R v Sciberras - [2001] NSWCCA 514

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Sciberras [2001] NSWCCA 514

FILE NUMBER(S):
60371/00

HEARING DATE(S): 15 November 2001

JUDGMENT DATE: 12/12/2001

PARTIES:
Regina
David Joseph Sciberras

JUDGMENT OF: Spigelman CJ Sully J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/21/1094

LOWER COURT JUDICIAL OFFICER: Payne DCJ

COUNSEL:
E. Wilkins - Crown
P. Strickland - Appellant

SOLICITORS:
S. E. O'Connor - Crown
D. J. Humphreys - Appellant

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Appeal against convictions dismissed
Leave to appeal against sentence granted
Appeal against sentence dismissed

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60371/00
SPIGELMAN CJ
SULLY J
ADAMS J

Wednesday 12 December 2001

REGINA v DAVID JOSEPH SCIBERRAS

JUDGMENT

SPIGELMAN CJ: I have had the advantage of reading in draft the judgments of both Sully J and Adams J. I agree with Adams J that in the circumstances of this case leave under Rule 4 should be refused for the reasons his Honour gives. Subject to this additional matter I agree with the judgment of Sully J and the orders his Honour proposes.
SULLY J: In March 2000 the appellant, Mr. Sciberras, stood trial in the Penrith District Court before her Honour Judge Payne and a jury of twelve. The indictment upon which the appellant was thus presented for trial contained nine counts, to each of which the appellant originally pleaded not guilty. During the course of the trial the appellant withdrew his plea of not guilty to Count 5 in the indictment, and, upon re-indictment, pleaded guilty to that charge. The appellant was acquitted on Counts 1 and 2 of the indictment, at the close of the Crown case and following a direction by the learned trial Judge in accordance with the principles established by the decision of the Court of Criminal Appeal of South Australia in R v Prasad (1979) 1 A Crim R 45. The appellant was ultimately acquitted on Counts 3, 7 and 8 of the indictment; and he was ultimately found guilty on Counts 4, 6 and 9 of the indictment. On 9 June 2000 the appellant was sentenced to fixed terms of imprisonment upon his convictions on Counts 4, 5, 6 and 9. In respect of each of Counts 4 and 6, the appellant was sentenced to a fixed term of imprisonment of 4 months and 15 days to commence on 9 June 2000 and to expire on 24 October 2000. In respect of each of Counts 5 and 9, the appellant was sentenced to a fixed term of imprisonment of 1 month to commence on 9 June 2000 and to expire on 8 July 2000. On 6 July 2000 the appellant was granted bail pending the hearing of his appeal to this Court.
The appellant appeals against his convictions; and seeks leave to appeal against the sentences subsequently passed upon him. So far as concerns the appeals against conviction, one ground only is propounded. It is expressed as follows in the Grounds of Appeal:
“Her Honour erred in that she failed to direct the jury that, in assessing the general credibility of the complainant in relation to all counts, they should take into account: (a) their findings of not guilty on counts 1 and 2; and (b) any reasonable doubt the jury may have in relation to any particular count in the indictment.”
Count 1 charged the appellant with having assaulted his wife Donna Louise Sciberras (“the complainant”) at Parklea between 1 March 1990 and 31 March 1990. Such an offence contravenes section 61 of the Crimes Act 1900. It attracts upon conviction a maximum penalty of imprisonment for 2 years.
The Crown case on Count 1 depended upon the uncorroborated evidence of the complainant herself. Her version was that at about 10.00 pm on a particular night in March 1990 the appellant became, for some reason, irritable with her at a time when the two of them were lying together in the bedroom then occupied by them in the complainant’s mother’s caravan. According to the complainant, the appellant took hold of her throat tightly with his hands and kept pushing her head against the pillow of the bed for a couple of minutes. She said that he knelt on top of her, punching her into the shoulder for about a minute. She said that the punches were sharp and painful. She did not complain to her mother, who was allegedly asleep in the caravan; and she did not seek any medical attention. She said that her mother had not woken up during the assault.
As earlier indicated, the jury acquitted the appellant on this count at the conclusion of the Crown case and following a Prasad direction from the learned trial Judge.
Count 2 charged the appellant with having had sexual intercourse with the complainant without her consent, knowing that she was not consenting, and in circumstances of aggravation. The offence was alleged to have occurred on or about 13 September 1992 at Schofields. Such an offence contravenes section 61J of the Crimes Act 1900. It attracts upon conviction a statutory maximum penalty of imprisonment for 20 years.
