Keen v R

[2020] NSWCCA 59

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Keen v R [2020] NSWCCA 59

Hearing dates:

27 March 2020

Decision date:

17 April 2020

Before:

McCallum JA at [1];
Wilson J at [104];
Cavanagh J at [105]

Decision:

(1) Grant leave under rule 4 of the Criminal Appeal Rules (NSW) to rely on grounds 1 and 2.

 

(2) Grant leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to rely on ground 3.

 (3) Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against conviction – allegedly inconsistent verdicts – whether there was a rational basis for the jury to acquit on three counts but convict on a fourth

 

CRIME – appeals – appeal against conviction – alleged miscarriage of justice due to failure to give a Markulski direction – whether case properly characterised as a word against word case involving multiple counts resting on the evidence of a single Crown witness – consideration of the principle for which Markuleski stands

CRIME – appeals – application of rule 4 of the Criminal Appeal Rules – admissibility of evidence from trial defence counsel

Legislation Cited:

Crimes Act 1900 (NSW) ss 93T(4A), 193B(2)
Criminal Appeal Act 1912 (NSW) ss 5(1)(b), 6(1)
Criminal Appeal Rules (NSW) r 4
Drug Misuse and Trafficking Act 1985 (NSW) ss 24(2), 25(1)
Evidence Act 1995 (NSW) s 128

Cases Cited:

Alkhair v R [2016] NSWCCA 4
Amos v R [2014] NSWCCA 302
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Ganiji v R [2019] NSWCCA 208
Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339
Haidari v R [2015] NSWCCA 126
Hajje v R [2006] NSWCCA 23
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
JPM v R [2019] NSWCCA 301
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Mortada v R [2014] NSWCCA 36
Nudd v The Queen [2006] HCA 9
R v Hines (1991) 24 NSWLR 737
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Stone (UK Court of Criminal Appeal, Devlin J, 13 December 1954, unreported)
RGM v R [2012] NSWCCA 89
RWC v R [2013] NSWCCA 58
SM v The Queen [2016] NSWCCA 171
Wong v R [2009] NSWCCA 101

Category:

Principal judgment

Parties:

David Keen (Applicant)
Regina (Respondent)

Representation:

Counsel:
S Odgers SC, R El Choufani (Applicant)
M Kumar (Respondent)

  Solicitors:
O’Brien Hudson Solicitors (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2014/368988

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales, Sydney

Jurisdiction:

Criminal

Date of Decision:

11 August 2017

Before:

Tupman DCJ

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, David Keen, was tried on an indictment containing 15 counts variously alleging the supply or manufacture of prohibited drugs (amphetamine and methylamphetamine) and related offences. In the presence of the jury panel, he pleaded guilty to all counts except the manufacturing offences (counts 11-14). His defence at trial was conducted on the basis that, while he admitted to being involved in the supply of prohibited drugs, he denied playing any part in their manufacture.  The Crown case relied heavily but not exclusively on the evidence of a particular witness who was an accomplice. The jury found the applicant not guilty of counts 11, 12 and 13 but guilty of count 14.  Mr Keen sought leave to appeal against his conviction.

The issues on appeal were:

1. Whether the verdict of guilty on count 14 was unreasonable on the basis that it was inconsistent with the verdicts on counts 11, 12 and 13;

2. Whether there was a miscarriage of justice resulting from the fact that a Markuleski direction was not given (in circumstances where such a direction was not sought);

3. Whether, where leave is required under rule 4 of the Criminal Appeal Rules (NSW), subjective evidence from trial defence counsel is admissible.

The Court per McCallum JA (Wilson and Cavanagh JJ agreeing) held, granting leave to appeal and dismissing the appeal:

In relation to issue (1):

Where all counts rest on the evidence of a particular witness, a conviction on one count accompanied by acquittal on another does not, absent further analysis, necessarily demonstrate inconsistency: at [9].

Ganiji v R [2019] NSWCCA 208 at [13] per Basten JA (Button and Lonergan JJ agreeing at [55] and [64]), referred to.

The test to be applied in considering a ground of appeal based on alleged factual inconsistency between verdicts is one of logic and reasonableness: at [10].

MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35, applied; R v Stone (UK Court of Criminal Appeal, 13 December 1954, unreported), applied.

The verdicts of not guilty reached by the jury did not necessarily indicate doubt as to the truthfulness of the key Crown witness: at [11]. Other weaknesses or anomalies in the Crown case provided a logical and reasonable explanation for the different verdicts: [11], [50]-[53].

In relation to issue (2):

The characterisation of a case as a “word against word” case of a kind that may potentially attract the need for direction of the kind considered in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 is not confined to sexual assault cases: at [63].

Hajje v R [2006] NSWCCA 23, referred to.

No general rule concerning the direction that should be given to a jury in a “word against word” case can be derived from Markuleski: at [64], [78], [81].

Markuleski, explained and applied; Hajje, referred to.

Directions of the kind considered in Markuleski are neither mandatory nor crucial in all “word against word” cases: at [76], [81], [108], [111].

Markuleski explained and applied.

The proposition to be taken from Markuleski is that the trial judge should consider, by reference to all of the particular circumstances of the case, whether a direction of the kind discussed in that case is necessary to ensure a balance of fairness: at [72], [76], [81], [83].

Markuleski explained and applied; Hajje, applied; SM v The Queen [2016] NSWCCA 171, explained and applied; RWC v R [2013] NSWCCA 58, distinguished.

The present case was not a pure “word against word” case. The trial judge gave the jury strong warnings and directions as to the fact that the Crown’s key witness was an accomplice; that his evidence might accordingly be unreliable and that they should approach that evidence with considerable caution: at [100]. In the circumstances, a Markuleski direction was not necessary to achieve a balance of fairness: at [102].

In relation to issue (3):

Where a requirement for leave under rule 4 raises a question, concerning the failure to seek a direction at trial, as to why that happened, evidence from trial defence counsel as to his or her subjective reason for not seeking the direction may be admissible on the question whether leave should be granted but such evidence does not inform the question whether there has been a miscarriage of justice: at [95].

R v Hines (1991) 24 NSWLR 737, considered; RGM v R [2012] NSWCCA 89, considered; Wong v R [2009] NSWCCA 101, considered; Mortada v R [2014] NSWCCA 36 at [56]-[61], considered; Amos v R [2014] NSWCCA 302 at [45], considered; Haidari v R [2015] NSWCCA 126 at [45], considered; JPM v R [2019] NSWCCA 301 at [221], considered.

Judgment

1. McCALLUM JA: David Keen was arraigned on an indictment containing 15 counts variously alleging the supply or manufacture of prohibited drugs (amphetamine and methylamphetamine) and related offences. In the presence of the jury panel, he entered pleas of guilty to all charges except the manufacturing charges. The trial of the defended charges proceeded before Tupman DCJ with a jury. The defence at trial was that, while Mr Keen frankly admitted to having been involved in the supply of prohibited drugs manufactured by his accomplices, he himself had played no part in their manufacture.

