R v Tolmie

[2004] NSWCCA 396

CITATION:	R v Tolmie [2004] NSWCCA 396
HEARING DATE(S):	21 May 2004
JUDGMENT DATE:	19 November 2004
JUDGMENT OF:	Tobias JA at 1; Hulme J at 69; Adams J at 79
DECISION:	Appeal against conviction dismissed
CATCHWORDS:	Criminal law - Verdict - Multiple offences - One complainant - Whether verdict unreasonable - Whether acquittal on one count is inconsistent with guilty findings on other counts - Whether jury considered complainant's evidence as reliable and accurate - Whether it is consistent to disbelieve the complainant with respect to one count and not another - Verdicts capable of being explained without conclusion that jury disbelieved complainant - s 6 Criminal Appeal Act 1912 (NSW) - Criminal law - Directions to jury - No Markuleski direction given - Whether direction necessary to give - No unfairness
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Appeal Rules
CASES CITED:	Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 MacKenzie v The Queen (1996) 190 CLR 348 MFA v The Queen (2002) 77 ALJR 139 MFA v The Queen (2002) 77 ALJR 139 R v Markuleski (2001) 52 NSWLR 82
PARTIES :	Regina Donald James Tolmie
FILE NUMBER(S):	CCA 2004/1970; (formerly 60020/04)
COUNSEL:	A: S Kluss R: E Wilkins
SOLICITORS:	A: R Hill R: S Kavanagh

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0278
LOWER COURT JUDICIAL OFFICER :	Morgan DCJ

CCA 2004/1970 ( formerly CCA 60020/04 )

Tobias JA
Hulme J
Adams J

Friday 19 November 2004

R v DONALD TOLMIE

Judgment

1 TOBIAS JA: On 10 July 2002, the appellant was jointly indicted with Kim Louise MacDonald (MacDonald) before her Honour Judge Morgan and a jury of 12 persons at Sydney District Court on the following charges to which they both pleaded not guilty:

Count 1 : That they on 29 January 2001 at Kings Cross in the State of New South Wales did detain Mary Henderson with the intent to hold her for the advantage of Donald Tolmie and Kim MacDonald, namely, to steal her money. (s 90A Crimes Act 1900)
Count 2 : Further that they on 29 January 2001 at Kings Cross in the State of New South Wales did have sexual intercourse with Mary Henderson without her consent and knowing that she was not consenting and in circumstances of aggravation, namely being in company with each other. (s 61J(1) Crimes Act 1900)
Count 3 : Further, that they on 29 January 2001 at Kings Cross in the State of New South Wales then being armed with an offensive weapon, namely a handgun, did rob Mary Henderson of $10, scratch lottery tickets and a black bumbag containing a quantity of money and personal papers, the property of Mary Henderson. (s 97(1) Crimes Act 1900).

2 On 16 July 2002 the jury returned verdicts of guilty to Count 1 and not guilty to Counts 2 and 3 with respect to both accused. On 5 October 2002 her Honour sentenced the appellant on Count 1 to 12 months imprisonment to commence on 16 August 2001 and to expire on 15 August 2002 with a non-parole period of 9 months to commence on 16 August 2001 and to expire on 15 May 2002. By Notice of Intention to Appeal dated 26 May 2003, but apparently not filed until 21 April 2004, the appellant appealed to this Court against, inter alia, his conviction on Count 1. There is no appeal against his sentence in respect of that conviction as it had long since expired by the time the Notice of Intention to Appeal was filed.

3 The appellant's grounds of appeal are as follows:

(1) The verdict of guilty in relation to Count 1 is unreasonable and cannot be supported in terms of s 6 of the Criminal Appeal Act 1912 in light of the not guilty verdicts in relation to Counts 2 and 3.

(2) The trial judge erred in not directing the jury as to the complainant's evidence that, in the event that they rejected the complainant's evidence as dishonest or unreliable in relation to one count, that that finding could impact their assessment of the credibility, with the other evidence, with respect to the other counts.

The case for the Crown

4 The Crown's case was that the offences, the subject of the three counts, occurred in the early hours of the morning of 29 January 2001. The complainant, Mary Henderson, had been drinking in the Bourbon & Beef Steak Bar in Kings Cross. After leaving the premises at about 2.00 am, she walked through Springfield Avenue to Orwell Street when she saw a female passenger in a white panel van waving to her. The passenger was MacDonald. The complainant recognised MacDonald by sight as a women she knew as a casual acquaintance around Kings Cross. The driver of the vehicle she recognised as the appellant.

5 The complainant asked whether the appellant and MacDonald would drop her off at a taxi rank nearby in Macleay Street. They agreed whereupon she go into the panel van and sat on MacDonald's lap. There was a lot of junk of the floor of the van and nowhere else for her to sit. Instead of dropping her off around the corner as she had requested, the appellant kept driving telling her in an aggressive manner that she had to wait. The appellant then drove down Macleay Street and into Bayswater Road and the complainant again asked to be let out of the vehicle which was eventually driven into a small laneway behind the Hyatt Kingsgate Hotel.

