McGuire v R

1. [1]

   HARRISON J: Max McGuire stood trial in the District Court at Lismore charged with two counts of aggravated sexual intercourse without consent contrary to s 61J(2)(d) of the Crimes Act 1900. The circumstances of aggravation were that the complainant was under the age of 16 years, namely 15 years. Mr McGuire was found not guilty of the offences on the indictment but guilty of two alternative counts of sexual intercourse without consent. On 23 April 2020, Mr McGuire was sentenced by Judge McLennan SC to an aggregate term of 5 years and 9 months imprisonment with a non-parole period of 3 years and 6 months expiring on 11 September 2023.

2. [2]

   Mr McGuire appeals against his conviction on two grounds as follows:

3. [3]

   Mr McGuire has also sought leave to appeal against the severity of his sentence on two grounds as follows:

4. [4]

   The Crown case at trial was as follows.

5. [5]

   The complainant had arranged to spend the evening of Easter Sunday, 1 April 2018, in Tweed Heads with Taylor Lockwood, a co-worker from a café where she worked part-time. She and Ms Lockwood, who was aged seventeen, went out for dinner to McDonalds. Ms Lockwood then made Snapchat contact with Jordan Carroll, aged eighteen. They had met once before via Tinder and had had sex on that occasion.

6. [6]

   Ms Lockwood told Mr Carroll to bring a friend, because she was with a girlfriend (the complainant). She sent Mr Carroll a photograph of the complainant. Mr Carroll brought Mr McGuire, aged nineteen, with him for this reason.

7. [7]

   The four of them met outside the Greenmount Surf Club at Tweed Heads. Mr McGuire and Mr Carroll had been at a nearby nightclub. They had been drinking to some extent, but intoxication was not an issue at the trial. They spent some time together with the girls outside the surf club. Mr McGuire was kissing the complainant, who was sitting on his lap.

8. [8]

   The group took a taxi to Mr McGuire’s family home, a short drive away. The clearly established purpose of this was for Ms Lockwood and Mr Carroll to have sex.

9. [9]

   The group went inside Mr McGuire’s home. At that time the house was occupied by Mr McGuire’s mother, who was asleep in the main bedroom, his slightly older brother, Connor, who was studying in his bedroom and his father, who had broken a rib whilst fishing and was sleeping in the lounge room.

10. [10]

    The four arrivals tried to make as little noise as they could. The only occupant encountered by them was Connor McGuire who said hello to Mr McGuire and the complainant and returned to his bedroom.

11. [11]

    After Ms Lockwood and Mr Carroll had gone to a computer room to have sex, Mr McGuire and the complainant went into Mr McGuire’s bedroom. The conduct that gave rise to the charges was alleged to have occurred there.

12. [12]

    The complainant said she was initially forced to suck Mr McGuire’s penis and that he then inserted his fingers in her vagina. She made a limited immediate complaint to Ms Lockwood, upon re-joining her outside the house. Some days later she told her mother, who took her to the doctor and to the police.

13. [13]

    Mr McGuire was arrested at his home on 10 July 2018. A recording was made of the execution of a search warrant that included a series of questions he was asked. Mr McGuire told the police that he did not know the girl they were referring to. At the trial he accepted that this was a lie. Use of these lies was limited to Mr McGuire’s credit.

14. [14]

    Mr McGuire had no prior convictions. By the time of the trial he had commenced working as a civil engineer. It was accepted that he was a person of good character.

15. [15]

    Contrary to what Mr McGuire told the police on 10 July, he gave different evidence in his trial to the effect that whilst the complainant had said she was a virgin and had told him she did not want to have penile-vaginal intercourse, she had agreed to do other things. He said that the sexual activity engaged in had been consensual and that he had originally lied to the police because of fear and panic.

