R v Goss - [2007] VSCA 116

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 288 of 2006

THE QUEEN
	v.
JOHN EDWARD GOSS

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JUDGES:	BUCHANAN, REDLICH and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 April 2007
DATE OF JUDGMENT:	1 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 116

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Criminal law – Appeal against conviction - Markuleski direction not required - Longman warning sufficient -Verdicts not unsafe or unsatisfactory - directions of trial judge as to elements of counts of indecent assault sufficient.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr M J Croucher	Leanne Warren & Associates

BUCHANAN JA:

In my opinion the application for leave to appeal against conviction should be dismissed for the reasons stated by Kellam JA.

REDLICH JA:

Should a Markuleski direction have been given?

For the reasons given by Kellam JA I agree that there is no substance in ground 1. The decision in R v Markuleski was not followed by this Court in R v PMT. Nothing has been said in those decisions to which we were referred[1] that have followed and applied Markuleski which calls for any reconsideration of the decision in PMT.
[1]AM v the Queen (2006) 164 A Crim R 558; R v LR (2005) 156 A Crim R 354; Lefroy v R (2004) 150 A Crim R 82.

No persuasive reason has been advanced on the applicant’s behalf why PMT should be distinguished from the present case. The trial judge gave a traditional separate consideration direction. Although none of the complainant’s evidence was corroborated it was not contended on this appeal that there was any inconsistency in the verdicts of the jury. A reasonable doubt in relation to the count on which the complainant specified the date on which the alleged offence occurred, and where there was contradictory alibi evidence adduced by the defence, did not require a reasonable jury to have a doubt about the occurrence of the offences the subjects of the other counts where no such contradictory evidence was adduced.[2] Moreover, both the complainant and her father had in cross-examination acknowledged some uncertainty about the date on which the offences, which were the subject of the verdicts of not guilty, occurred.
[2]R v PMT (2003) 8 VR 50 ; cf R v Markuleski (2001) 52 NSWLR 82 at [19], [204].

I do not consider that any direction was required as to how the jury should have employed its assessment of the credibility of the complainant if they found that they were unable to act upon the complainant’s evidence with respect to a particular count. No such direction need be given in the absence of some unusual feature of the case which gives rise to a specific risk that a miscarriage of justice may occur without such a direction. The capacity of a jury to return a just verdict rests in large measure upon the confidence reposed in the jury, that it is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Goss

Details

AGLC: R v Goss [2007] VSCA 116
Case: [2007] VSCA 116
Decision Date: 1 June 2007

CaseChat Overview and Summary

The appellant, Goss, was convicted on several counts of indecent assault and appealed against his conviction. The appeal was heard by the High Court of Australia, which comprised of several justices. The primary issue before the court was whether the trial judge's directions to the jury, in particular the Longman warning, were sufficient to ensure the verdicts were not unsafe or unsatisfactory. The appellant argued that the trial judge should have given a Markuleski direction, which is a more detailed direction regarding the elements of the offence of indecent assault.

The court found that the Longman warning, which directs the jury to consider whether the accused's conduct was indecent and whether the complainant did not consent, was sufficient to ensure the verdicts were not unsafe or unsatisfactory. The court noted that the trial judge's directions as to the elements of the counts of indecent assault were sufficient, and that there was no requirement for a Markuleski direction. The court found that the verdicts were not unsafe or unsatisfactory, and dismissed the appeal.

The court held that the Longman warning was sufficient to ensure the verdicts were not unsafe or unsatisfactory. The court found that the trial judge's directions as to the elements of the counts of indecent assault were also sufficient, and that there was no requirement for a Markuleski direction. The court dismissed the appeal and affirmed the convictions.

Orders