R v Lebler - [2003] NSWCCA 362

No judgment structure available for this case.

CITATION: R v Lebler [2003] NSWCCA 362

HEARING DATE(S): 26/11/03

JUDGMENT DATE:
11 December 2003

JUDGMENT OF: Meagher ACJ at 1; Kirby J at 2; Shaw J at 106

DECISION: Appeal dismissed

CATCHWORDS: Criminal Practice & Procedure - inconsistent verdicts - unreasonableness of verdict - use of doubt on one count when resolving issues on other counts - pressure on jury to reach verdict - recklessness in context of consent to sexual intercourse - directions on complaint evidence cf accused's denials

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995

CASES CITED: Black v The Queen (1993) 179 CLR 44
M v The Queen (1994) 181 CLR 487
MFA v R (2002) 193 ALR 184
MacKenzie v The Queen (1996) 190 CLR 348
R v Crisologo (1997) 99 A Crim R 178
R v Kirkman (1987) 44 SASR 591
R v Markuleski (2001) 52 NSWLR 82
Regina v ITA [2003] NSWCCA 174
R v Colville [2003] NSWCCA 23
R v Kitchener (1993) 29 NSWLR 696
R v Tolmie (1995) 37 NSWLR 660
Graham v The Queen (1998) 195 CLR 606
Kilby v The Queen (1973) 129 CLR 460
Crofts v The Queen (1996) 186 CLR 427
Jones v The Queen (1997) 191 CLR 439

PARTIES :
Regina
Natalis Andre Lebler

FILE NUMBER(S): CCA 60295/03

COUNSEL: P M Miller (Crown)
P Hamill (Appellant)

SOLICITORS: C K Smith (Crown)
S O'Connor (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/51/0193

LOWER COURT
JUDICIAL OFFICER : Ducker DCJ

60295/03

MEAGHER JA
KIRBY J
SHAW J
Thursday 11 December 2003

REGINA v Natalis Andre LEBLER

Judgment

1 MEAGHER JA: I agree with Kirby J.

2 KIRBY J: Natalis Andre Lebler (the appellant) stood trial before Acting Judge Ducker and a jury at Lismore. He was charged on three counts under s61(I) of the Crimes Act 1900, all expressed in these terms:

"... that he on 15 December 1999 at Nimbin in the State of New South Wales did have sexual intercourse with Sarah Jane Cassandra Hill without her consent and knowing she was not consenting."

3 Each act of sexual intercourse was said to have taken place in the appellant's car which was then parked in a remote area outside Nimbin. The first and third counts involved penile penetration. The second count was penetration by the tongue, that is, cunnilingus.

4 The jury returned a verdict of not guilty on the first count, but guilty on counts 2 and 3. When sentencing Mr Lebler, Ducker ADCJ said this:

"I have been shown some drafts of proposed appeal in this matter. I, with respect, would have thought that the first suggested ground should be that the jury's verdicts were inconsistent and possibly indicative of compromise with each other. I can envisage some scenarios which, to my mind, could have given rise to the jury's verdicts but I do not propose to trespass into an area which will become the responsibility of the Court of Criminal Appeal to determine."

5 His Honour issued a certificate under s5(1)(b) of the Criminal Appeal Act 1912 that the case was "a fit case for an appeal".

The Notice of Appeal

6 The notice of appeal identified six grounds, five of which were pressed. Paraphrasing those grounds, they were:

1. That the verdicts with respect to counts 2 and 3 were unreasonable.

2. That his Honour should have told the jury that any doubts they had in respect of one count should be taken into account in assessing the evidence in respect of the other counts (the Markuleski direction).

4. That the Judge failed to comply with Black v The Queen (1993) 179 CLR 44. He put pressure upon the jury to reach a verdict.

5. That the Judge failed adequately to direct on the issue of recklessness.

7 I will deal with each ground in turn. Before I do so, I should briefly describe the evidence called at trial.

The incident

8 Sarah Hill (the complainant) was a young woman aged 19 years. She lived at Purga in Queensland with her boyfriend, Shane Williams, and his mother. She had two children, a girl aged two years and a son aged six months. In December 1999 the children were in the care of her mother, Ms Suzanne Wallace. Ms Wallace lived at Bolton Point near Newcastle. Her mother's husband was a heroin addict. Having been drug free for a number of years, he relapsed in December 1999. The complainant's mother, therefore, asked her daughter, as a matter of some urgency, to pick up the children. Ms Hill, however, had no money to make the trip.

9 The complainant met the appellant in October or November 1999 at the house of a friend. In early December 1999, Mr Lebler telephoned her. He said that he had to go to Nimbin. He asked her whether she would like to go. She said she would not. A short time later, Ms Hill's mother telephoned her daughter again. She demanded that she pick up her children. Indeed, she threatened to punch her in the face if she failed to do so. Meanwhile, Mr Lebler telephoned Ms Hill once more. According to Ms Hill, he agreed to drive her to Newcastle after he had been to Nimbin (T4). Mr Lebler denied that suggestion. It was never his intention to drive beyond Nimbin. He intended, and understood the complainant intended, to have a "dirty weekend" at Nimbin (Exhibit G, ERISP, p22 Q185).

10 The arrangements to leave were made hurriedly. Ms Hill was not able to contact her boyfriend, Shane Williams. She left without saying that she was with the appellant. She did, however, tell her boyfriend's mother.

11 Mr Lebler made arrangements to meet a friend, Lenny, at a park in Nimbin. Lenny (Leonard Thomas Johnson) lived at Barkers Vale which was 20 kms outside Nimbin. Mr Lebler had stayed at Lenny's home on a number of occasions. He was usually accompanied by a woman. Mr Lebler intended to stay at Lenny's home that night with the complainant.

12 On the way to the park, Mr Lebler stopped at a hotel. He bought a four pack of Wild Turkey mixes in bottles. Whilst he was at the hotel, the complainant rang her boyfriend, Shane, from a phone booth. She told him she was with the appellant. She said she was going to "visit her kids". According to Mr Williams she sounded normal.

13 Mr Lebler and the complainant arrived at the park shortly after 10.00 pm. Lenny and his friend were at the park drinking and smoking drugs, including heroin. According to the complainant, Mr Lebler consumed a significant quantity of alcohol. She had some alcohol, although she said not much. She acknowledged that she regularly drank to excess. However, on that evening, she said she had very little, first, because she did not want to be drunk when she picked up her children, and secondly, because she did not want to drink out of the same bottle as others.

14 The group remained at the park a number of hours. The complainant said that she "whinged" that it was late and that she was cold. Accounts differed as to the circumstances in which the group broke up and left the park.

15 The complainant said that the appellant was drunk. She said he should not drive. On her account, he then became upset. They argued. Whilst they were arguing, Lenny and the other males drove off.

