RWC v R

Case [2013] NSWCCA 58 13 March 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RWC v R [2013] NSWCCA 58
Hearing dates: 10 December 2012
Decision date: 13 March 2013
Before: McClellan CJ at CL at 1
Latham J at 2
Adamson J at 84
Decision:
1. Leave to appeal granted
2. Appeal allowed
3. The convictions on counts 3 and 4 are quashed
4. Set aside the sentences imposed by O'Connor QC DCJ on 4 November 2011
5. Order a new trial on counts 3 and 4

Catchwords: APPEAL - appeal against conviction - unreasonable verdict - Criminal Appeal Act 1912 (NSW), s 6(1) - failure to give direction to jury - no inconsistency between "guilty" and "not guilty" verdicts in relation to multiple counts - jury's verdict not unreasonable - appellant denied a the chance of an acquittal on all counts by absence of a Markuleski direction - appellant denied right to a fair trial - leave to appeal granted on second ground of appeal - convictions quashed.
Legislation Cited: Criminal Appeal Act 1912
Criminal Appeal Rules (NSW)
Cases Cited: AE v R [2008] NSWCCA 52
DF v R [2012] NSWCCA 171
Jones v The Queen [1997] HCA 56 ; 191 CLR 439
M v R [1994] HCA 63; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
R v Ford [2006] QCA 142
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
RWC v R [2010] NSWCCA 332
Category: Principal judgment
Parties: RWC - (Applicant)
Regina - (Respondent Crown)
Representation: Counsel
JA Griffin QC / AC Smith - (Applicant)
N Noman SC - (Repondent Crown)
Solicitors
WE Kable - (Applicant)
S Kavanagh - Solicitor for Public Prosecutions - (Respondent Crown)

File Number(s): 2008/00017646016
Decision under appeal

Date of Decision:

2011-11-11 00:00:00

Before:

CE O'Connor QC DCJ

File Number(s):

2008/00017646016

Judgment

McCLELLAN CJ at CL : I agree with Latham J.

LATHAM J : The appellant appeals against his conviction after trial on two counts of sexual assault upon his daughter when she was under 16 years of age. The appellant was tried on four charges but was acquitted in respect of the first two counts on the indictment. There is no appeal against sentence.

There are two grounds of appeal, both of which arise out of the different verdicts. The first ground claims that the convictions are unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 and the second ground alleges error in the trial judge's failure to give a direction to the jury in accordance with R v Markuleski [2001] NSWCCA 290 ; 52 NSWLR 82. That direction requires the jury to assess the credibility and reliability of the complainant's evidence on all counts, having regard to any doubts they experience in relation to her credibility or reliability with respect to any one count.

Counts 1, 2 and 3 on the indictment were charges of aggravated sexual intercourse without consent with a person under the…

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 RWC v R

Details

AGLC: RWC v The Queen [2013] NSWCCA 58
Case: [2013] NSWCCA 58
Decision Date: 13 March 2013

CaseChat Overview and Summary

In the matter of RWC versus R, the appellant sought to appeal against his conviction, contending that the verdict was unreasonable and that he was denied a fair trial. The case was heard in the Court of Criminal Appeal in New South Wales. The appellant argued that the verdict was unreasonable because it was inconsistent to be found guilty of some counts while being acquitted on others, and that the trial judge failed to give a direction to the jury in accordance with Markuleski v R. The appellant claimed this deprived him of the chance of an acquittal on all counts.

The legal issues before the court were whether the jury's verdict was unreasonable and whether the appellant's right to a fair trial was breached by the failure to give a Markuleski direction. The court considered whether there was an inconsistency in the verdicts and if the absence of a direction deprived the appellant of the chance of an acquittal on all counts. The court examined the principles of a fair trial and the need for a direction to the jury in cases where there are multiple counts.

The court determined that there was no inconsistency between the verdicts and that the jury's verdict was not unreasonable. The court held that the absence of a Markuleski direction did not deny the appellant a fair trial, as the direction was not mandatory in all cases. However, the court granted leave to appeal on the second ground, finding that the appellant was denied the chance of an acquittal on all counts due to the absence of the direction. The court quashed the convictions, finding that the appellant was denied a fair trial.

The court ordered that the convictions be quashed, and the matter be remitted to the Supreme Court for a new trial. The court emphasised the importance of a fair trial and the need for trial judges to consider giving a Markuleski direction in appropriate cases. The appellant's appeal was ultimately successful, and he was granted a new trial.

Orders