SUPREME COURT OF QUEENSLAND

1. HOLMES JA:  The appellant went to trial on two counts of rape of his niece S.  He was convicted on the first count, an offence alleged to have been committed between 31 December 1983 and 22 November 1986 at Wacol, and was acquitted of the second count, concerning an offence allegedly committed between 1 November 1986 and 8 December 1986 at Inala.  He appeals against the conviction on the grounds that it was inconsistent with his acquittal on the second count, so as to be unsafe; that the trial judge erred in failing to give a Markuleski^[1] direction; that although the learned trial judge gave a Longman direction, he rendered it ineffective by subsequent comments; and that the guilty verdict was, on all the evidence, unreasonable.

The evidence at trial

2. The complainant, S, was 29 years old at the time of trial. Her evidence was as follows. The appellant was married to her aunt, her mother’s sister. S recalled staying a few months, when she was about seven or eight years old, with her grandparents at a hostel in Wacol. Her uncle, aunt and their three children lived in another building on the same premises. One morning, she went to her uncle’s unit because her cousin told her she was wanted. Her uncle was there, pulling down the curtains. She asked where her aunt was; the appellant said she was at bingo. S’s next recall was of her uncle sitting on the edge of the bed and asking her if she wanted any lollies or money. She refused. He removed her trousers, saying he wanted to wash them and then told her to jump on the bed. When she did not comply, he pulled her towards the bed, sat her down, and pushed the top half of her body onto the bed. Then he got on top of her and put his penis into her vagina. She cried, and said “No”; the appellant put a pillow over her face and continued to have intercourse with her. Then he stopped, put her trousers back on her, told her not to tell anyone and put a five dollar note in the pocket of her shirt. When she got outside her uncle’s unit she could hear someone asking for the money. She said she did not want it, threw it away and ran back to her grandmother’s house, where she saw her mother. She did not tell her what happened.

3. After that episode, S moved to various places with her grandparents and later her mother. At the end of 1986 she and her brother W returned to stay for the school holidays with her grandparents, who were then living at Inala. One day she went with children from her extended family to the local swimming pool, but when she was ready to leave could not find any of her companions. No one was at her grandparents’ house when she returned there, so she went to where the appellant and her aunt now lived, only a street away from her grandparents’ house. The appellant invited her in to wait and suggested that she have a shower to wash the chlorine from the swimming pool off. When she realised there was no latch on the bathroom door, she decided against showering and instead wet her hair and put a towel over it to make it look as though she was freshly washed. Her uncle entered the bathroom, despite her protests, and took her shorts and togs off. He forced her to lie on the floor and had intercourse with her. Her next recall was of being in a shower with her two female cousins, L and M, who were washing themselves. She scrubbed herself up with the soap and told her cousins that their father had just “touched” her. At home she told her grandmother what had happened, but her grandmother died in her sleep the same night, 7 December 1986. When she was an adult, S said, she revealed the assaults to the appellant’s daughter, M, her own brother W and her sister D, as well as her mother and an aunt.

4. Under cross-examination, S agreed that she had told the police she was sure that the rape occurred the day before her grandmother died but was now uncertain; all she was sure about now was that she had told her grandmother of the rape the night before her death. She remembered the five dollar note she was given by her uncle as brown. S agreed that over many years she had been a heavy user of alcohol and cannabis and had suffered head injuries which caused her short term memory loss. She had many other causes of distress from her childhood than her uncle’s conduct. She had experienced flashbacks which she tried to piece together, believing them to be memories of things that had happened to her.

5. D, S’s sister, who was two years younger, gave evidence. She recalled living at Wacol with her grandparents at the hostel where, from time to time, she also saw her aunt and the appellant. She remembered an occasion when S threw a five dollar note on the ground saying she did not want it, so she picked it up herself. D recalled the note as being purply pink. She told the police about that event after talking to S and seeing her police statement.

6. S’s cousin, C, who was the biological daughter of S’s aunt (but not of her uncle), lived for a time with S and her grandparents at the hostel at Wacol. C recalled her mother and her mother’s husband and their three children living at the same hostel. Later she moved with her grandparents to Inala about a block away from where her mother and stepfather lived. In 1990, S told her that the appellant had offered her money and had raped her.

7. S’s brother, W, who was a year older than she, said in evidence that he and S had travelled as children to their grandparents’ house in Inala for the Christmas holidays. In 2005, his sister had told him that her uncle had “done it” to her. By way of detail, she had said that on the day they went to Inala pool the appellant picked her up and took her home, where he “jumped on her”. Later he gave her five dollars to keep quiet, which D had seen her throw away.

8. Formal evidence was tendered to show that the Wacol hostel for indigenous people was open between 1976 and 1985. Enrolment records confirmed that S had attended local state schools between January 1985 and February 1986.

