R v BEI[2024] QCA 71

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Fraser AJA and the order proposed by his Honour.
2. [2]
   BODDICE JA:  I agree with Fraser AJA that the appeal should be dismissed.
3. [3]
   Fraser AJA’s comprehensive analysis of the counts, evidence, addresses and summing up, allows me to briefly state my reasons.
4. [4]
   First, a consideration of the contents of the interaction between the trial judge and counsel, in the context of whether the trial judge should give a Markuleski direction, supports a conclusion that whilst the trial judge did refer to such a direction being limited to cases charging sexual offending, the decision not to give the direction was ultimately based on a consideration of all of the circumstances of this particular case.
5. [5]
   Accordingly, whilst it would have been erroneous to refuse to give the direction on the basis that such a direction was only to be given in cases charging sexual offending, there was no error of law on that basis.
6. [6]
   Second, there was no error of law in determining that a Markuleski direction was not required, for the reasons given by Fraser AJA.
7. [7]
   FRASER AJA:  The appellant was charged with nine offences: two allegations of common assault (counts 1 and 3), one of wilful damage (count 4), two of choking whilst in a domestic relationship with the complainant (counts 2 and 5) and four of assault occasioning bodily harm (counts 6–9).  The complainant for counts 1–7 was the appellant’s former partner.  The victims of the assaults charged in counts 8 and 9 were the complainant’s son and daughter respectively.
8. [8]
   After a four-day trial in the District Court in July 2023, the jury acquitted the appellant of counts 1, 4 and 7 and convicted him of the remaining counts.  At the hearing of the appellant’s appeal, he abandoned his appeal against the convictions on counts 8 and 9.  This Court granted the appellant’s application for leave to amend the notice of appeal by deleting five of the six original grounds of appeal and by amending the remaining ground.  As amended, the sole ground of appeal against the convictions on counts 2, 3, 5 and 6 contends:

“The learned judge erred in law in determining that a Markuleski direction was not applicable to offences that were not sexual offences, alternatively, the decision not to give a Markuleski direction occasioned a miscarriage of justice.”

9. [9]
   That ground invokes two of the bases upon which s 668E(1) of the Criminal Code obliges the Court to allow an appeal unless, pursuant to the proviso in s 668E(1A), the Court is satisfied there has not been a substantial miscarriage of justice.  Subject to any application of that proviso, s 668E(1) relevantly requires the Court to allow an appeal against conviction “if it is of opinion … that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice”.
10. [10]
    The reference to a “Markuleski direction” is to one formulation of a direction of the general kind discussed in R v Markuleski.^[1]  Chief Justice Spigelman articulated various directions that might be appropriate in identified circumstances and observed that  if any such a direction is given, “[t]he crucial matter is to indicate to the jury that any doubt that 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”.^[2]
11. [11]
    The appellant argues that the prosecutor and defence counsel sought a “Markuleski direction” to the effect which Keane JA found to be appropriate in R v LR;^[3] namely, a direction which “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”.  During the hearing of the appeal, reference was also made to a draft direction in the Bench Book:

“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 reasons, that must be taken into account in assessing the truthfulness or reliability of her evidence generally.”^[4]

12. [12]
    A different formulation is advocated by the appellant in his following proposition of the law:

“If it can be discerned that the state of the evidence is such that there is a basis on which an acquittal could result on a count due to doubt about a complainant’s honesty rather than just her or his reliability, then it is necessary to ensure that the jury knows that the doubt they might have about honesty in relation to that count needs to be borne in mind when considering other counts if the state of the evidence relevant to those other counts cannot be seen to provide a firm foundation for concluding that the complainant’s account about them is honest”.