6 At this point MacDonald produced a gun. A struggle ensued and the appellant beat the complainant about the head with the butt of the gun. The appellant then drove off, stopping at Sutherland Crescent, Darling Point whereupon MacDonald put her hand down the complainant's bra and removed therefrom a $10 note and a "Scratch It" ticket. At that point the appellant, at the request of MacDonald, sexually assaulted the complainant after which she was pushed out of the van which then left the scene. As she was pushed out of the panel van, she saw her bumbag lying on the floor of the vehicle. It contained the keys to her apartment, just over $100 cash and other personal belongings. One of the accused said "Oh, there's the bumbag, there it is". They then drove off with the bumbag still in the van.

7 The complainant cried out for help and was attended by local residents. The police and ambulance were called. The ambulance officer, Ms Solrai, stated that when she arrived at the scene the complainant was distressed, had blood over her face and in her hair. She had a small laceration to the left side of her head and a large lump on her left shoulder blade. She also had glue in her hair which the complainant said was not the case before she got into the panel van.

8 The complainant also gave evidence that on 21 February 2002 she saw the appellant and MacDonald by chance in Redfern. The appellant told her he was not the offender and that it must have been his brother. She noticed that one of his arms was in a sling and he said he could not have been the offender as he had a dislocated shoulder at the time. She also spoke to MacDonald who allegedly apologised for what had happened in January.

The appellant's case

9 Both the appellant and MacDonald gave evidence at the trial. The appellant said that he arrived in Kings Cross from the Central Coast on his way to his father-in-law's place in southern Sydney. He was with MacDonald who wished to make a diversion through Kings Cross for the purpose of purchasing drugs. They were not driving a panel van but a silver four door Commodore sedan belonging to MacDonald's father. It had the usual front and rear seats and was not filthy, dirty or full of junk as the complainant had suggested.

10 Whilst driving through Roslyn Street, Kings Cross, the appellant said that they were approached by the complainant who then got into the front seat of the car and sat on MacDonald's lap. Both the appellant and MacDonald said that the complainant got into the vehicle to sell drugs to MacDonald, which the complainant denied. MacDonald said the complainant asked the appellant to drive to Rushcutters Bay because she did not want to engage in a drug transaction in Kings Cross. Allegedly an argument development during the journey over a previous drug transaction a couple of weeks earlier. MacDonald claimed that she paid the complainant for the drugs but did not receive any. She said the vehicle stopped in Rushcutters Bay because she was fighting with the complainant. It was a physical fight with punches being traded between them.

11 At this point the appellant had driven the vehicle to New Beach Road, Rushcutters Bay. He became annoyed at the arguing between the claimant and MacDonald and stopped the car to remonstrate with them. He was then instructed to drive to a point near St Andrews Church (which was, in fact, intended as a reference to St Marks Church in Darling Point Road). As the fighting got worse the appellant stopped the vehicle, opened the passenger door and the complainant and MacDonald both fell out onto the street. MacDonald then returned to the car and the appellant asked the complainant if she wanted a lift but she declined. He then drove off leaving the complainant standing on the side of the road.

12 MacDonald agreed that she had spoken to the complainant in Redfern a few weeks later and that she had said she was sorry. The appellant denied ever speaking to the complainant in Redfern.

13 As will be discussed further below, the evidence of the appellant and MacDonald differed in several respects, including the exact point where the complainant got into the vehicle, where she got out and who asked that the vehicle be driven to Rushcutters Bay.

The summing up

14 It was common ground that the critical issue before the jury was its assessment of the complainant as an honest and reliable witness. In her summing up, her Honour (at 5) instructed the jury that whether they could safely act upon the evidence given by a witness depended upon two different but overlapping considerations, namely, the witness's honesty and accuracy.

15 Her Honour then informed the jury that they should ask themselves in respect of each witness whether he or she impressed as a person doing his or her best to tell the truth. She said (at 5):

"If you conclude that a witness is a person not doing his or her best to tell the truth you might well conclude that his or her evidence generally is going to be of little assistance to you. If on the other hand you conclude that a witness was doing their best to tell the truth you should then pass on to the second matter which has to be considered, namely, the witness's accuracy and to determinate how accurate a witness is, it is necessary to have regard to a number of matters."

16 After detailing the matters to which regard should be had such as how carefully the witness observed the particular thing about which he or she gave evidence, the fact that some things are of such a nature that the observer is likely to retain an accurate recollection of them whereas, at the other extreme, if they are trivial or unimportant it is unlikely that they would be remembered accurately, the consistency of the given account being an indication of reliability, her Honour said this (at 7):

"In relation to accepting the evidence of a witness, you are not obliged to accept the whole of the evidence of any one witness. You may if you think fit accept part or reject part of that witness's evidence. The fact that you do not accept portion of a witness's evidence because you do not believe it, does not mean that you must reject the whole of that witness's evidence. It does not mean that you cannot or should not accept the remainder of that evidence if you think it is worthy of belief."

17 Her Honour then reminded the jury that the accused were entitled to the benefit of any reasonable doubt in their minds. She reminded them that the Crown had to prove beyond reasonable doubt each of the essential elements that made up the charges under consideration. In this respect, she said Count 1 was (at 11):

"an allegation that Donald Tolmie and Kim MacDonald detained Mary Henderson for their advantage and that was to steal her money."

