Ganiji v R [2019] NSWCCA 208 (30 August 2019)

Last Updated: 30 August 2019

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	Ganiji v R
Medium Neutral Citation:	[2019] NSWCCA 208
Hearing Date(s):	3 July 2019
Decision Date:	30 August 2019
Before:	Basten JA at [1]; Button J at [54]; Lonergan J at [63]
Decision:	(1) Grant the applicant an extension of time to permit the filing of a notice of appeal including the further ground up to and including 2 July 2019. (2) Pursuant to r 4, Criminal Appeal Rules, refuse leave to rely upon the new ground. (3) Grant the applicant leave to appeal on the ground that the verdict was unreasonable. (4) Dismiss the appeal against the conviction on count 1.
Catchwords:	CRIMINAL LAW – appeal and new trial – conviction appeal – applicant convicted of non-consensual sexual intercourse but acquitted of indecent assault – whether verdict unreasonable or insupportable having regard to evidence – principles applicable to unreasonable verdicts – assessment of factual circumstances – evidence of conduct and initial complaints significantly more substantial for offence resulting in conviction CRIMINAL LAW – appeal and new trial – conviction appeal – direction as to need to consider counts separately – direction as to use of doubts as credibility of complainant on one charge in considering other charge – comment as to prosecution case if satisfied as to complainant’s credibility – no objection taken at trial – whether direction adequate – R v Markuleski considered
Legislation Cited:	Crimes Act 1900 (NSW), s 578A Criminal Appeal Act 1912 (NSW), s 6 Criminal Procedure Act 1986 (NSW), ss 294, 294AA Criminal Appeal Rules (NSW), r 4
Cases Cited:	AH v R [2019] NSWCCA 152 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Hogan (a pseudonym) v R [2019] NSWCCA 125 Jafary v R [2018] NSWCCA 243 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
Category:	Principal judgment
Parties:	Zejadin Ganiji (Appellant) Regina (Respondent)
Representation:	Counsel: Ms S Kluss (Appellant) Ms H Roberts (Respondent) Solicitors: Ross Hill & Associate, Solicitors (Appellant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/211300
Publication Restriction:	Publication of any material which leads or is likely to lead to the identification of the complainant in respect of a prescribed sexual offence is prohibited: Crimes Act 1900 (NSW), s 578A(2).
Decision under appeal:
Court or Tribunal:	District Court
Jurisdiction:	Criminal
Date of Decision:	9 March 2018
Before:	Haesler SC DCJ
File Number(s):	2016/211300

JUDGMENT

1. BASTEN JA: On 29 August 2017 the applicant, Zejadin Ganiji, entered pleas of not guilty in relation to two offences involving assaults on a young woman who, for the purposes of the proceedings, was given a pseudonym;^[1] for present purposes it will suffice to refer to her as the complainant. The counts were as follows:

Count 1: On 7 February 2016 at Bulli in the State of NSW, [the applicant] did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing that she was not consenting.

Count 2: On 7 February 2016 at Bulli in the State of NSW, [the applicant] assaulted [the complainant] and at the time of the assault committed an act of indecency upon [the complainant].

2. On 5 September 2017 the jury returned a verdict of guilty to count 1 and a verdict of not guilty with respect to count 2. The applicant was sentenced to 5 years imprisonment with a non-parole period of 3 years, commencing on 15 May 2017.
3. On 6 February 2019, the offender (the applicant) filed an application for an extension of time within which to seek to leave appeal and a notice of appeal. The sole ground identified in the notice of appeal was that the verdict was unreasonable, or could not be supported having regard to the evidence, and to the finding that the applicant was found to be not guilty in relation to count 2.
4. At the hearing of the application, an additional ground of appeal was sought to be raised in the following terms:

“The trial miscarried because the learned judge failed to properly direct the jury that if it entertained a reasonable doubt as to the complainant’s evidence on one count, it ought to take this into account in assessing her credibility in relation to the other count, and erroneously minimised the Markuleski direction.”^[2]