2. The charges to which pleas of guilty were entered were seven charges of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), three charges of dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW) and one count of participating in a criminal group contrary to s 93T(4A) of the Crimes Act 1900 (NSW). The charges to which Mr Keen pleaded not guilty were four counts of manufacturing not less than the commercial quantity of a prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

3. The defended matters were counts 11, 12, 13 and 14 on the indictment, as follows:

“11   Between 1 June 2013 and 31 December 2013 at Ballina in the State of New South Wales, manufactured not less than a commercial quantity of a prohibited drug, namely amphetamine or methylamphetamine.

12    Between 1 February 2014 and 30 June 2014 at Jacky Bulbin Flat in the State of New South Wales, manufactured not less than a commercial quantity of a prohibited drug, namely amphetamine or methylamphetamine.

13    On 18 July 2014 at Jacky Bulbin Flat in the State of New South Wales, manufactured not less than a commercial quantity of a prohibited drug, namely amphetamine.

14    On 25 September 2014 at Jacky Bulbin Flat in the State of New South Wales, manufactured not less than a commercial quantity of a prohibited drug, namely amphetamine.”

4. The evidence and closing addresses proceeded over seven days. On the eighth day, the trial judge summed up the case and sent the jury out to deliberate. After two days of deliberation, the jury wrote a note to the trial judge indicating that they had reached unanimous verdicts on three counts but that they were having difficulty agreeing on the “undecided count”. They sought the trial judge’s advice as to how to proceed.

5. The trial judge took the three verdicts. The jury found Mr Keen not guilty of counts 11 and 12 but guilty of count 14. Her Honour then gave a Black direction as to count 13 (Black v The Queen (1993) 179 CLR 44). The following morning, the jury returned a verdict of not guilty on that count.

6. Mr Keen (referred to hereafter as the applicant) appeals against his conviction on count 14 on three grounds, which are addressed below. It is convenient to consider ground 3 first and to summarise the evidence in the discussion of that ground.

Ground 3: inconsistent verdicts

7. Ground 3 is:

“The verdict of guilty in respect of count 14 was unreasonable, in that the verdict is inconsistent with the verdicts in relation to counts 11, 12 and 13.”

8. It was not suggested that the different verdicts entailed any legal or technical inconsistency of the kind identified in MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35. The ground as argued was based on factual inconsistency. Accordingly, the applicant requires leave to appeal on this ground: s 5(1)(b) of the Criminal Appeal Act1912 (NSW). Having regard to the seriousness of the charge and the existence of a respectable basis for the arguments put, I am of the view that leave should be granted.

9. As explained by Basten JA in Ganiji v R [2019] NSWCCA 208 at [13] (Button and Lonergan JJ agreeing at [55] and [64]), in a case where all counts rest on the evidence of a particular witness, a conviction on one count accompanied by acquittal on another does not, absent further analysis, necessarily demonstrate inconsistency. His Honour said at [13]:

“The critical circumstance said to raise possible error is that both counts depended upon the jury accepting the evidence of the complainant. In such cases, it is necessary to have careful regard to the surrounding circumstances in order to determine whether there is a rational basis upon which it was open to the jury to accept the complainant with respect to one aspect of her evidence, but not with respect to other aspects.”

10. The test to be applied in considering a ground of appeal based on alleged factual inconsistency between verdicts is one of logic and reasonableness: MacKenzie at 366. The joint judgment in that case (Gaudron, Gummow and Kirby JJ) approved the test stated by Devlin J in R v Stone (UK Court of Criminal Appeal, 13 December 1954, unreported) which stated that the applicant in such a case:

“must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.”

11. In the present case, the ground was based on an assertion as to what can be gleaned from the three verdicts of not guilty. The applicant asserts that the verdicts on counts 11, 12 and 13 indicate that the jury were not satisfied beyond reasonable doubt as to the “truthfulness” of a key Crown witness who was an accomplice in the commission of the offences. For reasons I will explain, I do not accept that the verdicts of not guilty reached by the jury on those counts must necessarily be interpreted as an indication of their view as to that witness’s truthfulness, as opposed to the reliability of his evidence or else other weaknesses or anomalies in the Crown case.

12. The evidence in the trial included a statement of agreed facts concerning the offences to which the applicant pleaded guilty. That statement established that the arrest of the applicant and others was the culmination of a lengthy police investigation involving the deployment of two undercover operatives (police officers) as well as the use of a registered police informer (an accomplice of the men under investigation). The registered informer was referred to at the trial as “RS”.

13. The charges to which the applicant pleaded guilty were based on a series of drug transactions negotiated between the applicant, RS and the two undercover operatives over a period of several months. Most of those transactions were the subject of surveillance operations including videoing and photographing and the use of listening devices and telephone intercept devices. By contrast, there was no video or photographic evidence of the manufacturing process. The allegation that the applicant was involved in the manufacture of drugs on the four occasions reflected in counts 11 to 14 was based primarily on the evidence of an accomplice to whom I will refer as Witness B and, to a lesser extent, his partner and another accomplice, each of whom gave evidence concerning counts 12 and 13. At the trial, the partner was referred to as Witness A and I will continue to refer to her in that way. I will refer to the other accomplice as Witness C.

Count 11: alleged manufacture at Nan’s house in Ballina

14. The Crown case was that the first manufacture (count 11) took place in 2013 in the home of the applicant’s “Nan” in Ballina while the next three (counts 12, 13 and 14) took place at a rural property at Jacky Bulbin Flat to which Witness B had moved with his partner in early 2014.

15. The Crown case in support of count 11 related to a period before the commencement of the police investigation and rested exclusively on the evidence of Witness B. He described an occasion when the applicant invited him to his Nan’s house. Witness B said that, when he arrived at the house, he saw the applicant in the kitchen “cooking something” in an electric frypan on the bench. He said there was orange liquid in the frypan and steam coming out of it.

16. Witness B’s evidence-in-chief was interrupted to allow the trial judge to explain to him (in the absence of the jury) the process for obtaining a certificate under s 128 of the Evidence Act1995 (NSW), the effect of which was to prohibit the use of the evidence against Witness B in any subsequent proceeding. Her Honour granted a certificate in respect of the evidence that followed.

17. When the evidence resumed, Witness B described a process in which another accomplice removed a Pyrex dish containing orange liquid from inside the frypan. He said the orange liquid was poured into a bowl full of white powder where they mixed it and measured it into four-ounce amounts. Witness B did not specifically say that the mixture was amphetamine or methylamphetamine. The only reference to the nature of the mixture was at the conclusion of Witness B’s evidence concerning count 11, when he said that the applicant handed him “the first one” and that he left with “the drugs”. There was expert evidence from a chemist broadly addressing the process of making amphetamine or methylamphetamine but the particular substance allegedly prepared at Nan’s house that day was never retrieved or tested by police, nor was there evidence from anyone who consumed it and could describe its effect.