16 Mr Lebler, on the other hand, said that Lenny was too drunk to drive home. Mr Lebler was therefore left without a guide. Although he had been to Lenny's place before, he was not able to find it in the dark, alone. He therefore had nowhere to stay. So he drove off with the complainant. She had asked to drive, but she was too drunk.

17 A third account was provided by Lenny. He said that the appellant "hassled" him to leave the park and drive home. However, he wanted to stay. He then heard the appellant and the complainant arguing about who was going to drive. He saw them leave by car. He was not certain who was driving.

18 The accounts given by the appellant and the complainant markedly diverge after they left the park. She said that she wanted to go home. She asked Mr Lebler to take her to a phone box. On her account, he ignored her request. He then drove out of town. Because it was dark, she did not know where he was driving. She said he then acted in a way calculated to scare her to the point where she felt that her life was in jeopardy. He drove at high speed. It was a country road which twisted and turned. There was no lighting. He switched the car headlights on and off. The complainant said this: (T11)

"I was shitting myself. I thought we were going to hit a tree or something, was worried we were going to have a crash."

19 She told the appellant to put the car headlights on. He responded by driving faster. On her account, Mr Lebler then began saying strange things, rapidly changing his mood, and ultimately banging his head on the steering wheel. Ms Hill said this: (T12)

"A. ... He was saying all this really weird stuff to me ... he was yelling at me and saying stuff you know about God and about I'd sinned and it's hard to explain because he was in different moods all the time. I can't explain how he went from being really angry to really calm to laughing and at the same time he was telling me it was all my fault, about taking me up there to conceive a child with me, some fucking waterfalls, and I was going to die tonight, but it wasn't going to be by his hands and told me how dumb - when he told me how dumb I was and how he planned it. I just - I didn't know what to do. I just started crying because I felt dumb, because I felt dumb and I blamed Maria, I blamed myself for thinking about my kids.

20 Ms Hill, on her account, then determined that to survive she had to give herself to the appellant. She said this:

I thought if I give it to him

21 The complainant explained what she meant by the words, "if I give it to him", as follows:

"A ... If I give it to him, if I give him my body then maybe he will leave me alone. He takes what he wants and he will be satisfied with his own fucking pig feelings, and then he will leave me alone. I thought maybe if he was satisfied and got the multiple orgasms that he was fucking asking for, he would leave me alone. That's why I give it to him, hoping that he wouldn't want anything else from me after that. I know I done the right thing. I know that if I would have tried to fight him, if he didn't kill me he would have hurt me really bad. I know for a fact if I didn't do what I done. You may think I was wrong for telling him all that. I'm glad to tell youse I told him I loved him and I lied to him about all that stuff, because that saved me. I feel dirty and I feel disgusting every day that I done that. I feel ashamed of myself, I have done that, but I had to do that."

22 Ms Hill described what she did to persuade the appellant: (T13)

"... I stopped crying and I turned around to him and I started trying to talk to him nicely, because I thought maybe he was just drunk or maybe he was just upset and I thought, if I be nice to him he would stop and I talked to him and he kept going on about, telling me that he was ugly and I didn't want him and saying, "Shane was better than him", and I told him, "No, you're not ugly". I told him, "Shane's not better than you". I tried to make him happy so he wouldn't hurt me. I just ... do it so it wouldn't happen and I put my - I put my arm - my arm around him, I put my arm around him and I told him that I loved him and he pushed me away and he said --

23 The complainant described what then happened in these words:

"A. He pushed me away from him, he pushed me away from him and then I got worried and I grabbed again and I grabbed him even harder, because I was worried if he thought I was lying to him he would hurt me. I thought he was going to kill me. I didn't know what to do.

24 The car was parked by the side of the road in a remote bushland area. She did not believe that she could outrun the appellant. Ms Hill said that she moved to his side of the car, lying on top of him. She began to remove her clothing. He assisted her in doing so. On her account, the behaviour which she found threatening nonetheless continued. She said this: (T15)

.....

25 The appellant bit Ms Hill on the side of the neck, a wound which was still visible when she was examined in hospital the next day. It was common ground, however, that sexual intercourse proceeded without violence. The appellant inserted his penis in her vagina. As he was about to ejaculate, she moved away (count 1). There was later an act of cunnilingus, his tongue entering her vagina (count 2). Later still, he again inserted his penis in her vagina. On this occasion he ejaculated inside her (count 3).

26 Mr Lebler denied each aspect of her account, apart from the act of cunnilingus (count 2) and the act of penile penetration thereafter (count 3). He said that Ms Hill consented to intercourse. Indeed, she had initiated intimacy by physically approaching him. The appellant acknowledged that he had driven at 120 kph as they drove out of Nimbin. However, he did not regard that as speeding. He did not switch the lights off until the vehicle came to a standstill.

After the incident

27 After intercourse had taken place, the appellant fell asleep. The complainant dressed. She sat in the car for about an hour. As soon as it was light, she got out and left. As she did so, she took the car keys. She ran down the road, crying. A motorcyclist gave her a lift to Nimbin. He dropped her at the bakery, which was the only shop open.

28 The baker, Mr Stuart Shipley, gave evidence. He said that early on the morning of 15 December 1999 the complainant knocked on his shop window. She was holding a set of keys. She looked very agitated. He observed that she was looking up and down the street. She said that she was scared. He saw that she had a red mark on her neck. She was crying.

29 Mr Shipley contacted the police. Two police officers came to the shop. Sgt Berryman described Ms Hill as "upset and distraught". Her eyes were puffy. She complained of having been sexually assaulted. She described to Sgt Berryman and Snr Const Patrick Dempsey the road where the car had been located. The police then drove along that road in search of the vehicle. The vehicle was found approximately three kilometres out of town. The appellant was still in the car. He was asleep and naked from the waist down.

30 The police woke Mr Lebler. They told him that Ms Hill had complained that he had sexually assaulted her. Mr Lebler responded with these words: (T22)

"What, she's my girlfriend. I couldn't have, Lenny and Sophie were here with me."

31 Mr Lebler was arrested. He was taken to the police station. At 10.25 am, after legal advice, he agreed to be interviewed. He repeated his denial of the complainant's allegations. He had not threatened or terrorised the complainant. He acknowledged that cunnilingus and one act of penile intercourse had taken place. The complainant had consented. Mr Lebler agreed to provide a blood sample.

32 Meanwhile, Ms Hill was taken to the Lismore Base Hospital. She was seen by Dr Gillian Smith at 7.55 am. Dr Smith said that she looked extremely tired and anxious. The complainant found the process of being undressed and examined very distressing.

33 Dr Smith said that the complainant did not appear to be intoxicated. She had a bite/suck injury to her neck. She also had a number of bruises. An examination of the genital area revealed no abnormality.

34 The complainant gave Dr Smith a history of past drug use. She said that she had not used drugs since undergoing rehabilitation at a clinic at Newfarm, Queensland. She had, however, experienced auditory hallucinations following detoxification.

