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Court of Criminal Appeal 29 March 2023

McCarthy v R

[2023] NSWCCA 56

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT MULTIPLE COUNTS OF SEXUAL OFFENCES SINGLE COMPLAINANT

Citation: McCarthy v R [2023] NSWCCA 56
Court: Court of Criminal Appeal, NSW
Date: 29 March 2023
Judges: Bell CJ, Davies J, N Adams J

Background

The applicant stood trial in the District Court on six counts of sexual offending against a single complainant, a 24-year-old woman who had visited his shared residence in Cabramatta to see her boyfriend, one of the applicant's housemates. The alleged offending took place while the boyfriend was out.

The jury convicted the applicant on two counts of sexual touching without consent (counts 2 and 5), both involving him touching and rubbing the complainant's breasts, first over and then under her clothing. The jury acquitted him on four other counts: a forced kiss (count 1), digital penetration of the vagina (count 3), digital penetration of the anus (count 4), and attempted sexual intercourse (count 6).

The applicant was sentenced to a fixed aggregate term of six months' imprisonment. He sought leave to appeal against his convictions (but not his sentence, which by the time of the appeal hearing had already been fully served).

  • Whether the guilty verdicts on counts 2 and 5 were unreasonable due to their alleged inconsistency with the four acquittals on related counts involving the same complainant.
  • Whether, even accepting the complainant's evidence as credible and reliable, the jury should nonetheless have entertained a reasonable doubt as to the applicant's guilt on counts 2 and 5.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed both grounds.

On the inconsistency argument, the Court confirmed that when assessing whether guilty verdicts are unreasonable due to apparent inconsistency with acquittals, the analytical starting point assumes the complainant's evidence was accepted as credible and reliable. The focus falls on the acquittals, not the convictions. If a logical and reasonable explanation exists for those acquittals that does not require doubting the complainant's credibility, the guilty verdicts are not thereby rendered unreasonable.

The Court identified specific, credibility-neutral reasons for each acquittal. On count 1 (the forced kiss), two early complaint witnesses recalled the complainant saying only that the applicant had "tried" to kiss her, and the applicant offered what the jury may have found a cogent reason for denying tongue insertion. On count 4 (anal penetration), the complainant gave no evidence-in-chief about this act and said in re-examination that she could not remember it. The Court noted that an acquittal in those circumstances was unsurprising, and that because counts 3 and 4 were treated as inextricably linked, a reasonable doubt about count 4 naturally flowed through to count 3. On count 6 (attempted intercourse), the complainant alleged she screamed as the applicant forced her toward a bedroom, yet another housemate gave evidence that he heard no such screaming, and the attempted intercourse was not mentioned in any early complaint.

On counts 2 and 5, the applicant had admitted touching the complainant's breasts but claimed she had consented. The Court held the jury was entitled to reject that claim. The applicant's own evidence, including comments about the complainant's physical appearance and admissions about his interest in her breasts, provided a firm basis for the jury's conclusion that the touching occurred without consent. Davies J stated he had no doubt of the applicant's guilt on those counts, and Bell CJ and N Adams J agreed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • When inconsistency between guilty verdicts and acquittals is raised on appeal, the focal point is the acquittals, not the convictions. If each acquittal can be rationally explained on grounds unrelated to the complainant's credibility, the guilty verdicts may stand.
  • Differences between in-court evidence and early complaint accounts can provide a non-credibility-based reason for an acquittal, even in a single-complainant case.
  • Where two counts are treated as factually inextricably linked at trial, a reasonable doubt about one can logically generate a reasonable doubt about the other without any broader inconsistency arising.
  • The Court of Criminal Appeal confirmed the approach in Pell v The Queen (2020) 268 CLR 123 and TK v R (2009) 74 NSWLR 299: an appellate court must independently assess the whole of the evidence, but must not substitute its own view of credibility for the jury's.
  • An accused's own evidence of sexual interest in a complainant, including descriptions of her physical appearance and admissions made in cross-examination, can provide a firm evidentiary foundation for a jury's rejection of a consent defence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61KC

Cases
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Walker v R [2019] NSWCCA 4