18. The cross-examination opened with a number of broad allegations. It was put to Witness B that he had told lies in relation to his assertions that he had witnessed the applicant manufacturing prohibited drugs; that he (Witness B) was “the cook” at Jacky Bulbin; that the applicant was not there on the three occasions at Jacky Bulbin (a proposition plainly contradicted by the telephone intercept evidence); that the applicant “never did a cook-up at his Nan’s place” and that he (Witness B) was also telling lies in relation to that.

19. The cross-examiner proceeded to challenge Witness B’s evidence concerning count 11 in two ways. The first (which applied to his evidence concerning all four counts) concerned the benefit Witness B had obtained for himself and Witness A by agreeing to give evidence against the applicant. Witness B agreed that he had been allowed a total discount of 50% on his sentence, being 25% discount for the guilty plea, 10% discount for past assistance to police and (by inference) 15% for his agreement to give evidence. The cross-examination also established that Witness B had negotiated with police that he would not be charged with three offences of manufacturing amphetamine, being the three manufactures he claimed the applicant had undertaken in counts 12, 13 and 14. The tenor of that line of questioning was to suggest that Witness B was lying about the applicant’s involvement in the manufacturing in order to obtain a benefit for himself.

20. The second basis for challenging Witness B’s evidence concerning count 11 focussed on the reliability of the evidence rather than its truthfulness. The cross-examiner noted the broad range of dates between which the offence was alleged to have been committed (between 1 June 2013 and 31 December 2013) and demonstrated Witness B’s inability to be any more specific. In that context, the cross-examiner adduced evidence from Witness B as to his use of drugs and alcohol at that time, generally suggesting that his memory was unreliable.

Count 12: first manufacture at the Jacky Bulbin property

21. Count 12 also related to a period before the commencement of the police investigation and rested exclusively on the evidence of Witness B, Witness A and the other accomplice, Witness C. The evidence was that, in early 2014, Witness B moved to a property at Jacky Bulbin Flat with his partner, Witness A. Count 12 was based on Witness B’s description of a time when the applicant told Witness B he would be coming to visit. The applicant told Witness B to purchase “a couple of packets of glucose” and said he would be coming out on the weekend “with the boys”.

22. Witness B said that the applicant arrived at his home with a box containing Pyrex dishes and hydrochloric acid (as said). However, when they started unpacking the box, the applicant told one of the other men that he had “the wrong stuff” as he had brought acetone instead of hydrochloric acid. Witness B rang a local hardware store. Although it was close to closing time, the store agreed to stay open so that they could acquire hydrochloric acid.

23. Witness B gave evidence describing the manufacturing process. He said hydrochloric acid was added to the orange oil and the mixture was tested with a pH tester until it reached the right pH level. It was then poured into the Pyrex dish which was sitting in the frypan and heated until it started crystallising. The orange liquid was then added to glucose powder and mixed to make a paste.

21. In cross-examination, it was put to Witness B that the event he described never happened and that it was he, Witness B, who manufactured the drugs at the Jacky Bulbin property. Trial counsel for the applicant put to Witness B that the applicant visited the premises only to collect the drugs.

22. Witness B’s evidence concerning count 12 was supported to a limited extent by Witness A. She described an occasion when the applicant came to their house at Jacky Bulbin Flat with some other men. Witness B told her to leave and said he would call her when he was finished. However, she said that, before she left, she saw the applicant “measuring up your three drug ingredients” which were Glucodin, bicarb soda and Epsom salts.

23. As with count 11, the particular substance allegedly manufactured that day was never retrieved or tested by police and there was no evidence as to its nature from anyone who claimed to have consumed it.

24. Witness C gave evidence that he was present during two separate manufacturing processes at the Jacky Bulbin property. Although he was not specific as to dates, his evidence appeared to correlate with the events relied upon to establish count 12 and count 13. As to count 12, that was inconsistent with the evidence of Witness B, who did not include Witness C in his description of events on that first occasion at Jacky Bulbin.

Closing address as to counts 11 and 12

28. In closing address, trial counsel for the applicant drew a clear distinction between counts 11 and 12 on the one hand and counts 13 and 14 on the other. He noted that the applicant had pleaded guilty to serious charges of supplying prohibited drugs. He invited the jury to accept that the applicant was “a supplier, not a manufacturer”. He submitted that the Crown case in respect of counts 11 and 12 was “particularly weak” and submitted that those two counts “stand very much by themselves”. He noted that the case in support of count 11 rested entirely on Witness B’s evidence and that, whatever substance was produced that day, it had never been tested by an expert.

29. The same point was made in respect of count 12. Counsel for the applicant noted that no drug had ever been seized and analysed. He invited the jury to conclude that “this cook-up never happened in the way that Witness B said it happened”. He noted that Witness B was unable to say the date on which it happened, even when prompted with the information that he had moved into the property at Jacky Bulbin Flat on Australia Day in 2014. Separately, a submission was made that Witness B was lying as to the applicant having brought Pyrex dishes to his house because Witness A said that she and Witness B had purchased those items together.

Count 13: manufacture at Jacky Bulbin on 18 July 2014

30. Counts 13 and 14 stood in a different category. Each of those counts identified a particular date on which, through a controlled operation involving the undercover police officers and RS, police acquired the product of the manufacturing process described by Witness B and identified it (by analysis by a chemist) to be amphetamine.

31. Witness B’s evidence in support of count 13 related to an occasion when he said the applicant came to his home with four other men including Witness C. The surveillance evidence identified that day to be 18 July 2014.

32. Witness B said that Witness A and their young daughter were at home at the time the men arrived. He told Witness A to leave with their daughter. He said that the applicant again produced a bottle of oil and began setting up the equipment. However, when they went to mix the oil with the hydrochloric acid, they found that the pH tester wasn’t working. It was the applicant who said that it wasn’t working. Witness B said the applicant and “Matty” set off to buy a pH tester while the other men, including Witness C, stayed at the property and had a beer with Witness B.

33. There was evidence in the trial that the proprietor of a hydroponic shop opposite Bunnings sold a pH tester on 18 July 2014 but that evidence did not identify the applicant.

