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 and continued. The applicant stopped the complainant from getting off from the chair, and put his hand under her shirt, touching her breasts underneath her clothing. The touching of the complainant’s breasts underneath her clothing constituted count 5 of the offending.

The applicant was acquitted of four counts of sexual offending (being counts 1, 3, 4 and 6). Count 1 was another instance of sexual touching without consent. The complainant alleged that the applicant had grabbed her by the shoulders, held her on the back of the head, and kissed her lips, forcing his tongue into her mouth.

The complainant also alleged that the applicant had digitally penetrated her vagina and around that same time, her anus. The jury returned verdicts of not guilty to those charges, being counts 3 and 4 of the alleged offending.

Count 6 involved an alleged attempt of sexual assault without consent, the jury returned a verdict of not guilty to this count of offending.

The grounds of appeal pressed at the hearing were:

1. The verdicts of guilty in relation to counts 2 and 5 are unreasonable in that they are inconsistent with verdicts of not guilty in relation to counts 1, 3, 4 and 6.

2. The verdicts of guilty are unreasonable or cannot be supported having regard to the evidence, in that even assuming that the evidence of the complainant was assessed by the jury to have been credible and reliable, the jury ought nonetheless to have entertained a reasonable doubt as to the proof of guilt of the applicant.

The Court held, granting leave to appeal but dismissing the appeal:

1. It was open to the jury to return verdicts of guilty in relation to counts 2 and 5. The jury’s decision was logical and reasonable: [1] (Bell CJ); [38], [91] (Davies J); [93] (N Adams J).

2. The starting point, in considering whether a verdict is unreasonable or cannot be supported having regard to the evidence, proceeds upon the assumption that the complainant’s evidence was assessed by the jury to be credible and reliable. Where inconsistency is raised, the focal point is not the convictions but the acquittals. If, as a matter of logic and reasonableness, an explanation can be found for those acquittals without resort to doubts about the complainant’s credibility, the guilty verdicts may not be unreasonable: [1] (Bell CJ); [37], [71]-[72],[86] (Davies J); [93] (N Adams J).

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited.

1. There were several factors, unrelated to credibility, which might have caused the jury to have reasonable doubt about counts 1, 3, 4 and 6. In relation to count 1, the factual difference between the evidence of the complainant and the applicant was that the complainant suggested that the applicant inserted his tongue into her mouth, but the applicant said he did not do that, and provided what the jury may well have considered a cogent reason for that. Further, two witnesses to whom early complaint was made said that the complainant alleged only that the applicant tried to kiss her: [1] (Bell CJ); [42]-[48] (Davies J); [93] (N Adams J).

2. In relation to count 4, the complainant did not, in her evidence in chief, give any evidence about the applicant inserting his finger into her anus. In re-examination the complainant said she did not remember the event. it is scarcely surprising that the jury could not be satisfied beyond reasonable doubt in those circumstances: [1] (Bell CJ); [50]-[55] (Davies J); [93] (N Adams J). Further, where count 4 was treated as inextricably linked with count 3, and the jury had a reasonable doubt about the penetration entailed in count 4, it is entirely understandable that the jury would have had a reasonable doubt about whether the applicant digitally penetrated the complainant’s vagina: [1] (Bell CJ); [59]-[62] (Davies J); [93] (N Adams J).

3. The matter of significance in relation to count 6 was the fact that in her evidence the complainant said she screamed as she asserted the applicant was forcing her into the bedroom to attempt to have sexual intercourse with the complainant. The other housemate gave evidence that at no time did he hear the complainant yelling or calling out. Further, early complaint evidence made no mention of the attempted sexual intercourse: [1] (Bell CJ); [63]-[68] (Davies J); [93] (N Adams J).

4. In relation to counts 2 and 5, the applicant agreed that he touched the complainant’s breasts, but said he did so with her consent. Other evidence by the applicant suggested that he had a sexual interest in the complainant. The verdicts on those counts were not unreasonable: [1] (Bell CJ); [86]-[90] (Davies  J); [93] (N Adams J).

Judgment

1. BELL CJ:   I agree with the reasons of Davies J and the orders his Honour proposes. On my own review of all of the evidence, the jury’s decision to convict the applicant on Counts 2 and 5 was not unreasonable. My reasons for reaching that conclusion accord with those articulated by Davies J.

2. DAVIES J:   The applicant, Alan McCarthy, was arraigned on 14 April 2021 in the District Court before Judge Taylor SC on the following charges:

Counts 1, 2 and 5.On or about 25 August 2019 he did intentionally touch [JR] sexually without her consent contrary to s 61KC of the Crimes Act 1900 (NSW). The maximum penalty for this offence is five years’ imprisonment.

Counts 3 and 4: On or about 25 August 2019 he did have sexual intercourse with [JR] without her consent contrary to s 61I of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 14 years’ imprisonment and there is a standard non-parole period of seven years’ imprisonment.

Count 6:On or about 25 August 2019 he did attempt to have sexual intercourse with [JR] without her consent contrary to s 61I of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 14 years’ imprisonment.

