RN v R

Case •

[2024] NSWCCA 20

•

22 February 2024

No judgment structure available for this case.

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 of justice resulted.

RWC v R [2013] NSWCCA 58 considered; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 and Keen v R [2020] NSWCCA 59 applied.

As to Grounds 3 and 4

His Honour’s description of the complainant’s evidence as “consistent” did not deprive the applicant of a chance of acquittal or cause a miscarriage of justice. It was open to the jury to be satisfied by the complainant’s evidence that counts 1-3 occurred on 18 May 2020.

Having independently assessed the evidence and bearing in mind the jury’s advantage in hearing the evidence, the Court was not of the view that the verdicts were unreasonable.

Passmore v R [2023] NSWCCA 65; Zhou v R [2021] NSWCCA 278 and Saunders v R [2022] NSWCCA 273 considered; M v The Queen (1994) 181 CLR 487; [1994] HCA 63 applied.

JUDGMENT

  1. WARD P: I have had the advantage of reading in draft the comprehensive reasons of Sweeney J, with which I agree. I have reviewed the evidence and have concluded that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt on all four counts. I also agree with the orders her Honour has proposed.

  2. LONERGAN J: I agree with Sweeney J for the reasons her Honour has given that grounds 1, 2 and 3 of the appeal must be dismissed. In respect of ground 4, having made my own independent assessment of the evidence, I am well satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of each of the four offences charged.

  3. SWEENEY J: RN, the applicant, was found guilty of four offences after a trial before Judge Pickering SC and a jury in March 2023. The offences were one offence of inciting sexual touching without consent and two offences of sexual intercourse without consent, on 18 May 2020, (counts 1 to 3 on the indictment) and an offence of intimidation on 21 June 2020 (count 4). The complainant in all the offences was the wife of the applicant at the time of the offences, and his former wife when she gave evidence at the trial. Because there was a non-publication order in respect of her identity, I will refer to the applicant, the complainant, and their daughter, who was a witness, by their initials.

  4. The applicant now seeks leave to appeal against his convictions. He relies on four grounds of appeal:

  1. A miscarriage of justice resulted from the trial judge failing to direct the jury that if they had a reasonable doubt with respect to one count, they were entitled to consider that fact in considering the other counts.

  2. A miscarriage of justice resulted from the trial judge failing to direct the jury that a doubt about the reliability of the evidence of a prosecution witness in respect of one count could be taken into account when considering the evidence of that witness in respect of another count.

  3. His Honour erred in his characterisation of the complainant’s evidence as “consistent”.

  4. The jury’s verdict was unreasonable and could not be supported by the evidence.

Summary of the trial

  1. The evidence in the trial was in short compass.

  2. The evidence in support of the first three counts was given by the complainant, MN. Evidence in support of the fourth count was adduced from the complainant and AN, the adult daughter of the complainant and applicant.

  3. Evidence was given by Detective Senior Constable Matthew Cash about police records of previous complaints to police by the complainant about the applicant, and police attendances at the family home, about which evidence I will say more later.

  4. The evidence of the complainant was that the three sexual offences happened on one occasion, which was particularised as 18 May 2020. The complainant did not make a complaint to police at that time about those offences. On 21 June 2020, after the conduct the subject of the intimidation offence in count 4, the police attended the home and the complainant gave a video recorded statement about that conduct. She then gave a statement on that date about the sexual offences which had occurred in May.

  5. The complainant gave evidence in the trial about previous physical and sexual assaults by the applicant, which was relied on by the Crown as providing the context of the relationship between the complainant and applicant, not as evidence of a tendency of the applicant.

  6. The evidence of Detective Cash concerned records from police record systems of occasions when the complainant had called police to attend the family home or police had attended the family home and the complainant had made no complaint about sexual or other misconduct of the applicant, other than what counsel for the applicant characterised as “minor matters”. The applicant's counsel at trial relied on those events and lack of complaints by the complainant, especially about prior sexual assaults, as matters adverse to her credibility. The Crown case about those records and attendances, relying on the evidence of the complainant, was that when police attended, she did not make full disclosures to them about the applicant’s misconduct or her fear of him, because of her fear of him.