34. Witness C’s evidence concerning the second time he went to Witness B’s property when drugs were manufactured was very confused. He said that another pH tester had to be obtained for “the second cook”. Initially he said that he and Witness B headed off to get a pH tester from a mate of Witness B. He then said that he had “messed up again” (he had previously corrected a mistake in his evidence) and said he and Witness B went to Bunnings to buy hydrochloric acid. That evidence was consistent with Witness B’s evidence concerning count 12, not count 13, except for the fact that, as already noted, Witness B did not include Witness C in the list of people he said were present during the acts charged in count 12. To the extent that Witness C suggested that he and Witness B went together to get a replacement pH tester for “the second cook” (on Witness C’s evidence, count 13), that was inconsistent with Witness B’s evidence that it was the applicant and Matty who went to buy a new pH tester while Witness B and Witness C stayed with others at the Jacky Bulbin property drinking beer. However, as already noted, Witness C corrected that evidence, apparently withdrawing the suggestion that he went on a trip to obtain a new pH tester. All that can be said with any confidence as to Witness C’s evidence is that it tended to obfuscate rather than to clarify the Crown case in support of count 13.

35. The evidence at the trial also included a telephone call intercepted by police at 2:00 pm on 18 July 2014 in which the applicant’s phone called the landline at Witness B’s house. Witness B said that call was made when the applicant arrived back at Witness B’s house and needed someone to go to the gate to unlock it (the gate was some distance from the house).

36. Witness B described the process by which they then proceeded to manufacture the amphetamine, again mixing hydrochloric acid with the orange oil until the correct pH level was reached, after which the mixture was poured into a Pyrex jug over steaming water in a frypan and cooked until it started to crystallise. The liquid was then mixed with glucose powder and weighed into two eight- ounce lots.

37. Defence counsel cross-examined Witness B as to the set-up at his property, noting that he had frying pans there and Pyrex dishes. Witness B responded that one of the Pyrex dishes had been brought to the premises by the applicant. Witness B accepted that, when police searched the property, they found weighing scales and that he showed them where to find a quantity of amphetamine and some firearms. It was put to him that he had those weapons in the house because at that time he was manufacturing drugs and using the premises “as a bit of a lab to create these drugs”. He did not accept that proposition.

38. Defence counsel did not otherwise put any specific matters to Witness B in respect of the events the subject of count 13.

39. Witness B’s evidence concerning count 13 was supported in some respects by the evidence of Witness A and Witness C to the extent that they each said the applicant was present that day. However, Witness A left before the manufacturing began. Witness C said that the applicant was present and that he participated in the cooking process. However, as already noted, his evidence was very confused. Further, it appears he was a particularly unimpressive witness. During a break in the evidence and in the absence of the jury, the trial judge asked whether he had “some sort of intellectual disability” or was “currently under the influence of drugs” (indicating that she had no doubt it was one or the other).

40. Significantly, the telephone intercept material included a call intercepted at 1:40 pm on 18 July 2014 between the applicant and a person identified as “Benny”. In that call, Benny asked the applicant what he was doing. The applicant replied “Nothing. I’m just at home.” If that was a truthful statement, it excluded the applicant from “the second cook” at Jacky Bulbin Flat.

Count 14: manufacture at Jacky Bulbin on 25 September 2014

41. The Crown case was the strongest in respect of count 14. The evidence-in-chief concerning that count was led from Witness B by reference to an SMS message dated 25 September 2014 at 7:43 am in which the applicant texted Witness B saying, “I’ll b out in a hour”. That message was not received on Witness B’s phone until 8.45 am, apparently owing to poor reception. Witness B was out at that time. At 9:12 am, the applicant called Witness B from Witness B’s landline asking where he was. He laughed and said he just had to go to “the servo”. That evidence was significant because it placed the applicant in Witness B’s house before Witness B arrived back on the day of the last manufacture. Witness B’s evidence that the applicant was involved in the manufacture on that occasion could accordingly more readily be accepted.

42. Witness B said that, when he arrived home, there was a white ute parked at the bottom of his driveway and that the applicant and one other person were at his house. Witness B said that he retrieved the remaining oil left over from the previous cook and that the applicant showed the third man “how he does the process”. Witness B described the process as follows:

“We got the – the frypan was out, the steel rack, and all the water’s in it with the Pyrex dish. The oil is put into the glass and then the hydrochloric is syringed into it to get it to the right pH level, and then that’s poured into the Pyrex dish. That’s then heated until it crystallises, and mixed in with the white powder that’s already been weighed to the correct amount. And once that was done and the oil was mixed, he told me to get out what I had left already out there of the older stuff, which was about four or five ounces. I grabbed that, brought it down, and it was mixed in with the fresh lot.”

43. There was no specific cross-examination as to those observations. The only cross-examination concerning count 14 was the generic allegation at the outset of the cross-examination that Witness B was telling lies; that he (Witness B) was “the cook at Jacky Bulbin” and that the applicant was not present at the time of the manufacturing and only came to collect the drugs afterwards. In the case of count 14, that was squarely contradicted by the telephone intercept evidence.

Closing address as to counts 13 and 14

44. In closing address, trial counsel for the applicant emphasised the “incredible deals” that Witness B, Witness C and Witness A had secured with police and submitted that the jury should approach their evidence with extreme care and caution. He submitted that their evidence was unreliable because it was tainted by the need to preserve their own status and the deals they had negotiated. He submitted that there were numerous inconsistencies and mistakes in their evidence.

45. Defence counsel emphasised to the jury that, for the whole period during which police were intercepting telephone calls between the various accused, Witness B and the applicant were in regular contact but never talked about manufacturing drugs.

46. Counsel accepted that Witness B and the applicant had “a type of working relationship”. He invited the jury to conclude that the applicant had cause to visit Witness B at the Jacky Bulbin property because of the nature of the work they were both involved with at the time (supplying drugs). However he submitted, based on the absence of any discussion of manufacturing in the telephone intercept material, that the applicant was not manufacturing drugs. He acknowledged that the jury might be suspicious as to counts 13 and 14 but emphasised that mere suspicion did not warrant a finding of guilt beyond reasonable doubt.

47. In respect of count 13, defence counsel made two specific arguments. First, he relied on the telephone call intercepted at 1:40 pm on 18 July 2014 when the applicant stated he was doing nothing and was “just at home.” The significance of that call was that, at that time, according to the Crown case, the applicant was engaged in the process of manufacturing amphetamine (either at Witness B’s house or out buying a new pH tester). The point made by counsel to the jury on that issue is slightly confusing and may involve some error in transcription. However, it was clarified by the trial judge in her Honour’s summing up as follows:

“On behalf of the accused this is put to you, that [the statement “I’m just at home”] is inconsistent with the Crown argument that [the applicant] was at that very time organising the purchase of a pH tester, or the recalibration of one that was not working, across the road from Bunnings.”

48. Secondly, trial counsel noted that the drugs manufactured on 18 July 2014 were for supply to RS following a meeting between RS and the applicant three days earlier, on 15 July 2014, when the applicant told RS he could get him half an ounce. The burden of the submission was that, if the applicant was the manufacturer (as opposed to simply the supplier or courier), he would have got on to the task of manufacturing the drugs straightaway rather than waiting three days.