The Crown case on this count, also, depended upon the uncorroborated evidence of the complainant. Her version was that the incident had occurred about a week after she and the appellant had married. She said that there had been a very sharp argument between the two of them; and that the argument had culminated in the appellant’s grabbing her by her hair, and pulling her into the bathroom. She said that the appellant had pounded her head about ten times on the bath; and that this had caused her to become semi-dazed. She said that as a result she was not able to walk properly. She alleged the appellant had then dragged her into the lounge room, asking her where he could find some Mersyndol tablets. On the complainant’s version, the appellant did in fact find the tablets, and thereupon forced a number of them into her mouth, thereafter forcing her mouth closed. The complainant alleged that the appellant had then taken hold of a knife, and held her head back with the knife poised against her throat, saying to her: “I could kill you right now”. The complainant said that she began to cry, and that the appellant thereupon kicked her in her back, causing sharp pain. She alleged that this sequence of violent behaviour culminated in the appellant’s demanding that she fellate him. She did so; and he then put his penis between her breasts; and then turned her over and put his penis inside her vagina. He ejaculated onto his stomach. The complainant said that she had not told anybody about the incident. She first complained about it to the police on 4 November 1997.
As earlier indicated, the jury acquitted the appellant on this count at the conclusion of the Crown case and following a Prasad direction from the learned trial Judge.
Count 3 charged the appellant with having assaulted the complainant, thereby occasioning to her actual bodily harm. The offence was charged as having been committed on or about 9 May 1996 at Marayong. Such an offence contravenes section 59 of the Crimes Act 1900. It attracts upon conviction a statutory maximum penalty of imprisonment for 5 years.
The complainant’s version was that on the day in question she had gone to her place of employment, taking with her a mobile phone that the appellant had given to her. She said that she turned the mobile off because she was required, in the course of her employment, to attend a particular meeting, and did not wish to be interrupted during its course. She said that after the meeting she started to drive home where the appellant was looking after their infant son. She said that she turned the mobile phone back on and that she received on it a call from the appellant telling her that he was going to get her when she returned home. She said that upon her arrival at the family home, she was confronted by the appellant asking her aggressively where she had been. According to her he took the mobile phone from her and began to hit her across the head with it. She said that he continued to hit her with the mobile phone until she fell down onto the floor; and that he then continued to hit her while she was down on the floor. She alleged that the appellant threw her into the lounge room and that she fell onto the wall of that room. She said that the appellant had told her to get off the wall because she was damaging it, and that she had thereupon sat on the floor between the fireplace and the television set. She said that she felt dazed and that her head and arm were painful. She thought, she said, that her arm felt as though it had been broken or sprained or something of the kind. According to the complainant, she went on the following day to a medical centre in Blacktown where she saw a doctor whom she described as having been Asian. She said that she told that doctor what had happened to her; that he x-rayed her arm; and that he told her that the arm was not broken but that she had some concussion.
The appellant gave sworn evidence in connection with this alleged incident. He denied that it had ever happened.
The Crown called evidence from a Dr. Wong who said that he had seen the complainant on 10 May 1996. According to Dr. Wong, the complainant alleged that she had been assaulted by the appellant on the previous day. She told the doctor that she had been hit on the head, the left shoulder and the right leg with a mobile phone. Dr. Wong said that he had carried out an examination of the complainant, noting bruises to her left shoulder, right shin and right arm. He said that he had ordered an x-ray of the complainant’s skull, but that it had revealed no fractures.
It transpired that Dr. Wong’s notes concerning his consultation with the complainant contained a reference, which had been crossed out in the notes, to a motor vehicle accident said to have occurred at 3.00 pm on 9 May 1996.