13. [13]
    The judgments in R v Markuleski itself make it clear that there is no such rule.  Although Spigelman CJ (with whose reasons Carruthers AJA agreed) observed that in a “word against word case” there is “a general rule” that the trial judge should supplement the traditional direction to the jury to treat each count separately by giving “[s]ome form of direction”, the Chief Justice added that the absence of such a direction “is not necessarily fatal” and “as the joint judgment in Crofts^[5] 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’.”^[6]
14. [14]
    Wood CJ at Common Law discussed possible pitfalls in giving such a direction,^[7] considered it inappropriate for any direction or comment “to become elevated, by reason of the mandatory terms in which it is expressed, to a principle of law or to operate as a straight jacket for the jury”, and referred to the concern expressed by McHugh J in KRM v The Queen^[8] and by Spigelman CJ in Markuleski “as to the danger of adding ever more directions and warnings to the repertoire of a trial judge”.^[9]  Wood CJ concluded that “[w]here it is necessary that a direction of the kind discussed be given to ensure a balance of fairness, then it should be phrased in terms that meet the needs of the case, and with the reminder that the assessment of reliability and credibility remains entirely a matter for the jury.”^[10]  Similarly, Grove J considered that such a direction “may” be necessary in some cases and it was sufficient “to commend the matter for consideration of trial judges.”^[11]  Simpson J discussed the grounds of appeal in that case, which did not include any reference to the need for such a direction.^[12]  Her Honour added that she did not dissent from the exposition of the law by Spigelman CJ, Wood CJ at CL and Grove J.^[13]
15. [15]
    In Keen v R^[14] the New South Wales Court of Criminal Appeal confirmed that the giving of a “Markuleski direction” is not mandated by any legal principle or rule and there is no general rule that it must be given in “word on word” cases where there are multiple counts.  McCallum JA, with whose reasons Wilson and Cavanagh JJ agreed, observed that “whether to give a direction in those terms or indeed any direction supplementing the traditional direction as to treating each count separately must ultimately be a matter for the assessment of the trial judge according to the particular circumstances of the specific case”,^[15] and that “the ultimate guide for a trial judge in determining how to direct the jury is the obligation to ensure a balance of fairness”.^[16]
16. [16]
    If there were such a rule as is proposed by the appellant, it is difficult to see why the same rule should not apply where only the reliability of the complainant’s evidence is in issue or where the relevant witness is someone other than the complainant.  At present, a “Markuleski direction” is not given as of course in all of the “word on word” cases falling within the broad range of cases described in the proposed rule.  Such a rule would appear to require trial judges to adopt the inappropriate process of ignoring any potentially relevant impact of the particular circumstances of the case – other aspects of the evidence, the issues, the final addresses, and any relevant effect of the summing up as a whole – when deciding whether a direction must be given.
17. [17]
    It may be accepted that particular circumstances in a “word on word” case of the present kind – perhaps most obviously, an inappropriate submission in an address to the jury or an unduly broad “separate counts” direction – might result in the jury being misled into adopting the approach to the assessment of a witness’s credibility which a “Markuleski direction” is designed to correct.  But the rule proposed by the appellant is predicated upon an assumption that, even in the absence of any such circumstances, in every case falling with the broad range of cases described in that rule, a jury considering one count might make the fundamental mistake of failing to take into account an adverse view of the complainant’s credibility formed by the jury with reference to evidence relied upon as proof of a different count.
18. [18]
    The direction advocated by the appellant concerns the core function entrusted to the jury of assessing the evidence.  It is a premise of the jury system that juries are competent to find the facts.  In Doney v The Queen^[17] – to which Atkinson J referred in this context in R v WAC^[18] – the joint judgment refers to “the purpose and the genius of the jury system” being “that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters”, and observed that it was “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.”  Similarly, in MacKenzie v The Queen,^[19] Gaudron, Gummow and Kirby JJ referred to “the respect for the function which the law assigns to juries (and general satisfaction with their performance)”.  Consistently with that premise, in R v Ford, Keane JA observed that, because it 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” which necessitates “intervention by the trial judge in matters which are normally the province of the jury”, the direction should not be given unless the risk clearly has arisen.^[20]
19. [19]