5. Counsel for the Director did not object to the addition of the further ground of appeal and it is appropriate that the extension of time required for filing a notice of appeal be extended to the date of the filing of the additional ground, namely 2 July 2019.
6. Counsel for the applicant acknowledged that the act of sexual intercourse, by way of fellatio, took place. The issue, she submitted, was whether it was consensual or not. Because the jury could not have rejected count 2 if it had found the complainant to be a credible witness, there was either inconsistency in convicting on count 1 or the jury had not been properly directed as to the need to have regard to its conclusions with respect to her credibility when assessing count 2 in considering count 1. Both the complainant and the accused gave evidence at trial.
7. As counsel for the Director correctly submitted, it is rarely possible to isolate an issue of consent as having been determined purely by an assessment of the credibility of the complainant, without regard to the surrounding circumstances as revealed in the evidence at trial.
8. When viewed in retrospect, the events of a single evening may appear to be structured around two particular allegations, as formulated in the counts on an indictment. That may well not be how they were perceived by either party to the events at the time they occurred. Frequently, a complainant will have spoken of the events in different terms and different degrees of detail and emphasis over a period of time. As will be explained below, that happened in the present case. No doubt in assessing the credibility of aspects of her evidence, a jury will have regard to the consistency of her accounts and their conformity with known and uncontested circumstances. Thus, and again merely by way of example, the jury may be convinced that a particular serious assault took place, as described by the complainant, but have doubts about other aspects of her account, particularly if they only surfaced in later statements as further detail was elicited by persons taking her statements.
9. Nor is “credibility” necessarily a single discrete finding made with respect to a witness, with equal levels of conviction or uncertainty in relation to all aspects of her evidence. The jury is not directed to ask themselves whether they believe her or not; it is asked to determine whether they accept her statements in evidence as to the elements of each offence to be true beyond reasonable doubt.
10. Accordingly, to assess the single issue sought to be raised by the applicant, it is necessary to have regard broadly to the case presented at trial, as counsel for the Director submitted.
11. With respect to the additional ground, as counsel for the applicant acknowledged, there was a live issue with respect to the application of r 4 of the Criminal Appeal Rules (NSW). That is because the judge gave an explicit direction to the jury in relation to the general issue of entertaining doubts as to parts of an account, to which regard may be had in assessing truthfulness or reliability generally. No objection was taken to the terms of that direction; no further direction was sought and, in particular, no direction was sought in the terms now said to have been necessary. Accordingly, the applicant requires leave to raise the additional ground. That issue will be addressed below.

First issue on appeal: “inconsistent” verdicts

12. Putting to one side the adequacy of the direction to the jury, the argument based on inconsistent verdicts depended on satisfaction that the guilty verdict was “unreasonable, or cannot be supported, having regard to the evidence” (the first limb), or that there was otherwise “a miscarriage of justice” (the third limb), within the language of s 6(1) of the Criminal Appeal Act 1912 (NSW). Conventionally, it seems to have been assumed that such an argument falls within the first limb of s 6(1), rather than the third limb.
13. The correct approach depends on discarding the term “inconsistent” with respect to the verdicts, as it assumes unreasonableness, or some unspecified error, on the part of the jury. Absent further analysis, a conviction on one or more counts on an indictment, accompanied by acquittal on one or more other counts, does not necessarily demonstrate “inconsistency” or any other error on the part of the jury. The critical circumstance said to raise possible error is that both counts depended upon the jury accepting the evidence of the complainant. In such cases, it is necessary to have careful regard to the surrounding circumstances in order to determine whether there is a rational basis upon which it was open to the jury to accept the complainant with respect to one aspect of her evidence, but not with respect to other aspects.
14. There have been a series of cases in which both the High Court and this Court struggled with the appropriate analysis of such circumstances. Those difficulties were largely resolved following the judgment of the High Court in MFA v The Queen.^[3] Why that was so was explained by Simpson J (with the agreement of Latham J) in R v TK.^[4] In the course of that explanation, Simpson J stated:

“[128] ... The foundation for the test stated in MFA is not confined to ‘the whole of the evidence’ but incorporates ‘all of the facts and circumstances of the particular case’. That is wide enough to include matters outside the evidence, such as the impact on the reasonableness of the verdict of guilty of what may be discerned to be the explanations for the acquittals. In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least not on that basis.”