9. The appellant gave evidence. He said that he and his family had lived at the hostel for four to six months in 1985. He used to work as a yardman there, eight hours a day on weekdays, and also drove the school bus for the hostel children in the mornings and afternoons. He did not recall S living at the hostel and could not envisage her being on the school bus. Before he got those jobs, he spent a good deal of time taking his wife and parents-in-law to bingo in the Valley. There was never any time at which he had been alone in his house with S, and he had done nothing to her. In 1985 or 1986, he and his wife had moved to Inala, where they lived about 500 metres from her parents. His recall of his mother-in-law’s death was that there had been a party the preceding day at the local Catholic church. That night, his parents-in-law had had a physical fight; his mother-in-law was badly injured and died the next day. He was sure that S and her brother were not staying with their grandparents when that happened. He did not recall his children going to the pool with S, and S had never been at his house in Inala. The bathroom there had an inside lock, which he had put on as soon as they moved in. Both his family and S’s family had lived in Cherbourg for many years after and had normal social contact. 

10. The appellant’s daughter, M, who was two years older than S, gave evidence of living at the hostel with her parents. She did not recall S or her siblings being at the hostel or visiting their house at Inala. Her father had put a bolt on the bathroom door when they moved into the Inala house. Their bathroom did not contain a separate bath; instead there was a small tub which operated as a shower cubicle and had room only for one. There was no occasion on which S had had a bath with her cousins. M had been on good terms with S’s family until recent years, when S had made the allegations against her father. Under cross-examination, M agreed that she had spoken to her father about her evidence and S’s allegations.

The Longman direction

11. The learned trial judge gave the jury a Longman direction:

“The other thing I need to say to you is this, that it is very obvious these things that she says occurred, occurred a very long time ago. It was in 2006 I think, that she went to the police and ultimately, we're in 2007 now and we're all here considering these things. The long delay, over 20 years, in reporting what she says happened, has an important consequence and it's this. Her evidence about it cannot be adequately tested after the passing of all those years. A person against whom these sorts of allegations are made after that sort of period of time, has inevitably lost any real means of testing, what the person making the allegations is saying. And that’s even more so because of the lack of particularity in what she says happened. It’s merely an assertion that at Wacol, he called her in, she saw him pulling the blinds down, then she was on the bed, she doesn’t know where. He took her clothes off, he had sexual intercourse with her. She was a little girl. She says there were no injuries. Now, he says it never occurred, he said he can’t even remember her at Wacol, she may have been there, but he can’t remember her and as defence counsel says, that's not all that incredible. Particularly, if he didn’t do anything to her because she’s a little girl, one of a lot of little girls who are relatives. Why would he take any notice of her? She’s another kid running around. So as I say, by this delay the defendant has been denied any real chance at all to assemble, soon after these things are said to have occurred, evidence as to what he and other potential witnesses may have been doing. When, according to [S], these things occurred. Had a complaint like this been made shortly after the alleged event, then it would have been possible to explore the circumstances in some detail and perhaps to gather and to call at a trial like this, evidence which may throw some doubt on what the complainant is saying. Opportunities like that have been lost, inevitably lost because of the delay. And that impairs the fairness of the trial - inevitably impairs the fairness of a trial.

The other thing you need to consider when there's been this sort of delay is this, you need to consider the age of the complainant when she says these things occurred; she was six, seven, eight, nine, in that age range and you know that over a period of 20 to 24 years there’s all the trials and tribulations of life and this lady’s had some, there’s no doubt about that, happen to them, then the likelihood of error in recollection can increase. You try and think back to when you were six or seven and try to think with any detail at all about events. Now, you might have some vague recollections or some recollections, but they’re certainly not going to be very accurate ones. 

And another thing that you may consider is that experience has shown that recollection of events occurring in childhood over a long period of time can become distorted, particularly by the trials and tribulations, disappointments and other things that occur over one's life. These are all things you need to consider and I need to warn you that it would be dangerous to convict this man upon the testimony of [S] alone unless, after scrutinising it with great care and considering all the circumstances relevant to its valuation and paying heed to what I’ve said in considering it, you are satisfied beyond reasonable doubt both as to its truth and its accuracy.

They are not the same thing necessarily. A person may quite convince themselves that what they are saying is the truth, but yet in fact it may be quite inaccurate, and that is something that may occur when there has been such a long delay in a matter.

Now, I'm not saying to you in saying this that I’m not trying to give you a hint that that's what I think. That’s not the case. These are things that I must say to you when there’s been these sorts of allegations made and there’s been such a long delay between when they’re said to have occurred and when the allegations are made because of the inevitable consequences and the inevitable impairment to a fair trial that may result from that.” (Italics added.)