49. No specific submission was made to the jury in respect of count 14.

Logic of the jury’s verdicts

50. In my view, it is clear from the foregoing analysis that there was a logical and reasonable basis for the jury’s verdicts. As to counts 11 and 12, the Crown case did not even establish that the substance manufactured was amphetamine or methylamphetamine, a point made to the jury in defence counsel’s closing address. That in itself is enough to explain the acquittals on those counts. Further, the jury was cautioned to approach the evidence of the accomplices, particularly Witness B, with great care. His evidence concerning counts 11 and 12 was not independently supported by any other evidence (apart from that of other accomplices). He was vague about dates and there was at least one potential inconsistency between him and Witness A as to the acquisition of the cooking equipment (in my view that was easily resolved but it may have concerned the jury). It was open to the jury, acting reasonably, to give the applicant the benefit of the doubt on counts 11 and 12 based on an orthodox application of the caution they had been directed to apply in assessing the evidence of accomplices without necessarily reaching the view that Witness B was untruthful.

51. Count 13 presented a more difficult task for the jury and that is reflected in their note to the trial judge that they were undecided on that count after two days of deliberation. On the one hand, there was more evidence on count 13 than on counts 11 and 12 to support Witness B’s evidence that the applicant was involved in the manufacture on that occasion. However, the evidence of Witness C was apt to cause confusion as to who was or was not present and involved at various points in time. Based on my reading of the evidence, I would have accepted the evidence of Witness B and not been concerned by any inconsistency in the evidence of Witness C. However, it was open to the jury to entertain a doubt, based on the whole of the evidence, as to whether the applicant was present during the manufacturing process that day. The telephone call in which the applicant stated to Benny that he was at home doing “nothing” at 1:40 pm that day may well have tipped the balance towards a not guilty verdict on that count, particularly after the jury had been given a Black direction.

52. No such doubt attended the Crown case in support of count 14. As already noted, the proposition put to Witness B in cross-examination that the applicant was not present during the manufacture on 25 September 2014 was contradicted by the telephone intercept material. No other point was raised in cross-examination or closing address on behalf of the applicant beyond the generic attack on Witness B’s credibility.

53. The applicant’s submissions have not persuaded me that the verdict of guilty on count 14 cannot logically and reasonably stand together with the verdicts of not guilty on the other counts. I would dismiss ground 3.

Grounds 1 and 2: failure to give a Markuleski direction

54. Grounds 1 and 2 are:

1. A miscarriage of justice resulted from the trial judge failing to direct the jury that if they had a reasonable doubt with respect to one count, they were entitled to consider that fact in considering the other counts.

2. A miscarriage of justice resulted from the trial judge failing to direct the jury that a doubt about the reliability of the evidence of a prosecution witness in respect of one count could be taken into account when considering the evidence of that witness in respect of another count.

55. Neither of those directions was sought at trial and accordingly the applicant requires leave to rely on grounds 2 and 3 in accordance with rule 4 of the Criminal Appeal Rules (NSW). I will return to that issue.

56. The proposition that the trial judge was obliged to give the directions identified is said to be derived from the decision of this Court in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290. The applicant submitted:

“Such a direction was described by Spigelman CJ (Wood CJ at CL and Carruthers AJ agreeing) in R v Markuleski as a “crucial matter”, notwithstanding that it is not necessary to specify any precise words.”

57. The submission concluded “see also SM v The Queen [2016] NSWCCA 171 at [5]-[6]”. I will return to consider that decision.

The decision in Markuleski

58. It is important to be precise as to the principle established by the decision in Markuleski. As I will explain, I am not persuaded that the decision establishes a principle in the terms submitted above.

59. Mr Markuleski was charged with six child sex offences all involving the same complainant. The complainant was aged eight and nine at the time of the alleged offences. She made no complaint until over 16 years later. By the time of the trial, over 18 years had passed since the date of the last alleged offence. Delay was accordingly a significant factor in the assessment of her evidence.

60. The jury found Mr Markuleski guilty of five of the charges and not guilty of the sixth. In the case of the sixth count, there was evidence suggesting that the offence could not have occurred as the complainant described because of the physical features of the space in question (the complainant said she hid under the accused’s bed; there was evidence that the base of that bed was very close to the ground so that there would not be space for even a young child to hide underneath it).

61. The principal ground of appeal was that the verdicts of guilty were unreasonable and could not be supported by the evidence. That ground relied on the decision of the High Court in Jones v The Queen (1997) 191 CLR 439 in which, in relevantly similar circumstances, the Court held that the jury’s finding of not guilty on one count “damaged the credibility of the complainant with respect to all counts in the indictment” (at [453]).

62. It was noted by Spigelman CJ in Markuleski at [27]-[30] that different approaches had been taken in different states as to the application of the decision in Jones. A bench of five was accordingly convened to consider those different approaches. In explaining the decision to convene an enlarged bench, the Chief Justice listed numerous decisions by courts of criminal appeal in cases where a complete acquittal had been obtained by an appellant who had been found guilty of some, but not all, sexual assault counts at trial.

63. The feature of Markuleski that potentially attracted the approach in Jones was that the case could be characterised as being “in large measure one of word against word”: at [2] per Spigelman CJ. As submitted by the applicant in the present case, it is important to understand that that characterisation is not exclusive to sexual assault cases. The applicant cited the case of Hajje v R [2006] NSWCCA 23, a malicious wounding case in which there was an issue between adult witnesses as to the possession of a gun. In that case, after noting that the evidence of the complainant and another Crown witness was “inherently suspicious”, Simpson J (as her Honour then was) said at [101]:

“There is no reason why a person who is a principal Crown witness should be treated any differently in this respect from a person who falls into the category of complainant in a sexual misconduct case.”

64. However, it is equally important not to be seduced by false syllogism. The fact that a case can be characterised as one of word against word does not of itself mean that a Markuleski direction must be given. In the passage from Hajje cited by the applicant, Simpson J went on to say at [101]-[103] (M Adams and Hoeben JJ agreeing):

“101 But that did not necessarily mean that a Markuleski direction was mandated. The jury was given the traditional direction that they may accept all, none, or part of the evidence of any witness. The circumstances in which [the complainant and the witness] made their observations, and gave their evidence, was not analogous to the circumstance of a complainant giving evidence of a series of events, each of which constituted an offence the subject of a count on the indictment.

102 Even in such a case, the absence of a direction is not necessarily fatal: Markuleski at [187].

103 It was perfectly obvious to the jury that the credibility of [the complainant and the witness] was seriously in question and that this in part derived from their evidence of what had happened on the evening preceding the events the subject of the charges. I do not think a Markuleski direction would have done any more to secure the acquittal of the appellant. I would reject this ground of appeal.”