Issues in the trial and relied on in the appeal

  1. In respect of the credibility of the complainant, it was asserted that the complainant and her daughter had a motive to lie, which was to make false allegations to achieve the removal of the applicant from his home. There was also reliance on a lack of complaint of sexual assault before 21 June 2020, despite frequent complaints by the complainant to the police and frequent attendances by police at the family home in the five years before June 2020, and the complainant's evidence that such assaults had occurred before the offences the subject of the indictment.

  2. The assaults alleged in the first three counts on the indictment were particularised as having occurred on 18 May 2020, and the trial was run on the basis that time was of the essence. Although the defence case at trial was that no sexual assaults occurred, the date was also put in issue.

Summary of evidence in the trial

  1. The complainant's evidence, given with the assistance of an interpreter, was, in summary, as follows.

  2. She and the applicant married in 1977 in Macedonia. They came to Australia in 1982. They had two adult children, one of whom, their daughter, lived with them in 2020.

  3. She said she experienced physical and sexual violence from the applicant from 2002 or 2003. She gave evidence of some specific such events, including prior sexual acts which she said she submitted to for fear of the applicant's anger.

  4. In respect of the first three counts on the indictment she gave the following evidence. Because there is a ground of appeal relating to her evidence about the date on which those offences occurred, 18 May 2020, I will deal with her evidence about the date in more detail later, when I address that ground of appeal.

  5. The complainant said that at the relevant time she and the applicant slept in separate rooms. At about 1:30am on 18 May 2020 the applicant motioned with his hand for her to go to the room where he slept. She went to the room, because if she had not gone, the applicant would have yelled, and their daughter was sleeping nearby. She said the applicant was naked on the bed. She went and lay on the bed too. The applicant said to “kiss and suck him”. She said no. He grabbed her hand and told her to masturbate him. She did because he told her to. She did not want to do it. He grabbed her hand with his hand and put it on his erect penis. She was trying to pull her body away from him. She did not move her hand on his penis (count 1 charged the applicant with intentionally inciting the complainant to sexually touch his penis without her consent and knowing she was not consenting).

  6. She said then the applicant pulled her face and mouth towards his penis. He wanted her to put his penis in her mouth. He pushed her head down. He was putting his penis close to her mouth, trying to put it in her mouth. She was withdrawing, turning her head side to side. He continued to force her to do it. He kept saying “more, more and more". She said "no, no", before he put his penis close to her mouth. She said his penis entered her mouth a little bit (count 2 on the indictment charged the applicant with sexual intercourse without consent).

  7. She said then the applicant took her bra off, turned her on her back and put his penis in her vagina for two to three minutes. She did not want him to do that. She did not do anything to indicate that she did not want to do that (count 3 charged the applicant with sexual intercourse without consent). She said the applicant ejaculated in her vagina, after which she got up, went and washed herself and went to her bedroom.

  8. Of the conduct the subject of count 4, a charge of intimidating the complainant with the intention of causing her to fear physical or mental harm, the complainant's evidence in chief was given in part by way of a recorded statement made pursuant to s 289F Criminal Procedure Act 1986 (NSW), on the day of the alleged offence. In that recorded statement the complainant said on that night (21 June 2020) she came home from her son's place and the applicant started calling her names – “bitch”, “slut”, screaming, shaking his head. He said, "I can kill you. I can kill you, I can kill all.", the latter which she said was a reference to her daughter and son.

  9. After the recording was played the complainant gave further evidence that on that day (21 June 2020) she and the applicant were in the lounge room. He was drinking. He said, "I'm going to kill all. I can kill all. I can kill you but I can kill all." She felt sad because he was talking about their children, and she thought he would do what he was saying.

  10. In cross-examination, the complainant agreed that she knew the applicant wanted their adult daughter to move out of the house they all lived in. She agreed the applicant argued a lot with their daughter and her, and as a result of the arguments the police would attend the house. She said when police attended, she said she had fears of the applicant being abusive towards her.

  11. She was taken to police records of attendances at the house and asked about what she had told police on various occasions. She agreed the police came to the home many times in the five years before June 2020. She agreed that 21 June 2020 was the first time she raised any issue about sexual abuse or sexual violence by the applicant, despite the prior frequent police attendances. She said it was happening but she did not raise it.

  12. She was asked "… when you came to make those sexual allegations, was it the case that effectively you tried everything that you could think of to get rid of [the applicant]?” She answered "Yes". She was asked "there was no occasion when [the applicant] forced you to have sex with him?". She said "When he was putting pressure on me to have many times".