12. The appellant complains that the effect of the ultimate paragraph was to destroy the force of the direction, by the trial judge’s indicating to the jury firstly, that he was legally obliged to provide it and, secondly, that it was not his opinion that the delay affected the evidence.

Conclusions – the Longman direction

13. The direction which the learned judge gave was an admirably clear and practical explanation to the jury of the dangers inherent in evidence of this kind after such a lapse of time. In the first two sentences of the ultimate passage, His Honour, it seems to me, was doing no more than emphasising that a conclusion was the jury’s province, not his. The remaining sentence alluded to the general need for such a direction using terms which were favourable to the appellant: “the inevitable consequences and the inevitable impairment to a fair trial” that might result from the delay. And, it should be said, later in his summing up, after mentioning the defence case and the appellant’s denial of any improper conduct, his Honour again made the point that the lapse of time presented particular difficulties for a defendant in such circumstances:

“Well, going back to what I was saying about the long delay, any person against whom this sort of thing is alleged so long ago, there's not much else that they can say because it's so long ago and they can't give any detail, they don't have a particular date they can focus on, and even if they did, 25 years ago they couldn't possibly remember what they were doing on that day unless they had some particular record or other written record.”

14. I do not think the appellant has anything of which to complain in this direction.

The failure to give a Markuleski direction and the inconsistent verdicts ground

15. It is convenient to deal with these grounds of appeal together. The learned trial judge was not asked to, and did not give a, Markuleski^[2] direction; that is, a direction to the effect that a reasonable doubt about one aspect of the complainant’s evidence ought to be taken into account in assessing her evidence on other matters.^[3]  He did, however, give the jury the conventional direction as to the need to approach each charge separately.  Here the appellant, while conceding that the judge was not bound as a matter of law to give a Markuleski direction, submitted that, given that S’s credit and reliability were fundamental to both counts, such a direction was needed.  There was, counsel said, no clear rationale for the different verdicts on counts 1 and 2.  The complainant’s evidence that she threw away the five dollar note combined with D’s evidence of picking up a similar note was of limited probative value, because they had described the note differently and D had given her account after reading the complainant’s police statement.  The different verdicts showed that the jury had acted unreasonably and had failed to perform its function properly.

16. Counsel for the respondent, on the other hand, argued that there was no need for a Markuleski direction where different verdicts were not fatally inconsistent.  He relied for that proposition on two sources: the judgment of McPherson JA in S^[4] and that of Keane JA in R v Ford.^[5]  Here the verdicts could be explained on the basis that while the jury regarded the complainant as honest, it did not find her wholly reliable.  The evidence in relation to the five dollar note was sufficient to satisfy the jury of S’s reliability in relation to count 1.

Conclusions – inconsistent verdicts

17. Whether a conviction on count 1 in this case was inevitably inconsistent with an acquittal on count 2 is a question of “logic and reasonableness”.^[6]  Such a conclusion will be drawn sparingly:

“If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury perform their function as required, that conclusion will generally be accepted.  If there is some evidence to support the verdicts said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the fact for one which was open to the jury.”^[7]

18. In R v Smillie,^[8] I summarised some of the factors relevant in considering how verdicts might rationally differ:

“1.The quality of the evidence

The jury may have found the quality of the crucial witness’ evidence variable while accepting it as generally truthful.  For example, the witness may have exhibited faulty recollection on some points^[9] or been able to provide more particularity about the details of some events than others.^[10]  A complainant may have failed to mention some offences in his or her original complaint, giving rise to a question about the accuracy of later recollection.  The witness may have been given to exaggeration in some instances,^[11] or there may have been an inherent unlikelihood to some aspect of the evidence, which casts doubt on its accuracy in those respects, but not of the witness’ general honesty.^[12]  Or the circumstances in which the offence is alleged to have occurred may raise the real possibility of mistake by the complainant as to the nature of what has occurred.^[13]

2.The existence of contradictory evidence on some matters

There may in respect of some counts be evidence contradicting the crucial witness’ account such as to explain a variation in the jury’s verdict.  Whether the force of the contradictory evidence goes beyond demonstrating a discrepancy explicable as mistake and warranting a doubt on the part of the jury, so that it must be regarded as undermining the credibility of the witness (as was the case in Jones v The Queen^[14]) is a question of fact in each case.

3.The existence of corroboration on some counts

Different verdicts may be explicable on the basis that the witness’ evidence was supported in respect of some counts but not others, by, for example, admissions by the accused.^[15]

4.The “merciful” verdict

As recognised in MacKenzie v The Queen^[16] and R v P,^[17] a jury may have decided that it would be oppressive to convict on all charges; that, for example, in a case where there are multiple counts, conviction on a number may sufficiently reflect the culpability of the accused.”

