This case considers two grounds of appeal from conviction. First, that the jury came to “inconsistent verdicts” and second that the trial judge failed to give a direction in accordance with R v Markuleski. As to the first ground, the argument was that both counts relied upon acceptance of the complainant’s credit and any doubt as to her evidence on one would affect the other. The Court disagreed, finding that the complainant had not given evidence of comparable quality in relation to each count. As to the second ground, the trial judge had given a Markuleski direction to the jury in relation to doubts regarding the complainant’s evidence on the second count in assessing the third count, but had not directed them as to the converse. The Court did not find that a miscarriage of justice had arisen in this case, given the difference in quality of the evidence on each count, and the forensic explanation for the appellant’s failure to seek a redirection at the trial.
Gotterson JA and Boddice and Dalton JJ
21 April 2017
The appellant was charged on three counts of offending. . Count 1 alleged that he entered the dwelling of the complainant with intent to commit an indictable offence. Count 2 alleged that he robbed the complainant using personal violence and was armed with a knife. Count 3 alleged that the appellant raped the complainant. .
The appellant pleaded guilty to Count 1 and to robbery with personal violence. . However, he pleaded not guilty to robbery with a dangerous weapon and not guilty to rape. . At trial, he was found guilty on Count 2 and not guilty on Count 3. .
The appellant appealed against his convictions on two grounds. The first ground was that the verdict on Count 2 was inconsistent with the acquittal by the jury on Count 3. . The second ground was that a miscarriage of justice occurred due to the failure of the trial judge to give a direction in accordance with R v Markuleski  NSWCCA 290. .
As for the first ground, the appellant submitted that there was no rational way by which the acquittal on Count 3 could be reconciled with the conviction on Count 2. . The appellant submitted that both counts “relied upon an acceptance of the complainant as a credible and reliable witness” and that if the jury had a doubt about the complainant’s evidence that penile-vaginal rape occurred, “then it should also have had a doubt about her evidence that he was armed with a knife”. .
Gotterson JA (with whom Boddice and Dalton JJ agreed) outlined the relevant principles to be applied where an “inconsistent verdicts” ground of appeal is advanced. –. His Honour referred to MacKenzie v The Queen (1996) 190 CLR 348, where the Court “spoke of an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty, as the touchstone for intervention”. .
Central to the appellant’s case were “the dual propositions that the complainant’s own evidence as to the presence of the knife and as to the penile-vaginal penetration was of equal quality”. . Gotterson JA was ultimately not satisfied that the complainant’s evidence was of comparable quality in respect of each count. In particular, her evidence in respect of the penile-vaginal penetration had various inconsistencies. . His Honour accordingly dismissed this ground of appeal. .
The second ground concerned the failure of the trial judge to give a Markuleski direction; a direction to the effect that any doubt about the complainant’s evidence on one count is to be considered in respect of the other counts. The trial judge had indeed directed the jury that any doubt about the complainant’s claim of a knife should be taken into account in assessing her claim of rape. . No redirection was sought. Accordingly, to succeed the appellant had to establish that the absence of a direction that the appellant said ought to have been given occasioned a miscarriage of justice. . The appellant contended that the trial judge should have stated the converse proposition (ie if the jury had a doubt about the rape, then they must take that into account in assessing the complainant’s overall credibility and whether it raised a reasonable doubt about the claim of a knife). .
In the result, Gotterson JA was not persuaded that this was a case in which a Markuleski direction was required. . Owing to the differences in the quality of the evidence concerning the knife and the sexual acts, “the risk of unfairness at which a Markuleski direction is aimed, did not squarely arise”. . His Honour also considered that a further hurdle for the appellant was that it was in the appellant’s interests not to apply for a redirection and was forensically explicable. .
The appeal was dismissed. .