    Making the assumption required by the appellant’s proposition in the broad range of cases described in it is also not readily reconcilable with R v LR.  In that case, Keane JA’s conclusion that a direction was necessary to avoid a miscarriage of justice was explained by the particular circumstances of that case, which included the trial judge’s direction to the jury that “if you were not satisfied about Count 1, you would then still nonetheless consider separately the evidence that is forthcoming against the accused in relation to each of the counts…”.^[21]  Keane JA explained that in a case in which the two versions of events 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.”^[22]
20. [20]
    For those reasons, I would reject the appellant’s proposition.  In order to answer the question of whether such a risk of a miscarriage of justice arose in this case as to require a corrective direction, it is necessary to refer to the evidence, the issues at trial, and relevant parts of the trial judge’s summing up.
21. [21]
    The appellant argues that the direction was required because the prosecution case against the appellant on count 1 (upon which the appellant was acquitted) and upon counts 2, 3, 5 and 6 (upon which the appellant was convicted) depended wholly upon the complainant’s evidence and there was evidence casting serious doubt about the honesty of the complainant’s evidence about count 1.  Broadly speaking, the issue in each count was whether the appellant did the acts charged in that count.  The complainant gave evidence which, if the jury accepted as truthful and accurate, was capable of being regarded by the jury as proof beyond reasonable doubt of each of the offences charged in those counts.  The defendant gave evidence in which he denied the alleged offences and described unprovoked assaults upon him and other aggressive or irrational behaviour by the complainant.
22. [22]
    The focus of the appellant’s argument is upon the evidence relating to count 1.  That count charged the appellant with assaulting the complainant on 29 June 2019.  The particulars allege the appellant grabbed the complainant’s face without her consent.  In the complainant’s pre-recorded evidence in January 2023, she said the appellant was violent towards her during the period of their relationship between 2016 and 2019.  She could not remember the first time he was violent towards her, but the first time she remembered things starting to escalate was shortly after her daughter was born (that was near the end of 2018).  They were supposed to have a “date night”.  The appellant appeared to be under the influence of drugs, he was acting very strangely, and he appeared to want to leave.  The complainant asked him why he wanted to leave the house.  The appellant then grabbed her cheeks, squeezed them together whilst swearing at her, and pushed her face away (count 1).
23. [23]
    The complainant’s evidence conveys that, because she was afraid the appellant might assault her again, she retrieved a baseball bat from the appellant’s car and held it while she spoke to the appellant.  The appellant laughed at her.  When he later lunged at her, she repeatedly hit him with the bat.  One of those blows injured his elbow.  The appellant left the house saying he would have the complainant killed by a friend.  The complainant took the children to a hotel.
24. [24]
    In cross-examination, the complainant said her brother could have been with her on 29 June 2019.  The complainant agreed that her brother’s Facebook account included a photograph of her brother.  The date 29 June 2019 was below that photograph and above a photograph of the complainant.  Below the photograph of the complainant, someone asked if she was in Townsville.  Her reply was that her brother “was here”.  The complainant accepted that what seemed to be her brother’s Facebook profile had sent a message at 12.50pm on 29 June 2019, saying “Hey bro she ain’t giving it until she has your pin”.  The complainant did not remember whether that was a reference to her having the appellant’s telephone.  The complainant agreed she had told police the incident happened on 29 June 2019.
25. [25]
    The complainant remembered the event but could not remember the date.  She rejected a suggestion that the baseball bat incident occurred in a very different way.  She did not remember whether her brother asked her to give the phone back to the appellant.  She did not remember whether she refused to give the phone back.  She did not see her brother at the house at the time when she struck the appellant with the baseball bat.  The complainant did not remember times.  She did not remember if it happened while they were waiting to go out for a date night.  Defence counsel put to the complainant that she had made up her version to police that it was going to be a date night, she was waiting to go out, the appellant had been using drugs, and he wanted to cancel the date night.  The complainant responded, “I can only remember how I remember what happened to me.”  She rejected defence counsel’s suggestion that she assaulted the appellant whilst he was asleep.
26. [26]
