THE COURT UNDER THE MICROSCOPE; BM V R [2017] NSWCCA 133

THE COURT UNDER THE MICROSCOPE

BM V R [2017] NSWCCA 133 – Before; Basten JA, Adamson and Campbell JJ.

On 15 Feb 2016 the DPP presented to the court an indictment against the charged on four counts.

1.      Indecent assault

2.      Multiple counts of indecency

3.      Sexual intercourse (with an underaged person)

The victim was aged between 6 and 9 years, and was referred to throughout the case as MY. Often in cases of sexual assault against minors, or where the information may negatively impact one or more of the persons involved names are changed to conceal their identity. This is done for public policy purposes, and serves no other purpose.

The accused was the partner of the victim’s aunt. In this case his name was also concealed because if the accused was identified it may reveal the identity of the victim. In other circumstances only the victim’s name would be hidden.

On the charges of indecency there was no dispute that the conduct occurred and that it resulted in the relevant offence.  These acts occurred just between the accused and the victim often in a secluded area. The key issue is that while there was little contestation there was little corroborating evidence. Part from some ‘brief and uncontroversial evidence’ delivered by a police officer at trial there were only three people in total who gave evidence at the trial.

That was the complainant, applicant and the aunt. The aunt reported seeing her niece appear ‘mortified’ at one stage but denied awareness that anything sinister was occurring. At the original trial the evidence was over within two weeks and the jury convicted on all four counts.

The appeal was filed on three grounds on the 25^th of January 2017. The first two grounds of appeal were based on the condition that the jury was misdirected during the original judge’s summary. However these grounds require that the defence has leave to appeal. This is because under rule four of the Criminal Appeal Rules (NSW) unless the counsel takes issue as the directions are giving they must be done to appeal on these grounds. The leave was not given on the condition that the complainant could not show that the verdicts were unreasonable and could not be supported with regard to the evidence. They also were not based on a question of law alone, which prevented the complainant from appealing the decision on those grounds alone.  

The misdirection was based on a misstatement by the judge that was easily clarified by reference to prior statements and a hand out that they were provided with prior to the misstatement. It was determined by the judges of this case that the reading of the whole of the summing up would leave the jury in no doubt as to the burden of proof borne by the prosecution.

The second alleged misdirection was given by the judge in regards to the evidence from the aunt. He said;

“Members of the jury, as you heard in the submissions from counsel for the parties, the complainant has given evidence of what she said the accused did to her at certain times. The accused has testified that he did not do so. The only evidence that he did those things comes from the complainant. Where the prosecution has to prove a case beyond reasonable doubt and the only evidence on that topic comes from the complainant, then obviously you will examine her evidence very carefully and decide whether you can be satisfied of its reliability beyond reasonable doubt on the essential elements of one or all of the charges as you consider them separately. So if the proof has to be beyond reasonable doubt, and there is only [the complainant’s] evidence about a particular event occurring, as a matter of logic you have to be satisfied beyond reasonable doubt that her evidence is reliable when she is giving testimony about the essential elements of the charges.”

This evidence is a fairly standard warning, there are many similar situations like this that also arise in a court. Therefore, the complainant alleges that it should have either been repeated or had it pointed out that it should be directed specifically to count for as that was the only place where the aunt’s evidence applied.

This complaint became further irrelevant in paragraph 25 of the case where the judges indicate that the judge had also give a ‘Markuleski direction.’ This direction reminds the jury that that charges are to be considered separately. It also reminds the jury the conclusion of unreliability of one witness does not discount the possibility of a guilty conclusion on other counts.

These directions are often applied in sexual assault cases when the evidence is highly subjective, uncorroborated or emotional. These cases are emotionally charged and can leave many witnesses feeling uncomfortable and unsure. There are carefully designed judicial processes and direction that ensure no matter how emotionally uncomfortable the evidence is the jury will be able to objectively and fairly apply the evidence to determine guilt beyond a reasonable doubt.