19. It seems to me that in this case there were three factors which might have led the jury to arrive at different verdicts on the two counts:

1.That S’s evidence on count 1 was supported, albeit tangentially, by the evidence of her sister, D, about picking up the five dollar note;

2.That S’s evidence on count 2 had an interrupted, “flashback” quality, jumping from her recollection of the rape to her being in the shower with her cousins, without any explanation of the intervening period; and

3.That S’s evidence of the events of count 2, and of her complaint after it, was directly contradicted on aspects of detail by the evidence of both the appellant and his daughter as to the bathroom lock and the layout of the bathroom. 

20. It is impossible to know whether the jury merely reached a higher level of confidence about S’s evidence on count 1, or whether it actually accepted the contradictory evidence in relation to count 2 so as to disbelieve her, with implications for her credibility on count 1. It is clear that the verdicts were not necessarily inconsistent: a reasonable jury could properly have arrived at different verdicts on the two counts. The more difficult question is whether, in the absence of a Markuleski direction, one can be confident that it did.

The failure to give a Markuleski direction

21. As counsel for the appellant conceded, it was not suggested in Markuleski that a direction of the kind discussed there was mandatory; rather it was described as “desirable that the traditional direction as to treating each count separately is supplemented in a word against word case”^[18].  While some form of direction assisting the jury as to the effect upon assessment of the complainant’s credibility where the jury was unable to accept his or her evidence in respect of a particular count “should be given”, its absence was “not necessarily fatal”.^[19]

22. Different views have been taken in different jurisdictions as to the advisability of such a direction. In Victoria, the view of the Court of Appeal has been that a Markuleski direction risks undermining the jury’s appreciation of the need to consider each count separately.^[20]  The Court of Criminal Appeal in Western Australia has endorsed that view.^[21]  On the other hand, the Court of Criminal Appeal in South Australia, while emphasising the absence of any binding rule, has not rejected the possibility that such a direction might be appropriate in a given case.^[22]  In Queensland, it has generally been regarded as desirable that the direction should be given in “word against word” cases;^[23] but not where there is independent support for the complainant’s account.^[24]

23. Counsel for the respondent, as already mentioned, relied on two sources for the proposition that the need for a Markuleski direction was demonstrated only where the verdicts were shown to be inconsistent.  The first was the judgment of McPherson JA in S,^[25] where his Honour said:

“In Markuleski [2001] NSWCA 290 a majority of the Court decided that as a general rule a trial judge should direct the jury that a reasonable doubt with respect to the complainant’s evidence on any count ought to be taken into account in assessing the complainant’s evidence generally. In R v M [2001] QCA 458, at [22], and with the concurrence of Jones J, I said that in some, perhaps many, cases of this kind, it is desirable that a qualifying direction of that kind should be given. Although it would not have been possible for her Honour to predict that the jury would return the disparate verdicts which they did, the quality of the complainant’s evidence on count 7 made it a real possibility that they would acquit the appellant at least in respect of that charge. For that reason, the qualifying direction ought to have been given to the jury in this case. The record here shows references were made to the decision in R v Markuleski early in the trial. Without such a direction, it is not possible to be confident that there is any rational explanation for the differing verdicts against the appellant other than that the complainant’s evidence on that count, and perhaps also on count 2, arose from doubt about her credibility.  On that basis the verdicts were inconsistent and fatally so.”

24. The second was the discussion of Keane JA of the need for a Markuleski direction in R v Ford.^[26]  After setting out arguments from the authorities for and against the giving of such a direction, his Honour gave three reasons for concluding that a direction was not required in the circumstances prevailing in Ford:             

“First, this was not a case of "word against word" based on the evidence of a single complainant about a number of offences arising out of one episode of wrongdoing by a single accused.

Secondly, there were in the present case aspects of the evidence which could logically have led the jury to acquit the appellant on some counts without that acquittal necessarily implying that such a conclusion damaged that complainant's credibility or reliability in relation to his account of the events which were said to give rise to the counts upon which the appellant was convicted.  Thus, this case is not one like Markuleski itself, where the case for the prosecution depended solely on the testimony of a single complainant.^[27]  Nor is it a case like R v LR upon which the appellant's counsel placed reliance.  In R v LR, the jury's verdicts of acquittal in relation to some charges necessarily implied that the jury had formed an adverse view of the reliability of a particular complainant's account of the incidents the subject of counts on which the jury brought in verdicts of guilty.^[28]

….