15. That approach has been followed in subsequent cases, including Jafary v R,^[5] AH v R,^[6] and Hogan (a pseudonym) v R.^[7]
16. It may be doubted whether it is helpful to state such a proposition as a general principle; the appeal involves a challenge to the conviction, not the acquittal. In many cases it will be simplistic to focus on one part of the evidence, in a search for an “explanation” of the acquittal, rather than the whole of the circumstances. So much appears from the observations of McClellan CJ at CL in R v TK, for example in the following passages:^[8]

“[6] It seems to me that there are problems in an appellate court concluding that because a jury does not convict on one or more counts any conclusion as to the general creditworthiness of a complainant can be drawn. As the judgments in R v Markuleski point out there may be many reasons why a jury does not convict on a particular count. The High Court has been careful to emphasise that an appellate court must allow for the advantage of the jury when considering questions arising under s 6(1) of the Criminal Appeal Act. The most significant advantage is assumed to be that of observing the witnesses as they give their evidence. It is a very significant step to conclude that the reason for the jury's decision to acquit on any count is that they were so unable to accept the complainant's evidence on that count that her evidence was not capable of founding a conviction on another count. The consequence of such a decision by an appellate court is that the jury has not been faithful to the fundamental directions from the trial judge, namely that the Crown must prove its case beyond reasonable doubt on each count. ...
[7] It is important to remember when considering the problem of inconsistent verdicts that a jury does not have to be satisfied beyond reasonable doubt that all of a complainant's evidence is an accurate or even truthful account of all of the facts relevant to all of the counts. It may be, and in fact may often be the case, that a complainant's recollection of a sequence of events over time will contain inaccuracies, internal contradictions or other imperfections which leave a jury unsure about the Crown case on particular counts. As Wood CJ at CL pointed out in R v Markuleski, a complainant, concerned that she may not be believed, may exaggerate or embellish her account of particular events. It may be that, having been reminded of the problems of uncorroborated evidence by the trial judge, before a jury convicts on any count where the primary evidence is of the complainant, it will seek out matters in the surrounding evidence which are consistent with the complainant's account. It may also be that where the jury finds amongst the surrounding evidence that there are some inconsistencies with the complainant's evidence it will be unable to return a guilty verdict on a particular count.”

17. Again it may not always be appropriate for the appeal court to consider the presence or absence of corroborating evidence; there has been, since January 2007, an express prohibition against warning the jury of the danger of convicting on the uncorroborated evidence of a complainant in a prescribed sexual offence charge (a term which includes the charges laid in the present case).^[9] There are also constraints on the nature of a warning which can be given as to the absence of, or delay in making, complaint of the commission of a particular offence.^[10] That is not to say, however, that the jury in this case may not have placed significant weight upon the immediacy of the complaint as to the charge resulting in conviction, and the lack of clarity as to precisely when the offence of indecent assault was first described to a third party.
18. Furthermore, as aptly noted by Simpson AJA in AH v R:

“[62] In fact, in my opinion, differential verdicts, far from providing an indication that a jury has fallen down in its task, may very often provide the basis for confidence that the jury has done precisely what it has been instructed to do: consider each count separately and reach a verdict on that count, on the evidence relevant to that count.
[63] In this respect, it is apposite to recall the trial judge’s direction.... That direction was a strong indication to the jury that any doubt that it had about the complainant’s credibility should be ‘factored in’ to their consideration of her credibility on other counts. Even in the face of that direction, the jury was satisfied of the complainant’s reliability in relation to Count 1.”