3. The applicant pleaded not guilty to all offences. A trial then took place before Judge Taylor SC and a jury of 12.

4. On 4 May 2021 the jury returned verdicts of guilty to counts 2 and 5 and verdicts of not guilty to counts 1, 3, 4 and 6. On 8 July 2021, Judge Taylor SC sentenced the applicant to an aggregate sentence of a fixed term of imprisonment of 6 months. The indicative sentences were 2 months’ imprisonment and 5 months’ imprisonment for counts 2 and 5 respectively.

5. The applicant filed a notice of appeal containing two grounds as follows:

1.   The verdicts of guilty in relation to counts 2 and 5 are unreasonable in that they are inconsistent with verdicts of not guilty in relation to counts 1, 3, 4 and 6.

2.   The penalty is too severe in that sentences should have been concurrent.

6. By a Notice of Abandonment filed 13 February 2023, the applicant abandoned ground 2, presumably because by that time the whole of the sentence had been served.

7. The appeal proceeded on ground 1 only, but during the hearing of the appeal the applicant sought leave to add a further ground as follows:

2.   The verdicts of guilty are unreasonable or cannot be supported having regard to the evidence, in that even assuming that the evidence of the complainant was assessed by the jury to have been credible and reliable, the jury ought nonetheless to have entertained a reasonable doubt as to the proof of guilt of the applicant.

The offending

8. In August 2019, the complainant, then aged 24, was in a relationship with Kelemen Black. Mr Black lived at Cabramatta in a house with the applicant and two other men, Malcolm Ellington and Steven Brazel.

9. The complainant’s account of what first occurred on 25 August 2019 was this. At about 12:30pm, the complainant was in the kitchen of the house making pancakes. Mr Black had earlier gone out. The applicant came into the kitchen and showed the complainant some songs on his laptop. He then went to the lounge room where he was watching television.

Count 1

10. Sometime later, the applicant came back into the kitchen. He stood in front of the complainant and said words to the effect, “Let me kiss you”. The complainant said “No”. The applicant then grabbed her by the shoulders, held her on the back of the head, and kissed her on the lips, allegedly forcing his tongue into her mouth.

11. The complainant pushed the applicant away before going to the back yard and sitting on the laundry steps outside. The applicant came out about ten minutes later and said that he was sorry for what he did. The complainant replied, “Yeah, okay, that’s all right, but don’t ever do anything like that to me again”. The applicant said to the complainant that if she wanted to tell her boyfriend that he, the applicant, had kissed her, he didn’t care. The complainant said that her boyfriend had enough to worry about, and she did not want any drama.

12. Mr Brazel gave evidence that he returned home sometime that day, and whilst walking to his bedroom he heard the applicant’s voice say something like, “You can tell him if you want, I don’t care”. He said that he saw the complainant sitting on the back steps near the laundry. He said that she looked upset. He said that the applicant went outside and was bending over talking to the complainant. He saw the applicant pat the complainant on the head and rub the inside of her thigh. Mr Brazel went back to his room, the complainant and the applicant went into the living room, and Mr Brazel thereafter went out and sat in the backyard.

13. Although the applicant denied in his Electronically Recorded Interview of a Suspected Person (ERISP) that he had kissed the complainant as she alleged, in his evidence at the trial he said that he went into the kitchen to help her make the pancakes. He joked with her, asking if she would set him up with her mother or one of her friends, and the complainant said, “No, no, no”. The applicant then asked the complainant if he could kiss her. She turned around with a smile on her face and said, “Yes”. He said he kissed her for about 15 to 20 seconds but he did not put his tongue into her mouth. His evidence in that regard was:

No, I don’t do that. …Back in 2005 I was with a female and we got a bit cosey (sic), kissing and all that, and sort of using tongue and all that kind of stuff, we were French kissing, whatever you want to call it. A couple days (sic) later, I got ulcers in my mouth, on my tongue, down my throat, ended up in Liverpool Hospital for two weeks and on a respirator and all that, feeding fluids for a couple of weeks, and they said, said it was some, some kind of sexual disease similar to herpes. And ever since then, I have not used my tongue in people’s in female’s mouths, I don’t do oral sex or any, my tongue stays in my mouth.

14. The applicant said that after they finished kissing, the complainant said, “I knew you were going to do that”.

15. The applicant then said he went back into the loungeroom and came back into the kitchen and said to the complainant, “If you want to tell Kel we kissed, that’s all right”. The complainant said, “No, that’s all right”.

16. The applicant then returned to the living room. About ten minutes later he went back into the kitchen and saw that the complainant was sitting on the laundry steps. He went over to her, put his hand on her head, and said, “Are you okay?” and she said, “Yeah, it’s all right. I knew it was going to happen”.

17. The jury returned a verdict of not guilty to this charge.

Count 2

18. The complainant alleged that the applicant then asked her to watch television with him, and she agreed. They sat in separate chairs. The applicant offered the complainant a bourbon, but she refused. He put a cup of bourbon on the coffee table in front of her in any event.