  13. In re-examination she was asked why she wanted the applicant out of the house. She said because “he was always drunk and he was abusing me verbally and mentally, he was calling me a bitch and he used to come out and was shouting on the street and was accusing me.”

  14. She agreed that sometimes when the police attended the house she told them the applicant was not drinking when he was, because she was fearful of him. She said she did not tell the police about the applicant’s sexual violence on the previous occasions they attended because she was fearful of the applicant, feared he may kill her. She said she told the police on 21 June 2020, because "I couldn't bear that anymore".

  15. The daughter of the complainant and applicant, AN, gave the following evidence, in summary. She lived with her parents from 2010 until June 2020, (the applicant leaving the house after he was arrested). She said on 21 June 2020 her mother came home from her brother's house and her father was very drunk and angry and started swearing at her and threatening her and "us", saying "I'll kill you, I'll kill all of you", calling her mother offensive names, such as “slut”. She said it went on for about 15 minutes. She said her mother was very scared and angry.

  16. In cross-examination she agreed the applicant was constantly drunk and abusive. She agreed the applicant had said he did not want her living in the house anymore. She agreed she wanted him to leave because he was abusive and threatening. She maintained he did threaten her and her mother.

Grounds 1 and 2

  1. Grounds 1 and 2 complain of the failure of Judge Pickering SC to direct the jury in accordance with the decision of R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, when the honesty and reliability of the evidence of the complainant was a central issue in the trial.

  2. Counsel for the applicant in the trial asked the trial judge to direct the jury in accordance with Markuleski, after the Crown prosecutor's closing address and before counsel commenced his closing address to the jury. His Honour said that in the circumstances where the three acts the subject of counts 1 to 3 happened so close in time, he thought such a direction would be meaningless. Counsel maintained that because there were separate charges, the accused was entitled to the benefit of the direction.

  3. During a break in his Honour’s summing up, he told counsel that he was reluctant to give the jury "a Markuleski direction" because he considered it would confuse the jury, and because the issue in respect of count 4 was not the truthfulness of the complainant's evidence, but whether the Crown could prove the accused had the requisite intention. Counsel maintained that it was open for the accused to receive the benefit of such a direction.

  4. His Honour then said (at T 44):

"I have decided not to give a Markuleski direction. I do not think it is in the interest of justice. I think it has the capacity to confuse the jury. Nor do I intend to give it between counts 1, 2 and 3 separately from 4 because of the different issue in count 4 has the capacity to see it as well [as transcribed]."

  1. Counsel for the applicant submitted that his Honour was obliged to give the direction and there is a risk that the applicant was denied the chance of an acquittal on all counts by the absence of the direction. This was said to be especially important given the complainant's evidence that she did not say “no” or do any action indicating a lack of consent in respect of the act the subject of count 3, which it was submitted was important to the Crown proving beyond reasonable doubt that the applicant knew the complainant was not consenting to that act of sexual intercourse, particularly given the long history of their relationship. Counsel submitted that although trial counsel did not make submissions about that issue, the lack of a Markuleski direction by the judge permitted the jury to take a “broad brush” approach to the accused’s knowledge of the complainant’s lack of consent in respect of all three counts. Counsel submitted such a direction was also important in respect of count 4, given the lack of previous complaints by the complainant and the asserted motive for her to make false allegations, to have the applicant removed from the house.

  2. Counsel for the applicant relied on the statement of Latham J in RWC v R [2013] NSWCCA 58 (with which McClellan CJ at CL and Adamson J, as her Honour then was, agreed) at [80] that in that trial, "Such a direction was required in order to balance the direction to the jury that it considers each count separately, particularly where the verdicts of not guilty were the product of doubt about the complainant's reliability." In that trial the jury had acquitted the accused of two counts and convicted him of two others, all of which depended on the evidence of the complainant, albeit with some tendency evidence from another witness.

  3. The Crown submitted that in the circumstances of this trial, the absence of a Markuleski direction did not give rise to a miscarriage of justice or deprive the applicant of a chance of acquittal, given the number of times the judge directed the jury of the need to be satisfied beyond reasonable doubt of the truthfulness and reliability of the complainant's evidence, and the direction that they consider each count separately.

  4. In Markuleski, Spigelman CJ said at [186]-[191]:

[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, to employ the terminology found in Kilby and R v Davies “as a general rule”. Its absence is not necessarily fatal (as it was not in Davies itself). Furthermore, as the joint judgment in Crofts affirmed (at 451), 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.