    The appellant gave evidence that on 28 and 29 June 2019 he was not living with the complainant.  He received a text message from her asking him to watch the complainant’s daughter while the complainant and her brother went out drinking.  He arrived at the complainant’s house around 7.30 or 8.00 pm.  He had a couple of drinks with the complainant’s brother before the complainant left with her brother.  The appellant went to bed.  He awoke in the early hours of the morning to find the complainant punching him in his head and screaming at him about an ex-partner of his.  The complainant had a baseball bat.  The appellant laughed and shrugged.  The complainant repeatedly swung the bat, hitting his hand, forearm, and elbow, which she injured.  He grabbed the complainant’s wrist and she repeatedly screamed for her brother.  The appellant did not see that the complainant’s brother had left.  He then walked to his own brother’s house.  Whilst the appellant was walking, the complainant drove a vehicle towards the appellant.  She collided with a tree and drove away.  After the appellant arrived at his brother’s house, his brother drove him back to the complainant’s house.  The appellant and the complainant argued.  Their respective brothers intervened.  The appellant was able to retrieve his keys and wallet, but not his phone.
27. [27]
    The appellant’s brother gave evidence that the appellant arrived at his house early in the morning in late June 2019.  The appellant’s arm was injured.  The appellant’s brother drove the appellant to the complainant’s house.  The complainant and her brother were there.  The complainant and the appellant argued about the complainant having taken the appellant’s keys, wallet and phone.  A set of keys was retrieved, but not the wallet or phone.
28. [28]
    Count 2 charged the appellant with choking the complainant on or about 29 November 2019, whilst they were in a domestic relationship.  The particulars allege the appellant grabbed the complainant’s neck and applied pressure, restricting the complainant’s breathing.  The complainant gave evidence of a photograph she took of herself on (she believed) 30 November 2019, which showed what looked like fingerprints or bruises on her neck.  She said the appellant had some friends over and they were using drugs.  She took her daughter into a room to sleep.  She heard people leave and the appellant coming towards her room.  She could tell by mumbling and swearing that he was not in the best mood.  He charged into the room.  The appellant started calling her names.  He grabbed her throat and pushed her to the back of a cupboard.  He called her a slut and other names as though he was talking to somebody else.  He put pressure around her throat.  When asked if she could remember which hand he used, the complainant said it would have been his right hand because it was quite strong.  She demonstrated how the appellant had one thumb on one side and the other four fingers on the other side.  The complainant could not breathe when the appellant was doing that.  She remembered the appellant squeezing harder, she remembered panicking, and she remembered the feeling of her breath being cut away.  The complainant remembered losing consciousness and falling to the floor.  When she regained consciousness, the appellant had gone.
29. [29]
    In cross-examination, the complainant said she guessed she had assumed that the appellant had used his right arm to choke her.  She couldn’t say which arm it was.  It was dark.  With reference to finger marks shown on the complainant’s neck in one of the photographs, the complainant agreed that either the appellant used his left hand or the appellant must have used “some sort of weird backward motion” with his right hand.  The complainant agreed that, as a result of the incident with the baseball bat, the appellant had been in hospital on a number of occasions and he had surgery.  When pressed about her evidence describing the appellant using his right hand, the complainant said she felt it was so strong it would have been his right hand.
30. [30]
    Count 3 charged the appellant with assaulting the complainant on 25 March 2020.  The particulars allege the appellant grabbed the back of the complainant’s head or neck whilst he raised his fist at her.  The complainant gave evidence about a video she made on this occasion.  After the video was played to the jury, the complainant said she could not remember when she took it, but it was after her daughter was born.  The beginning of the video showed the appellant with his right hand moving towards the complainant.  The complainant said the appellant put his hand to her throat, put her up against the wall, and pretended to punch her.  She said she made the “ow” sound heard in the video when the appellant punched her stomach.
31. [31]
    In cross-examination, the complainant agreed her evidence was that the appellant grabbed her around the front of her neck, in a choking motion, at a point in the video when it was blank.  She agreed that in a conference with the Crown prosecutor in January 2023 she had indicated that at this point the appellant was holding her by the back of her neck, as if he was going to punch her, after he had driven her into the wall.  The complainant said there were two instances where the camera went away.  The complainant was asked why she had never said before that, when she said “ow”, the appellant had punched her in the stomach.  She said she did not know why she hadn’t said it before.  There was a lot to remember and a lot happening in the relationship.
32. [32]