Thirdly, the learned trial judge's directions to the jury were sufficient to obviate any risk that the jury might not appreciate that they should convict the appellant on a particular count only if they were satisfied beyond reasonable doubt of the reliability of the complainant's evidence relating to that count.”^[29]

Keane JA went on to set out instances where the trial judge  had invited the jury members to consider whether the complainants’ confusion on particular events affected the reliability of their evidence generally, and had directed them to take rejection of the witnesses’ evidence as to uncharged acts into account in considering their evidence as to charged offences.  In light of those directions, as well as the fact that there were rational bases for the jury’s having reached different verdicts, it was safe, Keane JA said, to conclude:

“[T]hat the trial of the appellant was not unfairly affected by the risk that the jury did not appreciate that a doubt about some aspect of a complainant's testimony could or should lead to a doubt about the totality of that complainant's testimony.”             

25. I do not think either S or Ford is authority for the proposition that the need for a Markuleski direction is to be assessed retrospectively, with a positive conclusion being drawn only where the verdicts are proved to be irreconcilable.  In the passage from S cited above, McPherson JA spoke of whether it was “possible to be confident” of a rational explanation, apart from doubt about the complainant’s credibility.  In the passages referred to from Ford, Keane JA was identifying points distinguishing the case from Markuleski, rather than purporting to lay down a single scenario in which such a direction ought to be given; and in the result he concluded that the jury had effectively been directed in terms adequate to meet the circumstances of the case. 

26. This case seems to me similar to R v LR,^[30] in which the jury had convicted the appellant on two counts of rape, while acquitting on four other such counts.  Keane JA thought it possible to reconcile the verdicts, but it was also possible “that the jury determined that the complainant was telling the truth in relation to some counts but others”,^[31] acting under the misapprehension that the complainant’s credibility had to be considered afresh for each count.  Although no Markuleski direction had been sought at trial:

“It should have been made clear to the jury that a doubt as to the complainant’s evidence in respect of one count should be considered by them when assessing her overall credibility and reliability in relation to the other counts”.^[32]

The possibility that the failure to give such a direction had affected the verdicts suggested that there had been a miscarriage of justice.  A new trial was ordered.

27. The present case was not one in which there was strong independent evidence supporting the complainant’s account on count 1; it was, in reality, a “word against word case”. If the feature of D’s picking up the note is to be regarded, however, as offering some support for the different verdicts, this difficulty arises. The learned trial judge’s direction on it was in these terms:

“Now, regarding the incident at Wacol at the hostel, she told you that afterwards he gave her a $5 note, put it in a pocket of her shirt. She went outside and said she didn't want it, threw it away and her sister [D] picked it up … Well, [D] her sister, gave evidence that she can remember an occasion way back then when her sister threw away a $5 note, a big note. She could remember that she said. She picked it up.”

That summary of the evidence (as to which no re-direction was sought) overstates it.  The complainant’s evidence was that she had heard someone asking for the money and that she said she did not want it and threw it away.  She did not say that D picked it up.  One can imagine that it might not have been considered a feature of such importance by defence counsel as to warrant asking the trial judge for a correction; but in the light of its being relied on by the Crown to support the conviction on count 1, the need for the jury to have a precise understanding of the evidence is brought into greater focus.

28. In a case such as the present, where there was specific contradicting evidence in respect of count 2 which, if accepted, might cause the jury to question the complainant’s credit and reliability, the jury ought to have had its attention drawn to the implications of such a conclusion, if indeed it drew it, for its acceptance of the complainant’s evidence on count 1. If a Markuleski direction had been given, and the jury had nonetheless convicted on count 1, one would be in a position to say with greater confidence that the verdicts were consistent.  In my view, the combination of inaccurate recounting of the evidence as to the finding of the money and the failure to point out to the jury that a reasonable doubt as to the complainant’s truthfulness or reliability on count 2 ought to be taken into account in assessing her evidence on count 1, raise a real concern, in a finely balanced case, of a miscarriage of justice.

Unsafe verdict ground

29. Counsel for the appellant argued that on the whole of the evidence, a verdict of guilty was not open on count 1. There was a gap in the complainant’s recall between first speaking to her uncle and his sitting on the edge of the bed and asking if she wanted lollies; her description of the five dollar note was different from that of her sister, weakening any support that evidence might give; there was some confusion in her evidence generally; she was a young child when the offence was alleged to have been committed; and all of those factors taken with the acquittal on count 2 meant that it was not open on the evidence for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.

Conclusions - unsafe verdict ground

30. As I have already indicated, I do not think that the verdict on count 1 was necessarily inconsistent with the acquittal on count 2. The complainant gave a fairly detailed and sequential account of events in relation to count 1 and there were not, in my view, any gaps of significance in her evidence. The problems presented by the delay between the events and her giving evidence were adequately addressed by direction. I do not think any convincing basis has been identified for concluding that the verdict was unreasonable.