[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 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.

  1. In Keen v R [2020] NSWCCA 59, McCallum JA (with whom Wilson and Cavanagh JJ agreed) said "the fact that a case can be characterised as one of word against word does not of itself mean that a Markuleski direction must be given":[64]. Her Honour said, at [66]:

"In Markuleski, the Court unanimously accepted that, in a word against word case where the only evidence on each count is that of the complainant, an acquittal on one count may indicate that the jury ought to have entertained doubt with respect to other counts but does not mandate that conclusion."

  1. Her Honour stated that the suggested direction was not crucial, nor must it be given in every case; rather, it is clear from the authorities, including Markuleski, that the decision whether to give such a direction must be a matter for the assessment of the trial judge in the particular circumstances of the case: [76], whether such a direction is necessary to ensure "a balance of fairness": [81].

  2. It is worth noting that Markuleski, and the cases relied on in submissions which have considered it, involved different verdicts, asserted to be inconsistent verdicts, on different counts.

  3. Counsel for the applicant in the trial cross-examined the complainant about her lack of certainty about the date of the offences charged in counts 1 to 3 (the subject of Ground 3), her lack of prior complaint to the police about "sexual abuse" by the applicant, that she wanted the applicant to leave the house, "that there was no occasion when [the applicant] forced [her] to have sex with him." and that she had not complained to police about sexual abuse or sexual violence by the applicant because there was not any. Counsel did not distinguish in his questioning between the facts and circumstances of the three alleged acts.

  4. In his closing address to the jury, counsel referred to the same matters. After addressing the jury about the lack of prior complaint of sexual misconduct by the applicant, counsel said:

"If you find those facts [that the complainant had said sexual abuse had occurred for some years and that she had made no complaint to police about such conduct before 21 June 2020] you might find that the complainant is unreliable in relation to her assertion that [the applicant] is guilty of the sexual misconduct in counts 1, 2 and 3".

  1. Counsel went on to say:

"…It is submitted the complainant is not reliable in terms of what is alleged in relation to this particular indictment and in particularly counts 1, 2 and 3. Count 4 is an intimidation count. 1, 2 and 3 in particular – not very reliable. When you look at the issue about the complainant. In the end you'll need to be satisfied beyond reasonable doubt about the honesty of the complainant. You’ll need to be satisfied beyond reasonable doubt about the accuracy of the complainant."

  1. The trial judge gave the following directions to the jury:

  • “Clearly, the evidence of the complainant was significantly disputed in the trial. It will be for you to decide whether you are going to act on her evidence beyond reasonable doubt." (SU 4).

  • “Where the Crown primarily relies on the evidence of one witness alone, which it does here for counts 1, 2 and 3, the Crown can still prove the case beyond a reasonable doubt but only if you accept the complainant beyond a reasonable doubt." (SU 4).

  • "Obviously therefore you will have to consider the complainant's evidence and look at it carefully and determine whether you will act on it beyond reasonable doubt for counts 1, 2 and 3. As I said to you, in reality for count 4, the evidence does not stand alone. There is evidence from her daughter that has the capacity to support her.” (SU 4-5).

  • "Whether a witness is truthful is a matter for you to determine. You don't just look at whether a witness is truthful. You are also looking at whether a witness is reliable… that is, they are related concepts. As I said, it is not just a question of truthfulness. It is also a question of reliability.” (SU 5).

  • "Here, ultimately, you are looking at whether you will accept the truthfulness and reliability of that witness, beyond reasonable doubt." (SU 6).

  • "Ultimately here, in particular for counts 1, 2 and 3, if ultimately you just cannot be sure of the complainant's version and you are not prepared to know whether it is truthful or reliable beyond reasonable doubt, then quite obviously for counts 1, 2 and 3, your verdicts will be not guilty." (SU 7).

  • “…This aspect is why, when I say for counts 1, 2 and 3 the Crown relies primarily on one witness, that you will have to look at the evidence and decide to act on it beyond reasonable doubt in order for there to be a case proven for any of those three counts". (SU 8).

  • "A criminal trial works by the Crown having to prove its case. They have to prove to you that the complainant in counts 1, 2 and 3 in particular, should be accepted by you, as a truthful and reliable witness beyond a reasonable doubt." (SU 9).

  • "The trial is about, can she be accepted as a truthful and reliable witness about counts 1, 2 and 3 in particular, but also count 4, beyond reasonable doubt." (SU 10-11).

