R v JL[2007] QCA 131

SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree that the appeal should be dismissed for those reasons.

2. JERRARD JA:  In this matter I have had the advantage of reading the reasons of Keane JA and respectfully agree with those and the orders that His Honour proposes.

3. KEANE JA:  On 24 November 2006, the appellant was convicted upon the verdict of a jury of one count of maintaining an unlawful relationship of a sexual nature with a child under 16 years of age, one count of unlawful carnal knowledge of a child under 16 years of age and two counts of indecent dealing with a child under 16 years of age.  These were counts 5 to 8 in the indictment.  The appellant was acquitted of a number of other counts of sexual offences.  These were counts 1 to 4 and count 9 of the indictment.

4. The appellant seeks to appeal against the convictions on the following grounds:

1. The convictions are unsafe and unsatisfactory because they are inconsistent with the verdicts of acquittal.

2. The directions to the jury were inadequate in that, although the learned trial judge gave the jury a Markuleski^[1] direction, it was with specific reference to count 9 (to which special considerations applied) and did not explain adequately or with sufficient clarity that, if the jury had a reasonable doubt concerning the truthfulness or reliability of the complainant's evidence in relation to one or more of counts 1 to 8, that must be taken into account in assessing the truthfulness or reliability of her evidence in relation to the remainder of counts 1 to 8, such a direction being required in the circumstances of this particular case.

5. On the appellant's behalf, it is submitted that the convictions on counts 5 to 8 are inconsistent with the acquittals on counts 1 to 4 giving rise to a miscarriage of justice which a direction of the kind given in R v Markuleski^[2] is apt to prevent.  Before discussing the appellant's submission further, I will summarise the evidence at trial and the relevant parts of the learned trial judge's directions.

The case at trial

6. The complainant was born in 1988. The offences with which the appellant was charged were alleged to have been committed between 31 March 2001 and
   the complainant's 16^th birthday in 2004.

7. In about October 2003, the complainant and the appellant became engaged to be married with the consent of the complainant's mother. A short time after the complainant turned 16, the relationship broke down, and the complainant made a complaint to the police. In consequence, the appellant was tried on indictment in respect of the following charges:

Count 1 maintaining, between 31 March 2001 and 31 December 2001, based on counts 2, 3 and 4;

Count 2 indecent dealing at Woodridge between 1 May 2001 and 31 December 2001;

Count 3 indecent dealing at Woodridge between 1 May 2001 and 31 December 2001;

Count 4unlawful carnal knowledge at Woodridge between 1 May 2001 and 31 December 2001;

Count 5maintaining, between 21 February 2003 and the complainant's 16^th birthday in 2004, based on counts 6, 7, 8 and 9;

Count 6unlawful carnal knowledge at a motel at Acacia Ridge between 19 February 2003 and 29 April 2003;

Count 7indecent dealing at a motel at Acacia Ridge between 19 February 2003 and 29 April 2003;

Count 8indecent dealing at Calamvale between 29 April 2003 and 31 October 2003; and

Count 9unlawful carnal knowledge at Drewvale between 1 January 2004 and the complainant's 16^th birthday in 2004.

8. The complainant was 18 years old at the time of trial. Her evidence was that, when she was living in a unit at Woodridge, the appellant, who was a family friend, began to express a sexual interest in her. In what seems to have been the second half of her grade 8 year, according to the complainant, the appellant moved into the unit. At first, the complainant slept in her mother's room while the appellant slept in the room that was formerly her bedroom. After about a month, the complainant moved back into her bedroom and she and the appellant slept in the same bed.

9. The complainant testified that, on the third night after they began sleeping together in the same bed, the appellant started to kiss her, grabbing her breast and rubbing her on the legs. He asked her to get on top of him, pulled her underwear to one side and started rubbing his penis onto her vagina. This incident was the subject of count 2.

10. It should be noted that, when the complainant was cross-examined about this incident, she accepted that at the committal hearing on 21 June 2005 she told the police prosecutor that the first occasion of touching occurred on the first night that she and the appellant had shared a bed.