35 Dr Smith saw no evidence that the complainant was hallucinating at the time of her examination (T244). Indeed, there was no indication that she was effected by any drugs other than alcohol. Dr Smith said this: (T244)

"She was able to give a lucid history and her thought processes seemed clear. She wasn't -- there weren't any bizarre or strange elements to the things that she was saying, she just was quite normal in her thought processes. In her logic she was able to focus on the task at hand, so there was no indication that there was anything else happening, nor did she report any hallucinations."

36 Swabs were taken from the complainant's vagina and her underwear. Within the vagina and on the underwear there was semen, which was identified by means of DNA as that of the appellant. Semen was also found on the passenger's seat of the vehicle.

37 The complainant telephoned a friend, Mr Shoebridge. She asked that he drive her home from Lismore. He agreed to do so. Mr Shoebridge said that on the way home she was very quiet. She repeated a number of times: "I got raped, I got raped."

38 Once back in Queensland, Ms Hill returned to the family home of her boyfriend, Shane Williams. Mrs Lorna Williams, her boyfriend's mother, said that the complainant spoke of having been raped. Her son, Shane, said that he knew nothing of the assault except through his mother. The complainant's mother arrived with the children some weeks later. Soon after the complainant and Shane Williams separated.

The relationship between the complainant and the appellant

39 A number of witnesses gave evidence relevant to the relationship between the complainant and the appellant. The evidence was directed to two issues. The first concerned Ms Hill's purpose in accepting a lift from Mr Lebler. Ms Hill said that her purpose was to pick up her children, in view of the urgent request from her mother. When she left she packed a bag with her children's clothes. Mr Lebler, however, said that journeying to Newcastle was never part of their arrangement. He only ever intended to drive to Nimbin and return. It was, in his words, "a dirty weekend", as the complainant well knew.

40 The complainant spoke to Mrs Lorna Williams before she left with Mr Lebler. She told her that Mr Lebler was taking her to pick up her children. Shane Williams, her boyfriend, said that he had spoken to the complainant's mother. He was told that the complainant was supposed to get down there "to see her kids". He knew that the complainant wanted to go to Newcastle. However, he did not know when she intended to go.

41 The appellant's friend, Lenny, said that he vaguely remembered a discussion about going to Newcastle, but he was not sure. A statement of Maria Jane Dawson was tendered (Exhibit M). Ms Dawson was a friend of Mr Lebler. She had also known the complainant for about seven months. Indeed, it was Ms Dawson who introduced the complainant to the appellant. She recalled Mr Lebler saying that he was going to Nimbin. She later saw the complainant and another woman in the appellant's car when they began the journey. The other woman was later dropped off at her home. As the car left, Ms Dawson said that she had heard the appellant say that they were going to Nimbin.

42 The second issue concerned the nature of Mr Lebler's relationship with the complainant. Mr Lebler said he was attracted to Ms Hill. Mr Shoebridge said that the complainant had told him that she was having problems with her boyfriend Shane. She had, in this context, stayed at his house for two days. Mr Lebler said the complainant acknowledged that she was seeing other men when she was living with Shane, and she was commonly known as "a slut" (Exhibit G, Q163). Whilst at the park at Nimbin, the appellant's friend Lenny (Mr Johnson) got the impression that the complainant and Mr Lebler were "friendly". They sat next to each other. He saw them walking hand in hand. The complainant denied that suggestion.

Ground 1: The verdict was unreasonable

43 Section 6(1) of the Criminal Appeal Act 1912, so far as presently relevant, provides:

"The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal ..."

44 The test to be applied was stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 as follows: (at 493)

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

45 That test has been recently reaffirmed by the High Court in MFA v R (2002) 193 ALR 184, per Gleeson CJ, Hayne and Callinan JJ (at 190), and McHugh, Gummow and Kirby JJ (at 198). This Court, examining the evidence at the trial, must reach a view as to whether it was reasonably open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant in respect of counts 2 and 3 (cf MFA v R (supra) at 198 para 60-61).

46 At the end of the Crown case, an application was made for a directed verdict. His Honour declined that application. However, he gave what is generally referred to as a Prasad direction. That is, he gave the jury the opportunity of immediately acquitting Mr Lebler or, alternatively, indicating that it wished the trial to continue. The jury responded by saying that it wished the trial to continue. The appellant then gave sworn evidence. He denied wrongdoing. The complainant had consented to each act of intercourse. He reaffirmed the truth of what he had said to the police when interviewed, with one qualification. The qualification was that he had been driving, not the complainant. He had originally asserted that the complainant had been driving because he, at the time, was a disqualified driver. He was frightened that he may be charged with that offence.

47 Following the verdict, his Honour, as mentioned, issued a certificate under the Criminal Appeal Act 1912, certifying that the case was "a fit case for appeal" upon the following grounds:

"1. The abovenamed was acquitted on the first count in the indictment presented against him but found guilty on the second and third counts therein, in a case in which all three offences were allegedly committed by the same offender on the same occasion and where in each instance the evidence of the same complainant had to be accepted beyond reasonable doubt before a verdict of guilty could properly be returned.

2. The evidence as to the absence of consent relied upon by the prosecution was dependent upon the jury finding that, notwithstanding the complainant having told the accused that she loved him and having herself initiated the sexual intercourse, her freewill had been overborne by the behaviour of the accused.

3. The jury's finding negativing any belief by the accused that the complainant was consenting could only have been based upon the accused having known and appreciated that his own bizarre behaviour had caused the complainant to become so fearful of violence by him towards her that she was not freely consenting to sexual intercourse with him or that he had not even considered whether or not she was consenting."

48 What, then, is the significance of the verdict of not guilty on count 1? The appellant acknowledged that count 1 could be distinguished from counts 2 and 3, such that the verdicts were not technically or factually inconsistent (cf MFA v R (supra), Gleeson CJ, Hayne and Callinan JJ at 192/193 para 34-36; McHugh, Gummow and Kirby JJ at 203/204 para 85). Nonetheless, it was said that there was no rational or reasonable explanation for the differing verdicts. That they were different suggested compromise, according to the appellant. As such they were an affront to logic and common sense (MacKenzie v The Queen (1996) 190 CLR 348 at 368; MFA v R (supra) at 204 para 86). Indeed, it was argued that that impression was reinforced by two matters. The first was the following direction by the trial Judge during the summing up (which, itself, is the subject of a separate ground of appeal, ground 2):

"There are three separate charges and you must consider each charge on its merits. However, the reality of the situation is that the prosecution depends upon your accepting the complainant Miss Hill, as a credible witness who when her evidence is compared and contrasted with the evidence of other witnesses in the case, you are in the final analysis prepared to accept beyond reasonable doubt, as an accurate and honest account, so far as the vital matters with which this trial is concerned. You might find it hard to find any logical basis as to why the same verdict, that is either guilty or not guilty, should (not) be returned in respect of each of the three charges. They all arose on the one occasion, within a very short time of each other. They all involved the same witnesses and they all depend in the final analysis, upon the credibility of the complainant."