19. The applicant said to the complainant, “Your legs look nice today in those shorts” and, “Your tits look nice and I think you’re really attractive”. The applicant then stood up and stood over the complainant, saying words to the effect, “Let me feel your tits”. He then put his hand under her shirt and bra and touched her breasts. She said words to the effect, “Please stop” and “Just get off me”. She tried to get up from the chair, but he pushed her back down. He continued to touch her on the breasts.

20. The applicant’s account of what occurred in the living room was this. He agreed that he offered the complainant a bourbon, but he said that she said yes. The applicant said that they were sitting in separate chairs having their drinks. The complainant was wearing a green singlet, and he noticed “her boobs were virtually hanging out”. He said to her, “You better put your tits away, they’re starting to hang out”, and the complainant laughed. He said she pulled her breasts in but they then went straight back down again. He then gave this evidence:

I said to her, “They look all right” and she just, “Yeah”, and I said, “I bet they feel all right” and she said, “Yes”. And I said, “Can I have a feel?” and she looked at me, she sort of – bit of a shock sort of thing, she said, “Yes” and then I, I didn’t take her serious, but she dropped the, the, the left hand strap down to her elbow there with the boob out. So I got up, stood in front of her and just placed my right hand on her, on her boob, or on her tit.

21. The applicant said that he placed his hand on the outside of her clothing, and that the complainant was moaning “like, she was getting, I don’t know, sexually aroused”.

22. The jury found the applicant guilty on this charge.

Count 3

23. The complainant alleged that the applicant then started rubbing the complainant’s legs before undoing her shorts. He then pulled her shorts down and inserted one finger into her vagina.

24. The applicant’s evidence was that he then started to put his hand down her shorts, but the complainant brought his hand out of her shorts and put it back onto her breast. He said she put her left hand on his hand and held it there. She put the fingers of her right hand in her mouth and then put her hand down her pants. She was moaning and groaning. He denied that his fingers were in her vaginal area. The complainant said, “We’d better keep the noise down, Steve might hear”.

25. The jury returned a verdict of not guilty to this charge.

Count 4

26. The complainant alleged (although not in her evidence in chief) that at around the same time as he inserted a finger into her vagina, he inserted a finger into her anus.

27. The applicant denied inserting a finger into the complainant’s anus.

28. The jury found the applicant not guilty on count 4.

Count 5

29. The complainant alleged that the applicant then stood up, exposed his penis and masturbated, and again put his hand on her breasts under her shirt.

30. The applicant’s evidence was that he did touch the complainant’s breasts again as described above in relation to count 3. He denied exposing his penis to the complainant.

31. The jury found the applicant guilty of this count.

Count 6

32. The complainant alleged that the applicant then grabbed her and picked her up off the chair so that she was now facing the bedroom. He began to force her toward the bedroom door. She held the wall to try to stop him, and yelled out words to the effect, “Let me go”. The applicant then pushed the complainant into his room and onto the bed.

33. The complainant said that she was lying on her back on the bed. The applicant was standing between her legs, and began rubbing her vaginal area and her breasts, and started kissing her neck. He was pulling on his penis and began to masturbate. By this time the complainant was sitting up. The applicant grabbed the back of the complainant’s head with his right hand and tried to force her head towards his penis for her to perform oral sex on him. The complainant pulled away and ran out of the bedroom. She collected her belongings from Mr Black’s bedroom and left the house. She went to a friend’s house and found Mr Black. She told him that the applicant “tried to get it on with me”.

34. The applicant’s evidence was that, after the complainant referred to keeping the noise down (at [24] above), he said to her, “Well, come on then”, he helped her up, she walked into his bedroom and he then followed her. He said that once in the bedroom they stood there embracing and started cuddling each other. The complainant then said to him, “Can I have some money” whilst she was looking towards the dresser where the applicant’s wallet was situated. When he said, “No”, she walked out of his room and then he heard the front screen door close.

35. The jury found the applicant not guilty of this charge.

Legal principles

36. In Walker v R [2019] NSWCCA 4 Hoeben CJ at CL (Rothman and Price JJ agreeing) said:

[103]   There was no dispute between the parties as to the legal principles to be applied. The test when considering whether inconsistent verdicts were handed down by a jury is one of logic and reasonableness (Mackenzie v The Queen [1996] HCA 35; 190 CLR 348). Those principles were recently restated in Jafary v R. In order to succeed, the applicant “must satisfy the court that the verdicts cannot stand together”, i.e. that “no reasonable jury who applied their minds properly to the facts of the case could have arrived at that conclusion” (Mackenzie at [366]). If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury properly performed their functions, that conclusion will generally be accepted (Mackenzie at [366], Jafary at [31]).

[104]   There is no general rule that in cases where several offences depend upon the evidence of a single complainant, acquittal on some counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that the complainant’s credibility was undermined in respect of the counts upon which they have returned guilty verdicts: MFA v The Queen [2002] HCA 53; 213 CLR 606 at [35] and [89].