Orders

31. Because of my conclusion that the failure to give a Markuleski direction, in the particular combination of circumstances to which I have referred, gave rise to a miscarriage of justice, I would allow the appeal, set aside the verdict of guilty and order a re-trial.

32. ATKINSON J: I agree with Holmes JA and Mullins J, for the reasons given by Holmes JA, that the Longman direction was not impugned by any later comments made by the learned trial judge, that the verdicts on the two counts were not inconsistent and that the verdict of guilty on count 1 was not unreasonable.  I also agree with Mullins J for the reasons given by her Honour that the appellant was not denied a fair trial in relation to count 1, because of the lack of a direction in terms of that suggested in R v Markuleski (2001) 52 NSWLR 82, 121-122 [186] – [191].

33. In this case a Markuleski direction was not sought.  Nor had it been given, would it have told the jury any more than would have been obvious to them from their own experience.  Trial judges should not be burdened by requirements to give directions to juries about matters which are commonly known by jurors and would not therefore assist them.  As the joint judgment of the High Court held in Doney v The Queen (1990) 171 CLR 207 at 214:

“the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters.  It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.”

34. Whether invited by the judge to do so or not, jurors are likely to assess the credibility of witnesses according to common human experience which includes the common sense notion that if they disbelieve a person about one thing they are likely to have less confidence in that person’s evidence about another. In my view it could hardly be said that a judge’s failure to tell a jury something so obvious to them could found a miscarriage of justice in this case. As Heydon J observed in HML v The Queen [2008] HCA 16 at [342], rejecting a complaint that a trial judge failed to tell a jury that if they rejected any part of a complainant’s evidence as to uncharged acts, they could use that rejection adversely to the complainant’s credibility:

“But that went without saying.”

35. The appeal should be dismissed.

36. MULLINS J:  I agree with the conclusion of Holmes JA in relation to the Longman direction and that there was no basis for concluding either that the verdict of guilty on count 1 (referred to at the trial as the Wacol hostel incident) was inconsistent with the acquittal on count 2 (referred to at the trial as the Inala incident) or that the verdict of guilty on count 1 was unreasonable.  I therefore will focus on the ground of appeal based on the learned trial judge not directing the jury in terms of the type of direction suggested in R v Markuleski (2001) 52 NSWLR 82, 121-122 [186]-[191] (Markuleski).

Course of the trial

37. The trial took place over two days. The first witness was the complainant. Short evidence was then given by the complainant’s sister D, cousin C and brother W. The appellant consented to non-contentious evidence being read into the record that Aboriginal Hostels Limited operated the hostel at Wacol between 1977 and 1985 and as to the set up of that hostel. The prosecutor then tendered extracts from the registers of relevant schools which showed that the complainant attended at Darra State School (which is near Wacol) between 29 January 1985 and April 1985 and attended at Inala State School between 24 April 1985 and 26 February 1986.  A formal admission was made on behalf of the appellant that the complainant’s grandmother died on 7 December 1986.

38. Shortly after 2.30 pm on the first day of the trial, the appellant elected to call and give evidence and gave his evidence. The court adjourned when the appellant finished giving his evidence about 3.30 pm. On the second day of the trial, the appellant’s daughter gave evidence for 15 minutes. When her evidence concluded the appellant’s counsel addressed the jury for about 25 minutes. The appellant’s counsel focused on the reliability of the evidence of the complainant and drew attention to matters that counsel submitted would persuade the jury the complainant’s evidence relating to the two counts was not reliable. The prosecutor then addressed the jury for about 17 minutes. The trial judge summed up for about 30 minutes. The jury retired at 11.07 am and delivered their verdicts at 2.20 pm.

39. At the outset of the summing-up, the trial judge gave the direction that the jury must consider each of the charges separately in these terms (at Transcript p80):

“These are separate charges.  You must approach them separately.  You must consider each charge, consider the evidence which bears upon it, and ultimately consider whether the prosecution has proven it.  It does not necessarily follow that if you were to take the view the defendant was guilty or not guilty of one charge therefore he must be guilty or not guilty of the one other one.  You must consider the evidence as it bears on each charge.”

40. In respect of the evidence of C and W about the complaint made to each of them by the complainant about the appellant’s conduct, the trial judge gave an appropriate direction on the purpose of that evidence. The trial judge instructed the jury that they could pay heed to the evidence of complaint when they were considering the consistency of the complainant’s evidence and stated (at Transcript pp86-87):

“In other words, is what she said to other people according to them, consistent with what she now says happened when she gives evidence about it in Court.  If it is, then it may bolster her credibility in your eyes.  If it’s not consistent it may do some damage to her credibility in your eyes.  That’s the purpose of it in tis (sic) trial and its only purpose.”