    Count 5 charged the appellant with choking the complainant on or about 31 May 2020, whilst they were in a domestic relationship.  The particulars allege that, after the appellant’s brother died, the appellant grabbed the complainant’s neck and applied pressure, restricting the complainant’s breathing.  The complainant gave evidence there were people at their house just after the appellant’s brother had died.  The appellant was behaving strangely.  He was distant and cold.  When everybody left, the complainant asked the appellant whether he wanted her to leave.  She remembered the appellant strangling her more violently and, she believed, with two hands on this occasion.  There was a lot of shaking.  She remembered the appellant kicking her, leaving her, returning, and strangling her again.  The appellant was strangling her while he was kneeling over her.  For parts of the time she could not breathe.  The appellant also kicked her leg.  She was left with visible injuries, which she photographed.  The complainant described one photograph showing a mark on her leg where the appellant hit her.  The complainant referred to two photographs, dated 31 May 2020 and 2 June 2020, which showed marks on the right side of her neck.
33. [33]
    In cross-examination, the complainant said she could not give an exact date when this event occurred in relation to the appellant’s brother’s death.  She agreed she told police the appellant’s brother had died on 31 May 2020 and had overdosed on a drug when the appellant was with him.  She remembered that the event in count 5 was on the night of the wake for the appellant’s brother.  She told police the appellant was acting weirdly on that day, she assumed it was because he had lost his brother, and she did not know what time it happened, but her daughter was falling asleep.  She thought that might be an error.  Her memory was it happened on the day of the wake because there were people there.  She said that what was in her statement definitely occurred but there were multiple assaults leading up to that occasion, some of which she did not remember.  Defence counsel asked the complainant about an event on the day of the funeral in which the appellant grabbed her by the neck and disarmed her of a steak knife she was holding.  The complainant denied that happened.  She said the incident she remembered was on the day of the wake.
34. [34]
    Count 6 charged the appellant with unlawfully assaulting the complainant and doing her bodily harm on or about 21 July 2020.  The particulars allege the appellant grabbed the complainant’s arm/s and squeezed, resulting in bruising.  The complainant gave evidence she remembered leaving the appellant’s brother’s house.  The appellant was using a drug.  His demeanour changed in the car with the children on the way home.  When they arrived home, the appellant grabbed the complainant by her arms and kept squeezing and shaking her and accusing her of being attracted to his brother.  The complainant said she had no visible injuries as a result of the appellant grabbing her.  The appellant was referred to a photograph dated 23 July 2020, which showed the inside upper part of her right arm.  She thought the photograph was taken between three and five days after the incident.
35. [35]
    Each of the verdicts of not guilty on counts 4 and 7 is explicable by circumstances which are not inconsistent with the jury accepting the complainant was a credible witness who gave reliable evidence upon those counts.  So much was accepted in each party’s argument.  The appellant does not rely upon either verdict as support for his ground of appeal.  Because it is not suggested that the complainant saw the charged assaults on her children, it is also unnecessary to discuss counts 8 and 9.
36. [36]
    As was submitted by the respondent, the acquittal upon count 1 is also explicable by circumstances that do not involve any doubt about the honesty of the complainant’s evidence about that count.  In summing up to the jury, the trial judge summarised the evidence relating to count 1 and directed the jury of “the need to assess all of the evidence to ask whether you are satisfied beyond reasonable doubt what [the complainant] said is both truthful and accurate”.  The trial judge reminded the jury that on one version of the evidence the complainant’s brother was around that night, he and the complainant were out, and the jury had the Facebook messages which might assist them.  After remarking that there was no explanation for the Prosecution’s failure to call the complainant’s brother to give evidence, the trial judge directed the jury they could infer that nothing he could have said would have assisted the Prosecution case and the jury might more readily accept the evidence of the appellant and his brother about “what was going on this night, the 29^th of June”.
37. [37]
    The jury might well have regarded those directions as having particular significance for their verdict in light of the complainant’s evidence in chief to the effect that count 1 (which was alleged to have been committed on 29 June 2019) was committed around the end of 2018, and her own repeated expressions of uncertainty in cross examination about the date and some of the circumstances in which the events charged in count 1 occurred.  It seems much more likely in these circumstances that the acquittal on count 1 is explained by the jury holding a doubt about the reliability of the complainant’s memory of the date and some of the circumstances in which that offence was committed, rather than by the jury having a doubt about the complainant’s credibility, formed with reference to the evidence in count 1, which the jury did not take into account when deciding to find the appellant guilty on other counts.
38. [38]
    Reference to the effect of the summing up as a whole, considered in the context of the issues and evidence at the trial, persuades me that the trial judge did not err by not giving the direction now advocated by the appellant and that the absence of such a direction did not occasion a miscarriage of justice.