11. The complainant said in chief that, on "the following night", further touching occurred and that, on that occasion, the appellant inserted his hand under her panties, started rubbing her vagina and then inserted his finger into her vagina. This incident was the subject of count 3.

12. The complainant said that, on "the next night", the appellant touched and rubbed her vagina, and then inserted his penis in her vagina while he was on his back and she was on top of him. She said that this caused serious pain. She jumped off and ran to the toilet where she noticed a small amount of blood. This incident was the subject of count 4.

13. The complainant and appellant continued to sleep in the same bed, but there was no more sexual contact between them. The complainant said that she ignored the appellant, and he masturbated. This happened three times a week for three weeks.

14. The complainant said that when she was in grade 9, in 2002, the appellant left the Woodridge unit because another man had begun visiting the complainant and her mother. They resumed their relationship two days after the complainant's mother's birthday party on 19 February 2003. Shortly after the party, the appellant suggested to the complainant and her mother that they should get a place to live together. The appellant said that he would drive the complainant to school, but then took her to a motel at Acacia Ridge. There they talked about getting married and getting her an engagement ring. After talking for a few hours, they took their clothes off and the appellant inserted his penis into her vagina. He "kept going back and forward" and eventually ejaculated on the floor. This incident was the subject of count 6.

15. After the appellant had ejaculated, there was some further conversation. He rubbed her vagina with his hand. This was the subject of count 7. After that they went home.

16. Records from the complainant's school confirmed that she was absent from school on 21 February 2003.

17. A few weeks later, the complainant, her mother and the appellant moved into a house at Calamvale. According to the complainant, there was no sexual contact between the appellant and the complainant at this time. The appellant bought the complainant an engagement ring for about $7,000.

18. On an occasion after the appellant had bought the engagement ring, when the complainant's mother had gone shopping, the appellant asked the complainant to come into his bedroom. There he kissed her, removed her underwear and licked her vagina. This incident was the subject of count 8.

19. The complainant said that they then moved to a new house at Drewvale. There she and the appellant shared a bedroom. They had sexual contact several times. On the first occasion when that occurred, he got on top of her and inserted his penis into her vagina. This incident was the subject of count 9. In her evidence-in-chief, the complainant gave conflicting accounts as to whether this incident occurred before or after her 16^th birthday.

20. The complainant's mother gave evidence in which she said that the appellant told her that "he already fucked … fuck her". It was not clear from the evidence when this conversation occurred, but it seems to have occurred when the appellant, the complainant and the complainant's mother were living in the house at Calamvale.

21. The appellant's mother's evidence did not support the complainant's evidence that the complainant and the appellant shared a bed at the Woodridge unit for a number of weeks. The complainant's mother said that she was aware of only one occasion when the complainant and the appellant had shared a bed at the Woodridge unit. That was an occasion when she found the appellant fully clothed and comatose on the complainant's bed one morning after he had been out drinking during the previous night.

22. The appellant gave evidence. He denied any sexual contact with the complainant while they were at the Woodridge unit. He denied that he and the complainant slept in the same bedroom. He denied that he was living with the complainant and her mother at that time.

23. The appellant said that the complainant invited him to her mother's birthday party where the complainant made sexual advances to him. He said that later they went to a motel to "talk and resolve the situation" between them. He said that there was no sexual activity at the motel. He denied telling the complainant's mother that he had "fucked" the complainant. He admitted that he bought the complainant an engagement ring and that they slept in the same bed in the lounge room at the house at Calamvale. He denied engaging in any sexual activity with the complainant prior to her 16^th birthday. 

24. The appellant said that the complainant and he had become engaged, and that the complainant had been accepted into the appellant's family as a new daughter. The appellant's mother also gave evidence to this effect.

The trial judge's directions

25. The first aspect of the learned trial judge's direction which is material to the appellant's grounds of appeal was in the following terms:

"The real question is whether criminal offences were committed and, as I say, they involve questions of fact for you. Each offence has to be, in the end, considered with the exception of count 9 which merits separate consideration in relation to the apparently conflicting statements that [the complainant] has made as to when it happened before or after the 16^thbirthday. So far as the other offences are concerned, it may well be that the verdicts that you arrive at will be the same whether not guilty because you don’t accept [the complainant] or you have a reasonable doubt about accepting her evidence or, a third possibility, that you reject [the complainant] and accept what [the appellant] said to you." (emphasis added)

26. The appellant's counsel at trial sought a redirection from the learned trial judge in this regard. The following exchange occurred:

"MR ENTRIKEN: …Your Honour, much more importantly, you made a comment very close to the end of your summing-up to the jury when you said to them - you spoke about count 9––

HIS HONOUR: Yes.