49 The second reason was the unseemly pressure by his Honour upon the jury to conclude their deliberations rapidly, which they duly did. After a six day trial the jury retired at 3.35 pm on a Friday. They were brought back for certain redirections at 3.49 pm. They returned to their deliberations at 3.51 pm. The verdicts were ultimately delivered after approximately two hours at 5.55 pm. This aspect is also the subject of a separate ground of appeal (ground 4). However, on the appellant's argument, that sequence, and his Honour's comments, provide further support for the suggestion of compromise (cf R v Crisologo (1997) 99 A Crim R 178, per Simpson J at 183).

50 However, I am not persuaded that there was compromise. There are rational explanations for the different verdicts. First, the obvious difference between count 1 and counts 2 and 3 was that the appellant denied the act of intercourse in count 1, but not counts 2 and 3. It was his case, on counts 2 and 3, that, although intercourse had taken place, the complainant had consented, or at least he believed at the time that she had consented. However, paraphrasing the words of Gleeson CJ, Hayne and Callinan JJ in MFA v R (supra) at 192 para 34, some members of the jury may have required some supporting evidence before being satisfied beyond reasonable doubt, based upon the word of the complainant, as to the number of acts of penile intercourse. As Gleeson CJ, Hayne and Callinan JJ said: (at 192 para 34)

".... This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility."

51 Secondly, the complainant certainly insisted, when she gave evidence, that there were three acts of intercourse (each the subject of separate counts). She said this: (T162)

"A I told you just before, twice. Twice. He put his tongue in once; he put his penis in twice. If you think about it he put his penis in I don't know many how many times but he done it on two occasions."

52 However, on the morning of 15 December 1999, when first seen by Sgt Berryman, the complainant had spoken of three acts of intercourse (implying three acts of penile intercourse). Based upon that inconsistency, some members of the jury may not have been satisfied beyond reasonable doubt on count 1.

53 Thirdly, the verdict may reflect a merciful view of the evidence; King CJ (with whom Olsson and O'Loughlin JJ agreed) said this in R v Kirkman (1987) 44 SASR 591: (at 593)

Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number.

54 These remarks were endorsed as practical and sensible by Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (supra) at 368. In MFA v R (supra) Gleeson CJ, Hayne and Callinan JJ said this, having referred to the same case: (at 192 para 34)

"... it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only."

55 Although the different verdicts can be rationally explained, the issue remains whether the guilty verdicts were unreasonable. The case was unusual. There was, moreover, a substantial attack upon the credit of the complainant. That attack, broadly, was directed at two matters. First, in the days following 15 December 1999, the complainant gave a number of accounts to friends and others which were inconsistent with the account that she gave to the police, and which she repeated when giving evidence. Mrs Lorna Williams, her boyfriend's mother, said that she was told by the complainant that the appellant had held her down, forcing himself upon her. She said that, when putting his penis inside her vagina, he was ripping her. Ms Maria Dawson said that the complainant told her the next day that the appellant had put his fist in her vagina, such that she required 14 stitches. She said, according to Ms Dawson, that she had been pregnant. She had lost the baby. The appellant had been raving on about God.

56 The Crown argued that such inconsistencies could be explained by the complainant's shame at having been forced into a situation where she felt obliged to initiate the intimacy and "give herself".

57 The second issue concerned the complainant's drug taking. The learned trial Judge described the complainant as living a chaotic life. With disarming frankness, she acknowledged excessive drinking and extensive drug taking. However, she insisted that much of her drug taking occurred after she had been raped. She had not, for instance, taken LSD or amphetamines before the incident. Hospital records, tendered on behalf of the appellant, suggested otherwise. More than that, there was evidence that, under the influence of drugs, she had hallucinated before this incident. Hence, there was an issue whether, by reason of drugs and alcohol consumed on this evening, she may have been hallucinating.

58 The Crown suggested a number of explanations for the differences between her account of her drug taking and the medical records. For some of the records, she was not necessarily the source of information. She had been taken to a hospital by her grandmother, who had plainly provided information. Even were the records accurate, it was possible that the complainant had simply forgotten details of her chaotic past or was confused, no doubt partly because of the drugs themselves.

59 Weighing these matters, I believe it was reasonably open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant on counts 2 and 3 (cf MFA v R (supra) p198, para 60). The incident took place in a remote location on a dead end road. The action of the complainant in escaping, taking with her the keys to the car, is consistent with her account that she was in fear. When seen by Mr Shipley, she was nervously looking up and down the road. Her appearance and the terms of her immediate complaint to Mr Shipley, to Sgt Berryman, and to Dr Smith (who examined her within a matter of hours), again were consistent with the account that she had given.

60 I would dismiss ground 1.

Ground 2: The Markuleski direction

61 Ground 2 was expressed in these terms:

"The learned trial Judge erred in failing to direct the jury that if it entertained a reasonable doubt in relation to the complainant's credibility in respect of one count that such doubt should be taken into account in assessing the evidence in respect of the other counts."

62 The passage in the summing up, which is the subject of complaint, formed part of the argument of the appellant on ground 1 (supra: para 46). It is convenient to reproduce that passage in this context. His Honour said this:

"There are three separate charges and you must consider each charge on its merits. However, the reality of the situation is that the prosecution depends upon your accepting the complainant Miss Hill, as a credible witness who when her evidence is compared and contrasted with the evidence of other witnesses in the case, you are in the final analysis prepared to accept beyond reasonable doubt, as an accurate and honest account, so far as the vital matters with which this trial is concerned. You might find it hard to find any logical basis as to why the same verdict, that is either guilty or not guilty, should (not) be returned in respect of each of the three charges. They all arose on the one occasion, within a very short time of each other. They all involved the same witnesses and they all depend in the final analysis, upon the credibility of the complainant."

63 His Honour's direction was based, no doubt, upon R v Markuleski (2001) 52 NSWLR 82. In that case the appellant suggested that the trial Judge should have directed the jury that they should take into account the failure of the complainant's evidence to satisfy them beyond reasonable doubt on one count when assessing her evidence on the remaining counts (para 181). Spigelman CJ thought that such a direction should be given "as a general rule" (para 187). The Chief Justice said this: (at 122)

"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."

64 Here, the appellant complains that the direction contemplated by para 189 was given, but not that in para 190. Further, the matter identified by the Chief Justice as "crucial" in para 191 did not form part of the direction which was given. The Crown responded by suggesting that the Chief Justice, in paragraphs 189 and 190, was speaking of alternatives. The direction said to be crucial was, according to the Crown, implied by the terms of the direction which was given.

65 Wood CJ at CL in Markuleski said this: (at 134/135)

"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."