19. The circumstances of the offending may now be assessed in the light of these principles.

Factual circumstances of offending

20. The evidence can be addressed in four stages, namely (i) events prior to the complainant entering the applicant’s taxi; (ii) events whilst the complainant and the applicant were together; (iii) the conduct of the complainant immediately after leaving the taxi, and (iv) statements made in the course of the subsequent investigation.

Events prior to the complainant entering the taxi

21. On the afternoon of 6 February the complainant attended a barbeque with a few friends in Corrimal. She gave evidence that in the course of the evening she drank a bottle of champagne, three cans of double strength bourbons and a beer. She was taking antidepressant medication at the time and said that her doctor had recommended “not to drink too much on it.”^[11]
22. She gave evidence that she intended to catch a 2.15am bus to her home in Thirroul, which required a 25 minute walk to the bus stop. She inadvertently left her mobile phone at her friend’s place. Unbeknownst to her at that time, her watch was slow and she had in fact missed the bus. Whilst waiting at the bus stop, a taxi passed, did a U-turn and pulled alongside her. The driver called out to her something she could not hear; when she approached he said, “Just hop in”. The complainant responded, “‘No, because you’re going to make me miss the bus.’ I said, ‘I don’t have money for a taxi. I’ve got my Opal card. I’m waiting for the bus. It should be here in a minute.’”^[12] The conversation proceeded:

“He said, ‘Just hop in the car. Where are you going?’ and I said, ‘I'm going to Thirroul. There's a bus coming. I don't need a taxi’, and then he said, ‘I've got a fare out there anyway. I'm going that way. Just hop in. I'll take you home.’ Then I said, ‘No, really, I don't want to.’ I said, ‘I haven't got any money for a taxi. I just want to wait and catch the bus’, and he said, ‘Just hop in’, and I was sort of already sitting sort of half on the edge talking to him and telling him about how the bus would be here soon. After that he sort of, like, pulled my bag and hand into the car and then reached over and shut the door on me. ...
...
After that he asked me where I was going again and I said, ‘I'm going to Thirroul’, and I said, ‘Maybe I shouldn't, you know, do this because I don't want you to give me a free ride or anything and I can pay with EFTPOS’, and because he was saying things to me, like, ‘We'll sort out another way; okay? ... and I said, ‘Okay. Well, I'll pay with EFTPOS then.”

Events while applicant and complainant together

23. Whilst in the car, she described the driver, whilst still driving, pull out a piece of paper from the glove box and wrap it around the rear vision mirror.^[13] She described going through her bag which was on the floor, looking for her phone. She said:^[14]

“So I was still looking for my phone because I thought something is going wrong, I need to have it in my hand. I still couldn't find it, and then when I was down there, he pulled me towards him and he started to undo his zipper and he put my ‑ he pulled my hand onto his penis and said, ‘Feel that’, and I said, ‘I don't want. I don't know what you're asking me to do. I'm not that kind of person. I think you've made a mistake’, and yeah, so then he put this ‑ the left arm over me and pulled my head down towards his penis and told me to suck it.”

24. She said that she reluctantly complied, as he was still driving. Further, “he still had his arm over me on that - the left arm, and I was wearing stockings and a short skirt and he lifted up the back of my skirt and was rubbing my crotch area through my stockings, roughly ‑ like, being really rough, like, massaging around my bottom and vagina and anus area and he was rubbing it really hard ...”.^[15] She was asked how long he kept his penis in her mouth and said “[a] minute or less. Maybe less.”^[16]
25. She described the driver turning off the road at Sandon Point, at which stage she said “‘That’s Thirroul over there. I can walk from here’, and he unlocked the door and I hopped out and got my bag and started walking across the grass towards the bike path and was planning on heading down towards that track to either walk home or hide there in the dark until the taxi driver left ...”.^[17]
26. She described the driver as following her for about “50 steps or a hundred” at which point she turned around and said, “‘Could you please leave me alone. I’m going home now. I don’t want you to follow me.’ He turned me around and grabbed me by both the arms and he sort of squeezed me so, like, I dropped my bag. He was squeezing my arms down by my side. At that time I got even more scared because I just ‑ I couldn't believe that I was in this position, that he was following me and ‑ I got really shaken, upset. I got a bit, like, sort of frozen.” She said that there was no one around and she did not know what to do; she continued:^[18]