MR ENTRIKEN: ––and were clearly indicating to them that they should give that special consideration in light of the way the evidence came out in relation to that count but you then went on to say words to the effect that they may well think that their verdicts in relation to the other offences would be the same. And I took it that you were saying to them the first eight counts on the indictment will be all in or all out.

     Your Honour, that’s, in my respectful submission - the jury would consider each count separately and it wouldn’t be a case of saying, well, 'Count 9 goes but let’s convict him on everything else because that’s the imprimatur that we received from the Bench.'

HIS HONOUR: Well, I certainly never intended that.

MR ENTRIKEN: I’m sure you didn’t, your Honour, but my concern is how the––

HIS HONOUR: I just find it difficult in this case – dependent on the credibility of the - particularly of [the complainant] - that in respect of those other eight charges, they will either accept it or not and the verdicts on those will be the same––

MR ENTRIKEN: Yes, that may be the case, but––

HIS HONOUR: ––and I think it would more confusing if I give them the more common one - of course, there’s a range of charges here and each depends on particular facts––

MR ENTRIKEN: Yes.

HIS HONOUR: ––and you come to particular verdicts, but here, it’s - you would like me to say something more, in any event, about that?

MR ENTRIKEN: Yes, it’s not a case of saying that count 9, let him off on that, but convict him on the rest because the rest are more serious than count 9 together.

HIS HONOUR: Well, certainly, it wouldn’t be much help." (emphasis added)

27. Subsequently, the dialogue between bench and bar in relation to a Markuleski direction continued in the following terms:

"HIS HONOUR: Look, I’ve picked it up. Reference was made to this case:

'The general rule, a judge should direct a jury that a reasonable doubt with respect to the complainant’s evidence on any count ought to be taken into account on their assessment of the complainant’s credibility generally.'

MR ENTRIKEN: I think that’s––

HIS HONOUR: I don’t know what all that means.

MR ENTRIKEN: I’m sorry?

HIS HONOUR: It’s basically that I have simply directed them to consider her evidence and ascertain whether they’re in any doubt about accepting it and I don’t think I ever qualified it specifically by saying, 'It’s only part of her evidence that you might have a reasonable doubt about.' I've tended to make it an all-or-nothing situation.

MR ENTRIKEN: Yes. This is the point I was making in relation to count - your comment about count 9 and then the rest of them––

HIS HONOUR: Yes.

MR ENTRIKEN: ––you might think will fall into the same category, but really it’s the opposite, that they will take count 9 into account in relation to each of the other counts as they consider them separately.

HIS HONOUR: Yes. It’s really a case how many times do you say the same thing but in different ways.

MR ENTRIKEN: Yes, I understand that.

HIS HONOUR: All right. Well, I grasp what you’re saying." (emphasis added)

28. The learned trial judge gave the following further direction to the jury:

"Now, the other matter relates to the statement that I made that on count 9 where there is a particular matter that you will have to consider in relation to conviction or not, and that matter is of course the date of the offence. If there were sexual intercourse after her 16^th birthday, there is no offence and the only way you can act is to return a verdict of not guilty.

     In relation to the other offences it is necessary to consider the credibility of [the complainant] and I may not have made it clear to you and I apologise for not mentioning the circumstance that if you are of the view that count 9 occurred when she was 15, in other words prior to her 16^th birthday, then you must also consider the question of whether or not that offence was actually committed, because [the appellant] has said that there was no penetration - no sexual intercourse until after the 16^th birthday.

     And for you to find that there was in respect of the earlier act of carnal knowledge and indecent treatment, and as well in relation to count 9, you would have to accept [the complainant's] evidence beyond reasonable doubt.