18 At 15 the trial judge defined the elements of Count 1 in these terms:

"The first count has two elements in it, that is, that the accused Mary Henderson, that is to keep or restrain her and secondly that by doing that the accused intended to hold her for their advantage and that was, the Crown alleges to steal Mary Henderson's money."

19 The trial judge then (at 15-16) summarised the Crown's case in these terms:

"The evidence was given by Ms Henderson that when she got into the car, she had asked for a lift and they had agreed to that, but when she wanted to get out at a particular point where she said she asked to be let out, that the accused Tolmie who was driving the car, put his foot down on the accelerator and drove around down Bayswater Road then into the back of the laneway which she said turned into the right down the back of the, what was then the Hyatt and again made another left turn down into a further back lane and that she was restrained from getting out, she made attempts to get out of the car and she was restrained until finally she was thrown out of the car. If you found she was being asked for money and attempts were being made to try and take money or find money, if you found that that happened as Miss Henderson has said, those elements would have been proved beyond reasonable doubt by the Crown, that is that the accused detained her with the intention of holding her for their own advantage, and that was to take money."

20 Her Honour then explained to the jury the elements of Counts 2 and 3. She instructed them (at 16-17) that the action of the appellant in placing his finger inside the complainant's vagina would amount to sexual intercourse at law and that if they were satisfied beyond reasonable doubt that that occurred, they would also need to be satisfied that the complainant did not consent to that act. She said that if the jury accepted that the alleged conduct took place, they would have little doubt about the fact that the complainant did not consent thereto.

21 As to Count 3, being the charge of armed robbery, her Honour instructed the jury (at 18-19) that they must be satisfied beyond reasonable doubt that the appellant was armed with an offensive weapon and that he was so armed at the time the complainant was robbed. She emphasised on a further two occasions that the robbery must have taken place at the time the accused were armed with a gun. As to the evidence said (at 19):

"You have heard the evidence given by Miss Henderson that she had a bum bag with her, that as she was being thrown out of the car she saw it, it was on the floor, she tried to grab it, she wanted the bag and it was taken and she never saw it again."

22 I interpolate here that it was the complainant's evidence that the gun was produced originally by MacDonald and then, after a struggle, she was beaten about the head with it by the appellant when the panel van stopped in the lane behind the Hyatt Kingsgate Hotel. However, it was also her evidence that she was robbed of the $10 note and the "Scratch It" ticket by MacDonald after the vehicle had been driven by the appellant to Sutherland Crescent, Darling Point, which is also where the alleged sexual assault took place: see T.14-15, 10.7.02. That is although the gun was produced in the lane behind the Hyatt Kingsgate Hotel, there was no evidence relating to the gun at the location or time of the robbery at Darling Point.

23 Her Honour then summarised in more detail the evidence on each of the counts and in respect of Count 2 alleging sexual intercourse without consent, she reminded the jury (at [29)) that it had been submitted that when the complainant had spoken to the police officers in Darling Point, she had said nothing about being sexually assault notwithstanding that that assault had allegedly taken place just before she was pushed out of the vehicle. Her Honour continued in these terms (at 29-30):

"You recall her evidence was that she could not say whether she had said anything to the police when she was taken to hospital. She said that she could not recall whether she told police first, or whether she told someone at the hospital. She said that she thought it would have been a female because of the difficulty at that stage of speaking to a man about what she said had happened. But she also said that at the time she did speak to the police at Darling Point she was extremely distressed, she was in shock and she really could not quite remember what she had told the police at that stage. She did make a statement about 12 hours after the police had first spoken to her, that was 3 o'clock in the morning … She was in hospital obviously for some time receiving treatment and after she left the hospital she went or was taken to Kings Cross Police Station where Detective Bell saw her at 3 o'clock in the afternoon … She made her statement and it would seem, because there has been no suggestion otherwise by counsel for the accused, that it was at that time she told the police about the sexual assault that had been committed upon her by the accused."

24 The trial judge then referred to the submission of counsel that the delay of some 12 hours in the complainant's making of a complaint about being sexually assaulted was inconsistent with the conduct of a truthful person as a consequence whereof the jury should regard her evidence that she was sexually assaulted as false. Her Honour reminded the jury that the delay in making a complaint may indicate fabrication but does not necessarily do so.

25 Critically, for present purposes, the trial judge then instructed the jury as follows (at 31-32):

"Because at the heart of this trial, and for the Crown's witness, is Miss Henderson. You must accept beyond reasonable doubt what she has told you occurred and which gave rise to these charges being brought against each of the accused. If you have a reasonable doubt about her evidence relating to what she says occurred to her going to the charges themselves, obviously you could not be satisfied beyond reasonable doubt that the Crown has proved its case.
Again I remind you that you can accept part and reject part of all witnesses' evidence but for the essential elements of this matter the Crown relies, and can only rely, on the evidence given by Miss Henderson. So you must look at her evidence very carefully and scrutinise it with care before you act upon it because you must be satisfied of its truth and reliability. And that is a matter which you would consider in that light."