16. [16]

    Mr McGuire’s appeal against his conviction turns upon the issue of his credibility. He admittedly lied to the police when he was arrested. His response to the Crown case, however, was underpinned by his sworn evidence that the sexual activity alleged by the complainant did in fact take place but that it was consensual. Mr McGuire was therefore confronted with an inevitable comparison between his admission that he lied in the first place and the version he gave in evidence in the second place. He maintains first that any prospect the jury might have accepted his later version of events as truthful was illegitimately destroyed or damaged by the way in which the Crown cross-examined him as well as the Crown’s address to the jury that drew upon his answers. The Crown challenged Mr McGuire upon the basis that he had untruthfully tailored his evidence to meet the Crown case and that his evidence should be rejected because he was an established liar. Mr McGuire maintains that that challenge had no evidentiary foundation and was improper. The Crown’s address to the jury drawing upon the same theme was correspondingly flawed. Secondly, Mr McGuire contends that the trial judge failed properly to direct the jury that they could take his good character into account when considering whether they accepted his explanation for originally lying to the police. These arguments are necessarily interrelated.

17. [17]

    Mr McGuire drew attention in this Court to the following factual matters that are not in contest.

18. [18]

    During the execution of the search warrant on 10 July 2018, Mr McGuire was asked a series of questions by investigating police. He denied knowing who the complainant was and said he had never heard of her. He said he had no memory of his movements on the night in question. He said he had picked up girls from the nightclub before, but did not usually know their names.

19. [19]

    At the trial, Mr McGuire gave evidence that he had become aware of a police investigation some months after 1 April 2018, as Mr Carroll had told him a member of the Child Abuse Squad had spoken to him. The officer had told Mr Carroll that the investigation related to the complainant, who had been fifteen at the time. Mr McGuire stated that when Mr Carroll told him this he had been scared and shocked and could hardly believe it. He had felt sick.

20. [20]

    When the police came to his home one morning, he was woken by his brother. He then lied to the police because he was panicking and scared. His mind was racing and he immediately thought he would deny everything.

21. [21]

    In evidence Mr McGuire accepted that his statements to the police during the execution of the search warrant that he did not know who the complainant was and that as far as he knew he had never met her were lies. He agreed that he had falsely told the police during the search warrant that his usual practice was to bring girls home from the Komune club and that he did not always know their names.

Mr McGuire’s submissions on Ground 1

1. [22]

   During cross-examination, Mr McGuire was asked questions as to whether he had tailored his evidence to meet the Crown case:

2. [23]

   Mr McGuire submitted that this cross-examination was unfair: Wood v R [2012] NSWCCA 21 at [576]-[581]. Every person accused of an offence receives a copy of the prosecution brief of evidence. That fact was never communicated to the jury. Mr McGuire therefore argued that there was no evidentiary basis for the questions, as there was no material to support the suggestion that he had changed his account of what had occurred between him and the complainant only after receiving the prosecution brief and in order to fit with it.

3. [24]

   Furthermore, Mr McGuire submitted that the questions asked of him in cross-examination carried the additional implication that not only had he lied to the police, which he admitted, but also that he lied in his evidence at trial. The Crown asserted in effect, without any proper basis, that Mr McGuire’s evidence as to the events constituting the charge was a recent invention. That submission went beyond an attack upon Mr McGuire’s credibility and amounted to a submission that the jury could regard his “tailored” evidence as revealing a consciousness of guilt. Mr McGuire submitted that such reasoning was in addition impermissibly circular.

4. [25]

   The trial judge later discussed with counsel the matter of what would be appropriate directions regarding Mr McGuire’s good character and his lies in the following terms:

5. [26]

   As Mr McGuire points out, there was no discussion as to any appropriate directions dealing with the suggestion that he had tailored his evidence in some way.

6. [27]

   Mr McGuire’s admitted lies to the police and the allegation that he tailored his evidence upon receiving the prosecution brief were central to the Crown’s assault upon his credit and its submission that the jury would reject his account given in evidence. The Crown’s address to the jury on this topic was in the following terms:

7. [28]

   The trial judge dealt with the issue of Mr McGuire’s admitted lies as follows:

8. [29]

   His Honour dealt specifically with the Crown’s address concerning Mr McGuire’s evidence, as well as the allegation of tailoring, in these terms:

9. [30]

   There was no complaint either with respect to the Crown’s cross-examination or with respect to his subsequent address to the jury that Mr McGuire had tailored his evidence to meet the prosecution case after receipt of the prosecution brief of evidence.