     So, that is the approach. I may have highlighted the simplicity of looking to see whether you have a doubt about whether it took place before or after, or indeed you accept her evidence - the evidence-in-chief that it did occur subsequently and therefore it is impossible to return a verdict of guilty. And there is only one verdict, and that is not guilty because there was no offence." (emphasis added)

29. A further exchange then occurred between bench and bar in the following terms:

"MR ENTRIKEN: … I'm not satisfied from my client's point of view with that direction in relation to the Markuleski direction. I would ask your Honour to direct the jury in terms of Markuleski in this sense that the jury should be directed that if they have reasonable doubt with respect to [the complainant's] evidence on Count 9, they ought to take that into account in their assessment.

HIS HONOUR: Sorry. Yes. Yes. Yes, you're right. I recall that. Yes. And I didn't say it ... Yes, I made it clear in one area but it wasn't the specific area that you wanted me to comment on."

30. The learned trial judge then gave a further direction to the jury:

"I just want to add something to my last remark to you. If you have a reasonable doubt accepting [the complainant's] evidence in relation to count 9 you can of course use that reasonable doubt when you're considering whether you have a reasonable doubt about the existence of any of the other acts that are the subject of charges. So it's not completely isolated. You can use reasonable doubt on one in relation to the question of whether you have a reasonable doubt on the others or any of them."

The arguments on appeal

Inconsistent verdicts

31. The substance of the appellant's first ground of appeal was to the effect that the verdicts of acquittal cannot be reconciled on any rational basis with the convictions.^[3]  The appellant's submission depends on the proposition that, in this case, given the jury's findings on counts 1 to 4 and count 9, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on counts 5 to 8.^[4]  That proposition cannot be accepted.  Having regard to the evidence as a whole, the Crown case was much more cogent in relation to counts 5 to 8 than it was on the other counts.  On counts 5 to 8, there was significant support for the complainant's evidence in the other evidence.  This support was lacking in respect of counts 1 to 4.  Indeed, to a large extent, the appellant's own evidence affords the necessary basis on which the verdicts can be reconciled.

32. The jury may have been prepared to entertain a doubt about the occurrence of the sexual misconduct the subject of counts 1 to 4 because of the rather unusual circumstances of cohabitation alleged by the complainant which were flatly denied by the appellant. As has been seen, the complainant's evidence as to when the incidents charged in counts 2, 3 and 4 occurred was shaken in cross-examination, and her evidence in relation to these counts was not supported by her mother's evidence. On the other hand, the jury may have been willing to accept, without doubt, that, after the complainant had made sexual advances to the appellant of the kind described by him, and they had moved into the same bed, sexual contact of the kind sworn to by the complainant did occur. In MFA v The Queen,^[5] Gleeson CJ, Hayne and Callinan JJ said:

"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." 

33. On the appellant's own evidence, after the complainant's mother's birthday party the complainant and the appellant did move under one roof. That occurred consequent upon the complainant's sexual overtures to him. They slept in the same bed, albeit that, on his evidence, the bed was in the lounge room. The complainant was also significantly older at the time of the incidents the subject of counts 5 to 8 than she had been when she was living at the Woodridge unit. The jury may have come to the conclusion in the light of this evidence that, for the appellant to protest that there was no sexual contact between them at all until after the complainant's 16^th birthday, was simply to test credulity too far.  And, in relation to counts 6 and 7, the school records confirmed the complainant's evidence as to the timing of these incidents.  On that basis, even if the alleged admission to the complainant's mother is left out of account, the jury could reasonably accept the reliability of the complainant's evidence in relation to counts 5, 6, 7 and 8 while entertaining sufficient doubt about her evidence on counts 1 to 4 and count 9 to acquit the appellant on those counts.

34. It was argued on the appellant's behalf that the learned trial judge, who had the opportunity to form a view of the complainant's credibility, seems to have formed the view that there was no basis for differentiating between the cogency of her evidence on count 9 and her evidence on the other counts. It was argued that the learned trial judge's view of the matter provided some assistance to the appellant's argument in this Court. There is some reason to think that this submission does accurately reflect a view which the learned trial judge may have formed, but to the extent that his Honour did form such a view, it was a view which failed to recognise the obvious reasons for regarding the complainant's evidence in relation to counts 5 to 8 as more reliable than her evidence on counts 1 to 4 and count 9.