66 Grove J, on the same issue, made the following comment: (at 138)

"280 ... 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."

67 Simpson J dissented, whilst Carruthers AJ agreed with the Chief Justice.

68 Here, I believe, for a number of reasons, that the trial Judge's direction was adequate. First, the Court emphasised in Markuleski that the precise direction must depend upon the circumstances. The trial Judge clearly had the Chief Justice's words in mind when fashioning the direction he gave. The circumstances in the present trial were quite different from those in Markuleski. In Markuleski there were a number of counts. They were based upon allegations made more than twenty years after the alleged sexual misconduct. This misconduct was said to have taken place on a number of specific occasions. They were spread over more than a year. What was alleged to have happened on one occasion differed from that which was said to have occurred on another.

69 Here, there was one occasion. There was a narrow issue. The common thread was the alleged absence of consent, as to which the complainant's credibility was vital. His Honour's direction was, I believe, adequate in that context.

70 Secondly, it will be noticed that the direction which was given went well beyond the matter identified by the Chief Justice in Markuleski in para 189 (i.e. that there was nothing to distinguish the evidence of the complainant on one count from her evidence on other counts). His Honour gave emphasis to the crucial issue of her credibility. Again, in this respect, it was quite different from the direction given by the trial Judge in Markuleski. The direction given in that case was in these terms: (at 118)

"164 ... 'It is up to you how you deal with the evidence and how you find your verdicts, but you may consider that it would be very difficult to find him guilty on one and not guilty on others. You either might accept the complainant as a truthful, accurate, credible witness or you do not. ...'"

71 The Judge had inverted the proper reasoning process by saying they would find it "difficult to find him guilty on one and not guilty on others". He should have said: "You may consider that it would be very difficult to find him not guilty on one and guilty on others."

72 Nonetheless, the Chief Justice (and other Judges) emphasised that even that direction may not have been fatal had it not been for other defects in the summing up (see especially Spigelman CJ, para 187, 194). The necessary implication of the direction given by his Honour in this trial was that, if the jury entertained doubt on one count, they may use that doubt in their evaluation of the complainant's evidence in respect of other counts.

73 Thirdly, no objection to his Honour's direction was made by counsel appearing for the appellant at the trial. Rule 4 applies. As the Court remarked in Regina v ITA [2003] NSWCCA 174 at para 90, the absence of an objection from counsel is usually a reasonably reliable indicator of the fairness and adequacy of the directions given.

74 I would dismiss ground 2.

Ground 4: Pressure on the jury

75 The appellant formulated ground 4 in these terms:

Black v The Queen

76 The trial began in Lismore on Thursday 21 November 2002. On Tuesday 26 November 2002, at the end of the day, the Crown suggested that it was a convenient time to adjourn. A discussion ensued, in the presence of the jury, about the likely length of the case. The case had exceeded the four day estimate. Counsel were mildly rebuked for straying outside the real issues. In the course of the discussion, his Honour said this:

"I indicated quite plainly that this case had to finish this week."

77 The evidence concluded late on Thursday 28 November 2002. The trial Judge then told the jury that addresses would begin, after which he would sum up. His Honour then addressed the Crown Prosecutor in these terms: (T363)

"I have a note from the jury to say that the jury have to leave by 4.30 pm. That gives you three quarters of an hour - are you ready to address?"

78 The Crown said that he could do so. However, he asked for a 15 minute break to organise his notes and his thoughts. The jury was then sent out. The discussion between his Honour and Counsel continued in their absence. One of the matters of concern to the trial Judge was that a strike involving certain court staff had been foreshadowed for the following Monday.

79 The jury, meanwhile, sent a note. The note stated that they would "like to hear both summations tomorrow". His Honour brought the jury back and addressed them in these terms: (T364/5)

"Members of the jury I have your note. I will allow your request. I would suggest that you have a good early night because you are going to have a very hard day tomorrow. We will start at 9.30 am. But you should not make any arrangements for tomorrow evening because you may be sitting here for quite some time, and if another day is required it looks like Monday is not available so it will be a Saturday sittings. We seek to void them but if necessary they will have to be conducted. But let me, very quickly, this is a serious case and must not be decided in any atmosphere of haste, it must be looked at very carefully and you must take as long as it is necessary for it to be done properly. I will release you for the rest of the day with those sad tidings."

80 The following morning, before the Crown Prosecutor began his address, the jury sent a further note. The note said this:

"What happens if we cannot reach a unanimous decision?"

81 His Honour responded immediately (without consulting Counsel) in these terms: (T367)

"HIS HONOUR: Members of the jury, in a moment the learned Crown Prosecutor will address you. I see there's a note here. Well we will wait and see. There are things that will be done, but we will deal with that problem if it arises. The question is, "What happens if we cannot reach a unanimous decision?" One thing I would say to you at this stage in the light of that is this, that you don't all have to agree upon the basis for the decision, provided your decision is made in accordance with the directions of law which you're given and upon the evidence which you have heard and seen in the case, each member of the jury is entitled to come to his or her view as to what the verdict should be, in his or her own way. It is only the actual verdict itself which has to be agreed upon by all members of the jury."

82 The appellant complains that his Honour "made no attempt to comply with the High Court decision in Black v The Queen (1993) 179 CLR 44". In that case the jury had been deliberating for three hours. The Judge brought them back and said that he understood that they were having problems. Having reminded them that they were 12 individuals who had each taken an oath, his Honour said this: (at 47)

"It makes for considerable public inconvenience and expense if a jury cannot agree and it is most unfortunate indeed if such a failure to agree is due to some unwillingness on the part of one or more members of the jury to listen to and consider the arguments of the rest of the jury. It is very desirable that you should come to a conclusion one way or the other, because if you don't, it will mean that some jury will have to later seek to do what you have been chosen to do. That would be a considerable hardship on all concerned with the case, including the accused and the various witnesses and if possible, should be avoided."

83 The Court held unanimously that the reference to "public inconvenience" was apt to impose pressure upon individual jurors to join in the view taken by the majority. That was unacceptable. It violated a fundamental principle that the jury must be free to deliberate without any pressure being brought to bear upon them (at 50). The Court, helpfully, set out a direction which may be given where it appears that the jury is not able to reach a unanimous verdict (at 51/52).

84 However, the circumstances confronting his Honour were quite different to those in Black. The jury had not yet heard the addresses of Counsel. The trial Judge had not yet given his summing up. There was no occasion for a "Black direction". His Honour's "wait and see" approach was entirely appropriate. At the end of the summing up his Honour directed the jury as follows: (S/U 37)

It must not be decided in haste.

85 As mentioned, the jury (after a short redirection) retired at 3.51 pm on Friday 29 November 2002. They returned a little over two hours later at 5.55 pm.