26 The trial judge then referred (at 32) to the lengthy cross-examination of the complainant by counsel for both accused and relevantly to the first count, that it was the case for the accused that the complainant was in Kings Cross for drug dealing, that she had actually approached the accused and got into the car willingly to go off to a drug deal some distance from Kings Cross. Such evidence, her Honour observed, was entirely at odds with the complainant's evidence, she having vehemently denied that anything of the nature suggested in the cross-examination had ever happened.

27 Having again reminded the jury that they were required to scrutinise the complainant's evidence carefully, the trial judge continued in these terms (at 36):

"I do not intend to go into everything that was asked of or suggested to Miss Henderson by both counsel on behalf of their respective clients, but you know of course the main thrust of it is that Miss Henderson is lying about what happened for her own purposes and whether it was to hide what it is suggested she was doing that night. So it is a matter for you as I said entirely ladies and gentlemen, the evidence you accept and the evidence you reject in this trial."

28 After referring in some detail to the evidence of the two accused, the trial judge then summarised the submissions of the Crown as well as counsel for each of the accused. The case made by the latter was that the jury would have grave doubts about the complainant's truthfulness. It was asserted that she was not an innocent person who was lured into a vehicle to be robbed but was a drug dealer involved in a deal that went wrong. It was submitted that the jury would not regard her as a witness of truth.

29 At the conclusion of her summing up the jury retired to consider their verdict. Counsel were invited by her Honour to indicate whether there were any matters of fact or law upon which any of them required further instructions to be given but each replied in the negative. That is particularly relevant to the second ground of appeal dealt with below at [55] in that the direction which it is alleged her Honour failed to give but should have given, was not sought by either counsel appearing for the accused. Rule 4 of the Criminal Appeal Rules therefore precludes it. It is also to be noted that no complaint is made by the appellant with respect to any part of the summing up and, in particular, those portions which I have extracted in the preceding paragraphs.

Ground of Appeal 1 - The verdict of guilty in relation to Count 1 is unreasonable and cannot be supported in terms of s 6 of the Criminal Appeal Act 1912 in light of the not guilty verdicts in relation to Counts 2 and 3

30 The appellant submitted that it was clear that the jury rejected so much of the complainant's evidence as was relevant to Counts 2 and 3. In other words, they could not have accepted, at least completely, the account given by her as to what took place in the panel van when she was allegedly sexually assaulted and her money, lottery ticket and bumbag containing money was allegedly stolen. Accordingly, it was submitted that those findings were inherently inconsistent with the jury accepting beyond reasonable doubt the accuracy and reliability of the complainant's evidence that she was detained by the accused with intent to hold her for their advantage, to steal her money.

31 However, it needs to be remembered that the complainant's evidence was that she was driven against her will to the lane behind the Hyatt Kingsgate Hotel where she was physically assaulted by the appellant with a gun after which the appellant then drove off. It was not until the appellant eventually stopped the vehicle at Sutherland Crescent Darling Point that, according to the complainant, MacDonald put her hand down her bra, pulled out the $10 note and "Scratch It" ticket. Furthermore, it was only after this occurred that MacDonald told the appellant to "check her cunt and see if she's got any money down there" whereupon, according to the complainant, the appellant put his hand down her pants and put his finger in her vagina. She was then pushed out of the van and her bumbag remained in the vehicle and the accused refused to return it to her.

32 It may well be that the jury acquitted on Count 3 on the basis that although the complainant was physically assaulted with the gun in the laneway behind the Hyatt, the gun was not in evidence when she was robbed of her money at Darling Point. As a consequence of this the jury may not have been satisfied beyond reasonable doubt, as her Honour had instructed them, that the appellant was armed with an offensive weapon at the time of the robbery. In other words, there was no coincidence between the production of the gun and the robbery, each occurring at different times and in different locations. It is to be noted that for some inexplicable reason no charge was preferred against the appellant or MacDonald with respect to the assault in the laneway behind the Hyatt. Further, and equally inexplicably, Count 3 specifically alleged armed robbery and not robbery in company, which is also prohibited by s 97.

33 Accordingly, it may well be that the jury were not satisfied as the charge required that the appellant was armed with the handgun when the robbery took place at Darling Point in that, at that time, it played no part in the events which allegedly then occurred. If this be so, then the acquittal on Count 3 would not necessarily involve any rejection by the jury of the accuracy or honesty of the complainant's evidence. The point being made – that it was open to the jury to find that the gun played no role in the robbery – should not be confused with the proposition that a person in possession of an offensive weapon, but who is not brandishing the weapon, cannot thereby be guilty of an offence under s 97. Section 97 merely requires the possession of a weapon such that where the victim is aware that the accused is armed, the offence could, circumstances depending, be found proven.

34 The jury's acquittal on Count 2 is more problematic although, as I have pointed out in [22] above, there was a significant delay between the time of the sexual assault and the first complaint by the complainant to any person in authority. The evidence established that the complainant did not tell the police (or the ambulance officer) at the scene that she had been sexually assaulted. She did say that the worst of the physical incidents was being knocked about in the car with the gun which occurred in the laneway behind the Hyatt. She said that the reason she did not tell anyone about the sexual assault was that she was in shock and did not want to talk to a male about it although the evidence established that she was alone with the female ambulance officer (Ms Solrai) on the way to St Vincent's Hospital.