The complainant was vigorously cross-examined to the effect that she had suffered, indeed, injuries on 10 May 1996 but that they had been work-related injuries having nothing to do with the appellant. It was put vigorously to the complainant that she had fabricated her allegations against the appellant. The complainant was taxed vigorously with a workers’ compensation form completed by her in connection with injuries said to have been suffered at about 5.30 pm on 10 May 1996. The complainant asserted that she had seen, not Dr. Wong, but another doctor in connection with the injuries described in the compensation form. She could not remember the doctor’s name; and any such doctor could not be otherwise identified.
In addition to the foregoing matters, the evidence established that there had been no complaint to the police in connection with the alleged assaults grounding Count 3, until 4 November 1997: that is to say, until about 18 months after the assaults had allegedly taken place.
As previously indicated, the jury acquitted the appellant on Count 3.
Count 4 charged that the appellant had assaulted the complainant, thereby occasioning to her actual bodily harm. The assault was said to have occurred on 10 July 1997 at Marayong. Such an offence contravenes section 59 of the Crimes Act 1900. It attracts upon conviction a statutory maximum penalty of imprisonment for 5 years.
The complainant’s version was that on 10 July 1997 she had attended a particular funeral which she had helped arrange. She said that she had picked up her infant son from her parents’ home. She said that she returned home with the child, bringing with her some take-away food. She said that she put the food on individual plates for the appellant and for their child; and that she made some jocular remark to the appellant along the lines: “I suppose I’ve got to feed you too David”. According to the complainant, the appellant responded by striking her to the side of the head so that she fell to the floor. She alleged that the appellant thereupon went into the sun-room, got a baseball bat that was in that room, told her to get up, and then struck her across the back of the head. She said that she felt something akin to an electric shock in her head. She asserted that the appellant had then gone into the kitchen and got a knife. She said that she asked him why he was doing all of this to her; and that his response was to strike her again with the baseball bat. She said that the appellant eventually stopped hitting her; went back to where the food was laid out on the table and began eating it. She went, according to her version, into the lounge room and sat down crying. She said she gave him what she described as “a dirty look”; that he told her not to look at him like that; and that he again began assaulting her, punching her to the right side of her head with what she described as a hard, sharp punch. She said that her eye began to swell. She said that she was screaming and feeling very afraid. She said that she tried to persuade the appellant to take her to hospital but that he refused. She said that she became very angry and began to pack a suitcase, in the course of doing which she threw a T-shirt at the appellant, telling him to get out. She said that he then assaulted her again, punching her in the back; bending her backwards holding her shoulders and kneeing in her back; and then kicking her to the back so that she fell to the floor. She said that she finally persuaded the appellant to let her go back into the lounge room; and that he thereupon packed a bag and walked out.
The complainant asserted that on the following day, that is to say 11 July 1997, she went to the Quakers Hill Medical Centre and saw a doctor. She said that her recollection was that the doctor had been an Asian. In fact, the doctor was not an Asian at all but was a doctor by the name of Mileshkin, who was called in the Crown case. Dr. Mileshkin gave evidence that he saw the complainant on 11 July; and that he took from her a history that she had been assaulted by her husband at 7.00 am that morning. The doctor saw bruises to the complainant’s eye and to the left side of her head. The appellant contended at trial that the evidence of Dr. Mileshkin did not confirm the severity of the assault as the complainant had herself described it. The appellant emphasised at trial that the complainant had not formally complained to the police until 16 December 1997.
The accused gave sworn evidence in connection with Count 4. He denied that any such assaults as the complainant had alleged had occurred.
As previously indicated, the jury found the appellant guilty on Count 4.
Count 5, as to which the appellant pleaded guilty upon re-indictment, charged that the appellant had maliciously damaged the complainant’s property on or about 22 November 1997 at Marayong. Such an offence contravenes section 195 of the Crimes Act 1900. It attracts upon conviction a statutory maximum penalty of imprisonment for 5 years.
This incident occurred in what the learned primary Judge described in her Honour’s remarks on sentence as having been “extremely emotionally charge circumstances”. Put simply, the evidence established that the appellant had damaged a telephone; had smashed a family photograph and had damaged a particular merit certificate which the complainant had earned in connection with her work.