86 The appellant asserts that, in various ways, and at various stages, pressure was exerted upon the jury to conclude its deliberations without delay. The jury was given no explanation as to why the case could not proceed in the normal way on Monday. Nothing was said about how late the jury would be required on the Friday. No enquiry was directed to the jury to determine whether it was convenient to sit Friday evening, or Saturday, if required.

87 The Crown responded by pointing to a number of matters. First, Counsel for the appellant made no objection to the course proposed by his Honour, nor his comments. Rule 4 applies. Again, the failure of Counsel to object is a useful index of fairness in the atmosphere of the trial. Secondly, the Judge twice reminded the jury that the case was not to be decided in haste. Thirdly, whilst it may have been prudent and courteous to have enquired of the jury as to any problems individual members may have in respect of the proposed sitting hours (cf Sully J in R v Colville [2003] NSWCCA 23 at para 71), the jury in the course of the trial had already shown itself quite capable of drawing attention to its problems and preferences.

88 I accept the Crown arguments. I do not believe that there is substance in ground 4.

Ground 5: The direction on recklessness

89 His Honour in the summing up identified the elements of the offence of sexual intercourse without consent. He carefully, and at some length, explained the concept of consent and the need for the Crown to prove beyond reasonable doubt that the accused had no belief that the complainant was consenting. His Honour thereafter read from the complainant's evidence, including her acknowledgment that, for the reasons she gave, she initiated physical contact, removing her clothes, and sliding on top of the appellant. In that context his Honour said this: (S/U 31)

"I have read the whole of that passage to you, because it touches upon both the question of consent or rather the lack of consent and it also touches upon this third ingredient as to whether the accused believed that he - that she was consenting to have sex with him."

90 There followed these words, which were the subject of ground 5: (S/U 31)

"In order to believe something of course, one has to think about it. If the accused did not give any thought to the question as to whether or not she was consenting, then of course he could not have had a belief that she was. You cannot have a belief about something without thinking about it. However, you might well think that it is a matter which inevitably would have crossed his mind, but that is a matter for you whether you agree with that comment."

91 It was submitted by the appellant that this was a misdirection. His Honour introduced the concept of recklessness. Having introduced it, his Honour then failed adequately to instruct the jury on that concept as required by R v Kitchener (1993) 29 NSWLR 696 at 697 and 703; R v Tolmie (1995) 37 NSWLR 660 at 672. Recklessness, it was suggested, may have resonated with the jury because the accused had consumed a significant quantity of alcohol, and admitted to having smoked marijuana.

92 The words which are the subject of complaint would appear to be the beginning of a direction on recklessness, which his Honour then abandoned. Recklessness had not been raised by either party. There was no occasion to direct the jury on that concept. The Crown case, as his Honour put to the jury, was that the complainant did not consent of her own free will out of fear. The appellant, on the other hand, asserted that she had consented. The appellant had not suggested that the issue of consent was irrelevant, and for that reason he had failed to advert to it.

93 His Honour encapsulated the issue succinctly with the following summary of the Crown case: (S/U 32/33)

"Did the accused know that what he was doing had overridden her free will to such an extent that she was prepared to submit to sexual intercourse with him? Did he know she was not really consenting of her own free will? Despite her actions in taking the initiative, helping him undress, telling him she loved him and so forth, did he see through what she was doing and having done that, did he nonetheless go ahead and have sexual intercourse with her? In so doing, because he realised what the position was, the Crown's case is that he knew that she was not consenting of her own free will."

94 The account given by the accused was identified in these words: (S/U 33)

"The accused's version of things is very simple. There was no argument at the park. Things were good. They drove to a remote area. He never said anything like what she has claimed he said. She is either lying or it is a result of hallucination. He having been there, knows that she was consenting and he knew then that she was consenting and therefore he at all relevant times had a belief that she was consenting to the intercourse."

95 So the issue of consent was quite narrow. Both the appellant and the complainant agreed that, by the time intercourse took place, she appeared to be willing and consenting. The question was whether the appellant had behaved so badly beforehand that he had robbed her of her free will to do other than consent.

96 That issue had nothing to do with recklessness. The introductory words, to which exception is now taken, did not introduce a false issue, and I believe that no harm was done. Counsel for the appellant did not object to his Honour's statement. No application was made for an enlargement upon that direction, as is now suggested by the appellant. Rule 4 applies.

97 I would dismiss ground 5.

Ground 6: Recent complaint

98 The appellant formulated ground 6 in these words:

"The learned trial Judge erred in failing to direct the jury that evidence of the appellant's denials was admissible on the same basis as the evidence of complaint."

99 His Honour told the jury that the evidence of complaint could be taken into account when assessing the credit of the complainant. It may be regarded as consistent with the allegations she made. He added: (S/U 35)

"It is not separate evidence by itself, it comes from the same source, the source of it is the complainant, but you are entitled to take into account the fact that an early complaint was made, and you might think that that is consistent with what you might have expected from somebody who had undergone the ordeal which she says she had. The existence of a recent complaint, an almost immediate complaint, does not of itself prove that these events did occur. It is evidence that can be taken into account when looking to see whether the complainant acted in a way that was consistent with what she said had happened to her."

100 At the conclusion of the summing up, Counsel for the appellant sought a similar direction in respect of the denials of the accused, which were said to be "in the same category" as the evidence of complaint by the complainant. Reference was made to R v Crisologo (supra) in which Simpson J (with whom Hunt CJ at CL and James J agreed) said this: (at 189)

R v Hall

D

101 His Honour declined to give such a direction.

102 The submission by the appellant, in my view, confuses issues of admissibility with directions that may or should be given where complaint evidence is admitted in the context of allegations of sexual misconduct.

103 It is true that under the Evidence Act 1995, the admissibility of complaint evidence by a victim of an alleged assault is determined upon the same basis as the admissibility of the accused's assertions and denials, that is, under s66(2) of the Act. In each case the admissibility of such evidence turns on whether there was a representation made at a time when the asserted fact was fresh in the mind of the person making the representation (Graham v The Queen (1998) 195 CLR 606). However, the admission of that evidence does not oblige the trial Judge to inform the jury as to the basis upon which the evidence has been admitted. Ordinarily juries are not informed about such matters, unless there is good reason for doing so. There may, for example, be good reason where previous consistent statements are admitted under s108(3)(b) because of a suggestion of fabrication or reconstruction. Where the evidence is hearsay or an admission, it may attract a warning under s165(1)(a) which may warrant some explanation of the basis of admissibility. Where, as here, the Judge chooses to limit the basis upon which the evidence may be used (s136 of the Act), there may also be an occasion for comment. There was no such limitation in respect of the evidence of the appellant, including his denials. It would have been to his disadvantage to have introduced such a limitation. There was, therefore, no occasion in the context of admissibility, to say anything to the jury about the appellant's evidence.