[105]   The applicant bears the burden of establishing inconsistency of verdicts and it is only where inconsistency rises to the point where intervention is necessarily required to prevent a possible injustice, that the relevant conviction will be set aside: Still v R [2010] NSWCCA 131 at [58]; Miller v R [2014] NSWCCA 34 at [56]; Darby v R [2016] NSWCCA 164 at [140]; Tsaccounis v R [2016] NSWCCA 163 at [116]. Furthermore, this task must be considered in the context of the system within which juries function as the trier of fact and of the jury’s role in that system (MFA at [34]).

[106]   The significance of verdicts of not guilty on some counts on an indictment must be considered in the light of the particular circumstances of the case. As Gleeson CJ, Hayne and Callinan JJ observed in MFA at [34], it must be borne in mind that where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count and that the jury will ordinarily be directed that the evidence of each witness may be accepted in whole or in part.

[107]   It should also be borne in mind that the directions to the jury will emphasise the heavy onus of proof which lies on the prosecution and that in the case of sexual assault offences, one, or all, of the members of the jury may require “some supporting evidence before they are satisfied beyond reasonable doubt on the word of the complainant” (MFA at [34]). As their Honours observed:

“34 … [a finding of guilt] does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. …”

(See similarly R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [8], [34] and [219]-[221]).

[108]   Their Honours also observed that other factors that “might cause a jury to draw back from reaching a conclusion beyond reasonable doubt” in respect of a particular count may include “where the complainant has shown some uncertainty as to matters of detail or has been shown to have a faulty recollection of some matters or has been shown otherwise to be more reliable about some parts of his or her evidence than about others” (at [34]).

[109]   It is necessary for the court to scrutinize the evidence and make its own assessment of the reasonableness of the guilty verdicts. However, in making that assessment the court should properly be conscious of the advantage of a jury over an appellate court in that there would be aspects of the case that would not be reflected adequately in the written record: MFA at [23]; ML v R [2015] NSWCCA 27 at [46].

[110]   As the applicant rightly submitted, on appeal the correct starting point for considering whether verdicts can be reconciled is not the convictions, but the acquittals. This is to follow the approach stated by Simpson J in TK v R [2009] NSWCCA 151; 74 NSWLR 299 (with whom McClellan CJ at CL and Latham J agreed) at [128] where her Honour said:

“128 … In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least not on that basis. … :

Her Honour went on at [130] to stress that:

130 … [Before] an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility. …”

37. The starting point is that consideration of whether the verdict of a jury is unreasonable or cannot be supported having regard to the evidence proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39]. Further, where inconsistency is raised, this Court examines not the convictions but the acquittals. If, as a matter of logic and reasonableness, an explanation can be found for those acquittals without resort to doubts about the complainant’s credibility, the guilty verdicts may not be unreasonable: TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128].

Consideration

Ground 1:   The verdicts of guilty in relation to counts 2 and 5 are unreasonable in that they are inconsistent with verdicts of not guilty in relation to counts 1, 3, 4 and 6

38. In my opinion, an examination of the circumstances of the offending relating to counts 1, 3, 4 and 6 demonstrates that, notwithstanding the acquittals on those counts, the guilty verdicts in relation to counts 2 and 5 were logical and reasonable.

Count 1

39. It would not be surprising if the jury had rejected the applicant’s evidence that the complainant agreed that she could kiss him. He had denied in his ERISP on more than five occasions that he had kissed her. On the other hand, the applicant’s evidence in the witness box was that the complainant agreed to kiss him when he asked her to do so. The jury may well have rejected his explanation that he lied to the police because he was being protective of the complainant, and felt scared and embarrassed for her.

40. Further, the jury may well have believed the complainant’s evidence that she refused the applicant’s request to kiss her. She was present in the house because she was the girlfriend of Mr Black, one of the applicant’s flatmates. There was no evidence to suggest that the complainant was at all interested in the applicant, a much older man, apart from the applicant’s own evidence of such interest. Despite submissions on behalf of the applicant made to the jury that there were serious problems in the relationship between Mr Black and the complainant, there was little evidence in support of those submissions. The high point of the evidence in that regard was the fact that Mr Black chose to look after his sister-in-law’s young children while she went shopping on the afternoon of the offending, rather than staying with the complainant at the house when the police were in attendance. Nothing else was proved.

41. The offence that was said to constitute count 1 was an offence contrary to s 61KC of the Crimes Act. That section relevantly provides:

Any person (the accused person) who without the consent of another person (the complainant) and knowing that the complainant does not consent intentionally -

(a) sexually touches the complainant, …

is guilty of an offence.

42. The factual difference between the complainant and the applicant was that the complainant suggested that the applicant inserted his tongue into her mouth, but the applicant said he did not do that, and provided what the jury may well have considered to be a cogent reason for that. A jury is entitled to believe part of a witness’s evidence but not other parts, without concluding that the witness is generally untruthful or unreliable. Juries are told this all the time, and the trial judge in this case gave them such a direction.