65. Mr Odgers, who appeared for the applicant, emphasised that Hajje was a case in which the three counts on the indictment were all in the alternative, taking it outside the class of cases involving multiple counts resting on the evidence of one witness where the jury will be directed to consider each count separately.  The distinction is not unimportant, but it does not follow that a formulaic direction referring to “doubt with respect to one count” being relevant to “the other counts” will always be necessary or appropriate in a multiple count case.  The label “word against word” does not reveal everything about the case that will be relevant in determining what directions are required.

66. In Markuleski, the Court unanimously accepted that, in a word against word case where the only evidence on each count is that of the complainant, an acquittal on one count may indicate that the jury ought to have entertained a doubt with respect to other counts but does not mandate that conclusion: at [73] per Spigelman CJ; at [212] per Wood CJ at CL; at [271] per Grove J; at [324] per Simpson J; at [344] per Carruthers AJ.

67. The Chief Justice said at [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.”

68. Wood CJ at CL expressed the same view, explaining at [212] that the decision in Jones:

“does not deny to a jury the right to accept the evidence of a complainant in relation to one event, and to maintain a reasonable doubt about another event described by that witness. It leaves unimpaired the traditional instruction given to juries that they are not obliged to wholly accept or to reject wholly what a witness says, but are free to accept part and to reject part of his or her account…”

69. There were two further grounds of appeal in Markuleski which concerned the adequacy of the directions given by the trial judge (set out in the judgment of Simpson J at [327]). Neither contended that the trial judge ought to have given what has now come to be known as the Markuleski direction. However, the applicant’s argument invited the Court to consider, in the context of its consideration of the decision in Jones, whether some additional direction should be given to the jury in a word against word case.

70. Care must be taken in discerning the principle established as a result of that discussion. The headnote in the official law report (52 NSWLR 82) records that the following was held by a majority of the court:

“(6) As a general rule it is desirable that the traditional direction to treat each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count.”

71. Those words were apparently drawn from the judgment of the Chief Justice at [186]-[188]. After observing at [185] that there had been “a significant number of cases” in which courts of criminal appeal had acted on the basis that the jury may have failed to take into account a reasonable doubt about one aspect of a complainant’s evidence when assessing that witness’s evidence on other matters, his Honour continued:

“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 R v Davies, ‘as a general rule’. Its absence is not necessarily fatal (as it was not in R v Davies itself). Furthermore, as the joint judgment in Crofts affirmed (at 451), 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’.

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.”

72. To the extent that his Honour was suggesting that the desirability of giving the direction is informed by the body of jurisprudence in which appellate courts took a wrong view of the decision in Jones, I respectfully disagree. Leaving aside mandatory cautions and directions, the ultimate guide for a trial judge in determining how to direct the jury is the obligation to ensure a balance of fairness.

73. It is relevant to the discussion that follows also to set out [191] of the Chief Justice’s judgment where his Honour identified what he considered to be “the crucial matter” in any direction:

“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.”

74. As already noted, the applicant invokes that statement as a statement of principle that enjoyed the support of a majority of the Court (Spigelman CJ, Wood CJ at CL and Carruthers J).

75. The Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales offers a “suggested” Markuleski direction in the case of “multiple counts” in sexual assault cases (noted as being derived from Markuleski at [188] and [191], both set out above) as follows at [5-1590]:

“Giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome.

If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant’s evidence, you would have to consider how that conclusion affected your consideration of the remaining counts.”

76. The fact that the direction is suggested in cases involving multiple counts does not mean that it is “crucial” or must be given in every such case. In my view, it is clear from the authorities (including Markuleski) that the decision whether to give a direction in those terms or indeed any direction supplementing the traditional direction as to treating each count separately must ultimately be a matter for the assessment of the trial judge according to the particular circumstances of the specific case. The importance of considering the whole of the relevant circumstances in determining whether to give such a direction at all is emphasised at note 4 to the suggested direction in the Bench Book.

77. Both the NSWLR headnote and the Bench Book attribute agreement with the Chief Justice’s normative statement at [186] (“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”) to two other members of the Court in Markuleski, Wood CJ at CL and Grove J. I note that the headnote omits any reference to the judgment of Carruthers AJ, who expressed himself at [344] to be in “complete agreement” with the reasons of the Chief Justice. However, with respect, it is by no means clear that either Wood CJ at CL or Grove J intended to express agreement as to the existence of a general rule or normative proposition in the terms stated by the Chief Justice at [186].

78. The headnote refers to the judgment of Wood CJ at CL at [263]-[265] while the Bench Book refers to his Honour’s judgment at [257]. It is necessary to consider the whole of the relevant discussion at [251] to [267]. I do not understand that discussion to give endorsement to the existence of any general rule; on the contrary, his Honour appears to have been at pains to emphasise that every case is different and that there will be cases in which any qualification to the traditional direction concerning the separate consideration of each count carries the risk of inviting propensity reasoning (which would be contrary to the interests of the accused). His Honour said at [265]:

“Where it is necessary that a direction of the kind discussed be given to ensure a balance of fairness, then it should be phrased in terms that meet the needs of the case, and with the reminder that the assessment of reliability and credibility remains entirely a matter for the jury. Whatever is said, however, it is critical to ensure that it is not so worded as to encourage or invite the obverse form of reasoning which derives from tendency or propensity.”

79. Two things may be observed about those remarks. First, the matter Wood CJ at CL considered to be “critical” was the importance of not diluting the traditional direction in such a way as to invite propensity reasoning: cf the “crucial matter” identified by the Chief Justice at [191]. Secondly, Wood CJ at CL identified the test as to whether any such direction should be given by reference to the need to ensure a balance of fairness, which is consistent with the remarks of the Chief Justice at [187] in his Honour’s reference to the decision in Crofts v The Queen (1996) 186 CLR 427.

80. Grove J expressed himself in similarly cautious terms at [278]-[280]:

“278 The Chief Justice made explicit (at 121 [184] supra) his “considerable reluctance to add to the number of directions and warnings which trial judges are already required to give” and his consciousness of the adjuration of McHugh J in KRM v The Queen (2001) 75 ALJR 550 at 558 [37]:

‘The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings’.

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 (at 122 [191]):

‘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 (emphasis in original).”

81. My point is not to criticise the headnote but only to explain my conclusion that the decision in Markuleski does not stand as authority for the proposition that a direction to the effect considered by the Chief Justice at [186] and [191] should be given “as a general rule” in word on word cases involving multiple counts, still less that such direction is “crucial”. The proposition I would take from Markuleski is that the trial judge should consider, by reference to all of the particular circumstances of the case, whether a direction in such terms is necessary to ensure a balance of fairness.