Count 6 charged that the appellant had assaulted the complainant, thereby occasioning to her actual bodily harm. The assault was charged as having occurred on 23 November 1997 at Marayong. Such an offence contravenes section 59 of the Crimes Act 1900. It attracts upon conviction a statutory maximum penalty of imprisonment for 5 years.
According to the complainant, the assault arose out of an incident that had occurred on the previous evening, a Saturday evening. According to the complainant, the appellant had telephoned her and asked her to go out with him on that evening. She had refused, saying that she was going somewhere else. She said that on the Sunday morning she heard a car pull into the driveway of her home. Very shortly thereafter, the appellant came into the home. He abused her on account of her dress and appearance on the previous evening, and thereupon slapped her across the side of her head. She said that she fell to the ground; that the appellant picked her up by her hair and threw her down again so that she hit the floor on her knees. She said that the appellant then put his hands around her throat, pulled her to her feet, and demanded that she tell him where she had in fact been on the previous evening. She said that he continued to abuse her; and that he threw her again to the ground. He slapped her again, she said, with his left hand, striking her across the nose and mouth, and thereby causing her a great deal of pain. She said that she had blood on her nose and mouth; and that she went into the bathroom in order to inspect that damage. She said that the appellant came into the bathroom, put his hand over her mouth and tried to stop her from breathing.
The assaults thus described in connection with Count 6 were part of a connected series of events of which the complainant gave evidence. The unfolding sequence of those events gave rise to Counts 7 and 8.
Count 7 charged that the appellant had taken away the complainant against her will and within intent to hold her for advantage to himself. This offence was charged as having been committed on 23 November 1997 at Marayong. Such an offence contravenes section 90a of the Crimes Act 1900. It attracts upon conviction a statutory maximum penalty of imprisonment for 14 years.
The Crown case, put simply, was that the appellant, following upon the assaults described in connection with Count 6, had compelled the complainant to go with him to another place in order that he, having her under his effective control, would be thereby enabled to have sexual intercourse with her.
The complainant gave evidence that, following upon the sequence of assaults previously described in connection with Count 6, the appellant ordered her to pack and told her that she was going with him. She said that she did in fact pack some clothing. The appellant, she said, became once again enraged and began to strangle her. She screamed and he stopped. She said that she told the appellant that did not want to go and that she wanted to stay at home. She said that the appellant responded that he did not care what she wanted; and that she was in fact going to leave with him and with their baby son. She said that that is what happened; and that having stopped en route in order to do some brief shopping for food; and in order to attend to some other incidental shopping; they drove around for a short while and eventually went to premises at Greenfield Park where, it seems, the appellant was then living.
Count 8 charged that the appellant had sexual intercourse with the complainant without her consent and knowing that she was not consenting. That offence was charged as having occurred on 23 November 1997 at Greenfield Park. Such an offence contravenes section 61I of the Crimes Act 1900. It attracts upon conviction a statutory maximum penalty of imprisonment for 14 years.
There was no dispute that sexual intercourse between the appellant and the complainant had in fact taken place on the occasion to which Count 8 referred. The relevant issue at trial was whether the complainant had consented to that intercourse, as the appellant asserted; or whether she had not so consented, which was her own version at trial.
As previously indicated, the jury found the accused guilty as charged in Count 6; but found him not guilty on both Count 7 and Count 8.
Count 9 charged that the appellant had assaulted the complainant at Marayong on 24 November 1997. Such an offence contravenes section 61 of the Crimes Act 1900. It attracts upon conviction a statutory maximum penalty of imprisonment for 2 years.
The time charged in connection with Count 9 was, of course, the Monday following the Sunday upon which the offences charged in Counts 6, 7 and 8 had allegedly occurred. According to the complainant she had eventually

