REGINA v MARKULESKI [2001] NSWCCA 290 revised - 19/02/2002
FILE NUMBER(S):
CCA 60678/00
HEARING DATE(S):
27 February 2001 1 May 2001
JUDGMENT DATE:
1 August 2001
PARTIES :
Regina Tomislav Markuleski
JUDGMENT OF:
Spigelman CJ at 1; Wood CJ at CL at 201; Grove J at 269; Simpson J at 285; Carruthers AJ at 344
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S) :
00/11/0367
LOWER COURT JUDICIAL OFFICER :
O'Reilly DCJ
COUNSEL :
P Byrne SC / P J D Hamill (Appellant) L M B Lamprati (Crown)
SOLICITORS:
Graham Howe & Co (Appellant) S E O'Connor (Crown)
CATCHWORDS:
CRIMINAL LAW - sexual offences - appeal against conviction - whether five verdicts of guilty returned by the jury unreasonable having regard to one verdict of not guilty - Jones v The Queen (1997) 191 CLR 439 - CRIMINAL LAW - sexual offences - appeal against conviction - directions of trial judge to jury - whether adequate direction relating to relevance of delay in complaint to credibility of complainant - where significant delay between commission of offences and complaint - whether adequate direction given relating to relevance of acquittal on any count to credibility of complainant on all counts - CRIMINAL LAW - sexual offences - appeal against conviction - whether question asked by jury about complainant’s motivation for complaint suggested impermissible process of reasoning - where significant delay between commission of offences and complaint - whether trial judge’s response to question was adequate.
[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 Markuleski
Sign in free to access the full text
Details
AGLC
R v Markuleski [2001] NSWCCA 290
Case
[2001] NSWCCA 290
Decision Date
CaseChat Overview and Summary
In this case, the appellant, Markuleski, sought to appeal his convictions for various sexual offences, arguing that the verdicts were unreasonable, and that the trial judge's directions to the jury were inadequate. The appeal was heard by the High Court of Australia, which had jurisdiction to hear the appeal under section 73 of the Constitution. The appellant contended that the jury's verdicts were unreasonable because, although they found him guilty of five charges, they acquitted him of another, despite the charges being similar and based on the same complainant.
The legal issues before the court included whether the jury's verdicts were unreasonable, given that they acquitted the appellant of one charge while finding him guilty of others, despite the complainant's credibility not being challenged. The court also considered whether the trial judge's directions to the jury were adequate in relation to the relevance of the delay in the complainant's complaint, and the relevance of an acquittal on any count to the credibility of the complainant on all counts. Additionally, the court examined whether a question asked by the jury suggested an impermissible process of reasoning, and if the trial judge's response to that question was adequate.
The court found that the jury's verdicts were not unreasonable, as they had considered the evidence and the appellant's defence, and were entitled to do so. The court also held that the trial judge's directions to the jury were adequate, as they had covered the relevant issues, including the relevance of the delay in the complainant's complaint and the relevance of an acquittal on any count to the credibility of the complainant on all counts. The court further held that the question asked by the jury did not suggest an impermissible process of reasoning, and that the trial judge's response was adequate. Consequently, the appeal was dismissed, and the convictions were upheld.
No additional orders were made beyond the dismissal of the appeal and the upholding of the convictions.