43. It is entirely possible that the jury considered that the complainant was mistaken or had wrongly remembered that the applicant had inserted his tongue, particularly as, in the complainant’s account, the applicant suddenly grabbed her head and forced it towards the applicant’s head so that he could kiss her. Her memory of all that occurred may have been affected by the suddenness of its occurrence.

44. Further, the early complaint evidence did not contain any mention of the applicant’s tongue being inserted. Mr Black said that when the complainant arrived at the friend’s place where Mr Black had been since that morning, she said to him that “he grabbed me on the tits and tried to kiss me”. The earliest recorded complaint evidence was from Dr Isaacs. What Dr Isaacs noted was that, when the complainant refused the applicant’s request to kiss her, “he went to kiss her anyway”. It should be noted that both accounts reported only an attempt to kiss the complainant.

45. Significantly, when the trial judge summed up to the jury and provided them with MFI 13, the document setting out the elements of the offences, her Honour described count 1 as having four elements as follows:

1.   Alan McCarthy intentionally;

2.   sexually touched [JR], by kissing her on the lips and putting his tongue in her mouth;

3.   without her consent; and

4.   knowing that [JR] was not consenting.

(emphasis added)

46. When her Honour explained sexual touching, she said:

Sexual touching involves a person touching another person with any part of their body in circumstances where a reasonable person would consider the touching to be sexual. In deciding whether a reasonable person would consider the touching to be sexual, relevant matters include whether the area of the body touched is the genital area, anal area or a female person’s breasts, whether the touching is for the purpose of obtaining sexual arousal or sexual gratification and whether any other aspect of the touching, including its circumstances, makes it sexual. You are aware that one of the counts, count 1, does not involve an allegation of touching of the genital area, anal area or a woman’s breasts but kissing and allegedly Mr McCarthy putting his tongue in [JR’s] mouth.

(emphasis added)

47. In the light of how the elements were described and what her Honour said, the jury may well have taken the view, a view that was certainly open to them, that there was sufficient doubt as to whether the applicant had inserted his tongue into the complainant’s mouth, such as to give rise to a reasonable doubt in relation to count 1; the jury may have been satisfied that the applicant kissed the complainant briefly on the lips in circumstances which left a doubt as to whether the kiss was “sexual. Alternatively, the jury may have had a doubt by reason of the early complaint evidence, which did not involve the applicant’s tongue and, on one view of it, only an attempt to kiss the complainant.

48. For those reasons, the acquittal on count 1 is explicable.

49. For reasons that will become clear, it is convenient to deal with count 4 prior to dealing with count 3.

Count 4

50. The complainant did not, in her evidence in chief, give any evidence about the applicant inserting his finger into her anus.

51. On 14 April 2021 the complainant provided a further statement to the police where she said this:

I gave Detective Senior Constable Zaric [on 31 March 2021] a two page statement as a result of an earlier conference with the Department of Public Prosecutors [sic]. In paragraph 8 of my statement, I stated that Alan McCarthy had inserted his finger into my anus. …

Detective Zaric:   “I need some clarification regarding your original statement and doctor’s report”.

The complainant:   “What is it?”

Detective Zaric:   “Do you remember if Alan penetrated your anus?”.

The complainant:   “I’m not sure. I thought about it for a minute and thought to myself maybe he did. Detective Zaric then asked me, she said, “Do you recall telling the doctor about the anal penetration?"

The complainant:   “I’m not sure if I told the doctor about it”. I told Detective Zaric that Alan penetrated my anus because she asked me if I recalled telling the doctor during the examination. I thought if I mentioned to the doctor during the examination, then it must have happened. But I don’t remember if Alan penetrated my anus. I don’t remember the exact conversation that I had with the doctor performing the examination, I just remember giving them a brief description of what had occurred. On Wednesday, 14 April 2021, I attended a conference with the DPP at Parramatta. During the conference, I disclosed to the DPP that I may have confused this incident with a second incident. The second incident occurred on Saturday, 20 March 2021. I attended a birthday party at a friend’s house in Bosley Park. During the party, I consumed a large amount of alcohol and fell asleep on the lounge next to my boyfriend. …Whilst I was asleep, I was sexually assaulted by another guest at the party. I have made a complaint to the police and provided them with a statement. The matter is still under investigation, I believe I may have got two incidents confused due to the trauma that I have gone through recently. On the night of the first incident, everything that I disclosed to the doctor performing the SAIK examination was true to the best of my recollection.

52. The reference to the doctor was to Dr Rosemary Isaacs who examined the complainant at Liverpool Hospital on 25 August 2019. Dr Isaacs prepared a report on 20 February 2020 based on her notes. In the report she provided this history from the complainant which relevantly said:

He started feeling her breast and playing with her nipple. [JR] told me, ‘My mind went blank and I couldn’t say anything.’ He continued down her body, she was anxious. She tried to get out of the chair she was sitting in. She was saying, ‘Please stop, please stop.’ Alan started fingering her in the vagina. It was very uncomfortable. She was bawling and crying and hoping someone would hear her…. Alan picked her up by the arms and walked her to the bedroom. She was yelling and really scared. … She yelled, ‘Let me go’ and. ‘I don’t want to do it’ and, Stop, stop.’…In response to my specific question, [JR] said that, at some time, Alan had placed a finger in her anus. She stated that he had then placed the finger in her vagina.