  • "A few things about this particular trial. In a way, there are four separate trials going on in this case because there are four counts. You have to consider each count separately and ultimately determine whether the Crown have proved each count beyond reasonable doubt. In reality though, as you know, counts 1, 2 and 3 are very closely linked in time. Count 4 is very separate in time. In theory, a jury of course considering cases separately can return different verdicts for different counts on the indictment but only if there is a logical way based on the evidence in the trial." (SU 13-14).

  • "You have to look at each count and determine whether the Crown have proved its case. Here, although it is a matter for you, it is very difficult to see how you would return different verdicts in relation to counts 1, 2 and 3. They are closely related in time. There are almost identical issues in relation to counts 1, 2 and 3 although it remains a matter for you, you would have to have a very good reason for why your verdicts would be different for counts 1, 2 and 3. But I stress, it is a matter for you. Count 4 is on a completely different date and a completely different time and a completely different legal test involved. There may be very good reasons or there may not be very good reasons, but there may be very good reasons for you to have a different verdict for count 4 compared to counts 1, 2 or 3. I say that simply to remind you that ultimately your verdict does not have to be the same for all counts. They could be. It could be four not guilty. It could be four guilty. There could be a combination of verdicts doing your job according to law and considering the cases differently. I stress to you again, although it is a matter for you, you would have to think hard about why there is a logical reason for different verdicts for counts 1, 2 and 3 because of how closely related they are." (SU 14).

  • After directing the jury about the elements of each of counts 1, 2 and 3, his Honour said "You can see why I said to you though that it would be difficult to see why you would necessarily have a different verdict for count 1, 2 or 3. I stress it is a matter for you. These offences actually have the same elements. The same things that have to be proven. They happened in a short period of time. If you could see a logical reason that the accused – that the Crown had proven one of those counts, whether count 1 or count 2 or count 3, separate from the others, then you are entitled to return a different verdict. I stress to you it has to be a rational and logical one based on the evidence in the trial and not born out of compromise by you the jury." (SU 28).

  • "As I said to you, the Crown have to prove to you that you should, on counts 1, 2 and 3 in particular, act on the complainant's evidence beyond a reasonable doubt.” (SU 32).

  • "Quite obviously for counts 1, 2 and 3, the complainant's evidence is crucial in the matter." (SU 51).

  • "You are either satisfied of counts 1, 2 and 3 based on her evidence beyond reasonable doubt or you are not." (SU 52).

  • "You might think that really the fundamental issue is whether the Crown can prove the acts. Can the Crown prove the acts in counts 1, 2 and 3. Can the Crown prove that she did not consent. Can the Crown prove that he knew that she did not consent. You might think that that is the central issue but I stress, it is a matter for you. Clearly, any circumstance in which the complainant is wrong or unreliable or incorrect about something is an important consideration when you consider her evidence overall on counts 1, 2 or 3. Clearly you have to be satisfied of her evidence beyond a reasonable doubt." (SU 54).

  1. In the circumstances of this trial, the issues in the trial and the way the trial was conducted on behalf of the applicant, the trial judge conveyed to the jury that the honesty and reliability of the complainant's evidence was in issue. The summing up was characterised by a degree of informality of language and repetition. A more formal and structured approach is preferable. However, in the circumstances of this trial, fairness did not require that the trial judge direct the jury in accordance with Markuleski, and the lack of such a direction did not deprive the applicant of a chance of acquittal or give rise to a miscarriage of justice. Therefore Grounds 1 and 2 have not been established.

Grounds 3 and 4

  1. Although Ground 3 was in terms that "His Honour erred in his characterisation of the complainant's evidence as consistent”, the direction complained of was actually about a particular aspect of the complainant's evidence, being the date on which the offences in counts 1 to 3 were alleged to have occurred, not her evidence more generally.

  2. The evidence in the trial about the date, and the way the issue was raised about the date, was as follows.

  3. Early in the complainant's evidence-in-chief, counsel for the applicant objected to the Crown prosecutor asking a leading question of the complainant about a specific date. The Crown prosecutor had opened the Crown case to the jury that the offences in counts 1 to 3 on the indictment had occurred on 18 May 2020. The judge asked counsel whether the date was a matter required to be proved beyond reasonable doubt and counsel confirmed that it was.