returned in company with the appellant from Greenfield Park to her home at Marayong. She said that they were both in the bedroom of that home; and that she went to get some money out of the pocket of a leather jacket in the bedroom. She said that as she did so a paper slip fell out of the jacket. The slip showed, as it would seem, that it had been issued at the premises of a particular club on the preceding Saturday night. According to the complainant, this incident led to a sustained and serious assaulting of her by the appellant. She said that in the course of the attack, the appellant deliberately tore the jacket. The jacket was itself an exhibit at the trial, and it did appear to have been torn. The complainant did not make any immediate complaint to the police, or indeed to anybody else, about these alleged assaults.
The accused’s case at trial, put simply, was that he had not committed any of the offences charged against him in any of Counts 6, 7, 8 and 9. He agreed that on the Monday he had momentarily lost control and slapped the complainant; but, as the learned trial Judge carefully and correctly reminded the jury, that incident, an admitted incident of assault, was not the subject of any particular charge in the indictment. The appellant said that after having slapped the complainant on that occasion, he had broken down and cried; and then, in a highly charged emotional state, had done the damage which was the foundation of Count 5 of the indictment.
As previously indicated, the jury found the appellant guilty of the assault charged in Count 9 of the indictment.
The above factual survey in place, it is appropriate to return to the terms of the only ground of appeal against the appellant’s convictions on Counts 4, 6 and 9 of the indictment.
The submissions of the appellant are based upon the decision of this Court, (Spigelman CJ, Wood CJ at CL, Grove J, Simpson J, Carruthers AJ), in R v Markuleski [2001] NSWCCA 290. The relevant principles can be extracted, and as follows but omitting case references, from the judgment of the Chief Justice:
“185…………….. . It may appear to be obvious that a reasonable doubt about one aspect of a complainant’s evidence ought to be taken into account when assessing that witness’s evidence on other matters. However, there have been a significant number of cases in which courts of criminal appeal have acted on the basis that the jury may have failed to do so.
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 …………………… “as a general rule”. Its absence is not necessarily fatal ………………… . Furthermore, ………………………the quote “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.
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 the 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.”
It is, of course, necessary to keep steadily in mind that the application in a given particular case of the foregoing statements of principle entails the giving of real, substantive weight to two additional considerations: first, that the role in a criminal trial of the jury is a role of fundamental constitutional substance and significance; and that it is not to be whittled away by the steady accretion of appellate interference; and secondly, that, as the Chief Justice recognises in terms at paragraph 184 of his Honour’s judgment in Markuleski there is proper room for “considerable reluctance to add to the number of directions and warnings which trial judges are already required to give”.
In applying the whole of the foregoing principles to the present particular case it is necessary to look with some care at the directions given, at various relevant stages of the appellant’s trial, by the learned trial Judge to the jury.
As already noted, the learned trial Judge gave to the jury, at the conclusion of the Crown case, what is conventionally referred to as a Prasad direction. It is, I think, useful to go back to the actual case of Prasad, and to recall the context in which it was held that a so-called Prasad direction might be appropriate in a particular case. The relevant principles can be taken conveniently, and as follows, from the judgment of KingCJ:
“It seems to me that to say that a judge can direct a jury to bring in a verdict of not guilty when there is evidence capable in law of supporting a conviction is to infringe one of the basic principles of trial by jury. It is fundamental to trial by jury that law is for the judge and the facts for the jury. If there is no evidence which would justify a conviction then, as a matter of law, there must be an acquittal. That decision is for the judge and the jury must accept and act on his direction on that question of law. If, however, there is evidence which is capable in law of supporting a conviction, a direction to the jury to acquit would be an attempt to take from them part of their function to adjudicate upon the facts. That, as it seems to me, would be contrary to law.
It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may exercise the right then or at any later stage of the proceedings, ……………………………. . He may undoubtedly, if he sees fit, advise them to stop the case and bring in a verdict of not guilty. But a verdict by direction is quite another matter. Where there is evidence which, if accepted, is capable in law of proving the charge, a direction to bring in a verdict of not guilty would be, in my view, a usurpation of the rights and the function of the jury.” [ 2 A Crim R, 47 ]
At the close of the Crown case the learned trial Judge gave the following direction to the jury:
“Now ladies and gentlemen of the jury, that is the close of the Crown case. This is of course a criminal trial and the Crown carries the burden of proving the guilt of the accused of each of the crimes charged in the indictment. We are now speaking of course of all the offences other than count 5.