35 Accordingly, there was a basis upon which the jury may well have had a reasonable doubt as to the reliability of the complainant's evidence with respect to this charge. But it does not follow that that doubt went so far as to justify the conclusion now pressed upon us by the appellant that the jury must have rejected her evidence as so unreliable and/or lacking any element of truth that their apparent acceptance of her evidence with respect to Count 1 was so infected as to be unreasonable or unsupportable.

36 As I have emphasised, no charge was preferred against the appellant with respect to his alleged physical assault upon the complainant with the handgun in the laneway behind the Hyatt. Accordingly, in one sense it was unnecessary for the jury to consider whether they accepted or rejected the complainant's evidence on that matter. However, in my opinion, it was open to the jury to convict the appellant on Count 1 simply upon the basis that they accepted her evidence that, after she had requested the appellant and MacDonald to let her out of the car when it was in Macleay Street, they refused and thereby detained her for what could only, sensibly and logically, be for their own advantage, namely, because they intended to steal her money.

37 As I have already observed, the jury may well have considered that the complainant's money was stolen but that Count 3 was not established, as the appellant was not armed with his handgun at the time the robbery took place. The trial judge had on a number of occasions directed the jury that they must be satisfied beyond reasonable doubt that the appellant was armed with an offensive weapon and that he and his co-accused robbed the complainant at that time. In other words, it is quite possible the jury were not satisfied of the coincidence of time which that direction required. However, they may still have accepted that her money was stolen and that would be sufficient for the purpose of the second element of Count 1. My point is that there is a logical explanation for the jury's acquittal of the appellant on Count 3 which does not necessarily involve their rejection of the reliability and accuracy of the complainant's evidence that her money was taken.

38 The appellant's submission to this Court was encapsulated by Adams J during argument by the following question to which counsel answered in the affirmative:

"So does it amount to this, your case is that the only proposed stealing to which the advantage related was the bum bag or possibly what was concealed on her person. The jury disbelieved for whatever reason the complainant about those matters and it must follow then they could not be satisfied beyond reasonable doubt that there was the particularised advantage?"

39 Counsel then summarised his argument in the following terms:

"The case as presented by the Crown relied upon the credibility of Ms Henderson. It also particularised the advantage that was sought in relation to the detaining as being the two counts on the indictment that the jury found the accused not guilty of. Therefore, the jury rejected the advantages that were particularised by the Crown and were the elements of the offence on the count that they convicted upon."

40 It will thus be seen that the appellant's case depended on acceptance of the submission that the jury simply disbelieved the complainant that money, whether from her person or her bumbag, was stolen from her so that even if she was detained (which was not seriously disputed), it was not for the advantage particularised in the charge. However, for the reasons adverted to above, I do not consider that the jury's acquittal on Count 3 was necessarily or inevitably based upon their rejection of the complainant's credibility or reliability as a witness.

41 The appropriate test for determining whether a verdict is unreasonable or unsupportable within the meaning of s 6(1) of the Criminal Appeal Act 1912, was authoritatively stated by the High Court in MFA v The Queen (2002) 77 ALJR 139 at 144 [25] and 155 [97]. In so doing the justices accepted that that test was as formulated by the majority of the High Court in M v The Queen (1994) 181 CLR 487 at 493 (and applied by that court in Jones v The Queen (1997) 191 CLR 439 at 452):

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, the 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."

42 In MFA the High Court approved a number of principles enunciated in MacKenzie v The Queen (1996) 190 CLR 348 at 366-368 in respect of the application of the test in circumstances where the unreasonableness is said to lie in factually inconsistent verdicts of the jury. Thus, Gleeson CJ, Hayne and Callinan JJ stated the following (at 145-146 [34]):

"Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie . They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, ever juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. 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. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman , and referred to in later cases: 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. And there may be an interaction between this consideration and the two matters earlier discussed." (emphasis added)

43 Their Honours then went on (at 146 [35]) to reject as erroneous the proposition that where multiple offences are alleged involving the one complainant then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. Their Honours thus emphasised (at 146 [36]) that the test established by s 6(1) of the Criminal Appeal Act 1912 is unreasonableness, not inconsistency.

44 McHugh, Gummow and Kirby JJ in their joint judgment in MFA also referred to the principles in MacKenzie noting that the instant case was not one where "logic and reasonableness" necessarily dictated a common approach to the several verdicts concerned. At 154 [85] they continued in these terms:

"In judging suggested inconsistency, this Court said in MacKenzie that 'if there is a proper way by which the appellate court may reconcile the verdicts allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted'. The Court cited with approval the remarks of King CJ in R v Kirkman to the effect that juries may not always act 'in accordance with strictly logical considerations' or even 'in accordance with the strict principles of the law which are explained to them'. Juries sometimes give effect to 'their innate sense of fairness and justice' as well as to their sense of proportion and compassion."