The Markuleski direction

35. In respect of the second ground of appeal, it is argued that the redirection given by the learned trial judge was not apt to alert the jury to the need to take into account doubts which they might have about the credibility of the complainant in respect of one or more counts in assessing the reliability of her evidence on other matters.

36. One might well wonder why a direction to the jury to do that which common sense obviously requires them to do should be necessary.^[6]  Consistently with the view that the institution of trial by jury requires that trial judges do not try to do a jury's thinking for it, this Court has resisted the suggestion that it is "a binding rule of law or procedure" in this State that such a direction must be given in every case where multiple counts are charged on one indictment.^[7]

37. In R v Ford,^[8] the rationale of the direction in R v Markuleski was identified in terms of the need for a response to a risk of unfairness to the accused.  It was said:

"… the particular risk of unfairness, which needs to be addressed by the giving of [the] direction … is a risk which arises … where a jury's finding of not guilty on one or more counts is apt logically to damage the credibility of the complainant on other counts because there is 'implicit in the … acquittal … a rejection of the complainant's account of the events which were said to give rise to [the] count' on which the accused is convicted …"

It is the risk that the jury might convict on evidence which, the jury might fail to appreciate, is of no greater cogency than the evidence on which it has acquitted the accused.^[9]

38. The "particular risk of unfairness" discussed in R v Ford was not present in this case, because the evidence against the appellant in relation to counts 5 to 8 inclusive was much more cogent than the evidence in relation to counts 1 to 4 and count 9.  There was no necessity for a Markuleski direction in this case because the risk of the kind of unfairness to which it is directed did not arise.

39. The appellant sought to rely upon the decision of this Court in R v LR,^[10] but that case is readily distinguishable.  That was a case where the jury had convicted the appellant on two counts of oral rape and acquitted him on three counts of penile rape and one further count of oral rape, all the incidents occurring within a few hours.  The accused admitted to police that two incidents of oral sex occurred, but said that they were consensual.  The learned trial judge directed the jury:

"Now you must not adopt the approach here, members of the jury, that you can allow your verdict in one count to affect your determination of another.  There are effectively six trials going on here.  So you would not, for example, consider Count 1 and say, 'Well … having considered the matter we're satisfied that the accused is guilty of that offence' … 'Therefore that has a bearing on what attitude we should take for Counts 2, 3, 4, 5 or 6.'  Conversely, if you were not satisfied about Count 1, you would then still nonetheless consider separately the evidence … against the accused in relation to each of the counts …"^[11]

In R v LR, the Crown case was essentially one of "word against word", and there was only the accused's drunken admission of two consensual incidents of oral sex which might have given any ground for thinking that the "quality of the complainant's evidence was higher" in respect of the two counts on which the jury convicted than in respect of the counts on which the jury acquitted.^[12]  As was said in R v LR:^[13]

"There was no reason for [the jury] to make such a distinction unless they were proceeding under the impression that credibility was to be determined anew with respect to each count. That impression, if it was the basis on which the jury acted, was mistaken. That impression could have been encouraged by the direction which the learned trial judge gave. In what was a case where the two versions of events, at least so far as consent was concerned, were diametrically opposed and where the disputed events took place within a short period of time, it was necessary for the learned trial judge to take steps to prevent any such misunderstanding arising from the direction which the learned trial judge gave the jury."

In the present case, the Crown case was, as I have explained, significantly stronger in relation to the counts on which the appellant was convicted.  The risk which gives rise to the need for a Markuleski direction was not present in this case.

40. In those cases where it is thought necessary, in the particular circumstances of the case, to give some direction to assist the jury, there is guidance readily available as to the terms of an appropriate direction in the Queensland Supreme and District Courts Benchbook at 34.1.  There the following direction, drawn from the decision of the New South Wales Court of Appeal in R v Markuleski,^[14] is proposed:

"If you have a reasonable doubt concerning the truthfulness or reliability of the complainant's evidence in relation to one or more counts, whether by reference to her demeanour or for any other reason, that must be taken into account in assessing the truthfulness or reliability of her evidence generally."