“I felt that ‑ because I had lost my phone and because my friends thought I was catching a bus and my children ‑ my children weren't at home that night because I was out, ... nobody on earth knew where I was, nobody knew what was happening to me, nobody knew anything. There was no‑one around, no‑one to call to....”

27. The complainant then described the driver holding her “tightly”, pulling down her T-shirt “[t]o just underneath my breasts, then it fell all the way down, and then he pulled the top sort of straps of my bra down like that and started squeezing my nipples.”^[19]
28. The account continued:^[20]

“The man said to me ‘I'm going to fuck you up the arse and you're going to like it’, and I said, ‘No I don't want you to do that, please’. I said, ‘Just let me go’, and he said, ‘Have you got any condoms?’ and I said, ‘No’, and then he sort of shook me a bit and said, ‘Don't you have any condoms?’ and I said, ‘No’, and then he let go of me and I dropped down to the grass and tried to put my shirt back on and find my bag.”

29. She then described walking behind the taxi, trying to read the licence plate, at which point he took hold of her, placed her back in the taxi and said “I’ll take you home.” He then dropped her off in the main street of Thirroul. She waited until the cab left before making her way home.

Conduct of complainant immediately after leaving taxi

30. The complainant returned to the unit where her boyfriend was asleep in bed. She said, “He didn’t live there. I wasn’t sure if he was going to be there or not, but he was asleep.”^[21] She then gave an account of their conversation:^[22]

“I said ‑ Nathan was in bed. I turned on the light. I said to Nathan ‘Do you have a phone?’ He said, ‘No’. I said, ‘I've just been sexually assaulted by a taxi driver and I really need a phone’. I don't know why he said this, but he said, ‘You're a slut. You deserved it.’”

31. She then left the unit, went next door, borrowed a telephone and rang 000. She then went outside, where she was met by ambulance officers and the police.
32. The person from the neighbouring unit who had been woken and asked for a mobile phone agreed that the complainant appeared distressed and that she had said that “she’d just been raped by a taxi driver or a taxi driver just tried to rape her”.^[23] He was not cross-examined.
33. The neighbour’s friend, who was in the unit at the time the complainant knocked on the door and was also woken, recalled her saying “I need to call 000”, and that “she had been raped”. She described the complainant’s tone of voice as “frantic”.^[24] She was not cross-examined.
34. The person at whose party she had been, who had known her for about 20 years, gave evidence that she had returned the next day at about 11 o’clock, “pretty much claiming that she had just come from the hospital, and that she’d just been raped. And, was pretty shaken up and pretty much on the verge of tears, and ... yeah, basically he took her to some park, and made her have oral sex on him”.^[25]
35. He described the complainant as “a mess”, “very upset” and saying that “she had got picked up by a taxi driver and pretty much, yeah. Was forced to have sex with him, oral sex anyway.” He said they did not find the complainant’s phone until a week or so later.^[26]
36. He was cross-examined as to a statement he had made to police in which he had said, “I remember her saying that a cab driver took her to a park near Point Street, in Bulli, and he made her go down on him”. He agreed that he had said that. The effect was largely to confirm her complaint of forced oral sex.

Statements made in course of subsequent investigation

37. The complainant gave evidence that she recovered the mobile phone from her friend’s place and was able to identify her browsing history from the early hours of 7 February when she had used the phone, through a trip planning app, to find the bus timetable she had checked. A copy of the history was tendered.
38. The complainant was cross-examined on the basis of a statement she made to police in which she described the events of the evening. The account of her initial contact with the taxi driver was largely in accord with the evidence she gave in chief, up to the final two sentences which read as follows:^[27]

“He said, ‘I'm going to Thirroul anyway. Don't worry about money'. I sat in the passenger seat and closed the door."

