McCarthy v The King - [2023] NSWCCA 56

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McCarthy v R [2023] NSWCCA 56
Hearing dates: 3 March 2023
Date of orders: 29 March 2023
Decision date: 29 March 2023
Before: Bell CJ [1]
Davies at [2]
N Adams J at [93]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords:
CRIME – Appeals – Appeal against conviction – Unreasonable verdict – multiple counts of sexual offences – where Applicant found guilty on two counts and acquitted on four counts – whether verdicts of guilty are unreasonable due to inconsistency with verdicts of not guilty – single complainant – acquittals able to be explained without recourse to complainant’s credibility – ground rejected – whether on all of the evidence it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt – ground rejected – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)

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

Texts Cited:
Nil

Category: Principal judgment
Parties: Alan John McCarthy (Applicant)
The King (Respondent)
Representation:
Counsel:
P Segal (Applicant)
D Scully (Respondent)
Solicitors:
Tess Williams – Criminal & Traffic Law (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)

File Number(s): 2019/265039
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

8 July 2021

Before:

Taylor SC DCJ

File Number(s):

2019/265039

HEADNOTE

[This headnote is not to be read as part of the judgment]

Alan McCarthy (the applicant) was found guilty of two counts of sexual touching without consent contrary to s 61KC of the Crimes Act 1900 (NSW) following a trial before a jury in the District Court. The applicant was acquitted of four further counts of sexual offending: sexual touching without consent (count 1), sexual intercourse without consent (counts 3 and 4) (contrary to s 61I of the Crimes Act), and attempted sexual intercourse without consent (count 6). The applicant was sentenced to an aggregate sentence of a fixed term of imprisonment for 6 months. The applicant sought leave to appeal against his convictions but not his sentence.

The counts all related to offences alleged to have been committed at a house in Cabramatta, against the complainant, then aged 24. The complainant went to the house to visit her boyfriend, Mr Black. The applicant was one of Mr Black’s housemates. The alleged offending occurred when Mr Black went out to visit a friend.

The two counts on which the applicant was convicted (being counts 2 and 5), involved sexual touching. Count 2 involved the applicant leaning over the applicant while she was sitting down, and touching and rubbing the complainant’s breasts on top of her shirt. The complainant tried to push the applicant’s hand away but he rejected her hand…

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 The King

Details

AGLC: McCarthy v The King [2023] NSWCCA 56
Case: [2023] NSWCCA 56
Decision Date: 29 March 2023

CaseChat Overview and Summary

The case of McCarthy v The King involved the applicant, McCarthy, who was convicted on two counts of sexual offences by a jury, while being acquitted on four other counts. McCarthy appealed against his conviction, arguing that the verdicts of guilty were unreasonable given the inconsistency with the verdicts of not guilty. The appeal was heard by the court, which needed to determine whether the acquittals could be explained without questioning the credibility of the single complainant, and whether the jury could have been satisfied beyond reasonable doubt of McCarthy's guilt on all of the evidence presented.

The court first considered whether the acquittals could be explained without questioning the credibility of the complainant. The court held that the acquittals were consistent with the evidence presented and could be explained without needing to doubt the credibility of the complainant. Therefore, the ground of appeal related to inconsistency was rejected. The court then examined whether it was open to the jury to be satisfied beyond reasonable doubt of McCarthy's guilt on all of the evidence. The court found that the evidence supported the guilty verdicts and that it was open to the jury to reach their conclusion based on the evidence presented.

The court concluded that both grounds of appeal were without merit and dismissed the appeal. The verdicts of the jury were deemed reasonable and the conviction was upheld. The court found that the jury was entitled to accept some parts of the complainant's evidence and reject others, and that this did not render the verdict unreasonable. The applicant's appeal against his conviction was therefore dismissed.

Orders