82. Returning to the decision in SM cited by Mr Odgers in the written submissions, the reference is obscure. The main judgment in that case was given by Basten JA, with whom Bathurst CJ and Simpson JA agreed at [1] and [32] respectively. The paragraphs relied on by the applicant ([5]-[6]) merely set out the grounds of appeal and the direction given by the trial judge. In the discussion that followed, Basten JA noted that it is “by no means easy” for trial judges to formulate an appropriate direction to avoid, prospectively, the “difficulty” discussed by Spigelman CJ in Markuleski of allegedly inconsistent verdicts (which can only be assessed in hindsight). After referring to the Chief Justice’s remarks in Markuleski at [189] and [190], Basten JA said at [14]:

“These passages are clearly intended to be fact specific: the occasion will dictate what it is appropriate to say. On the other hand, the occasions where there is “nothing to distinguish” the complainant’s evidence on one count from that on another will be rare; furthermore, the absolute nature of that proposition is highly likely to infringe upon the right of the jury to determine where the point of distinction might lie. Further, the more detail which is given in directions as to how to deal with the facts, the greater the risk that the judge will contravene the constraints imposed with respect to directions. Thus, s 294AA(1) of the Criminal Procedure Act 1986 (NSW) prohibits a judge from warning or making any suggestion to a jury that complainants as a class are unreliable witnesses. Further, that is to be treated as a prohibition on warning a jury on the danger of convicting on the uncorroborated evidence of any complainant. These, and related provisions in the Criminal Procedure Act and the Evidence Act 1995 (NSW), were introduced (or commenced) after Markuleski.”

83. Far from supporting the applicant’s submission that a Markuleski direction is “crucial” in a case of word against word involving multiple counts, I would take those remarks to support my conclusion that the task of assessing the need to give such a direction is highly contextual and must be undertaken by reference to the ultimate guide of ensuring a balance of fairness.

84. In oral submissions, Mr Odgers relied on the decision of this Court in RWC v R [2013] NSWCCA 58 (McClellan CJ at CL, Latham and Adamson JJ). That was a case involving multiple counts of sexual assault on the word of the complainant. The Court noted at [78] that it may not be strictly correct to describe it as a case of “word against word” because there was also tendency evidence. The Court nonetheless accepted that the complainant’s reliability “loomed large” and that the principle in Markuleski was engaged. The Court held at [80] that there was, in the circumstances of that trial, a risk that the appellant was denied the chance of an acquittal on all counts by the absence of the Markuleski direction. Justice Latham (with whom the other members of the Court agreed) said at [80]: “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.” The decision is of some assistance to the applicant but did ultimately turn on its own facts.

The admissibility of evidence on the question of rule 4

85. I return to the application of rule 4. The applicant sought to address the requirement for leave under that rule by reading the affidavit of his trial counsel, Mr Gleeson, affirmed on 24 March 2020. The Crown opposed the admission of that evidence. We admitted the affidavit provisionally, indicating that we would rule on its admissibility in the judgment.

86. Mr Gleeson said:

“To the best of my recollection I did not turn my mind to the possibility of asking the trial judge to give such a direction. That is, I did not think about the possibility of asking for a Markuleski direction.”

87. The burden of the Crown’s submission was that, if it was sought by that evidence to establish that the miscarriage of justice was due to trial defence counsel’s conduct, the relevant principles were summarised in Alkhair v R [2016] NSWCCA 4 at [31] (Macfarlan JA, with whom Rothman and Bellew JJ agreed). In accordance with those principles, the Court would resort to subjective evidence concerning counsel’s reasoning at trial only in exceptional circumstances.

88. The applicant did not accept that Alkhair governs the present case. He accepted that it is well-established in cases of alleged incompetence of counsel that the enquiry is objective and that inquiries into the subjective thought processes of counsel for taking the steps they did at trial are to be avoided. However, the applicant submitted that, in circumstances where, for the purpose of rule 4, the Crown was placing significance on the failure of trial defence counsel to seek the direction, evidence of his subjective thought processes may be relevant. The applicant referred to a series of authorities in which this Court has accepted the appropriateness of receiving such evidence and has indeed been critical of appeals in which there was a failure to put such evidence before the Court.

89. The authorities referred to establish a range of views on that issue. The high point is probably the decision in R v Hines (1991) 24 NSWLR 737 at 743-4, where Sully J (Hope AJA and Matthews J agreeing) expressed the view that it should become “the fixed practice of this Court” that, in cases invoking rule 4 where the person appearing for the applicant at the appeal did not appear at the trial, that there should be an affidavit putting “such explanation as it might be desired to advance” for the failure to take the point at trial.

90. In RGM v R [2012] NSWCCA 89 Fullerton J (McClellan CJ at CL and Johnson J agreeing at [1] and [2]) noted at [19] that no explanation had been proffered to explain counsel’s failure to seek redirection. Her Honour said that the absence of any explanation “usually counts against leave being granted under rule 4”, citing Wong v R [2009] NSWCCA 101 at [145]. That passage in Wong (Campbell JA, Grove and Howie JJ agreeing at [151] and [152]) supports that proposition while noting that, where the deficiency is “such a departure from the essential requirements of the law that it goes to the root of the proceedings”, leave should nonetheless be granted.

87. Mr Odgers also referred to the decisions of Mortada v R [2014] NSWCCA 36 at [56]-[61]; Amosv R [2014] NSWCCA 302 at [45]; Haidari v R [2015] NSWCCA 126 at [45] and JPM v R [2019] NSWCCA 301 at [221]. Those decisions broadly support the proposition that evidence may and sometimes should be adduced to explain the decisions at trial where rule 4 is engaged. However, it should be noted that in Mortada at [57], the Court (Leeming JA, Hall and Schmidt JJ) expressed some reservations as to the proper extent of such evidence, saying:

“[defence counsel at trial] was cross-examined before this Court, at some length. That took place without objection, or argument, and the fact that this Court permitted it to occur is not to be taken as an endorsement of the practice in a case such as the present. Normally, as Basten JA has said, ‘statements as to counsel's beliefs are of doubtful relevance’: Lee at [139]. On the view that we take, it is not necessary to express a view as to the circumstances when evidence of this nature is admissible: cf Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339 at [25]-[28].”

92. I note that Gillies was not a case in which rule 4 was engaged. The applicant contended that there had been a miscarriage of justice resulting from the failure of his lawyers to follow his instructions with respect to trial strategy and inappropriate pressure placed on him by his lawyers to take a course contrary to his instructions. In that context, the Court said at [26] that a miscarriage of justice “will generally be capable of demonstration only by reference to the objectively verifiable circumstances of the trial”. As the authorities relied upon by the applicant indicate, the position where rule 4 is engaged has been treated as being in a different category, at least where leave is opposed on the basis of an inference as to why a direction was not sought or opposed (as the case may be).

93. The Crown submitted that it has not sought in the present case to identify, objectively, a rational forensic advantage that might have been perceived by trial counsel in not seeking a Markuleski direction.