39. She denied that she had closed the door, saying that the driver had closed the door. It was also put to her that she had told a police officer at the hospital that she had got into the taxi because she was “intoxicated and wanted to get home.” She did not recall saying that.^[28]
40. The initial statement was taken on the afternoon of 7 February over the telephone. She was also asked about what she had told police on 5 May 2016. The statement made on that occasion recorded her as saying, “the driver insisted I travel with him saying he was going to Thirroul anyway. I decided to get into the taxi.” It was suggested to her, and she agreed, that there was nothing in the statement about the driver pulling her bag and hand into the car and shutting the door. She was also cross-examined about what she did and did not tell the ambulance officers. She agreed that she did not tell them about the driver touching her nipples or breast.^[29] It was suggested to her that outside the front of her unit, after the police arrived following the 000 call, she said nothing about her nipples or breasts being touched in the park to either ambulance officers or the police.
41. The prosecution called Constable Collier, who had taken a statement in his police notebook when he attended on the 000 call. He had taken notes of a sexual assault, but had not shown them to the complainant at any stage.^[30] The account given in the officer’s notebook was consistent in several respects with the account given by the complainant in more detail in the witness box. However, the officer recorded the complainant as saying that oral sex occurred at Sandon Point, and not in the car driving to Point Street. There was no reference to squeezing her nipples or breasts.
42. The defendant’s evidence was that the complainant had flagged him down, and asked for a ride to Thirroul, saying “I really need to go home but I’ve got no money”. She then got into the rear seat of the taxi, and said, “I’ll give you a blow job”. He stated that she then climbed over the console onto the front passenger seat. She then knelt on the seat and performed fellatio whilst he was driving.
43. He said that he turned into the Sandon Point reserve and they got out of the car onto the grassed area when she again got on her knees, pulled his zipper down and continued to fellate him for five to 10 minutes.^[31]
44. He agreed that the account he had given to police when first interviewed, namely that no oral sex had occurred, was untrue. He denied that he had pulled her top down whilst at the park, and denied the conversation about condoms.

Comparing the evidence as to each offence

45. With respect to the offence of sexual intercourse, the acceptance by the accused that fellatio had occurred limited the issue before the jury as to whether or not it was consensual. There was, in substance, unchallenged evidence that the complainant tried to identify the taxi cab by its number plate before he drove her to Thirroul from Sandon Point; that she immediately took steps to obtain a mobile phone to make a 000 call; that the neighbours, who were independent of either party, confirmed that she took that step and that she appeared distressed or even frantic; and that, having summoned help she waited for the ambulance and police and complied with directions. There were critical aspects of her complaint of sexual intercourse which were consistent with the conduct being non-consensual. In the circumstances, there was ample evidence upon which the jury could convict on that count.
46. By comparison, there was no immediate complaint of what was, undoubtedly, the lesser offence of indecent assault. So far as the jury were aware, she had not made an early complaint of squeezing her nipples. In relation to that count, there was no concession that the conduct took place. Thus, an entirely different issue was raised than the single issue of consent with respect to the offence involving fellatio. The comparison between the relative strength of the case with respect to the more serious charge, and the evidence with respect to the lesser charge, provides an immediate and powerful basis upon which the respective verdicts of the jury were readily comprehensible. The challenge to the conviction on this ground must be rejected.

Second issue on appeal: inadequate direction

47. It is convenient to turn next to the question raised by the new ground as to the adequacy of the so-called Markuleski direction given by the trial judge. In noting the language used, it is important to recall that Spigelman CJ in Markuleski itself stated that any general practice did not apply “where the peculiar facts of the case and the conduct of the trial do not suggest the need for the warning to restore a balance of fairness”.^[32] Spigelman CJ further abjured the need to specify any precise words for such a direction, as that would depend on the circumstances of the case.^[33] The Chief Justice concluded:

“[191] The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt 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.”

