not reliable on one particular count, you would then have to consider whether that same finding flowed through to the other count or counts she spoke to you about. I will make this a little easier to understand by giving you an example.

If you were [to] find the accused not guilty account of count 1 and that was because you held doubts about the reliability or credibility of [JU], you would then have to consider how that conclusion affected your consideration of the remaining counts involving [JU]. This applies equally across all the indictment counts relating to [JU]. So if, for example, you were to find the accused not guilty of count 7, and that was because you held doubts about [JU’s] reliability or credibility, you would have to consider how that conclusion affected your consideration of the remaining counts on the indictment involving [JU].

Similarly, returning to [KK] and the two counts that she spoke to you about, if you held doubts about the reliability or credibility of [KK] in respect of either count 9 or count 10, you would have to consider how that conclusion affected your consideration of the other count, either count 9 or 10 that she spoke to you about. Obviously, a doubt about that particular complainant’s evidence, if you had one, could not and would not affect your assessment of a count that involves the other different complainant, and so that finding complaint [sic] A was unreliable would not flow through to a finding that complainant B was also unreliable because there are two separate complainants, but a finding that complainant A was unreliable might flow through into another count that involved complainant A.” (emphasis added)

38. In his written submissions, Senior Counsel for the applicant, Mr Stratton SC, submitted that this direction did not go far enough. He submitted that the effect of the direction was that the jury were not directed to take into account any doubts they held about KK’s evidence arising from counts 9 and 10 in considering whether or not to accept her evidence supporting the evidence of JU in relation to counts 7 and 8. It was contended that the failure of the trial judge to direct the jury that they should take into account any doubts that they had about the evidence of KK when assessing the applicant’s guilt on counts 7 and 8 occasioned a miscarriage of justice. The Crown submitted that the jury would not have understood the direction to be so constrained. Instead, it was submitted that the jury would have understood this to extend to the situation where if the jury had a doubt about KK’s credibility or reliability on counts 9 and 10 then they could take that into account when assessing KK’s evidence in relation to counts 7 and 8.

39. These submissions are directed to the incompleteness of the direction and whether it needed to go further. However, with respect to the trial judge, the direction that was given was, in the context of the trial, incorrect. The emphasised part of the last paragraph of the direction told the jury they “could not” use a doubt about one complainant’s evidence in their “assessment of a count that involves another different complainant”. In the context of this trial, the jury was directed that they could not use any doubt that they had about KK’s evidence in their assessment of counts 7 and 8 which involved another complainant, namely JU. Regardless of any debate about how far a Markuleski direction had to extend in such cases, that direction was erroneous. It improperly limited the reasoning the jury were entitled to employ when addressing those counts.

...

42. It is understandable that immediately prior to and during the summing up each of the trial judge, the Crown Prosecutor and counsel for the applicant at the trial missed the difficulty with the last part of the above direction. They were no doubt focussed on the evidence of each complainant supporting the counts that related to that complainant. It seems that they did not anticipate the jury taking a path of reasoning that led to acquittals on all counts other than counts 7 and 8. However an assessment of whether a miscarriage of justice has actually occurred and whether r 4.15 applies is necessarily retrospective. In this case it is known that the applicant was acquitted on all counts other than count 8. That outcome is potentially explicable on the basis that the jury may have had doubts about the evidence of each complainant on the counts that related to them, but those doubts were effectively eliminated regarding count 8 given that their evidence supported each other, although, as explained below, other forms of reasoning might also explain the jury’s verdict. In those circumstances, a direction that precluded the jury from using any doubts they held concerning the evidence of KK on counts 9 and 10 when considering counts 7 and 8 clearly had a “real chance” of affecting the jury’s verdict (Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 at [41] and [47] per Kiefel CJ, Keane and Gleeson J at [118] per Gageler J) or “realistically [could] have affected the verdict of guilt” (at [123] per Gageler J). There was no forensic advantage that the applicant gained from not seeking to correct or supplement the above direction.

43. I would not apply r 4.15. I would grant leave to raise ground 1 and uphold the ground.

Price J

61. I agree with the reasons and orders proposed by Beech-Jones CJ at CL. I also agree with the additional remarks of N Adams J.

N Adams J

62. I have had the advantage of reading the judgment of Beech-Jones CJ at CL in draft. I agree with the orders proposed by his Honour for the reasons provided.

63. In relation to ground 1, it seems to me that the significance of the impugned direction might not have been apprehended by the trial judge and counsel until the verdicts were taken. It was not until that point when it became apparent that the jury acquitted on all counts save for one of the two counts of which both complainants gave evidence. The fact remains that the jury was directed that it was precluded from using any doubts they held concerning KK’s evidence on counts 9 and 10 (which they may well have held given the acquittals on those counts) when considering counts 7 and 8. I am satisfied that this gave rise to a miscarriage in the sense described by Beech-Jones CJ at CL at [42].