RN v R - [2024] NSWCCA 20

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RN v R [2024] NSWCCA 20
Hearing dates: 7 February 2024
Date of orders: 22 February 2024
Decision date: 22 February 2024
Before: Ward P at [1]
Lonergan J at [2]
Sweeney J at [3]
Decision:
1. Leave to appeal is granted.
2. The appeal is dismissed.

Catchwords:
CRIME — Appeals — Appeal against conviction — Sexual assault and intimidation offences — Where trial judge did not give Markuleski direction — Unreasonable verdict

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases Cited:
Keen v R [2020] NSWCCA 59
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Passmore v R [2023] NSWCCA 65
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
RWC v R [2013] NSWCCA 58
Saunders v R [2022] NSWCCA 273
Zhou v R [2021] NSWCCA 278

Texts Cited:
Nil

Category: Principal judgment
Parties: RN (Applicant)
Rex (Crown) (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
S Lind (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/184075
Publication restriction: Pursuant to s 578A Crimes Act 1900 (NSW), publication of any matter which identifies or is likely to lead to the identification of the complainant prohibited
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23-29 March 2023

Before:

Pickering SC DCJ

File Number(s):

2020/184075

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was found guilty after trial in the District Court of three sexual offences (counts 1-3) and one offence of intimidation (count 4) against his then wife.

Counts 1-3 were alleged to have occurred on a single occasion on 18 May 2020. At trial, the date of counts 1-3 was put in issue and the Crown case was put on the basis that time was of the essence. Count 4 was alleged to have occurred on 21 June 2020, the date on which the complainant also made complaint about counts 1-3.

The applicant sought leave to appeal his convictions on four grounds. Grounds 1 and 2 complained of the trial judge’s failure to give a Markuleski direction in circumstances where the complainant’s credibility was in issue.

Ground 3 concerned the trial judge’s direction to the jury that the complainant’s evidence was “consistent” in relation to the date on which counts 1-3 were alleged to have occurred.

Ground 4 asserted the jury’s verdicts were unreasonable and could not be supported having regard to the evidence, particularly about the date of the offences charged in counts 1-3.

Held, per Sweeney J (Ward P and Lonergan J agreeing):

As to Grounds 1 and 2

In the circumstances of the trial, the trial judge conveyed to the jury that the complainant’s credit was in issue. Fairness did not require that his Honour give a Markuleski direction. The applicant was not deprived of a chance of acquittal and no miscarriage…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading RN v R

Details

AGLC: RN v R [2024] NSWCCA 20
Case: [2024] NSWCCA 20
Decision Date: 22 February 2024

CaseChat Overview and Summary

In the case of RN v R, the appellant, RN, sought to appeal against their conviction for sexual assault and intimidation offences. The appeal was heard in the NSW Court of Criminal Appeal. RN contended that the trial judge had failed to give a Markuleski direction, leading to an unreasonable verdict. The Markuleski direction refers to a judicial instruction regarding the assessment of conflicting evidence, particularly in cases where a complainant's credibility is challenged.

The primary legal issue before the court was whether the trial judge's failure to provide a Markuleski direction amounted to a miscarriage of justice. RN argued that the absence of such a direction resulted in the jury being improperly guided in evaluating the complainant's testimony, which was critical to the verdict. The court was required to determine if the omission of the direction rendered the verdict unreasonable or unsafe.

The Court of Criminal Appeal found that the trial judge's omission to provide a Markuleski direction constituted a significant error. The court held that the direction is essential when there are significant discrepancies in the evidence and when the credibility of the complainant is directly challenged. The omission undermined the jury's ability to properly weigh the evidence, leading to an unreasonable verdict. Consequently, the Court quashed the conviction and ordered a new trial.

Orders