39. [39]
    On the first day of the trial, after the prosecutor opened the case for the Crown, defence counsel briefly opened the case for the defendant.  He emphasised the centrality in the trial of issues about the credibility and reliability of the complainant.  The Crown case closed shortly before the lunch adjournment on the second day of the trial.  In defence counsel’s opening after that adjournment, he described the evidence the appellant would give.  After the evidence concluded on the third day of the trial, defence counsel addressed the jury, the prosecutor addressed the jury, and the trial judge commenced summing up to the jury.
40. [40]
    Defence counsel emphasised his argument that the jury should not accept that the appellant was credible.  He exhorted the jury to use their life experience, including taking into account that a person who changes a story previously told, can cause concerns about the reliability of the story or “the credibility of the person”.  He referred to the effect of the jury accepting the evidence of the appellant, or being left in a state of doubt upon the evidence in the defence case, as being that an acquittal would follow.  He referred to the possibility that the jury did not believe the appellant, in which case, the jury would be required to “consider the prosecution case as a whole” and decide whether they were “convinced beyond reasonable doubt of the truth and reliability of the prosecution witnesses” which, he submitted, boiled down to the complainant.
41. [41]
    Defence counsel referred to evidence by the complainant that she had not spoken to her children about their recollections and evidence by the children to the contrary.  He submitted that the complainant was “not being honest with you” and “she lied about that”, thereby damaging her credibility.  He repeatedly returned to the submission that the complainant was not an honest or credible witness.^[23]  An example may be found in a submission by defence counsel that “to convict my client you have to accept that the complainant is both accurate and truthful”, and that the jury “could not accept that”.  He referred to other parts of the evidence and submitted that there was “a pattern” of the complainant escalating violence.^[24]  Defence counsel concluded his address with submissions that again asked the jury to consider the evidence outside the confines of any particular count when assessing the credibility of the complainant: “… the evidence shows that [the complainant] has told you lies, and not just little ones but big ones.… What I’m asking you to do is to be true to your oath or your affirmation and look at the evidence at [sic] a whole … there are significant problems with the evidence for you to accept that beyond a reasonable doubt”.
42. [42]
    The absence of any compartmentalisation upon a count-by-count basis of the matters upon which defence counsel relied to challenge the complainant’s credibility was clearly apparent in his address.
43. [43]
    Like defence counsel, the prosecutor asked the jury to examine the complainant’s evidence as a whole to form a view about her honesty.  The prosecutor commenced with a detailed summary of what was submitted to be the relevant evidence with respect to each of the counts on the indictment.  After that summary, the prosecutor made submissions about the general credibility and reliability of the evidence given by the complainant, arguing that “there is a descriptive level of detail she gave in her evidence about each of these occasions of violence”, a “level of care she took in answering questions in her evidence, and especially under cross-examination and reasonable concessions she did make”, and that there was “corroboration that she provided in the form of either the photographs or the recording”.  At various points in the address, the prosecutor responded to general submissions about the complainant’s credibility and the reliability of her evidence which required the jury to examine her evidence as a whole.  For example, the prosecutor submitted that “in terms of each act of violence in isolation, you might think hypothetically it’s possible for her to perhaps fake or lie about an injury or maybe she even inflicted the injury on herself, but that wasn’t suggested to her”, but “looking at it holistically over a number of months with the video footage, the evidence of altercations occurring, well, at least between them, it’s not a realistic scenario to say that it’s been contrived”, and “[t]his level of orchestrated conduct requires premediation and calculation …. that wasn’t apparent in her character that you saw.”^[25]
44. [44]
    Nothing in the trial judge’s summing up to the jury was apt to dispel the impression created by counsels’ addresses that the jury’s assessment of the complainant’s honesty and the reliability of her evidence should be made with reference to the whole of the evidence.  Nor do I accept the appellant’s argument that some directions given by the trial judge arguably restricted the jury’s function of assessing the honesty of the complainant’s evidence by confining the evidence the jury could take into account to the evidence relied upon as proof of the particular count under consideration.
45. [45]
    The trial judge first explained that what he was going to say would be divided into three parts:

“First, some general observations and directions which apply in practically every single trial … I will move onto the second part of the summing up which will be the more substantial part and that is to deal with what we call the elements or the ingredients of each of the allegations.  These are the things that the prosecution has to prove beyond reasonable doubt before you could find the defendant guilty of any of the allegations.

…

The third part of the summing up is just to summarise for you the arguments of [defence counsel] and [the prosecutor] that you have heard today and to advise you of the process by which you return your verdicts at the end of your deliberations.”^[26]

46. [46]
    The trial judge explained that he was moving to the first part (the “general observations and directions”) and directed the jury to “decide the facts of the case based on the evidence that you have heard in the trial”, and that this “involves you deciding what evidence you accept …”.  Shortly afterwards, the trial judge gave directions about the significance of the transcript and, in that context, told the jury that “an important part, you might think, of your assessment of the evidence [is] to recall how the witness actually appeared when they answered questions … and that is something which you ought to bear in mind when you assess the evidence”.^[27]  The trial judge directed the jury to “… remember that you do decide the case on the whole of the evidence, that of the prosecution witnesses and that of the defendant and his brother …”.^[28]
47. [47]
    In this part of the summing up, the trial judge directed the jury to take into account their impressions of the credibility or reliability of evidence given by the witnesses when considering whether or not to accept the evidence given with respect to a particular count of the indictment.  After directing the jury about the presumption of innocence and the onus upon the prosecution to establish that the defendant was guilty of the particular offence the jury was considering, the trial judge directed the jury that in order to convict the jury had to be satisfied beyond reasonable doubt of every element or ingredient that goes to make up the offence or the allegation that you are considering.  The trial judge explained that, in the second part of the summing up on the following day, he would explain what the various elements are as they relate to each of the nine charges.”^[29]
48. [48]
    After directing the jury that each of counts 1 to 6 depended entirely upon the complainant’s evidence, the trial judge directed the jury as follows:

“…  you would need to be satisfied beyond reasonable doubt that [the complainant’s] evidence about the events in counts 1 to 6 was both truthful and accurate… [a]nd you can, I am sure, [see] the logic in that.  If what she said to you was not true or if it was inaccurate, if it was unreliable, then you would not be able to be satisfied that there was an assault or a choking or any of the other particular allegations.  So in respect of counts 1 to 6 as well as the elements you need also to be satisfied that [the complainant’s] evidence about those events is both truthful and accurate.”^[30]

49. [49]
    Up to this point, the summing up conveyed that, when the jury came to consider whether the evidence in respect of any one of counts 1 to 6 satisfied the jury beyond reasonable doubt of the particular count, the jury needed to consider both whether the content of that evidence was capable of establishing the elements of the particular count and whether the complainant’s evidence was truthful and accurate.
50. [50]
    On the fourth day of the trial, the trial judge gave the second part of the summing up, dealing with “matters the Prosecution need to prove beyond reasonable doubt before you could find the defendant guilty of any of the allegations … [and] some other directions of law and… briefly [touching] upon the evidence.”^[31]  In that context, the trial judge explained “as I have said a number of times now, that it is of course on all of the evidence that you decide the case”.^[32]  After explaining that he would go through the elements of each particular charge and direct the jury about what must be proved for each, and after summarising the relevant evidence of the defendant, the trial judge told the jury:

“You might think then that the real issue in the trial is whether you are satisfied beyond reasonable doubt that the events occurred as the Prosecution alleged they did in accordance with the particulars that you were given at the very start of the trial.

… But in relation to counts 1 to 6 which depend solely on [the complainant’s] evidence the critical issue for you is whether she is telling the truth and accurately recalls the events about which she testified.  Your assessment of her credibility will be critical.  If, when you are considering her evidence in relation to a particular charge or allegation in counts 1 to 6, you are not satisfied that her evidence about it is true and accurate you could not convict the defendant to that charge.  So for this reason I direct you that you could not find the defendant guilty of any of the allegations in counts 1 to 6 unless you are satisfied beyond reasonable doubt that [the complainant’s] evidence about that allegation is truthful and accurate.  Of course, there are nine separate charges.  You must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether you are satisfied beyond reasonable doubt the Prosecution has proved its essential elements.  You will return separate verdicts for each of the nine allegations … It is not a matter of guilty of everything or not guilty of everything.  The evidence in relation to each of the separate allegations is different so your verdicts need not be the same in respect of each of the nine allegations.”^[33]

51. [51]
    Those conventional directions were not apt to create a risk that, contrary to the trial judge’s many previous directions, when considering whether any one count had been proved beyond reasonable doubt, the jury might assess the complainant’s credibility by reference only to the evidence she gave only in relation to that count.
52. [52]
    The trial judge then discussed the Crown case on count 1.  After referring to evidence about that count and what was to be proved in relation to it, the trial judge reminded the jury that the jury were required to assess “all of the evidence”^[34] to ask whether the jury was satisfied beyond reasonable doubt that what the complainant said occurred was both truthful and accurate.  The trial judge gave similar directions in relation to the other counts which depended upon the evidence of the complainant.
53. [53]
    Having regard to the particular circumstances of this case, most importantly, the effect of the summing up as a whole, there was no apparent risk of injustice to the appellant such as made it necessary for the trial judge to give any form of  “Markuleski direction”.  The trial judge did not err in determining that a “Markuleski direction” was not required.  The absence of such a direction did not occasion any miscarriage of justice.
54. [54]
    I would dismiss the appeal.