  4. Further on in the complainant's evidence-in-chief when the Crown prosecutor asked her about an incident in the main bedroom, her response was "Was that in May?" (T 15, L 22). When the Crown asked again about an incident in the main bedroom the complainant responded "Is he asking me about May?" (T 15, L 27). When the prosecutor asked another question about whether there was an incident in the main bedroom "around 3 to 4 months before June 2020”, the complainant responded "I think it was in May." (T 15, L 45). The prosecutor then asked the complainant to tell the court what happened in May 2020 in the main bedroom of the home. The Crown prosecutor then asked the complainant questions about another incident which was not the subject of any counts on the indictment. After the complainant had given evidence about that incident, the Crown prosecutor then said, "I'm going to ask you some questions in relation to 18 May 2020. I'll take you to 18 May 2020 at about 1:30am. Can you tell us in your own words what happened at 1:30am on that date?" (T 21, L 6-8). The complainant then gave evidence, which was the evidence relied on by the Crown as the basis of counts 1 to 3 on the indictment, which I have summarised above. Later in the complainant's evidence-in-chief she was asked "You told us about 18 May 2020” and she was asked about actions by the applicant and herself in relation to the act the subject of count 1 (T 44, L 11).

  5. In cross-examination the complainant was asked:

"Q. When you have spoken about an event on 15 May in 2020 is it hard for you to say because it was going on for so long and there was so much sexual abuse as to precisely what day or what time something might have occurred at?

A. Yes.

Q. Is that also true of 18 May?

A. Yes."

(T 48, L 11-18)

  1. Later during cross-examination the complainant was asked:

“Q. Ma’am, you have spoken about something sexual happening on 18 May 2020?

A. Yes.

Q. Because there were so many incidents of sexual violence that you have spoken about, is it the case that you can't say whether this event happened on 18 May or in May?

A. Yes"

(T 52, L 48 – T 53, L 4).

  1. In re-examination the complainant was reminded of having been asked questions about going into the applicant's room in her bra and underwear. She was asked:

"Q. Can you tell us when you recall entering [the applicant’s] room in your bra and underwear?”

A .18 May".

(T 62, L 50-T 63, L1).

  1. She was then asked and said she went into the room on that date in her bra and underwear because the applicant called her or showed her by using his hand to come in. She was then asked why she entered the room on 18 May 2020 in her bra and underwear, and said because she was sleeping like that.

  2. The judge then asked "Is there anything significant about 18 May as a date?", and the answer through the interpreter, as all the answers had been given, was "No" (T 63, L 21-23).

  3. In his closing address to the jury the Crown prosecutor submitted that when the complainant was asked by defence counsel that there had been so many incidents of sexual violence that she could not say whether the event happened on 18 May or in May, that the jury should treat her answer “Yes” to that question as a truthful concession, about three years after the events of which she was giving evidence. He submitted that when the complainant gave her statement to police on 21 June 2020, it was just over a month later than 18 May 2020.

  4. After the Crown address, counsel for the applicant asked the judge to direct the jury that the Crown must prove beyond reasonable doubt that the offences charged in counts 1 to 3 occurred on 18 May 2020, as pleaded in the indictment. The Crown prosecutor agreed that 18 May was the date specified in the indictment.

  5. Counsel for the applicant then commenced his closing address to the jury and emphasised that they needed to be satisfied that the events charged in counts 1 to 3 occurred on 18 May 2020. Later in his address he returned to the issue of the date and reminded the jury of his cross-examination of the complainant about her uncertainty about the date. He also reminded them of the judge’s question "Is there anything significant about 18 May as a date?", and the complainant’s answer “No”. He submitted to the jury that the Crown had a difficulty in relation to 18 May.

  6. After counsel for the applicant finished his closing address to the jury the judge commenced his summing up. Near the beginning of his summing up the judge told the jury that the trial was "about whether the Crown can prove those three specific acts that they have alleged on 18 May and whether they can prove the elements of that and whether they can prove the incident of 21 June 2020." (SU 1).

  7. Later in the summing up the judge said to the jury:

"What [the Crown] have to prove is the crucial facts that make up the allegations of 18 May 2020 in counts 1, 2 and 3 and the crucial facts that make up the incident in count 4." (SU 12).

  1. Later still, the judge directed the jury:

"As the Crown and the accused have decided to conduct this case, the Crown will have to prove that counts 1, 2 and 3 happened on 18 May. Generally speaking, that is not the law of New South Wales. In this trial, for whatever reason, the parties have decided to conduct themselves in that way.