10. [31]

    Mr McGuire referred to McKey v R (2012) A Crim R 227; [2012] NSWCCA 1 in which the Court considered the difficulty in delineating between conduct or statements made by an accused person that were relevant to credibility and those that arguably revealed a consciousness of guilt:

11. [32]

    Mr McGuire submitted in these circumstances that, as the case against him relied almost entirely upon the complainant’s account, the jury was required to determine whether or not that account was capable of acceptance beyond reasonable doubt. Mr McGuire gave sworn evidence denying that he acted as alleged. The jury’s assessment of his credibility was therefore crucial, as they were bound to acquit if his evidence gave rise to a reasonable doubt about the Crown case. Mr McGuire characterised the Crown’s assertion that he had tailored his evidence as “unfounded and unfair” and clearly directed at undermining his credibility based upon the false notion of a changed or fabricated account. Mr McGuire submitted that the combined effect of his cross-examination and address to the jury based upon the suggestion that he tailored his evidence, together with the trial judge’s summary of the Crown’s submissions on that issue, was “fundamentally unfair and occasioned a miscarriage of justice.”

Crown submissions on Ground 1

1. [33]

   It was necessarily the Crown case that Mr McGuire was not telling the truth in his evidence at trial about his interactions with the complainant. He relies upon the proposition that there was no evidence at the trial that he had changed his account of what had occurred after receiving the prosecution brief. The Crown conceded that it is true that there was no direct evidence as to the timing of the change in Mr McGuire's account, but maintained it does not follow that the Crown had no proper basis to make the suggestion in cross-examination.

2. [34]

   When the police came to arrest Mr McGuire, the account he gave was that he did not know who the complainant was, he could not recall the night in question, and that he often picked up girls from the Komune club, but didn't generally know their names. At trial he said that all of this was untrue, and he had lied out of panic and shock. Accordingly, it was clear that Mr McGuire had changed his account between the day of his arrest and the trial. The only evidence at trial of an earlier account of what happened between Mr McGuire and the complainant was Mr Carroll's evidence that Mr McGuire told him, about a week after 1 April 2018, that either "nothing happened" or "we didn't have sex". Mr McGuire professed no recollection of that conversation.

3. [35]

   The Crown submitted that there was no impropriety in the Crown Prosecutor putting the proposition to Mr McGuire that the account he was giving at trial was an untrue account. Nor, in circumstances in which Mr McGuire's account when first confronted was to profess a lack of any relevant memory of events, was there anything unfair about the Crown suggesting that the details of Mr McGuire's account were not the product of his genuine and truthful recollection of the night in question, but were instead designed by him to meet the Crown case.

4. [36]

   Moreover, the Crown’s closing submissions were not productive of a miscarriage of justice for the following reasons.

5. [37]

   First, as submitted above, there was no express or implied suggestion that there was anything unusual or improper, of itself, about Mr McGuire having access to the witness statements prior to trial. The fact that Mr McGuire's trial counsel raised no concern about this is consistent with it being the case that those references were not prejudicial to Mr McGuire in the overall context of the trial.

6. [38]

   Secondly, the Crown submission that Mr McGuire had "tailored" his evidence did not invite impermissible consciousness of guilt reasoning by the jury. This is so even if the use of the term "tailoring" was inapt. There was no issue that Mr McGuire had changed his account. The Crown's overall submission was that Mr McGuire’s account lacked credibility and that the jury should not accept it. The Crown did not submit that the jury should reason from the fact that Mr McGuire lied towards a finding of guilt. The trial judge gave clear and firm directions ameliorating any risk of improper reasoning as to lies.

7. [39]

   Thirdly, the jury note asking if Mr McGuire had been recorded giving an interview to the police does not give rise to an inference that the jury were engaging in any improper reasoning, or that they were preoccupied with the Crown submission in relation to the issue of apparent tailoring. The jury asked a number of questions, including whether there was a video of Mr McGuire giving a police interview. Upon arrest, Detective Banfield told Mr McGuire that he would be offered an interview back at the station, and that whether he took up that opportunity was up to him. It is most likely that the jury asked the question about whether there was an interview, as a result of that reference. This is consistent with the inference that the trial judge and the parties, absorbed in the atmosphere of the trial, drew with respect to the question.