The burden is on the Crown. The accused is under no burden whatsoever to establish his innocence. The elements of each of the offences in the indictment were explained to you in a summary way by the Crown in his opening address. You as a jury, having heard the whole of the Crown case, enjoy the right to bring in a verdict of not guilty now in relation to any of the offences in the indictment or at any later stage in the trial. I repeat, it would only be a verdict of not guilty. Before exercising that right, you must be unanimously convinced that you could not be satisfied beyond reasonable doubt of the guilt of the accused on the evidence before you at the time you decide to acquit. And that applies in relation to each of the counts in the indictment. You cannot convict or find – you cannot find the accused guilty of any of the offences apart from the one we have dealt with which is special, because he pleaded. You cannot find the accused guilty of any of the offences in the indictment until the whole trial process has been completed. That involves having any evidence called by the accused in the defence case, addresses are then given and then the summing-up, or you could adopt that course at any future point, but in any event in telling you this ladies and gentlemen of the jury, I am advising you of your right, not – I repeat – not explaining any view of mine on the facts. Matters of fact are for you, not I, to determine. All juries have this right in every trial.
Now ladies and gentlemen of the jury would you like now to take some short time to consider what I have said to you and exercising that right in relation to any counts in the indictment and would you like now to temporarily go back to the jury room, consider it and then let us know when you have come to your decision.”
According to the trial transcript the jury retired thereupon at 12.05 pm, returning at 12.30 pm with verdict of acquittal on Counts 1 and 2 of the indictment.
`
For the purpose of applying the foregoing Prasad direction to Counts 1 and 2 of the indictment, the jury had in hand a Crown case which rested entirely upon the uncorroborated evidence of the complainant herself. That consideration, coupled with the swiftness with which the jury returned after having deliberated on the Prasad direction, seems to me to give rise to an inescapable inference that the jury was simply not prepared to accept the uncorroborated evidence of the complainant as being capable of satisfying them beyond reasonable doubt of the appellant’s guilt as charged in those two counts.
The jury, when it retired to consider the Prasad direction, had in hand in connection with Counts 3, 4, 6, 7, 8 and 9 a Crown case which did not depend entirely upon the evidence of the complainant; although it is to be kept carefully in mind that the Crown case on each of those 6 counts depended in a real sense substantially upon the complainant’s evidence, in that, as the learned trial Judge repeatedly and correctly reminded the jury in her Honour’s ultimate directions to the jury, there had been no first-hand eye witness to the relevant events as the complainant had described them in connection with each of those six disputed counts of the indictment.
On each of those six disputed counts the jury had in hand, in connection with the Prasad direction, the entirety of the Crown case. Serious and substantial attacks had been made upon the evidence called by the Crown in an attempt to corroborate the complainant in connection with the six counts. Very damaging points, adverse to the complainant’s own credit, had been made in connection with Count 3 and in connection with Count 8. In connection with Count 8, medical evidence was called by the Crown in order to establish contemporaneous complaint by the complainant consistent with her allegations in connection with Counts 6, 7 and 8; but the doctor who was called to give that medical evidence had no note of any complaint by the complainant that she had been, in effect, raped by the appellant as charged in Count 8.
Notwithstanding these valid and available criticisms of some at least of the corroborating evidence called by the Crown, the jury was not prepared to dismiss peremptorily any of Counts 3, 4, 6, 7, 8 and 9. It must follow, as it seems to me, that the jury was not prepared to say, as to each of those six counts, that it would not accept in any circumstances the evidence of the complainant; and, moreover, that it was not prepared then to assess as wholly unpersuasive the other evidence in the Crown case, notwithstanding the serious and substantial attacks that had been made on that evidence.
The next relevant thing to occur during the continued trial came at the conclusion of the whole of the evidence in the trial.
Immediately following the close of the case for the accused, counsel then appearing for the appellant, (not being counsel who appeared for the appellant before this Court), said in front of the jury:
“I make that application of law and ask your Honour to give the jury the further direction.”
The learned trial Judge responded as follows:
“Yes alright. Ladies and gentlemen of the jury, you have heard ………..(counsel) ………renew the matter that I have already referred to and in fact you’ve acted upon in relation to two counts. It is your right at this point to bring verdicts of not guilty in relation to any of the counts or for the trial to proceed further with addresses and the summing up, but I repeat in the strongest terms my reminding you of that right is not demonstrative in any way of any view of the facts that I have formed. Would you like to just adjourn shortly to consider that matter?”
Upon prompting by counsel for the appellant, her Honour added the following:
“I just remind you and I am very confident you still have the memory of the direction, but I remind you again that it is only at this point available to you to bring in a verdict of not guilty, it is not available to you to bring in a verdict of guilty. That is only available to you at the conclusion of the trial which is now we’ve heard all of the evidence, which will be after the addresses and after the summing up.”
