McCarthy v Regina - [2008] NSWCCA 320

New South Wales
Court of Criminal Appeal

CITATION: McCarthy v Regina [2008] NSWCCA 320

HEARING DATE(S): 16 September 2008

JUDGMENT DATE:
18 December 2008

JUDGMENT OF: Giles JA at 1; Rothman J at 138; Price J at 139

DECISION: Time for appealing be extended to 17 August 2006. Appeal dismissed.

CATCHWORDS: Criminal law - sexual offences - appeal against conviction - unrepresented appellant - numerous complaints - including that legal representation deficient - and that verdicts unreasonable and could not be supported having regard to the evidence - substance of complaints distilled from grounds, submissions and other materials - legal representatives made rational decisions - no miscarriage of justice - open to jury to be satisfied beyond reasonable doubt - audio tapes of complainant's police interview tendered - jury retired with tapes and transcript - contrary to preferred procedure - in the circumstances, no miscarriage of justice.

CASES CITED: 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.

PARTIES: Rodney Raymond McCarthy - Appellant
The Crown - Respondent

FILE NUMBER(S): CCA 2005/4253

COUNSEL: Appellant in person
N F Noman - Crown

SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 04/51/0127

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 23 March 2005 (Sentence)

CCA 2005/4253
DC 04/51/0127

GILES JA
ROTHMAN J
PRICE J
Thursday 18 December 2008

Rodney Raymond McCARTHY v REGINA

Judgment

1 GILES JA: In March 2005 the appellant stood trial before Black DCJ and a jury on an indictment charging seven counts of sexual intercourse with CD, a child then aged 14 years (Crimes Act, 1900, s 66C(3)). The sexual acts were alleged to have taken place on dates or between dates in the overall period 11 August 2003 to 26 September 2003.

2 The jury returned verdicts of guilty on all counts. The appellant was sentenced to concurrent terms of imprisonment for 4 years commencing on 24 October 2005 with non-parole periods of 3 years.

3 The appellant appealed against conviction. He brought and prosecuted the appeal without legal representation.

4 The notice of appeal was filed on 17 August 2006, some seventeen months after the appellant was convicted and sentenced, and an extension of time is required. When invited to explain the delay, the appellant said that he had not been able to get legal representation and was out of his depth, that he wanted to present things to the Court with proof, and that he had done his best; it is not clear, but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McCarthy v Regina

Details

AGLC: McCarthy v Regina [2008] NSWCCA 320
Case: [2008] NSWCCA 320
Decision Date: 18 December 2008

CaseChat Overview and Summary

In the matter of McCarthy versus Regina, the appellant, McCarthy, contested his conviction for sexual offences. The appeal was heard in the High Court of Australia. McCarthy appealed against his conviction, raising numerous complaints about the conduct of the trial and the adequacy of his legal representation. The central issue was whether the appellant's trial was conducted in a manner that resulted in a miscarriage of justice, given the deficiencies in legal representation and the jury's handling of evidence.

The legal issues before the court included whether McCarthy's legal representatives made rational decisions throughout the trial, and whether the jury's use of audio tapes and transcripts during their deliberations constituted a procedural error. The court also considered whether the verdicts were unreasonable and could not be supported by the evidence presented. The substance of McCarthy's complaints was distilled from the grounds of appeal, his submissions, and other relevant materials. The court found that McCarthy's legal representatives made rational decisions and that there was no miscarriage of justice in the trial. The court noted that it was open to the jury to be satisfied beyond reasonable doubt based on the evidence presented.

The High Court concluded that, while the procedure of the jury retiring with audio tapes and transcripts was contrary to the preferred procedure, in the circumstances, it did not amount to a miscarriage of justice. The court held that the jury's use of the evidence in this manner did not undermine the overall fairness of the trial. Consequently, the appeal was dismissed, and McCarthy's convictions were upheld.

Orders