8. [40]

   As to an assessment of whether the challenge to Mr McGuire's credibility was "effective", it may be of importance to consider that the jury returned verdicts of not guilty to the principal charges. The jury must have accepted as a reasonable possibility that Mr McGuire honestly believed the complainant to be 16 or over. Consistently with the way in which the jury was directed, this meant necessarily accepting as a reasonable possibility that there was no express conversation about the complainant's age. It most likely also entailed an acceptance of Mr McGuire's evidence that he was surprised and shocked when he was told by Mr Carroll in June 2018 that the complainant was only 15 years old. Accordingly, the jury must not have completely rejected all aspects of Mr McGuire's evidence.

9. [41]

   Finally, there was no objection to the cross-examination, nor a request for a correction or direction by the trial judge to ameliorate any unfairness thought to have been occasioned by the Crown’s address. The absence of objection by defence counsel is a strong indication that, in the atmosphere of the trial, counsel saw no injustice in what occurred: R v ARS [2011] NSWCCA 266 at [150]; GBF v The Queen [2020] HCA 40 at [24]-[25].

Consideration: Ground 1

1. [42]

   The burden of Mr McGuire's submission on this ground is that the Crown illegitimately confected a theory that, rather than simply giving evidence on oath that was untrue, Mr McGuire had invented a false narrative that conveniently dovetailed with what he later learned was the way in which the Crown put its case. Not merely was this said to be an untruthful version of what actually happened, in which case Mr McGuire would have had no grounds for complaint, it was entirely hypothetical and without any single piece of evidence to support it. Moreover, the attack on Mr McGuire's credit, that carried a faint suggestion that he had manipulated the truth as the result of access to material that he was not entitled to see, was arguably more powerful than a simple challenge to his evidence.

2. [43]

   Mr Game of senior counsel, who appeared for Mr McGuire, submitted that the Crown's approach to cross-examination asserting Mr McGuire's account was tailored operated unfairly to float the idea without ever descending into the detail to support the allegation. Mr Game described this as "an imaginary creation". Mr Game submitted that there was no foundation for the cross-examination complained of and that the allegation of tailoring without any such foundation was improper and should never have been put. The result was that the trial miscarried.

3. [44]

   Although arising in a factually dissimilar context, the following comments in the majority judgment in Hofer v The Queen [2021] HCA 36 at [42] and [44] are apposite:

4. [45]

   By analogy with that case, the cross-examination of Mr McGuire and the attack upon his credit asserting that he had tailored his evidence "was based upon an assumption" which was not established. In the same way, this was highly prejudicial to Mr McGuire. It amounted to a departure from the proper process of a criminal trial so as to amount to a miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act, 1912.

5. [46]

   I also consider that Mr McGuire was in these circumstances deprived of a chance of acquittal that was fairly open. The Crown case was necessarily dependent upon acceptance of the complainant’s account beyond reasonable doubt in spite of Mr McGuire’s evidence to the contrary. Mr McGuire had already conceded that he originally lied to the police so that the only real prospect of a finding in his favour centred upon his ability to present the jury with an account of what occurred that might possibly be true. His chances of doing so were in this case unfairly reduced by the ill-founded theme in his cross-examination that not only was Mr McGuire lying but that he had fabricated a narrative based upon an understanding of the complainant’s evidence in order to give his account a degree of authenticity it would not otherwise have had.

6. [47]

   Mr McGuire also relied upon a contention that the cross-examination complained of should not have been permitted at all as it should have been the subject of an application for leave pursuant to s 104(2) of the Evidence Act 1995 which was neither sought nor granted. Section 104 is relevantly in these terms:

7. [48]

   The Crown submitted that leave to cross-examine Mr McGuire was not required. However, having regard to the view I have otherwise formed with respect to the cross-examination that was undertaken despite the absence of any reference to the subsection, it is unnecessary to consider this aspect further.

Rule 4.15

1. [49]

   The Crown maintained that the rule is engaged by this ground of appeal. The Crown emphasised that Mr McGuire now asserts that the cross-examination was objectionable when no objection was taken and that some direction was called for when none was sought: see Tieu v R [2016] NSWCCA 111 at [79]-[93]; [147]. The Crown accepts that leave under Rule 4.15 should be granted if Mr McGuire can establish a miscarriage of justice warranted it: Gage v R [2021] NSWCCA 222 at [35].