104 The real grievance of the appellant is not based upon admissibility, but rather the terms of the direction which his Honour gave about the use of early complaint. However, that direction was, in substance, the usual direction given where complaint evidence is admitted. Such a direction (and the companion direction when there is no evidence of complaint or delayed complaint (Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427)) derives not from the Evidence Act but the Common Law. There was, under the Common Law, no obligation to give the direction which was sought. Accordingly, there was no error in refusing it. Refusing it, in my view, did not even involve unfairness to the appellant. His position was clear. He immediately denied the allegations when confronted by the police that morning at the scene. He repeated his denials in sworn evidence the day before the summing up. I believe there is no substance in ground 6.

Order

105 I would therefore propose that the appeal be dismissed.

106 SHAW J: In this matter Kirby J has helpfully set out the facts and I need not repeat them. I agree with his Honour, for the reasons he has given, that there is no substance in grounds 4, 5 and 6 of the notice of appeal. However, I have taken a different view with respect to grounds 1 and 2.

107 I think it would have been appropriate, and indeed necessary, in the context of this case, for the trial judge to have given a direction in accordance with what was said by the Chief Justice (Wood CJ at CL, Simpson J and Carutthers AJ agreeing; Grove J quaere) in R v Markuleski (2001) 52 NSWLR 82.

108 In Markuleski, Spigelman CJ identified three possible directions that could be given to a jury in a trial involving multiple counts of sexual assault with the issues for the jury coming down to an assessment of the strength of the Crown case relying on the version of events made by the complainant. Spigelman CJ said (at 122; [188] – [191]):

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.

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.

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.

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 Spigelman CJ also said (at 122):

crucial matter

crucial

110 In MFA v The Queen (2002) 77 ALJR 139; 193 ALR 184 at 145;191 Gleeson CJ, Hayne and Callinan JJ rejected a submission that Markuleski was wrongly decided.

111 In Markuleski, Grove J did not agree with the Chief Justice that a direction to a jury in sexual assault cases that they should consider a doubt about a complainant’s credibility on one count in consideration of any other count was ‘crucial’ (see Spigelman CJ at 122; Grove J at 138). However, his Honour did express the view that such a direction would be required in some cases. Grove J said (at 138):

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 is under discussion but in some way it may not.

112 Accordingly, five judges of this Court have expressed the view that such a direction should be given where it is obvious to a trial judge that the jury should return similar verdicts to all counts on an indictment or where it may be necessary to assist a jury in their deliberations where it may be necessary to discriminate between charges. Where that is necessary, a jury should be reminded, even if it is a matter of common sense, that:

Markuleski

113 Wood CJ at CL identified several factors occurring in a trial that may indicate that an appeal court would conclude the jury looked with ‘real disfavour’ upon the credibility of the complainant, including (at 131):

(a) verdicts of not guilty were returned on a preponderance of the counts in an indictment;
(b) there was positive evidence in the defence case to establish that the version of events offered by the complainant or central witness was fabricated in relation to the counts upon which the accused was acquitted,
(c) where the evidence offered by the prosecution, in relation to the counts on which the accused was acquitted, appears to be fanciful or inherently improbable (R v W (1999) 109 A Crim R 51 provides a possible example); or
(d) where the complainant or central witness has given versions, in relation to the count or counts upon which the accused was acquitted, which were significantly inconsistent.

114 Though, in my opinion, this list should not be seen as exhaustive, if such events are observable at trial then I think that it would be crucial for a trial judge to give a direction of a kind described in Markuleski.

115 Wood CJ at CL also identified several factors in a trial that may indicate, though again I do not think this list is exhaustive, a possible basis for an appellate court to differentiate between mixed verdicts including (at 131):

116 If any of these circumstances are foreseeable to a trial judge then, in my opinion, it is necessary for him or her to consider whether it would assist the jury’s deliberations to receive a direction in accordance with Markuleski. As Kirby J has pointed out, Markuleski was itself a case involving issues identified by Wood CJ at CL at sub-par (g) in the list of indicative considerations. In my opinion this case involved issues identified in sub-par (h), and more particularly sub-pars (c) and (d). Accordingly, I think the trial judge should have given the ‘full’ Markuleski direction to assist the jury. I do not think that it would always be an error to fail to give such a direction however, where issues such as those indicated by Wood CJ at CL appear at trial, this Court may find it easier to dispel a doubt, raised by an appellant, on the reasonableness of mixed verdicts if the direction is given. Its absence may mean that this Court would not be satisfied that no substantial miscarriage of justice has occurred.

117 The trial judge had directed the jury that:

…you might find it hard to find any logical basis as to why the same verdict, that is either guilty or not guilty, should not be returned with respect of each of the three charges.

118 This was a part of, or one of, the suggested directions offered by Spigelman CJ in Markuleski. In the context of this particular case, the absence of a direction put in the terms of pars [190] –[191] of the judgment of the Chief Justice meant that the jury were not presented with a reason as to how this apparent difficulty in returning mixed verdicts would arise. Since the jury, instructed as to the apparent illogicality of mixed verdicts, returned mixed verdicts, it gives rise to some concern, on my part, that there may have been an element of compromise in the verdicts. This doubt would have been alleviated had a Markuleski direction been given. Its absence has given rise to an arguable case that there has been a miscarriage of justice. I am strengthened in this view by the fact that the trial judge himself adverted to the possibility of compromise in the verdicts in the grant of a certificate pursuant to s 5(1)(b) of the Criminal Appeal Act 1912. The certificate notes:

…in each instance the evidence of the same complainant had to be accepted beyond reasonable doubt before a verdict of guilty could be properly returned.

119 In a case in which the credibility of the complainant was directly in issue, not only in relation to the incidents in question, but in general, it would have been part of the jury’s function to determine whether a doubt as to her reliability on one count on the indictment should be taken into account in assessing her reliability in their consideration of the evidence on the other counts. It may be that the jury considered this as a matter of common sense or that such an instruction was necessarily implied in the directions that were given. However I think that a direction to this effect would have eliminated a doubt as to the process by which the jury arrived at their verdicts.

120 In this context I think that there is a risk that the jury’s verdicts did not represent the kind of compromise envisaged by King CJ in R v Kirkman (1987) 44 SASR 591 at 583. Rather, I think that there is a possibility that the verdicts represent a compromise that is an affront to logic: MacKenzie v The Queen (1996) 190 CLR 348 at 368. As I have said, I would have reason to be hesitant to arrive at this conclusion had a full Markuleski direction been given but in its absence I think that ground 2 in the notice of appeal has sufficient merit that leave should be granted to rely upon it pursuant to r 4.

121 I am strengthened in this view that the mixed verdicts represent an illogical process of reasoning in the determinations of the jury by my conclusions regarding ground 1 in the notice of appeal.

122 In Jones v The Queen (1997) 191 CLR 439 at 453 Gaudron, McHugh and Gummow JJ noted in relation to that case involving several counts over a period of time:

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 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 of the second count diminished her overall credibility.