41. The trial judge then followed with a lengthy Longman direction that had been adapted by the trial judge for the evidence of this trial.  The direction made clear the importance of the jury being satisfied beyond reasonable doubt of the truth and accuracy of the complainant’s evidence (at Transcript p89).  The trial judge explained the difference between truth and accuracy. 

Markuleski

42. The defendant in Markuleski was found guilty of five offences of a sexual nature against the complainant and acquitted of one such offence.  It was a word against word case.  The majority of the five members of the New South Wales Court of Criminal Appeal held that the verdicts of guilty were not unreasonable.  The defendant also challenged the directions given by the trial judge with respect to the jury’s assessment of the complainant in two respects summarised as (at 120 [174]):

“[174]  The first criticism was the failure of the trial judge to expressly inform the jury that the delay in the making of the complaint was itself a matter to be taken into account in assessment of the credibility of the complainant.  The second criticism was the failure of the trial judge to direct the jury as to the assessment of the complainant’s credibility if the jury were minded to acquit on any count.”

43. In relation to this second criticism of the trial judge’s directions in Markuleski, the trial judge was recorded as saying “You may consider that it would be very difficult to find him guilty on one and not guilty on others”.  Spigelman CJ observed (at 122 [193]) that the passage inverted the proper reasoning process and it should have been formulated as “You may consider that it would be very difficult to find him not guilty on one and guilty on others”.

44. Spigelman CJ then noted (at 122 [194]) that if the appeal had been concerned only with the inversion in that passage that appeared to have been a slip (and passed without comment by counsel at the trial), he would not have concluded that the passage was of sufficient significance to allow the appeal on the basis that the trial judge invited the jury to engage in tendency reasoning, without warning it against the dangers of such reasoning.

45. Spigelman CJ did consider (at 122 [195]) that the jury did not have its attention expressly directed to the proposition that a reasonable doubt with respect to the complainant’s evidence on any count, ought to be taken into account on the complainant’s credibility generally and concluded (at 123 [196-197]):

“[196]  Again, if the only inadequacy in the summing-up had been this omission, I would not have allowed the appeal on this basis.  This Court has no basis for correcting what may have been a transcription error rendering the trial judge’s comments unclear.  Nevertheless, he did direct the jury’s attention generally to the interconnection of credibility issues amongst the various charges.  In the overall context, particularly the strong Longman warning, this may have been sufficient.  However, there are two matters which relate to the critical issue in the case, namely the complainant’s credibility.  The cumulative effect of these matters casts a doubt in my mind on the fairness of the trial.

[197]  In my opinion, in the circumstances of this trial the jury required greater assistance in two respects than the trial judge gave in the relevant parts of the summing-up, which I have set out above.  The combined impact of the absence of directions on the effect on credibility of delay in complainant and of an acquittal on one count, is such that a miscarriage of justice has occurred.”

46. Carruthers AJ agreed with Spigelman CJ. Wood CJ at CL reached a similar conclusion to Spigelman CJ in respect of the two defects in the directions given relative to the complainant’s credibility generally. Spigelman CJ expressed in terms of desirability (at 121 [186]) that a direction about separate consideration of each charge be supplemented in a word against word case by a direction 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. Wood CJ at CL acknowledged that whether such a direction was required, and the terms in which it should be given, would vary from case to case. In Markuleski it was the failure to give such a direction in conjunction with the other deficiency in the directions that concerned the credibility of the complainant that resulted in a successful appeal. 

47. The desirability of a Markuleski direction in appropriate cases has been considered in Queensland:  R v S (2002) 129 A Crim R 339, 349 [29], R v LR [2005] 1 Qd R 435, 454-456 [63]-[66] and R v Ford [2006] QCA 142 (Ford) at [123]-[138].  It has been acknowledged, however, that it is not a mandatory direction and where the effect of the direction may otherwise be apparent to the jury, a direction in the terms suggested in Markuleski may not be necessary:  Ford at [138].  In Ford, Keane JA explained at [124] the risk of unfairness that made a Markuleski direction desirable:

“In summary, the risk of unfairness which creates the occasion for the giving of the direction is the risk that the accused will be denied the chance of acquittal on all counts if, given the state of the evidence, such a result ought reasonably to follow if the jury were to reject as unreliable any part of the complainant’s account of what occurred.”

48. An appeal based on the lack of a direction along the lines of that given in Markuleski was unsuccessful in R v WAA [2008] QCA 87, because sufficient and extensive directions on the assessment of the credibility of the complainant had otherwise been given by the trial judge (at [40]).  

Was a specific direction as suggested in Markuleski required?

49. Although the particulars of count 1 were that it occurred between 31 December 1983 and 22 November 1986, the evidence in relation to when the Wacol hostel operated coupled with the evidence that the complainant went to school near the Wacol hostel between January and April 1985 narrowed the timing of the Wacol hostel incident to around January to April 1985. The significance of that was the complainant was seven years old and her sister D was about five years old.