45 Their Honours acknowledged (at 154 [86]) that cases do arise where different verdicts returned by a jury represent "an affront to logic and common sense" and suggest a compromise in the performance of the jury's duty. However, for the reasons to which I have referred, I do not consider that the jury's conviction of the appellant on Count 1 can be described this way. I have already explained why I consider that the jury's acquittal of the appellant on Count 3 was not necessarily related to any disbelief of the complainant's evidence. So far as Count 2 is concerned, the remarks of the Gleeson CJ, Hayne and Callinan JJ, which I have emphasised in [40] above, are clearly apposite to the present case. There was no objective evidence of digital penetration and that, coupled with the delay in complaint, may well have caused the jury to be cautious in finding the offence proven beyond reasonable doubt. As their Honours observed, such an approach does not necessarily involve a rejection of the complainant's evidence. Something additional may well have been required by the jury but was absent.

46 Nevertheless, the appellant relied upon the following passage for the majority judgment in M (at 494):

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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."

47 In my opinion, the evidence of the complainant did not lack credibility in the sense referred to in the above-cited passage. A careful reading of the transcript leads me to the conclusion that the complainant gave her evidence clearly and forcefully. When cross-examined by counsel for the appellant she said, and in fact volunteered, that after she was pushed out of the panel van her recollection was not that coherent (at T.15); that she was in shock (at T.17) particularly when the police and ambulance arrived (at T.89-90). She volunteered (at T.43) that

"after the events in the laneway everything became very blurry because I was hit that many times up the head with the gun, I had, was sort of semi-conscious"

and that she remembered being covered in blood and kicked out of the vehicle.

48 Again, (at T.48) she said that when spoken to by the police at Darling Point she was confused, having been hit over the head about 20 times with the butt of the gun and sexually abused. She said (at T.87) that she had suffered from concussion and that when the appellant drove off from the laneway behind the Hyatt, she was "struggling" and that "it becomes a littler vaguer because I was hit quite a few times in the head".

49 By the time the police arrived she was "well and truly in shock" (at T.90) and the ambulance officer, Ms Solrai, confirmed the fact that she was "pretty distraught".

50 It was the evidence of Detective Senior Constable Ahrens, who attended the scene at Darling Point, that at that time the complainant informed him that she had asked for a lift which was agreed to, that she had got into the vehicle, that they had driven towards Darlinghurst near the Hyatt Kingsgate Hotel when the appellant turned into a nearby lane, stopped and produced a pistol. He then bashed the complainant several times with the butt of the pistol asking the complainant for money. She described the vehicle as a "utility panel van which was light in colour". The evidence of both D.S.C. Ahrens and Ms Solrai was that they observed a glue-like substance in her hair, which the latter said, smelt like wood glue. D.S.C. Ahrens also recorded in his notebook that the appellant had taken the complainant's black leather bumbag containing $70-$80 cash, makeup, a comb and her pension card. There is no reference in the notebook to a sexual assault or to the taking of the "Scratch It" card and money from her bra.

51 Further, a careful consideration of the complainant's cross-examination leads me to the conclusion that it was entirely consistent with her evidence in chief. Moreover neither counsel for the accused was able to make any inroads into her credibility.

52 On the other hand, the appellant gave evidence that he agreed that his memory was not good and that he was going to Kings Cross on the night in question to obtain drugs for himself and that MacDonald was going to get drugs for herself. Both denied there was any glue in their vehicle, asserting that it was not a panel van but a four door Holden Commodore sedan and that it was fairly clean inside. Neither of them could suggest any reason why the complainant could not have sat in the rear of the vehicle if it was as they described. Neither of them suggested to her that she should; they both stated that she jumped into the front of the vehicle and sat on MacDonald's lap. The appellant (at T.138) said that there would be no reason for glue to be in the vehicle and that there was no smell of glue.

53 There are also a number of inconsistencies in the stories of the appellant and MacDonald. For instance, it was suggested to the complainant in cross-examination by MacDonald's counsel that it was she who said after they got into the van that they should go to Rushcutters Bay, whereas the appellant said that it was MacDonald. Further, the version of the appellant and MacDonald as to what occurred was entirely at odds with that of the complainant. As the appellant submitted, the only agreed fact was that the complainant got into the appellant's vehicle voluntarily. That was consistent with both their versions. On the other hand, MacDonald admitted that she lied in her interview to the police (at T.198-9 and T.203) and maintained her lie of not having been at Kings Cross at all on 29 January until the trial. She only changed her story at the start of the trial. Furthermore, a reading of the appellant's cross-examination at T.46 [46] – T.147, T.158 reveals that it was unsatisfactory in a number of respects. Accordingly, in my opinion, a careful reading of the transcript would not cause me to experience a doubt with respect to the credibility of the complainant.

54 It may well be, as the Crown submits, that the jury acquitted on Counts 2 and 3 on the basis that the complainant was not, due to her injuries and the shock of the incident, a sufficiently reliable witness as to the events that occurred inside the van when it stopped at Rushcutters Bay or Darling Point so as to satisfy them beyond reasonable doubt that the robbery and/or sexual assault occurred. As I have already indicated, there is in my opinion, a different explanation for those verdicts that does not lead to the conclusion that the jury must have disbelieved the complainant or lacked confidence in her reliability or truthfulness.