94. The applicant contended that the Crown’s submissions do raise a question as to why a Markuleski direction was not sought. He noted the submission at paragraph 43 of the Crown’s written outline that the failure to seek the direction “may be explicable by the fact that counsel said nothing because in the atmosphere of the trial, counsel saw no injustice as to what was being done, especially in light of the accomplice warning which directed the jury to give a far higher level of scrutiny to Witness B’s (and Witness A’s) evidence than a Markuleski direction.”

95. In my view, that submission by the Crown indicates that the requirement for leave under rule 4 does raise a question in the present case, concerning the failure to seek the direction, as to why that happened: cf Nudd v The Queen [2006] HCA 9 at [9] per Gleeson CJ. Accordingly, I have concluded that the affidavit, as far as it goes, is admissible on the question whether leave should be granted under rule 4. It does not, however, inform the question whether there has been a miscarriage of justice.

Leave under rule 4

96. On the question of rule 4, the affidavit is not particularly helpful. It establishes that there was no tactical decision not to seek a Markuleski direction due to a desire to obtain some forensic advantage but is otherwise somewhat opaque. Mr Gleeson does not go so far as to admit ignorance or oversight of the decision in Markuleski. His affidavit is capable of being understood to mean that it did not occur to him to seek a Markuleski direction because it did not occur to him that the case was one falling within the class of cases in which such a direction is necessary or appropriate.

97. On balance, I consider that, in circumstances where the applicant has established that there was no tactical decision not to seek the direction, leave under rule 4 should be granted and that the Court should determine the question of whether there was a miscarriage of justice on the merits.

Whether a Markuleski direction should have been given in the present case

98. In my view, however, grounds 1 and 2 are not made out. This was not a case where all counts rested on word against word. An important feature of the so-called “word on word” case is that the proof of all of the elements of the offence rests on the word of the complainant or relevant witness.  That was not the case here.  Counts 11 and 12 depended on the word of Witness B but his evidence could not prove all of the elements of the offence.  The Crown case was weak for reasons unrelated to Witness B’s evidence because the manufactured substance was not recovered for testing.  Accordingly, it cannot necessarily be concluded that the verdicts of not guilty on those counts were the product of doubts about Witness B’s credibility.

99. Count 14 was based on a combination of direct and circumstantial evidence implicating the applicant in the offence. The substance recovered by police (including its “gooey” state) provided cogent evidence that a manufacture of prohibited drugs in fact took place on 25 September 2014. There was no real dispute that it took place at Witness B’s house; trial defence counsel explicitly put to Witness B at the outset of his cross-examination that Witness B was “the cook at Jacky Bulbin”. It was clearly established that the applicant regularly attended those premises to collect drugs for sale. It was clearly established that, on 25 September 2014, he was at Witness B’s house before the manufacturing process began.

100. It may be accepted that Witness B’s description of the applicant’s participation in the manufacturing process (other than as a person who was merely present) found no independent support in the evidence on count 14 and for that reason Witness B’s credibility was important. The trial judge addressed that issue with strong warnings and directions as to the fact that Witness B was an accomplice; that his evidence might accordingly be unreliable and that they should approach that evidence with considerable caution. Her Honour pointed out the reasons such evidence may be unreliable including, first, that accomplices may want to shift blame and in that process may construct untruthful stories, even going so far as to blame innocent people. Secondly, her Honour noted that such people may make false claims out of motives of revenge, dislike or hostility. Thirdly, her Honour pointed to the motive to lie in order to obtain a reduction in sentence. She reminded the jury of the evidence as to the discounts to sentence allowed to both Witness B and Witness C. Her Honour also reminded the jury in that context that the Crown bore the onus of proof. She told the jury that experience has shown that once an accomplice gives a version to police incriminating a co-accused they may feel locked into that version. She concluded by reiterating the warning that the evidence of accomplices may be unreliable and repeating the direction that the jury must approach their evidence with considerable caution.

101. In his written submissions in reply, the applicant submitted that there was a real danger in the present case that the jury would not take their doubts as to the credibility of the witnesses with respect to counts 11, 12 and 13 into account when considering count 14 because trial defence counsel made no specific submissions in his closing address concerning the evidence on count 14.  As submitted by the Crown, it is difficult to see how the content of the closing address can be relied upon to assist the applicant in the present context.  Absent a ground of incompetence of counsel, the applicant is bound by the manner in which the trial was run.  Trial defence counsel may be presumed to have run the trial in accordance with the applicant’s instructions.  In circumstances where what was put in cross-examination (that the applicant was not present for any of the manufactures at Jacky Bulbin Flat and that Witness B was telling lies) was directly contradicted by the telephone intercept evidence indicating that the applicant was present at the property waiting for Witness B on the day of the last manufacture, there was little that could be said about that count that did not carry the risk of emphasising the strength of the Crown case.  The requirement for a balance of fairness did not require the trial judge to bolster a weak defence under the guise of a formulaic direction as to the way in which the jury should approach their task.

102. Adopting the language of Simpson J in Hajje, it must have been perfectly obvious to the jury in the present case that the credibility of the two accomplices, particularly Witness B, was seriously in question. I am not persuaded that a Markuleski direction was necessary to achieve a balance of fairness in the present case. Nor, as Simpson J concluded in Hajje, do I think a Markuleski direction would have done any more to secure the acquittal of the applicant.

103. For those reasons, I propose the following orders:

1. Grant leave under rule 4 of the Criminal Appeal Rules (NSW) to rely on grounds 1 and 2.

2. Grant leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to rely on ground 3.

3. Dismiss the appeal.

104. WILSON J: I agree with McCallum JA, for the reasons given by her Honour.

105. CAVANAGH J: I have had the benefit of reading in draft the reasons for judgment of McCallum JA, with which I agree. I also agree with the orders proposed by her Honour.

106. I wish only to add the following comments.

107. The applicant’s submission that the giving of the direction relied upon in grounds 1 and 2 was described by Spigelman CJ (Wood CJ at CL and Carruthers AJ agreeing ) in R v Markuleski at [191] as a “crucial matter”, should be rejected.

108. His Honour’s reference to a “crucial matter” must be viewed in context as follows:

“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.”

109. In my view, in referring to “the crucial matter”, his Honour was intending to emphasise the content of the direction rather than the circumstances in which such a direction might be called for.

110. Nothing in the judgment of Wood CJ at CL supports the elevation of the direction to a “crucial matter”. Carruthers AJ agreed with the Chief Justice but did not comment further.

111. Further, as observed by McCallum JA, Grove J specifically cautioned against the adoption of language which might suggest that the giving of such a direction is mandatory. I would adopt His Honour’s language in stating that whilst it may be desirable in some word against word cases to give the additional direction, the absence of such a direction is not fatal.

112. For the reasons set out by McCallum JA no error has been demonstrated in the failure to give such a direction in this matter. Its absence does not point to any unfairness towards the applicant.

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Decision last updated: 17 April 2020