The trial transcript does not indicate the precise time at which the jury retired to consider this further Prasad direction. Nor does the transcript indicate the precise time at which the jury responded to the direction. It would seem from the very brief notations in the transcript that at some time fairly shortly before the luncheon adjournment on the particular day, the jury sent to the trial Judge a note stating “Your Honour we wish to proceed at 2 pm”. There was some discussion as to whether that note should be interpreted as conveying that the jury wished to continue with the trial at 2 pm; or whether it should be understood as conveying that the jury wished to go away until 2 pm, when discussion on the further Prasad direction would resume. That conundrum was solved by the taking of the luncheon adjournment without further ado; and by her Honour’s bringing the jury back at 2 pm and asking whether the jury wished the trial to proceed. The foreman of the jury replied simply that that was, indeed, what the jury wished.
This episode seems to me to be of particular importance for present purposes. It could not be contended reasonably, in my opinion, that the jury did not well understand by this stage of the trial the nature of the options available pursuant to the further Prasad direction. The jury had heard, by this stage of the trial, not only the entirety of the Crown case, but also the entirety of the case of the accused, including the accused’s own sworn evidence that there was no truth at all to the allegations made against him by the complainant. The jury had seen and heard all of the witnesses in both of the cases. The jury had not yet been given the careful and repeated directions which came subsequently during the summing up, as to the need for them to consider each count individually and in the light of the evidence relevant to that count. It cannot be thought sensibly, in my opinion, that the jury had simply forgotten the acquittal, after a Prasad direction, on Counts 1 and 2.
The whole course of the trial up to the point of the jury’s response to the second Prasad direction is, in my opinion, the proper context within which to consider the one substantive submission of law upon which the appellant now relies, namely, that there should have been in those circumstances a Markuleski direction as to the credit of the complainant.
In that connection, it is important to keep in mind that it is not submitted for the appellant that the three verdicts of guilty cannot be sustained because they are inconsistent, either with one another or with the other verdicts of acquittal. The appellant’s point is a narrower and more precise point related, as I have said, to the need for an expanded direction of the kind discussed in Markuleski.
The question for this Court is, essentially and as Markuleski makes clear, whether there was a need for the expanded direction in order to restore what Markuleski describes as a “balance of fairness”. Or, to put the question in another and perhaps more conventional form: has the appellant established that he lost the fair chance of an acquittal by reason of the failure of the trial Judge to give the expanded Markuleski direction?
Bearing in mind that the relevant question, however one gives it particular definition, calls for a consideration of the real, substantive merits of the particular case rather than a consideration of a fine, forensic debating point, I am wholly unpersuaded that the present case is one in which this Court would be justified in interfering. The summing up gave the jury, as I respectfully think, clear and correct directions as to the need to look at each count on its individual merits; as to the need to scrutinise carefully at every stage of its consideration of every count, the credibility of the complainant, bearing particularly in mind the sworn denials of the appellant and the absence of any first-hand corroboration of the alleged incidents; and of the submission put by the appellant’s counsel at trial that the evidence “revealed great gaps”, and that if the jury were to find that the complainant had lied about some piece of critical evidence, then the logical conclusion would be that the jury should reject the entirety of the complainant’s evidence. I am wholly unpersuaded that there was any “balance of fairness” that required the learned trial Judge to go further in this particular case.
In my opinion the appeal against convictions should be dismissed.
As to the application for leave to appeal against sentence, I would grant that application; but I would dismiss the substantive appeal against sentence. If it be held, as in my opinion it should be held, that the appellant was rightly convicted on Counts 4, 5, 6 and 9, then there is no proper basis apparent to me for appellate interference by this Court with the fixed terms of imprisonment to which the appellant was sentenced. The appellant was sentenced on 9 June 2000. He passed thereupon into custody, and he remained in that custody until he was granted pre-appeal bail on 6 July 2000. He will now be required to serve the as yet unserved portions of the concurrent fixed terms to which he was sentenced on 9 June 2000.
In my opinion the Court should order:-
[1] That the appeal against convictions be dismissed.
[2]That leave to appeal against sentence be granted.
[3]That the appeal against sentence be dismissed.
ADAMS J: I have read the judgment of Sully J in draft and gratefully adopt his Honour’s thorough summary of the trial. As his Honour has said, the sole ground of appeal relied on a submitted failure of the learned trial judge to give a direction in accordance with R v Markuleski [2001] NSWCCA 290 at [185] ff. The particular passages to which I wish to refer are as follows (omitting references) -
“185       …It may appear to be obvious that a reasonable doubt about one aspect of a complainant’s evidence ought to be taken into account when assessing that witness’s evidence on other matters. However, there have been a significant number of cases in which courts of criminal appeal have acted on the basis that the jury may have failed to do so.
“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… ‘as a general rule’. Its absence is not necessarily fatal…Furthermore…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.”