48. The trial judge gave clear and concise directions to the jury as to the onus of proof, and the need to give consideration to the evidence of each witness in the light of all the other evidence. The judge continued:

“Giving separate consideration to the individual counts, count 1 and count 2, as you must, because they are separate trials, means that you are entitled to bring in verdicts of guilty on one count, two counts or verdicts of not guilty [on] one count or two counts if there is a reason in the evidence for that outcome.
There are two separate distinct counts. That there are two separate distinct counts is not an invitation to compromise in your discussions, but each count requires individual consideration. You consider each count separately by reference to the evidence that applies to it, and of course, a lot of the evidence is common. If you had a reasonable doubt concerning the truthfulness or reliability of ... the complainant's evidence, in relation to one count, then those doubts would be taken into account when assessing the truthfulness or reliability of her evidence generally. Including in deciding whether or not there is a reasonable doubt of [her] evidence with respect to other counts. In a sense, there is consistency.
If you have got doubts about her evidence in relation to one count, then you may have doubts about her evidence in relation to the other. The Crown would of course say that if you are confident about her reliability on one count, well, it may well work the other way as well. But the onus remains upon the Crown throughout, and, as I said, you can return different verdicts but you are not to compromise.”

49. There was no basis to quarrel with the terms of this direction. The fact that defence counsel neither sought any further direction, nor complained as to any aspect of the direction given, was understandable in the circumstances.
50. Complaint was made on appeal as to the judge’s “personal observation”, as to the prosecution argument, based on consistency. It was not a personal observation: it was a reference to the prosecution case. It may have been that the judge was concerned that in emphasising how the jury should deal with doubts relating to part of the evidence he might be thought to be expressing a view that there were such doubts. In any event, the intention and the effect of the direction were clear and unexceptionable. The submissions for the applicant placed some weight upon the absence of complaint about indecent assault relating to the fondling of the complainant’s breasts; in doing so they emphasised the immediacy and consistency of the complaints with respect to the offence involving sexual intercourse.
51. Separately, counsel submitted that the force of an otherwise unexceptionable direction was undermined by the indication that the logic might work both ways, so that confidence in the complainant’s evidence on one count may be thought to support a degree of confidence in her evidence as to the other count. The logic was sound; the effect of the observation was muted by the immediate reminder that the prosecutor bore the onus throughout and that the jury could bring in different verdicts, but were not to compromise. An attempt to insist on precise and unqualified words for such a direction is not consistent with authority and is wrong in principle. The verdicts, distinguishing between the counts, suggest the jury understood the directions.
52. There is no substance in the new ground of appeal. Objection was not taken at trial for good reason; leave to rely upon the further ground should be refused pursuant to r 4 of the Criminal Appeal Rules.