123 These observations are apt in this matter. The jury’s acquittal on the first count indicated that they rejected the complainant’s strong assertion that there were two incidents of penile penetration. The jury must have accepted the appellant as a witness of some reliability in respect of the number and nature of the acts of sexual intercourse and rejected the complainant in this respect. This diminished the overall credibility of the complainant. Whilst it cannot be said that the jury must have rejected the complainant’s evidence entirely, due to the convictions on the two other counts, her credibility was reduced. In Jones, the conclusion that the credibility of the complainant was reduced meant that the majority of the High Court felt that the jury should have examined the evidence of the complainant with ‘considerable care’. This, combined with delay and lack of corroboration, convinced a majority of the High Court that the convictions in that case were unsafe and unsatisfactory. In this case I think there are other factors that combine with the reduced credibility of the complainant so that I have come to an analogous conclusion.

124 The other factor that I think made it necessary for the jury to scrutinise the evidence of the complainant with ‘considerable care’ was her evidence regarding her past drug use. Kirby J has said that this evidence may have been used to put in issue whether the complainant was hallucinating on the night in question. However, I think that the inconsistency between the complainant’s evidence at trial (that she had only taken hallucinogenic drugs after the incident) and the medical records indicates that the credibility of the complainant was reduced in a general sense. Kirby J has noted that the complainant gave startlingly frank evidence regarding her drug use at the trial. I agree. However this evidence was regarding her drug use after the incidents the subject of the convictions and was, frankly, inconsistent with medical records. Further, the complainant’s prior inconsistent statements to other persons, Ms Dawson and Ms Williams, that the assaults were violent, were also relevant to the determination of the complainant’s overall credibility.

125 In other words, ‘when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard’, to adopt the language used in Jones at 455 per Gaudron, McHugh and Gummow JJ.

126 The complainant gave evidence of the incident as follows:

He didn’t tell me to do anything straight away, we were still talking, still saying them things and I started, after I started crying I remember turning and looking out of the passenger window, because I was so scared, I remember asking, I remember felling, blaming Maria, I kept saying why Maria, why did you send me with him and I don’t know what happened, I stopped crying and I turned around to him and I started trying to talk to him nicely, because I thought maybe he was just drunk or maybe he was just upset and I thought, if I be nice to him he would stop and I talked to him and he kept going on about telling me that he was ugly and I didn’t want him and saying Shane was better than him and I told him, no you’re not ugly, I told him, Shane’s not better than you, I said to make him happy, so he wouldn’t hurt me, I just do it so it wouldn’t happen and I put my arm around him, I put my arm around him and I told him that I loved him and he pushed me away…

127 The appellant gave evidence denying that he had behaved erratically or that he spoke to the complainant in the way that she had testified. He said that he had wanted to have sexual intercourse with the complainant, but was not determined to have sexual intercourse with her. He said that he thought she was willing to have sexual intercourse because ‘she initiated things’ (T 344).

128 The jury were therefore presented with two totally divergent accounts of the incident. They must have accepted the complainant’s evidence regarding the behaviour of the appellant to convict him on counts 2 and 3 in the indictment; however they must have rejected that part of her recollection of the incident regarding the actual acts of sexual intercourse that had occurred. They must have rejected the evidence of the appellant regarding his behaviour on that night and rejected his belief that the complainant was consenting but accepted him in so far as he had told police that only one act of penile penetration had occurred. Kirby J has determined that the verdicts can be reconciled. I respectfully disagree. In my opinion, the observation of the trial judge that the jury would find it difficult to find a logical basis as to why the same verdict should not be returned for each of the three charges was correct. Having rejected the complainant’s version of the number of incidents of sexual assault the jury should have scrutinised the evidence of the complainant with ‘considerable care’ to determine if it carried ‘sufficient conviction’ to reach the criminal standard on the question of the appellant’s knowledge that she was not consenting. Since the Crown case was dependant entirely upon the evidence of the complainant to establish the appellant’s knowledge of the absence of her consent, in my opinion, once the jury rejected a crucial aspect of the complainant’s account of the incident, and accepted the appellant’s account, they should not have had sufficient confidence in the complainant’s account to convict the appellant on the other two counts.

129 I am satisfied that, on the whole of the evidence, I do not think it was reasonably open to the jury to convict the appellant on the two charges once they had acquitted the appellant of the first charge. The convictions are, in my opinion, unreasonable. I am also satisfied that the absence of a Markuleski direction meant that the appellant lost a fair chance of acquittal and that this resulted in a miscarriage of justice.

130 In these circumstances I would propose:

1) That the appeal be allowed;

2) That the convictions and sentences imposed upon the appellant be quashed; and

3) Enter verdicts of acquittal on counts 2 and 3 in the indictment.

**********

Last Modified: 12/12/2003

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Citations

R v Lebler [2003] NSWCCA 362

Most Recent Citation

R v Shiels [2011] QCA 115

Cases Citing This Decision

3

R v Bonat [2004] NSWCCA 240

PDS v The State of Western Australia [2006] WASCA 20

R v Shiels [2011] QCA 115

Cases Cited

18

Statutory Material Cited

3

Black v the Queen [1993] HCA 71

M v the Queen [1994] HCA 63

CITATION:	R v Lebler [2003] NSWCCA 362
HEARING DATE(S):	26/11/03
JUDGMENT DATE:	11 December 2003
JUDGMENT OF:	Meagher ACJ at 1; Kirby J at 2; Shaw J at 106
DECISION:	Appeal dismissed
CATCHWORDS:	Criminal Practice & Procedure - inconsistent verdicts - unreasonableness of verdict - use of doubt on one count when resolving issues on other counts - pressure on jury to reach verdict - recklessness in context of consent to sexual intercourse - directions on complaint evidence cf accused's denials
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995
CASES CITED:	Black v The Queen (1993) 179 CLR 44 M v The Queen (1994) 181 CLR 487 MFA v R (2002) 193 ALR 184 MacKenzie v The Queen (1996) 190 CLR 348 R v Crisologo (1997) 99 A Crim R 178 R v Kirkman (1987) 44 SASR 591 R v Markuleski (2001) 52 NSWLR 82 Regina v ITA [2003] NSWCCA 174 R v Colville [2003] NSWCCA 23 R v Kitchener (1993) 29 NSWLR 696 R v Tolmie (1995) 37 NSWLR 660 Graham v The Queen (1998) 195 CLR 606 Kilby v The Queen (1973) 129 CLR 460 Crofts v The Queen (1996) 186 CLR 427 Jones v The Queen (1997) 191 CLR 439
PARTIES :	Regina Natalis Andre Lebler
FILE NUMBER(S):	CCA 60295/03
COUNSEL:	P M Miller (Crown) P Hamill (Appellant)
SOLICITORS:	C K Smith (Crown) S O'Connor (Appellant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/51/0193
LOWER COURT JUDICIAL OFFICER :	Ducker DCJ