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Court of Criminal Appeal 18 December 2008

McCarthy v Regina

[2008] NSWCCA 320

Sexual offences
CRIMINAL LAW SEXUAL OFFENCES APPEAL AGAINST CONVICTION UNREPRESENTED APPELLANT NUMEROUS COMPLAINTS NO MISCARRIAGE OF JUSTICE

Citation: McCarthy v Regina [2008] NSWCCA 320
Court: NSW Court of Criminal Appeal
Date: 18 December 2008
Judge(s): Giles JA; Rothman J; Price J

Background

The appellant was convicted in the District Court in March 2005 on seven counts of sexual intercourse with a 14-year-old complainant (CD), with the offences alleged to have occurred between August and September 2003. The events arose in the context of a community youth accommodation service in a country town, where the appellant regularly spent time with other residents including his teenage girlfriend. The jury returned guilty verdicts on all seven counts, and the appellant was sentenced to concurrent terms of four years' imprisonment with a three-year non-parole period.

The appellant brought this appeal against conviction without legal representation. He filed his notice of appeal approximately 17 months after conviction, requiring an extension of time. His grounds of appeal were extensive and disorganised, spread across multiple documents totalling hundreds of pages, and included complaints about the credibility of the complainant's evidence, alleged police misconduct, alleged deficiencies in his trial legal representation, and the reasonableness of the verdicts.

  • Whether the appellant's legal representatives at trial had provided deficient representation causing a miscarriage of justice
  • Whether the verdicts were unreasonable or unsupported by the evidence
  • Whether the jury having access during deliberations to audio tapes and transcript of the complainant's police interview (contrary to preferred procedure) caused a miscarriage of justice
  • Whether various other complaints, including alleged police misconduct, witness credibility concerns, evidentiary rulings, and Crown misconduct, established any miscarriage of justice

Decision

The Court granted the extension of time to appeal, acknowledging that the appellant's difficulties in proceeding without legal representation had contributed to the delay, even though the explanation was not otherwise satisfactory. The Crown made no submission against the extension.

On the question of legal representation, the Court examined the conduct of the appellant's trial solicitor following a waiver of legal professional privilege. The Court found that the legal representatives had made rational decisions at trial and that no miscarriage of justice resulted from the conduct of the defence.

On the reasonableness of the verdicts, the Court found it was open to the jury to be satisfied beyond reasonable doubt on the evidence presented. The appellant's numerous challenges to the complainant's credibility, including alleged inconsistencies and an affidavit suggesting the allegations were false, did not establish that the verdicts could not have been reached by a reasonable jury.

Regarding the audio tapes of the complainant's police interview, the Court acknowledged that retiring the jury with both the tapes and a transcript was contrary to preferred procedure. However, the Court considered it unlikely the jury had actually played the tapes given the short deliberation time relative to the tapes' two-hour duration, and noted that the poor sound quality made replay even less probable. The Court also observed that the complainant's responses were flat and unemotional, and that her live cross-examination at trial was far more likely to have formed the jury's lasting impression of her credibility. No miscarriage of justice was established on this ground.

Orders Made

  • Time for appealing extended to 17 August 2006
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that rational decisions made by trial legal representatives, even where an appellant disagrees with them, do not constitute a miscarriage of justice.
  • Where a jury retires with audio tapes and a transcript of a complainant's police interview contrary to preferred procedure, no miscarriage of justice necessarily follows; the court will assess the practical likelihood of prejudice in all the circumstances, including deliberation time and sound quality.
  • No miscarriage of justice arises merely because an appellant raises numerous complaints about witness credibility if those complaints do not undermine the reasonableness of the jury's verdicts.
  • The Court distilled and addressed the substance of an unrepresented appellant's voluminous and disorganised grounds of appeal, demonstrating a willingness to engage with the underlying complaints even where they were not formulated in conventional legal terms.
  • Sufficient evidence existed to support all seven guilty verdicts where the complainant gave oral evidence and was extensively cross-examined, notwithstanding the appellant's assertions of inconsistency and motive to lie.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66C(3)

Cases:
- Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628
- Rudd v The Queen [2006] HCA 9; (2006) 225 ALR 161
- TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
- Wilson v R [2006] NSWCCA 217