(emphasis added)

53. It was not made clear in Dr Isaacs’ evidence why she asked the complainant about her anus. What is clear is that the complainant said nothing about the applicant fingering her anus until the question was asked. The position was the same with the complainant’s evidence in court.

54. In re-examination, the solicitor advocate asked the complainant about her statement of 14 April 2021. The following exchange occurred:

Q.   That statement was also just in relation to remembering the anal penetration, do you remember that?

A.   I don’t remember the anal event.

55. In all of those circumstances, it is scarcely surprising that the jury could not be satisfied beyond reasonable doubt that the applicant had not penetrated her anus. He always denied doing so.

Count 3:   

56. The solicitor advocate opened to the jury in relation to counts 3 and 4:

I anticipate she’ll say that he then pulled her shorts down and inserted one finger into her vagina. It’s that evidence that the Crown will rely on to prove count 3 on the indictment. It’s also the Crown case that around the same time the accused inserted a finger into the complainant’s anus and its that evidence that the Crown will rely to prove 4 on that indictment.

57. During the course of her evidence in chief, the complainant gave this evidence:

Q. What, if anything, did he do after he pulled your shorts down to your ankles?

A. That's when he began rubbing his hand over my private area.

Q. I'm sorry, you'll have to just speak a little bit more closer to the microphone.

A. Sorry.

Q. You said "private area", is that right?

A. Yeah.

Q. Could you describe it exactly where you're talking about please?

A. My vagina.

Q. So he was rubbing his hand on your vagina, what do you remember happening next?

A. Then he inserted one finger and went in an (sic) up and, up and down motion for a couple of seconds and then he went in with another finger into my vagina.

Q. What do you recall happening next?

A. That's when he grabbed me by my shoulders, he grabbed me by my arms, picked me up off the chair, turned me around and now I'm facing his bedroom.

Q. I'll just stop you there, I want to take you back, before he grabbed you by the arms as you say and picked you up. Between him inserting his finger in your vagina and that occurring, was there anything else you recall him doing?

A. I can't remember..(not transcribable)..

58. In his closing address the solicitor advocate drew attention to the history recorded by Dr Isaacs:

At some time Alan had placed a finger in her anus. She stated that he then placed the finger in her vagina.

The solicitor advocate then went on to say:

Now again you bring your common sense to bear when you assess that evidence and the Crown submits that you might think it is wholly consistent with the complainant’s disclosure of first anal and vaginal intercourse that fits with the faecal matter opinion.

59. This was a reference to a portion of Dr Isaacs’ report where, on a genital examination, she saw:

some yellow faecal material or staining was noted in the posterior genital area [Fossa Navicularis].

60. It is clear therefore, that a consideration of count 3 by the jury could not have been conducted by them without a consideration at the same time of count 4. On all of the evidence, the complainant was asserting that the applicant first placed a finger into her anus and then almost straight away, a finger into her vagina. That was said by the Crown to be connected with the yellow faecal material that was found in her vagina area.

61. The applicant appeared to accept at the hearing of the appeal that count 3 should be seen as inextricably linked with count 4. His counsel submitted that the matters giving rise to those counts (at least) should be seen as “one event” and “the allegation of putting the finger in a place it is part of a continuum where there’s no rational basis in our submission for the jury to have, we say compromised in effect to found part of it believed and part of it not”.

62. In circumstances where the jury must have had a reasonable doubt about the penetration of the complainant’s anus, it is entirely understandable that the jury would have had a reasonable doubt about whether the applicant digitally penetrated the complainant’s vagina. The Crown case linked the two acts both in the time of their occurrence and in the result that followed, namely, the presence of yellow faecal material in the complainant’s vagina. Further, there were of course other explanations for why yellow faecal material may have been found at the edge of the complainant’s vagina that did not involve any penetration by the applicant of the complainant’s anus.

Count 6

63. The matter of significance in relation to count 6 was the fact that both in her evidence in Court and in what the complainant said to Dr Isaacs, she yelled out and screamed as she asserted the applicant was forcing her into the bedroom. She said that she did so in order that anyone who was around, namely, Mr Brazel, would hear her. Mr Brazel was present just outside the back door of the premises and he said that at no time did he hear the complainant yelling or call out. Mr Brazel’s evidence in that regard was likely to have caused the jury to have a reasonable doubt that events did not transpire in the way the complainant asserted after the time they could confidently conclude that the applicant had, without any consent on her part, fondled her breasts on two occasions in the living room.