As a result, you will also have to be satisfied that the complainant was accurate about the date. In some respect there does not seem to be any magic about 18 May. She seems to have some uncertainty about that. At the same when you actually look at her evidence, she always goes back to say this incident happened on 18 May. It is ultimately a matter for you to assess that aspect. I will offer no opinion whatsoever. You will have to, as I said, make an assessment of her generally in her reliability and truthfulness. You will be, again, looking at that accuracy not just of the date but of the incidents itself and whether she is a generally reliable and accurate witness about this matter, in order to act on her evidence, in particular for counts 1, 2 and 3." (SU 38).

  1. The next morning, before the judge completed his summing up and the jury retired, the Crown sought to amend the indictment to expand the date of the alleged offences in counts 1 to 3 to a range of dates rather than 18 May. Counsel for the applicant objected to the amendment. The judge refused the Crown's application because of the late stage at which it had been made, given the trial had been conducted on the basis that the date was of the essence.

  2. After his Honour had refused that application he resumed his summing up and in the course of it, said to the jury:

"I just want to say one last thing about the date of 18 May 2020. As I said to you at all times, actually when you look through the complainant's evidence, she always maintained it was on 18 May. The mere fact that she may have indicated through evidence that perhaps it could be 18 May. She actually always articulated that. The mere fact that she may articulate, under cross-examination, that potentially could be on another day, does not mean that you cannot find that it did happen on 18 May. As I said, there is a situation where she said that initially in her statement as you heard in the evidence. She said that at several times during her evidence. She maintained that that was the date. You are perfectly entitled, members of the jury, to act on that. There is no submission that requires you to say that she was wrong about that date. Whether she is wrong about that date is a matter for you.

As I said, [counsel] submits to you that she is unsure about that date. Of course it is not his case that the offence happened on any date. His case is there was never any offence. There was never any forced sexual intercourse and that this entire sexual assault, however she articulates it on whatever date she articulates, has been made up. As I said to you, there is clearly as much as there is criticism of her for saying well potentially it could have happened on another date, in truth there is actually significant consistency from her about it happening on that date.

In any event, it is a matter for you members of the jury. You might think that really the fundamental issue is whether the Crown can prove the acts. Can the Crown prove the acts in count 1, 2 and 3. Can the Crown prove that she did not consent. Can the Crown prove that he knew that she did not consent. You might think that that is the central issue but I stress, it is a matter for you. Clearly, any circumstance in which the complainant is wrong or unreliable or incorrect about something is an important consideration when you consider her evidence overall on counts 1, 2 and 3. Clearly you have to be satisfied of her evidence beyond a reasonable doubt." (SU 53-54).

Submissions about Grounds 3 and 4

  1. Counsel for the applicant submitted that the trial judge erred in characterising the complainant's evidence as “consistent”, when her evidence was not consistent about the date, which was central to the Crown case. Counsel submitted that the direction invited the jury to improperly take a "broad brush" approach to the complainant's evidence, diverted them from a proper consideration of the complainant's evidence and extinguished the submissions to the jury by trial counsel on that issue. Counsel submitted that it was inaccurate for his Honour to describe the complainant's evidence as “consistent” and unfair for his Honour to give that direction to the jury with the authority of his office.

  2. Counsel placed much weight on the question from the trial judge to the complainant "Is there anything significant about 18 May as a date?" and the complainant’s answer “No” as "crystallising" the complainant's lack of reliability and credibility about that that date, and therefore more generally.

  3. Counsel for the applicant also relied on the unreliability of the complainant's evidence about the date of the offences charged in counts 1 to 3 as the basis of the applicant's fourth ground of appeal, that the verdicts were unreasonable.

  4. In support of this ground, counsel relied on this Court's decision in Passmore v R [2023] NSWCCA 65, wherein the Court held that a verdict was unreasonable when the Crown charged that a particular act occurred on a particular day and the complainant's evidence was inconsistent and contradictory about the date or dates on which the conduct charged did or did not occur. Of course, that decision was specific to the facts and evidence in that trial under consideration, which are different from the facts and evidence in this trial.

  5. In support of the submission that the verdicts were unreasonable, counsel also relied on the asserted motive for the complainant to make false allegations in order to have the applicant removed from his home. Counsel submitted that that motive underpinned the complainant's evidence about the offence charged in count 4, making the verdict in respect of that charge also unreasonable.

