R v PMT

Case [2003] VSCA 200 10 December 2003

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 75 of 2002

THE QUEEN
	v.
PATRICK MICHAEL TRAINOR

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JUDGES:	CHARLES, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 November 2003
DATE OF JUDGMENT:	10 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 200

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Criminal Law – Sexual offences – Evidence of complainant the only direct evidence of commission of offences – Verdicts of guilty and not guilty – Verdicts not inconsistent – Trial judge not required to direct a jury that doubt as to evidence of the complainant in relation to one or more counts must be taken into account in respect of other counts – R. v. Markuleski (2001) 52 N.S.W.L.R. 82, not followed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O.P. Holdenson, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr I.D. Hill, Q.C. Mr G.J. Burns	J.R. & A. Hoban

CHARLES, J.A.:

Having had the advantage of reading the reasons for judgment prepared by Buchanan, J.A. I agree that this application for leave to appeal against conviction should be dismissed for the reasons given by his Honour, subject only to the addition of the following comments as to the argument concerning a proposed Markuleski[1] direction.
[1]R. v. Markuleski (2001) 52 N.S.W.L.R. 82.

The headnote in Markuleski[2] asserts that the Court of Criminal Appeal of New South Wales concluded that as a general rule it is desirable that the traditional direction to treat each count separately is supplemented in a word against word case, and that 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. Such a direction had been first, I think, suggested by Fitzgerald, J.A. in R. v. Robinson[3] and has since been further considered in R. v. GAR[4].
[2]52 N.S.W.L.R. 82 at [6]; see also per Spigelman, C.J. at [186], per Wood, C.J. at C.L. at [265], per Grove, J. (with some doubt) at [280] and Simpson, J. and Carruthers, A.J.A. both concurring as to the law.
[3](2000) 111 A.Crim.R. 388 at [9].
[4][2003] N.S.W. C.C.A. 224 at [24]-[35].

It may be that paragraph 6 of the headnote in Markuleski is in somewhat stronger terms than can be justified from the judgments themselves. The principal judgment of Spigelman, C.J. is arguably less emphatic[5]. Wood, C.J. at C.L. stated two reservations[6] including as to the fact that the direction, if given, was to be phrased in mandatory terms; and was concerned to ensure that any such direction was not worded so as to encourage propensity reasoning[7]. Grove, J. was concerned at the apparently mandatory wording of the direction[8]. Simpson, J. stated[9] her agreement with the law as expounded in the first three judgments.
[5]52 N.S.W.L.R. at 121-122, pars.[187]-[191].
[6]52 N.S.W.L.R. at 135, pars.[260]-[262].
[7]52 N.S.W.L.R. at 136, par.[265].
[8]52 N.S.W.L.R. at 138, par.[280].
[9]52 N.S.W.L.R. at 145, par.[324].

Buchanan, J.A. has explained why…

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 PMT

Details

AGLC: R v PMT [2003] VSCA 200
Case: [2003] VSCA 200
Decision Date: 10 December 2003

CaseChat Overview and Summary

The case of R v PMT involved a defendant, PMT, who was charged with multiple sexual offences. The complainant, the sole witness to the alleged incidents, provided the only direct evidence of the commission of these offences. The case was heard and determined by the Supreme Court of New South Wales. The defendant was convicted on some counts but acquitted on others, leading to an appeal against the convictions.

The primary legal issue before the court was whether the trial judge should have directed the jury to consider doubt about the complainant's evidence on one count when assessing other counts. The court had to determine if such a direction was necessary when the verdicts were not inherently inconsistent. The court examined the principles established in R. v. Markuleski, a previous case which suggested that doubt about a complainant's evidence in relation to one count should be considered in assessing other counts. However, the court found that this principle was not binding and did not apply to the present case.

The court found that the trial judge was not required to direct the jury to take into account any doubt about the complainant's evidence on one count when assessing other counts, as the verdicts were not inherently inconsistent. The court held that each count should be assessed on its own merits, and the jury was capable of making such nuanced distinctions without additional direction from the trial judge. Consequently, the appeal against the convictions was dismissed.

The court did not make any further orders, upholding the convictions as determined by the jury. The decision clarified the scope of jury directions in cases involving multiple counts and complainant evidence, emphasising the jury's ability to assess each count independently.

Orders