50. In dealing with the argument that there were inconsistent verdicts, Holmes JA identified at paragraph [19] of her reasons three factors that might have led the jury to arrive at different verdicts. I agree with that analysis. Holmes JA expressed a reservation at paragraph [27] of her reasons, however, about the trial judge’s reference in the summing up to the evidence about one of those factors which was D’s picking up of the note thrown away by the complainant which the complainant had said was given to her by the appellant after the Wacol hostel incident.

51. Holmes JA set out the relevant part of the trial judge’s summing-up at paragraph [27] of her reasons. The trial judge referred to the complainant saying that she did not want the $5 note and that she “threw it away and her sister [D] picked it up”. The complainant’s evidence-in-chief on this aspect (which did not say that her sister picked up the note) was (at Transcript pp13-14):

“MR ALSBURY:  What – what did you do with the money?--  I – like, when I got outside, I just threw it away because I didn’t want it in.

Did you see what happened to the money after you threw it away?--  Like – because when I – when I walked out, like, I can hear someone asking for the money, but I just said, ‘No, I don’t want it.’  I just threw it away.

And how much money was it?--  A five dollar note.”

52. D’s evidence on picking up the note was (at Transcript p32):

“Well, [the complainant] was staying at – and I walked over to her and she threw a $5 note on the ground and said something like, ‘I don’t want this money’, and me being a little girl, I just went and picked it up and put it in my pocket.”

53. I accept there was a misstatement by the trial judge on this aspect of the evidence, but it was the briefest of comments. Although the complainant did not say that it was her sister D who picked the note up, the inference was open from what the complainant did say that the person who asked her for the money, when she did throw it away, picked it up. The evidence about the $5 note was referred to without any misstatement by both the appellant’s counsel and the prosecutor in their addresses. Neither counsel sought any correction from the trial judge in relation to the misstatement which may indicate its lack of significance in the context of the entire summing up. This was a short trial and the ambit of the evidence was confined. On the hearing of the appeal, Mr Copley of counsel for the respondent, submitted that the jury would have remembered the evidence as it was. In the circumstances, I cannot conclude that the misstatement by the trial judge affected the jury’s consideration of the evidence that they actually heard from the complainant.

54. Another of the factors that Holmes JA referred to as allowing the jury to arrive at different verdicts on the two counts was that the complainant’s evidence in relation to the Inala incident had an interrupted, “flashback” quality. When the complainant gave her evidence-in-chief about this incident she described the act of the rape, but stated that the next thing she remembered was being in the shower with her two cousins (at Transcript p16). The complainant could not relate what occurred between the rape that she described and her being in the shower. The complainant also gave evidence (at Transcript p 16) that she went and told her grandmother and that her grandmother died in her sleep that night. The complainant stated (at Transcript p16) that she always thought that the rape at the Inala house happened the day before her grandmother passed away. In cross-examination, the complainant conceded (at Transcript p25) that she was not sure anymore that the Inala incident had occurred the day before her grandmother passed away. The complainant therefore expressed doubts about her recollection in relation to the Inala incident that were not present in her evidence about the Wacol hostel incident.

55. The focus of the trial was the credibility and reliability of the complainant’s evidence. The Longman direction highlighted the importance of the jury assessing the truth and accuracy of a complainant’s evidence where there had been a delay of about 20 years between the incident and the complaint to the police.  In addition to the usual statements incorporated in a Longman direction, the trial judge reminded the jury (at Transcript pp 87-89) of matters that were specific to the complainant that may have affected her recollection.  The trial judge pointed out, as relevant to the assessment of her credit in relation to the Wacol hostel incident, the lack of particularity in what the complainant said happened in the course of that incident and that she was a little girl at the time, but she said she had no injuries after the appellant had sexual intercourse with her.  This was an aspect of the complainant’s evidence that had been emphasised in the appellant’s counsel’s address to the jury. 

56. The different verdicts on counts 1 and 2 are explicable by reference to the evidence that applied to each of the counts, including a difference in the quality of the evidence. There were two counts only before the jury. Although the direction advising the jury of the need for separate consideration of each charge was not supplemented by a Markuleski direction, there were clear and extensive directions otherwise given to the jury on the need for them to be satisfied about the credit of the complainant.  The credit of the complainant was given such prominence at the trial, I am satisfied that there was no real possibility that the jury would not have taken into account any adverse view they may have formed of the complainant’s credit arising from their consideration of count 2, when they considered count 1. 

57. I have therefore concluded that the appellant was not denied a fair trial in relation to count 1, because of the lack of a direction in terms of that suggested in Markuleski.  The appeal should be dismissed.