Conclusions

53. The Court should make the following orders:
    • (1) Grant the applicant an extension of time to permit the filing of a notice of appeal including the further ground up to and including 2 July 2019.
    • (2) Pursuant to r 4, Criminal Appeal Rules, refuse leave to rely upon the new ground.
    • (3) Grant the applicant leave to appeal on the ground that the verdict was unreasonable.
    • (4) Dismiss the appeal against the conviction on count 1.
54. BUTTON J: I have had the considerable benefit of reading the judgment of Basten JA in draft.
55. As for ground one, asserting irrational inconsistency between the verdicts, I respectfully agree with all that his Honour has written, and have nothing to add.
56. As for ground two, asserting an error with regard to the “Markuleski direction” that was given by the trial judge, in my respectful opinion it may raise deep issues about whether such a direction may only refer to one line of reasoning and must not refer (directly or indirectly) to its obverse, and whether a legal direction may be erroneously undermined by the contemporaneous recitation by a trial judge of an obverse submission to the jury by counsel.
57. For two reasons, however, in my opinion this appeal does not present a suitable case for this Court to grapple with those issues.
58. The first reason is that the jury returned a verdict of guilty on count 1 and a verdict of not guilty on count 2. In other words, in the context of only one guilty verdict, it is very difficult to accept that the obverse line of reasoning to which the trial judge referred had any effect on the outcome of the trial.
59. As for the submission of counsel for the applicant (resisting that proposition) that the referral to the obverse line of reasoning may have detracted from the force of the Markuleski direction, thereby possibly erroneously leading to the guilty verdict on count 1, in my opinion the two lines of reasoning were presented to the jury by the trial judge as separate approaches, based on opposing findings about the credibility of the complainant, not as one melded proposition.
60. In other words, I think that the two lines of reasoning were binary and opposite. To restate that: if the precondition for the jury acting upon the Markuleski direction of the jury having “doubts about [the complainant’s] evidence in relation to one count” had been established, the obverse line of reasoning referred to by the trial judge could not arise.
61. Secondly, and more fundamentally, r 4 of the Criminal Appeal Rules applies, and, as Basten JA has written, has a significant role to play. That is not only because the absence of exception to the summing-up on the part of defence counsel suggests that he was quite content with it in the context of the whole trial. It is also because this Court is bereft of the analysis and explanation at first instance that would have been generated if that exception had been taken.
62. It is for the foregoing reasons that I agree with the orders proposed by Basten JA.
63. LONERGAN J: I have had the substantial benefit of reading the judgments of Basten JA and Button J in draft.
64. Having reviewed the evidence, I have concluded that the verdict of the jury on count 1 is not unreasonable nor is it inconsistent with the jury’s verdict on count 2. I agree with the reasons stated by Basten JA as to why ground one of the appeal should be dismissed.
65. For the reasons stated by Basten JA, ground two should also be dismissed. The direction was discussed with counsel before it was given and once given, no redirection was sought.
66. I agree with the orders proposed by Basten JA.

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^[1] Publication of any material which leads or is likely to lead to the identification of the complainant in respect of a prescribed sexual offence is prohibited: Crimes Act 1900 (NSW), s 578A(2).
^[2] Referring to R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290.
^[3] (2002) 213 CLR 606; [2002] HCA 53.
^[4] (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [119]- [138].
^[5] [2018] NSWCCA 243 at [37] (Leeming JA, Walton and Wilson JJ).
^[6] [2019] NSWCCA 152.
^[7] [2019] NSWCCA 125 at [50] (Simpson AJA, Johnson and N Adams JJ agreeing).
^[8] Although it was said in Jafary that McClellan CJ at CL agreed with Simpson J in R v TK, a better view may be that he expressed his own reasons as to this aspect of the analysis: see R v TK at [1].
^[9] Criminal Procedure Act 1986 (NSW), s 294AA.
^[10] Criminal Procedure Act, s 294 (which commenced on 1 January 2000).
^[11] Tcpt, 29/08/17, p 12(25).
^[12] Tcpt, p 15(15).
^[13] Tcpt, p 16(25).
^[14] Tcpt, p 17(5).
^[15] Tcpt, p 18(15).
^[16] Tcpt, p 18(42).
^[17] Tcpt, p 20(20).
^[18] Tcpt, p 21(30).
^[19] Tcpt, pp 21-22.
^[20] Tcpt, p 22(20).
^[21] Tcpt, p 23(45).
^[22] Tcpt, p 24(10).
^[23] Tcpt, 30/08/17, p 67(31).
^[24] Tcpt, p 69.
^[25] Tcpt, p 75(30).
^[26] Tcpt, p 75.
^[27] Tcpt, 29/08/17, p 32(45).
^[28] Tcpt, p 34(15).
^[29] Tcpt, p 39(42).
^[30] Tcpt, p 79(10)-(15).
^[31] Tcpt, 31/08/17, p 170.
^[32] Markuleski at [187] quoting Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at 451; [1996] HCA 22.
^[33] Markuleski at [188] and [191].