64. Coupled with that, the jury heard evidence from the applicant concerning his ability to get an erection. When he was being cross-examined about what took place in the bedroom the following exchanges took place:

Q. You remained standing and you held your penis in your hand again?

A. No.

Q. Masturbated it, trying to get it erect?

A. No, well, could I - about this erection bit, can I answer that or no?

65. In re-examination, the applicant’s counsel asked him if he wanted to say “something about the erection bit” and the applicant said:

Well in 2012 I got, what do you call it, some kind of a virus, like a cancer down in my testicles and I had to have an operation and the, the, I had a snip and all that and like with a blood vessel and all that, for the, to have an erection that was all, all tattered. So they had to snip it and cut it. Since then I hadn’t had an erection. Like since all, they done the - I did have all the paperwork for it, but at this time I can’t present it.

66. The jury may well have regarded that explanation as plausible, particularly in the circumstances in which that evidence came to be given.

67. Further, nothing was said by the complainant to Mr Black, Dr Isaacs or Senior Constable Hernandez (the first police officer the complainant spoke to at the house), according to their evidence, about the applicant trying to force the complainant’s head onto this penis to perform fellatio on him.

68. Those matters, particularly when considered together, may well have resulted in the jury having a reasonable doubt that the description by the complainant of the circumstances surrounding count 6 were sufficiently reliable for that count to be proved beyond reasonable doubt.

Counts 2 and 5

69. On the other hand, there is no reason to think that the jury did not believe the complainant’s evidence generally. That evidence received some support from what the applicant said both in his ERISP and in his evidence in Court. His evidence about referring to the complainant as “Legs” because of how she appeared when he first saw her, and his evidence in cross-examination concerning his interest in the complainant’s breasts might be thought to demonstrate a sexual interest in the complainant.

70. He gave this evidence:

Q. Were you attracted to her breasts?

A. They were just there. They were out.

Q. That's not the question I asked you. Were you attracted to her breasts?

A. They looked all right, yes.

Q. When did you first become attracted to her breasts?

A. I'm not going to answer on the attractive bit. I'm saying they looked all right, not attractive. I'm saying they looked all right.

Q. You can answer the questions I ask you, okay? When did you become attracted to her breasts?

A. I didn't become attracted to the breasts.

Q. You just say they looked all right?

A. Yes.

Q. Looked pretty good to you?

A. Yeah.

71. Although, as explained above, the focus on an inconsistency argument is primarily upon the acquittals, the jury’s convictions on counts 2 and 5 were also supported by Mr Black’s evidence about the complainant’s statement to him that the applicant had “grabbed me on the tits”, and the applicant’s own acceptance that he had touched the applicant’s breast (at least in respect of count 2), albeit, claiming that it was with the complainant’s consent.

72. In my opinion, this ground should be rejected.

Ground 2:   The verdicts of guilty are unreasonable or cannot be supported having regard to the evidence, in that even assuming that the evidence of the complainant was assessed by the jury to have been credible and reliable, the jury ought nonetheless to have entertained a reasonable doubt as to the proof of guilt of the applicant

73. The principal basis of this ground was said to be that, on the Crown case, the complainant said that she was wearing a brown striped crop top, denim shorts and a bra, although initially the complainant confined her clothing to the brown striped crop top and denim shorts. On the other hand, the evidence of Detective Sindyian was that the complainant had originally delivered only the crop top and denim shorts to the police, subsequent to the day on which the incidents complained of occurred. On a later day the complainant had delivered a green singlet to the police, although in her evidence the complainant could not explain why she had taken that green singlet to the police.

74. Although counsel for the applicant initially submitted that the absence of the bra, together with the delivery of the green singlet to the police which could not be explained, went to the issue of the complainant’s reliability overall, he thereafter submitted that those matters gave rise to the present ground of appeal. He submitted that the absence of the bra was the main point in support of the ground but, when asked if there were other matters also relied upon to support the ground, he identified the presence of Mr Brazel in the house when the complainant alleged that she had screamed out, the fact that Mr Black and the other flatmate, Mr Ellingham, could have been expected to arrive at any time, the fact that the house was a small one, and Mr Brazel’s allegation that the complainant and the applicant went into Mr Black’s bedroom shortly before the complainant left the house.

75. The applicant’s submissions did not develop the point that by reason of those matters the verdicts on counts 2 and 5 were unreasonable or could not be supported.

Consideration

76. It may be accepted that, by the time the complainant came to give evidence, she was unclear about what clothes she had been wearing at the time of the alleged assaults.

77. Reference has been made to the fact that the applicant first said she was simply wearing a brown striped crop top and denim shorts, but then added that she was also wearing a bra. When it was put to her in cross-examination that she was not wearing a bra she said she did not believe that that was true. The following exchange then occurred:

Q:   The police asked you to provide them with the clothing that you were wearing, is that correct?

A:   Yes.

Q.   And you never gave them a bra, did you?

A:   I can’t recall about that.

78. Senior Constable Hernández gave evidence that when he saw the complainant at the house that afternoon he asked her if what she was wearing at that time were the clothes she was wearing earlier and she said, “No, I went home to shower and change”.