  6. The Crown submitted in respect of ground 3 that because trial counsel raised no objection to his Honour's characterisation of the complainant's evidence about the date as consistent, leave is required under r 4.15 Supreme Court (Criminal Appeal) Rules 2021 (NSW).

  7. The Crown submitted that the trial judge’s summary of the complainant's evidence as having always maintained and been consistent about the first three offences charged having occurred on 18 May was correct, and that the complainant's evidence read as a whole was consistent about the 18 May date. The Crown submitted that the cross-examination of the complainant as to whether she could recall the date three years later during her evidence did not detract from her consistency.

  8. Further, the Crown submitted that the applicant's case at trial was not only about the date, but that no sexual contact occurred between the applicant and complainant without her consent. The Crown submitted that counsel addressed the jury about the complainant's lack of reliability given her lack of previous complaints to police about sexual violence by the applicant and the judge directed the jury about that issue about the complainant's credibility.

  9. The Crown submitted that in relation to the attack on the complainant's credibility by reason of her lack of prior complaints to police, the complainant gave good reasons for the lack of complaint, being her fear of the applicant and the evidence of his prior violence to her, one assault to which he had pleaded guilty.

  10. The Crown submitted that if any asserted error was made out it had not led to a miscarriage of justice, in that it was not prejudicial to the applicant in the sense that it had the meaningful potential to have affected the result of the trial or the applicant's prospects of acquittal: Zhou v R [2021] NSWCCA 278; Saunders v R [2022] NSWCCA 273.

Consideration of Grounds 3 and 4

  1. His Honour having said to the jury that he would not offer an opinion about the complainant's evidence, then did so. In the course of summarising the complainant's evidence about the date, his Honour reminded the jury about counsel’s submission that the complainant was unsure about the date.

  2. I am not persuaded that his Honour’s description of the complainant's evidence about the date as “consistent” was productive of a miscarriage of justice or deprived the applicant of a chance of acquittal. The complainant's evidence was consistent about the date, in her evidence in chief and re-examination. It was open to the jury to be satisfied to the requisite standard that the acts alleged occurred on that date. It was open to the jury to be so satisfied, even having heard the cross-examination and been reminded of it by counsel in his closing address to them.

  3. Nor do I consider that the complainant's consistency about the 18 May date was adversely affected by the question asked by his Honour, on which the applicant places significance. The question was ambiguous, particularly to a person who was giving evidence with the assistance of an interpreter. Whatever the question was understood by the complainant to mean, and whatever was meant by her answer to that question, it does not appear to have constituted an abandonment by the complainant of that date, and the jury were not required to so regard it. The intervention by the trial judge was unnecessary and unwise, but it was open to the jury to consider and accept the complainant's clear and consistent evidence about that date throughout her evidence in chief and re-examination. It was open to the jury to consider her answers to counsel in cross-examination, if they indicated she could not recall the date while she was giving evidence almost three years after the alleged events, with her having apparently nominated the 18 May date in her statement about those events given on 21 June 2020, about a month later.

  4. Having independently assessed the evidence, and bearing in mind the jury's advantage in having seen the complainant give her evidence, in accordance with M v The Queen (1994) 181 CLR 487; [1994] HCA 63, I am not of the view that the verdicts were unreasonable. The evidence was in short compass, and the complainant's account straightforward. The jury had the opportunity to observe the complainant give her evidence and assess the issues raised about her credibility, including her lack of prior complaint and the reason she gave for that, and her asserted motive to falsely accuse the applicant to have him removed from his home. The complainant's explanation for her lack of previous complaint was acceptable and capable of acceptance by the jury.

  5. The complainant's evidence in respect of count 4 was supported by the evidence of her daughter, which the jury also had the opportunity to assess, and in light of the motive put to her, to have made false allegations about the applicant given their conflict about her living in the house with her parents.

  6. Having assessed the evidence I am satisfied it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of all four offences charged.

Orders

  1. Therefore I propose the following orders:

  1. Leave to appeal be granted.

  2. The appeal is dismissed.

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Decision last updated: 22 February 2024

Cases Citing This Decision

0

Cases Cited

7

Statutory Material Cited

2

Keen v R [2020] NSWCCA 59
M v the Queen [1994] HCA 63
M v the Queen [1994] HCA 63