55 In any event, the jury must have found the complainant a credible witness as to the fact that she was taken to Darling Point against her will. The verdict on Count 1 must have involved the rejection by the jury of the evidence of the appellant and MacDonald that the complainant was a willing traveller in the vehicle. The inconsistencies in the evidence of the two accused with respect to where the complainant got into the car and where she was left and the difficulty of accepting that the appellant was driving a four door silver Commodore when it was common ground that the appellant, for no reason that the two accused could proffer, sat upon MacDonald's lap throughout the journey, indicates that it was at least open to the jury not to accept the evidence of the accused. There were other inherently unbelievable facts relating to how the complainant ended up with glue and bits of metal in her hair as well as the reason proffered by the accused as to why the drug deal was to take place away from Kings Cross, a well known location for drug dealing. As the Crown submitted, it would have been a simple matter for drugs and cash to be exchanged in the lane behind the Hyatt without attracting any unwanted attention.

56 Accordingly, in my opinion, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty on the first count. Further, in my view, the verdicts can be logically reconciled. Accordingly, the appellant has not satisfied me that the jury's verdict of guilty on Count 1 was either unreasonable or unsupportable as a consequence of the not guilty verdicts with respect to Counts 2 and 3. It follows that within the meaning of s 6(1) of the Criminal Appeal Act, there has been no miscarriage of justice in the jury's finding of guilty on the final count with the result that the appellant's challenge thereto should be rejected.

Ground of Appeal 2 – Her Honour erred in not directing the jury as to the complainant's evidence that, in the event that they rejected evidence as dishonest or unreliable in relation to one count, that finding could impact their assessment of the credibility, with the other evidence, with respect to the other counts.

57 As I have observed, r 4 applies to this ground which is founded upon what is referred to as the Markuleski direction. In R v Markuleski (2001) 52 NSWLR 82 at 122, Spigelman CJ, with whom Carruthers A-J agreed, said:

"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.
195 Nevertheless, the jury did not have its attention expressly directed to the proposition that reasonable doubt with respect to the complainant's evidence on any count, ought to be taken into account on the complainant's credibility generally."

58 Earlier, the Chief Justice had said this (at 121 [186]):

"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."

59 However, although the Chief Justice considered (at 121 [187]) that such a direction should be given "as a general rule", he also made clear that its absence was not necessarily fatal. He continued:

"Furthermore, as the joint judgment in Crofts affirmed, the 'general rule' does not apply 'where the peculiar facts of the case and the conduct of the trial do not suggest a need for a warning to restore a balance of fairness'."

60 Wood CJ at CL at 134 [257] also suggested that:

"… 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 the complainant or witness in relation to the other counts."

61 However, his Honour made it clear (at 135 [263]) that, depending on the circumstances, it may not be necessary for such a direction to be given at all. His Honour referred to the danger of evermore directions and warnings to the repertoire of a trial judge and that, in effect, such a direction need only be given where it is necessary to ensure "a balance of fairness" (at 136 [265]).

Grove J, who dissented in the result, referred to what the Chief Justice had said in these terms (at 138):

"279 Nevertheless he concluded that it is desirable to supplement the direction as to treating each count separately in a word against word case and that reference ought to be made to the effect on credibility if the jury found itself unable to accept the complainant's evidence on any one count. I recognise, as his Honour does, that the absence of such a direction would not necessarily be fatal but a final conclusion was: 'The crucial matter is to indicate to the jury that any doubt that 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'.
280 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 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."

62 The appellant submits that the closest the trial judge came to giving such a direction was in the passage from her summing at p.32 which was a repetition of what her Honour said at page 7 of her summing up: see [15] above.

63 However, as the Crown submits, the trial judge made it clear to the jury that as the Crown relied only on the evidence of the complainant, it was required to scrutinise that evidence carefully before acting upon it as they had to be satisfied of its truth and reliability.

64 Although there was no direction of the kind to which the Chief Justice and Wood CJ at CL referred in Markuleski, nonetheless her Honour did remind the jury in some detail of the arguments of both defence counsel to the effect that they could not be satisfied beyond reasonable doubt of the evidence of the complainant in respect of any of the counts.

65 The Crown thus submits that the present case was one in which a Markuleski direction was not required. It submitted that the factors to be taken into account in relation to Counts 2 and 3 were different from those in relation to Count 1. In particular, the claimant had not been injured at the time she was first detained against her will so that the reliability of her evidence on Count 1 was not affected by reason of her subsequent injuries. There was, it was contented, other circumstantial evidence which supported Count 1 that was not relevant to Counts 2 and 3 such as the evidence of the two accused that she did get into the vehicle with them on the night, that she was left at Darling Point as well as the unchallenged evidence of her injuries, the evidence of the glue in her hair, her distress and her immediate complaint to the police about being detained.