2. [50]

   For the reasons referred to already, I consider that what occurred in this case deprived Mr McGuire of a chance of acquittal that was fairly open. Leave should be granted.

Mr McGuire’s submissions on Ground 2

1. [51]

   The trial judge dealt with the issue of Mr McGuire’s good character as follows:

2. [52]

   There was no request by counsel for Mr McGuire for a re-direction on the relevance of Mr McGuire’s good character.

3. [53]

   Mr McGuire referred to R v RJC (Court of Criminal Appeal (NSW), 18 August 1998, unrep) at 27 referring to the principles that apply regarding a direction concerning the good character of an accused person in jury trials:

4. [54]

   Mr McGuire was uncontroversially entitled to a good character direction at his trial. The “standard” direction dealing with the extent to which a jury can take good character into account in considering what weight the jury might give to the evidence given by an accused person is as follows:

5. [55]

   In this context, Mr McGuire made the following written submission:

Crown submissions on Ground 2

1. [56]

   The Crown correctly noted that no complaint was made about this direction at trial. It immediately followed the trial judge’s directions as to the significance of Mr McGuire’s lies to police. As Mr McGuire acknowledges, this aspect of the case meant that the Bench Book direction could not be given in its standard form.

2. [57]

   Contrary to Mr McGuire’s submissions, it was not incumbent upon the trial judge to give a direction in the terms now sought by Mr McGuire, namely to tell the jury that they may use Mr McGuire’s good character specifically to “reason that he was less likely to lie or give a false tailored account when giving sworn evidence”: Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 at [53]-[54]. The way in which the trial judge directed the jury was not only consistent with what he said he would do, it was also fair in the circumstances. The trial judge did tell the jury that they should take Mr McGuire’s good character into account in assessing his evidence, and the weight that they gave his evidence. The way his Honour expressed the “credibility” portion of the direction avoided raising or highlighting a problematic contrast between a direction that Mr McGuire’s good character may make him “less likely to lie”, and the fact that Mr McGuire had lied to police on the very subject matter of the charges.

Consideration: Ground 2

1. [58]

   I am not satisfied that his Honour’s direction concerning Mr McGuire’s good character was deficient in any relevant sense. It accorded with standard practice and was not the subject of complaint at the time. It was not in my view erroneous and no miscarriage of justice has been established.

2. [59]

   Moreover, it is in my view unrealistic to contend that trial counsel would ever have considered seeking a direction from the trial judge in the form now suggested by Mr McGuire. Any additional reference to his having tailored his evidence would have been inimical to his forensic interests and it is entirely unsurprising that if counsel had turned his mind to the issue at all he refrained from seeking any such direction.

Rule 4.15

1. [60]

   The significance of trial counsel's failure to seek a redirection is that it indicated he saw no injustice or unfairness in the way in which the direction was given.

2. [61]

   Leave to rely on ground 2 should be refused.

Conclusion

1. [62]

   I consider that the following orders should be made:

   1. (1)

      Grant leave to Mr McGuire to rely on Ground 1.

   2. (2)

      Allow the appeal on Ground 1.

   3. (3)

      Quash the conviction.

   4. (4)

      Order a new trial.

   5. (5)

      Refuse leave to rely on Ground 2.

   6. (6)

      Stand the matter into the Sydney District Court Arraignment list at 9.30am on Friday 21 January 2022.

Appeal against sentence

1. [63]

   As noted above, Mr McGuire also sought leave to appeal against the severity of his sentence. It is unnecessary to consider that application in light of the orders I have proposed.

2. [64]

   DAVIES J: I agree with Harrison J.

3. [65]

   DHANJI J: I agree with the orders proposed by Harrison J and with his Honour’s reasons. With respect to the proviso I would only add that the case was one in which, as Harrison J points out, the credit of the complainant and that of Mr McGuire were central to the contest between the parties. At least part of the complainant’s account, that Mr McGuire was explicitly informed of her age, was not accepted to the requisite standard by the jury. Given this, and fact that there was nothing inherently implausible in Mr McGuire’s account, it is not possible to be satisfied, given the natural limitations of the record of trial, of Mr McGuire’s guilt beyond reasonable doubt. In these circumstances there has been a substantial miscarriage of justice and the appeal must be allowed.