For all practical purposes, this was a “word against word” case although, in respect of some counts there was some supportive evidence in terms of medical evidence of injury and complaints made to others. The “balance of fairness” to which the Chief Justice refers in the passage cited above is necessary in some cases (for example, and as was the case here) where the direction to the jury that each count is to be separately and independently considered might, in the circumstances of the particular case, lead the jury to ignore an adverse finding as to the credibility of a witness in respect of one count when they came to consider another count in respect of which the Crown (or, for that matter, the defence) also relied on the evidence of that witness. In the ordinary case, where a witness gives evidence about a number of matters, it would not be necessary to warn the jury that disbelief about one matter might reasonably reflect on the witness’ credibility as to the others. However, the jury might not appreciate that this same rule of common sense (if I may so describe it) still applies where they have been emphatically directed to treat each charge as entirely separate and distinct as, where, for example, they are directed that their consideration of each charge is to be treated as a separate trial. The need for a corrective direction may be greater where the conventional direction is also given (as it was here) that the jury is able to accept some part and reject other parts of a witness’ evidence, as they considered appropriate.
In the present case, the learned trial judge directed the jury in the following terms -
“You must consider each charge separately and decide your verdict in relation to each charge. You will have to return six verdicts. There are six counts, each of which I will later in the summing up explain to you. The counts are heard together as a matter of convenience and of common sense and it could be said that, in effect, what we have heard over the last number of days is really six trials – well, indeed, nine trials but three have been disposed of – in the course of one trial. You must consider each charge individually. The verdict you arrive at in relation to one count may be different from the verdict you arrive at in relation to another count. On the other hand, the defence have quite squarely and forthrightly in this trial put the credibility of the complainant…in issue and of course that consideration, the defence says, applies in relation to all of the offences. Each of the offences, of course, has been denied by the accused.”
The reference to the case put by the defence, on the face of it, fell short of informing the jury that, despite the need to consider each count separately, they could have regard to an adverse finding in respect of the evidence of the complainant as to one count in determining whether they would accept her evidence concerning another. On one (unlikely, but possible) reading of the direction, the jury may have thought that her Honour was contrasting her direction as to separate trials with the submission made by the defence so as to suggest that the defence submission was wrong. At all events, it is one thing to point to an argument proposed by the defence and quite another to direct the jury as a matter of law concerning the particular matter in question. The jury was clearly instructed that they may disregard what counsel said but must apply the judge’s directions.
I consider that the learned trial judge’s directions as to the credibility of the complainant fell short of what will usually be desirable and sometimes necessary in cases of multiple counts. However, depending on the way the jury interpreted the corrective direction as to the defence case, no miscarriage may have occurred. The directions must be looked at in light of the trial as a whole and the real issues in the case.
The appellant was represented by very experienced defence counsel who took a number of points as to the adequacy of the summing up. He did not seek any redirection as to this matter. To my mind the overwhelming likelihood, especially having regard to the earlier acquittals, is that, in light of the submissions put by counsel on both sides to the jury in their addresses and the corrective brought to their attention by the learned trial judge, he considered that the jury was appropriately aware of the need to consider the complainant’s credibility by reference to the whole of her evidence in the trial. I am therefore unpersuaded that there has been a miscarriage of justice.
Accordingly, I would not grant leave under Rule 4 of the Criminal Appeal Rules 1912 for this point to be argued and respectfully agree with the conclusion of Sully J that the appeal against convictions should be dismissed.
I also agree that no error in the sentence imposed has been demonstrated and, thus that, although leave to appeal against sentence should be granted, the appeal should be dismissed.

**********

LAST UPDATED: 17/12/2001