66 Furthermore, as Adams J observed during the course of argument (at T.8 and 22), as there was no direction by the trial judge that the jury should consider each count independently, common sense would indicate that the jury if they disbelieved the complainant on one aspect of her evidence, would use that disbelief in assessing her credibility generally.

67 In my opinion, the requirement of fairness to the appellant did not, in the circumstances and particularly in light of the trial judge's otherwise unchallenged summing up, necessitate a direction of the nature of that contended for by the appellant in order to ensure a balance between fairness to the appellant on the one hand and to the prosecution on the other. In my view, leave pursuant to r 4 should be refused.

Conclusion

68 In my opinion, the appellant has failed in his challenges to his conviction on Count 1. His appeal against conviction should therefore be dismissed.

69 HULME J: In this matter I have read the Reasons for Judgment of Tobias JA. I agree with the order proposed by his Honour, with his Honour’s reasons concerning ground 2 and with his Honour’s statements of principle in relation to ground 1. I wish however to record my own reasons for concluding that the jury’s verdicts of not guilty in respect of counts 2 and 3 do not render the Appellant’s conviction on count 1 unreasonable.

70 As Tobias JA has pointed out, there was a deal of evidence independent of Mary Henderson tending to indicate that something untoward and which may well have been along the lines of the first charge, occurred to her on the evening concerned. There was significant corroboration of much, although not all, of those parts of her evidence as were essential to the first charge.

71 So far as the second charge is concerned, her failure to complain at an early stage of the sexual interference which was an essential component of that charge may well have been sufficient to cause or contribute to the jury not being satisfied beyond reasonable doubt of that element of the charge.

72 The same may be said of some elements in the third charge. The $10 and scratch lottery tickets referred to in that charge are not mentioned in the notebook of Detective Ahrens wherein Ms Henderson’s first account of events given on the night is recorded.

73 The third item alleged in the third count to have been stolen, a black bum bag, was mentioned in the Detective’s notes. However Ms Henderson’s evidence as to the taking of this was that as she was being pushed out of the car she saw the bum bag lying on the floor of the car, one of the offenders said something to the effect “there’s the bum bag” her eviction from the car continued and the car took off.

74 In the summing up the jury were directed that:

" ‘robbed’ at law is committed where a person, without lawful excuse, takes and carries away property from the person of another, or in that person’s presence, or from under that person’s immediate and personal care and protection, against the will of the other person, either by force or putting that person in fear with the intention of permanently depriving the other of their property. So that at law, ladies and gentlemen, is what robbery means. You have heard the evidence given by Miss Henderson that she had a bum bag with her, that as she was being thrown out of the car she saw it, it was on the floor, she tried to grab it, she wanted the bag and it was taken and she never saw it again."

75 Her Honour’s directions in respect of the third charge were as follows:

"Now the third charge brought by the Crown against the accused is the charge of armed robbery upon Miss Henderson, that is being armed with a hand gun, robbed her of her money in a bum bag containing some money and personal papers. What must be proved and proved beyond reasonable doubt, first of all the accused were armed with an offensive weapon and secondly that at that time they robbed Mary Henderson.
An offensive weapon at law ladies and gentlemen, a hand gun would amount to an offensive weapon and if you found that such was present it would certainly amount to being “armed with an offensive weapon” whoever was holding it again because of the joint criminal enterprise. And robbed, as I said, at the time that the accused were so armed as alleged by the Crown. If you find that beyond reasonable doubt the next matter you would consider was whether at the time that they were so armed, they robbed Mary Henderson and “robbed” at law is committed where a person, without lawful excuse, takes and carries away property from the person of another, or in that person’s presence, or from under that person’s immediate and personal care and protection, against the will of the other person, either by force or putting that person in fear with the intention of permanently depriving the other of their property. So that at law, ladies and gentlemen is what robbery means. You have heard the evidence given by Miss Henderson that she had a bum bag with her, that as she was being thrown out of the car she saw it, it was on the floor, she tried to grab it, she wanted the bag and it was taken and she never saw it again. Indeed she asked for it back when she said she saw the accused and Miss Macdonald in Redfern some three weeks later, but she has never seen it again and it contained her own personal possessions and some money and that has never been seen again."

76 If one were to accept Miss Henderson’s evidence about the presence of the hand-gun earlier, there being no suggestion that it had been removed from the car in the meantime, I would myself have regarded the Appellant as still being armed with the hand-gun at the time he and his co-offender drove off. I would also have regarded the circumstances as described by Miss Henderson as fulfilling the requirement of “takes and carries away property from the person of another, or in that person’s presence” – terms used by the trial judge in the direction I have quoted.

77 However, given there is nothing to suggest that the hand-gun was in evidence at that stage and the taking was constituted simply by driving off in the car with the bum bag on the floor, I can well understand a layman taking a different view. The circumstances do not obviously fall within the ordinary understanding of an armed robbery.

78 Thus one can well understand a viewpoint that the driving away of the car with the bum bag on the floor after Miss Henderson was outside the car did not constitute the taking and carrying away of property from her person and that it was not at that time under Miss Henderson’s “immediate and personal care and protection” albeit the bag was still in her presence.

79 ADAMS J: I agree with Tobias JA.

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Last Modified: 11/29/2004