Application by Alarn Scott McCormick pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

Alarn Scott McCormick (the applicant) applies under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) for an inquiry into his convictions after a trial by jury of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) and two counts of doing an act to pervert the course of justice contrary to s 319 of the Crimes Act.

In respect of the first count the applicant relies on four statements of Vanessa Evans dated 14 November 2003, 12 January 2004, 17 March 2006 and 28 March 2006.

In respect of the second and third counts the applicant relies on what he contended was the diminished credibility of Leanne Ormiston, on whose evidence the Crown case depended.

Part 7 of the Act relevantly provides:

The principles applicable to the consideration of applications under s 79 were reviewed by Johnson J in Application of Peter James Holland under s.78 of the Crimes (Appeal and Review Act) 2001 [2008] NSWSC 251:

The Crown case was that on 5 June 2003 the applicant had sexual intercourse with Cassie Kennedy without her consent at his home at Bradbury. Ms Kennedy, who had a mild learning disability, had been staying with the applicant for the preceding three days. According to Ms Kennedy, the applicant pulled her to the floor by the hair, asked her to suck his penis, pulled her onto the bed, put his penis inside her and asked if he could ejaculate in her mouth or on her stomach.

There was an issue in the trial about how long they were alone together at the applicant’s house. The Crown case was that they were alone from 2pm until 4.30pm. The applicant’s case was that he and Ms Kennedy were alone for only about five minutes before Ms Evans, the applicant’s girlfriend, arrived.

The applicant was arrested and interviewed on 24 June 2003.

It was the Crown case that on 2 July 2003 the applicant called a friend, Ms Ormiston, and told her of Ms Kennedy’s allegations. He asked Ms Ormiston to say that she was with him all day on 5 June 2003 (Count 2). She refused. The Crown alleged that he reiterated the request on 17 July 2003, explaining that it would make it easier for him in court (Count 3). Again she refused, as a result of which the applicant made threats against her and her family.

The applicant alleged that “significant fresh evidence” has come to light that raises a doubt about the credibility of Ms Evans. He said:

In order to assess the application in respect of Count 1 it is necessary to address the four statements of Ms Evans relied upon as constituting grounds to make an order under s 79(1).

In her statement of 14 November 2003 Ms Evans referred to her statement to police made on 24 June 2003 and said (at [6]):

In her sworn evidence at the trial in June 2004 Ms Evans said that she could not recall whether she had gone to Mission Employment that day. That being so, the passage set out above amounts to no more than speculation as to what occurred, and when, on 5 June 2003.

Furthermore, at [8] of the statement of 14 November 2003, she said:

It is reasonable to infer from that passage that the applicant’s legal representatives had access to the statement of 14 November 2003. The accused’s counsel could have used it to cross-examine her at trial had there been any forensic advantage in so doing.

In her statement of 12 January 2004, Ms Evans refers to occasions, all of which pre-dated the trial, on which Ms Kennedy is said to have approached the applicant. The applicant necessarily knew of these occasions, which could, accordingly, have been put to Ms Kennedy in cross-examination with a view to impugning her credibility. The importance of Ms Evans’ evidence was to establish these occasions, if they were denied by Ms Kennedy. The statement itself, or at least the substance of the events recorded in it, can be taken to have been available to the applicant at the time of the trial.

In this statement (at [12]) Ms Evans said that when her mother, Valerie Evans, was first interviewed by NSW Police, Mrs Evans made it clear that “she could not verify any details, as she was suffering ill health and had been undergoing radiation treatment for a form of cancer. This had affected her memory and overall functioning.” Ms Evans also said that her mother felt “harassed” by Police to make a statement that would help convict the applicant. According to Ms Evans, her mother said that “even though she did not like Alarn she would not lie for anyone”.

Mrs Evans’ evidence at trial was that she was Vanessa’s mother and that Vanessa would usually but not always sleep at her place in June 2003. She recalled collecting Vanessa from the applicant’s place on occasions when Vanessa asked her to, but did not recall dates on which this occurred. In these circumstances the evidence of Mrs Evans was of limited weight. It was neutral in that it did not advance either the Crown or the applicant’s case. There is no basis for inferring that Mrs Evans’ evidence was other than true or that her evidence assisted the Crown to establish the applicant’s guilt.

In her statement dated 28 March 2006 Ms Evans said that, despite repeatedly approaching the Police, she was not permitted to make further statements about the matter and that Detective McGarry omitted these further matters from her original statement. Because Ms Evans gave oral evidence at the trial she had both an opportunity and an obligation to tell the truth as she saw it, irrespective of what was contained in her statements. Because of the constraints imposed by the laws of evidence, the Crown would not, without the consent or acquiescence of the applicant’s counsel, have been permitted to adduce her evidence by leading questions. Accordingly, I would not infer that she had given other than truthful evidence at the trial, regardless of whether her statements to Police incorporated all that she told them.

I note that the applicant has adopted inconsistent positions with respect to Ms Evans’ evidence. On the one hand, he contended that she could not say what she wanted to say because of the conduct of Police. On the other hand, he argued that she had a motive to lie about him to assist in obtaining a conviction so that she could get sole custody of their daughter. These positions are irreconcilable.

The applicant has raised other matters in support of his application but I do not propose to address them since they amount to a reiteration of the matters relied on in his case at trial, which included that that there was no forensic evidence to corroborate Ms Kennedy’s allegation that she had been forced to have sex and that her evidence, being uncorroborated, ought not to have been accepted. This aspect of her evidence was covered by a direction by the trial judge which the jury must be taken to have followed: Demirok v The Queen (1977) 137 CLR 20 at 22 per Barwick CJ.

Another matter raised was the alleged physical impossibility of the act, having regard to his then erectile dysfunction. The applicant relied on a report of Dr McCroary dated 4 June 2004 in which its author described the applicant’s penis. This was relied on as a basis for comparison with the sketch Ms Kennedy made. These were matters which were raised at trial and accordingly do not arise for consideration as part of this application.

In respect of the first count, I do not consider the applicant has raised any doubt or question about his guilt or any mitigating circumstances as to any evidence in the case for the purposes of s 79(2) of the Act. Accordingly, there is no basis for this Court to take action under s 79(1).

The applicant contended that there is a doubt or question that arises in relation to Ms Ormiston’s evidence. He said:

As I understand this submission it is that Ms Ormiston made a false allegation against the applicant after his trial, as a result of which it can be concluded that her evidence at the trial ought not to have been accepted by the jury. There is no evidence before me to support the applicant’s assertion that Ms Ormiston made a false allegation. However, if she did, the applicant alleged that it was made a week after his release, which was at least three and a half years after his trial. Even if such an allegation had been made and was false this would not retrospectively affect the evidence she gave or her credibility at the trial. Moreover, her evidence at trial was corroborated by telephone records which can be assumed to have been taken into account by the jury in its assessment of whether the Crown had proved counts 2 and 3 beyond reasonable doubt.

In respect of the second and third counts, I do not consider the applicant has raised any doubt or question about his guilt or any mitigating circumstances as to any evidence in the case for the purposes of s 79(2) of the Act. Accordingly, there is no basis for this Court to take action under s 79(1).

I am not satisfied that any of the facts or circumstances relied upon by the applicant justify the taking of further action under s 79. Accordingly, the application is refused.