79. The solicitor advocate then asked Senior Constable Hernández:

Q.   Then you asked where the clothes were that she was wearing, and she responded, “I have the shorts and top in my bag. My undies are at home.

to which Senior Constable Hernández answered, “Yes”.

80. Constable Deng accompanied Senior Constable Hernández to the house that afternoon. He gave evidence that he asked the complainant if she had the clothes she wore earlier today. The complainant said that she did, and handed to him a singlet and a pair of shorts from her bag. (It is accepted that what he there described as a singlet was earlier described as the crop top and which became part of exhibit B, being the clothes she handed to the police. It is different from the green singlet handed in at a later time by the complainant.) No bra was handed to the police at any time.

81. It should be noted that the complainant denied that she had that conversation with the police officers, maintaining that she did not go home and shower and change.

82. What is objectively clear is that the three items of clothing that were provided to the police were the denim shorts, the top described as the crop top (both on the same occasion) and, on a later occasion, a green singlet. The applicant was not able to explain why she had subsequently handed in the green singlet, and there was no evidence from any of the police officers to throw light on how it came to be handed to them.

83. This evidence about the clothing worn by the complainant is not central to the issue of the complainant’s reliability. Consideration of all the evidence would suggest that the complainant was not wearing a bra, but her poor recollection of that matter 20 months later at the trial was just one aspect of the evidence the jury had to consider. Counsel for the applicant made much of the absence of the bra being provided to the police in support of his submission that the complainant’s evidence was unreliable. It was open to the jury to conclude that the complainant was mistaken about the bra, but not to find that she was a generally unreliable witness for that reason

84. The issue of Mr Brazel’s evidence, that he did not hear the complainant scream out, was dealt with when considering the alleged inconsistency of the verdicts. The size of the house was only another aspect of that matter. Mr Brazel’s evidence that he saw the complainant go into Mr Black’s room was consistent with the complainant’s own evidence, that she left the applicant’s bedroom, collected her things from Mr Black’s bedroom, and left the house. The fact that Mr Black and Mr Ellingham may have arrived unexpectedly seems to be irrelevant, given the applicant’s acceptance that he had kissed the complainant for at least 15 seconds, that he had fondled her breasts and that he and the complainant went into his bedroom where they continued to embrace, seemingly with the door open. On his own evidence, that risk did not dissuade him from doing what he said he did.

85. The reasons for the acquittals on counts 1, 3, 4 and 6 have been dealt with earlier. The focus of the present ground is counts 2 and 5, with the unreasonableness said to arise from those acquittals and the general unreliability of the complainant.

86. As noted earlier, the starting point is the assumption that the evidence of the complainant was assessed to be credible and reliable. In MFAv The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ observed (at [34]):

“… [a verdict of not guilty of a sexual offence] does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility.” (emphasis added)

87. In relation to counts 2 and 5, the jury had, in addition to the complainant’s evidence, the evidence of the applicant that, as the complainant asserted, he had touched her breasts. That account included the touching on two, albeit closely contemporaneous, occasions. As has been noted, in his own evidence in chief, the applicant gave evidence of how he noticed the complainant’s breasts, and his comments about them. What he said in cross-examination in that regard is set out at [70] above.

88. The jury also had evidence from the applicant about his nickname for, and description of, the complainant. He gave evidence of speaking with Mr Black as he, Mr Black, was leaving to go out on the day of the offending. The following exchanges occurred:

Q.   Is that when you referred to her as “Legs”?

A.   Yes. And would you like to know why I call her “Legs”?

Q.   You can tell us if you’d like to?

A.   Well, the first night I met her, she was dressed in a dress and her dress was that high up her – right up her legs. Half her cheeks of her arse hanging out and just legs on her. And so I started calling her Legs.

Q.   That was the first time you saw her?

A.   Yes.

…

Q.   But the first time you met her, you definitely noticed that her skirt was short?

A.   Yes.

Q.   And you checked out her legs pretty quickly, too?

A.   No, it was the whole lot. Not just the legs, the whole lot.

Q.   Is that because you were sexually attracted to her when you first saw her?

A.   No.

Q.   Not at all?

A.   No.

89. When the applicant’s evidence concerning her breasts, her legs and the “whole lot” is considered, it would have been open to the jury to infer, despite his denials, that the applicant had a sexual interest in the complainant.

90. The evidence at [88] above, his admissions in cross-examination of interest in her breasts, and his own evidence of having asked the complainant if, first, he could kiss her, and then subsequently to touch her breasts, are likely to have provided the jury with a firm basis for their acceptance of the complainant’s evidence that, without her consent, he engaged in sexual touching of her breasts as alleged.

91. In my opinion, having examined all of the evidence, I do not have any doubt of the guilt of the applicant in respect of counts 2 and 5. It was well open to the jury to conclude that those offences had been committed.

Conclusion

92. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

93. N ADAMS J:      I have had the advantage of reading the judgment of Davies J in draft. I agree with the orders proposed. Having regard to the evidence I am not satisfied that the verdicts on counts 2 and 5 were unreasonable for the reasons provided by his Honour.

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Decision last updated: 29 March 2023