41. A more elaborate direction in this case which has also been approved by this Court^[15] is in the following terms:

"Your general assessment of [the complainant] as a witness will be relevant to all counts, but you will have to consider her evidence in respect of each count when considering that count.

     Now, it may occur in respect of one of the counts, that for some reason you are not sufficiently confident of her evidence to convict in respect of that count … a situation may arise where, in relation to a particular count, you get to the point where, although you're inclined to think she's probably right, you have some reasonable doubt about an element or elements of the offence, that particular offence.

     Now, if that occurs, of course, you find the accused not guilty in relation to that count. That does not necessarily mean you cannot convict of any other count. You have to consider the reason why you have some reasonable doubt about that part of her evidence and consider whether it affects the way you assess the rest of her evidence, that is whether your doubt about that aspect of her evidence causes you also to have a reasonable doubt about the part of her evidence relevant to any other count."

42. To the extent that the learned trial judge came, ultimately, to the view that it was necessary to give a direction of this kind to the jury, then a comment in either of the terms set out above would have been appropriate. It was, as I have said, open to the learned trial judge to take the view that no such direction was necessary because there was, for the reasons discussed above, a clear basis on which the jury might take a different view of the reliability of the complainant's testimony in relation to different counts on the indictment. But whether or not this case required the giving of a direction to ensure that the appellant received a fair trial, the only real concern to which the learned trial judge's directions gives rise, in my respectful opinion, is that what his Honour actually said was apt to leave the jury confused as to how the evidence should be assessed.

43. Instead of leaving the jury to exercise their common sense to determine whether, and the extent to which, they were prepared to prefer the evidence of the complainant to the evidence of the appellant in relation to the various counts, the learned trial judge's comments in his direction, redirection and further redirection to the jury might have suggested to the jury that their verdicts should all follow upon a view taken, once and for all, of the complainant's credibility in relation to count 9. Indeed, that might have been the view to which his Honour subscribed at one point, at least if one were to judge by reference to the exchange between the learned trial judge and the appellant's counsel excerpted at paragraph [26] above. For the reasons set out above, I consider that that direction was misleading, but it was misleading in favour of the appellant in that an acquittal on count 9 was virtually assured because of the complainant's own evidence that the incident occurred after her 16^th birthday.  If the verdict on count 9 were effectively to dictate the result on the other counts, the appellant would be acquitted on all counts.

44. The circumstance that the jury rendered different verdicts shows, clearly I think, that the jury were not misled by the learned trial judge's comments set out at paragraph [28] above. The circumstance that the jury acquitted the appellant on a number of charges tends to confirm that the jury did assess the reliability of the totality of the evidence against the appellant in respect of each of the counts on the indictment. The different verdicts are quite inconsistent with the suggestion that the jury adopted the course of assessing the credibility of the complainant in respect of each charge without regard to the effect on that assessment of their doubts about her evidence on other charges.

45. To the extent that the learned trial judge's first redirection was apt to deflect them from the common sense approach to their task, that redirection, which focussed on the moribund count 9, was apt unduly to favour the appellant rather than to prejudice his prospects of an acquittal. The effect of the redirection, excerpted at paragraph [28] above, so far as it could have been understood by the jury at all, was to urge the jury to deal with the counts other than count 9, in the same manner as count 9 would inevitably be dealt with by them having regard to the complainant's unsatisfactory evidence on this count. It might have been better had the learned trial judge said nothing about this point rather than making these confusing comments to the jury, but it is clear that the appellant's prospects of an acquittal were not adversely affected by his Honour's remarks. While this latter consideration, if it stood alone, might not be sufficient to resist an argument that the convictions had not been regularly entered,^[16] the last sentence of the further redirection excerpted at paragraph [30] above was sufficient to clarify the point for the jury in a manner consistent with the thrust of the orthodox directions excerpted at paragraphs [40] and [41] above.

Conclusion and order

46. In my opinion, the grounds of appeal are not made out. The appeal should be dismissed.