McCarthy v R

1. [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. [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:

3. [3]

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

4. [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. [5]

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

6. [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. [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:

The offending

1. [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.

2. [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.

3. [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.

4. [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.

5. [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.

6. [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:

7. [14]

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

8. [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”.

9. [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”.

10. [17]

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

11. [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.

12. [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.

13. [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:

14. [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”.

15. [22]

    The jury found the applicant guilty on this charge.

16. [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.

17. [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”.

18. [25]

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

19. [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.

20. [27]

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

21. [28]

    The jury found the applicant not guilty on count 4.

22. [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.

23. [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.

24. [31]

    The jury found the applicant guilty of this count.

25. [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.

26. [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”.

27. [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.

28. [35]

    The jury found the applicant not guilty of this charge.

Legal principles

1. [36]

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

2. [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

1. [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.

2. [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.

3. [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.

4. [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:

5. [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.

6. [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.

7. [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.

8. [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:

9. [46]

   When her Honour explained sexual touching, she said:

10. [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.

11. [48]

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

12. [49]

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

13. [50]

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

14. [51]

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

15. [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:

16. [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.

17. [54]

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

18. [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.

19. [56]

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

20. [57]

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

21. [58]

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

22. [59]

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

23. [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.

24. [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”.

25. [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.

26. [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.

27. [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:

28. [65]

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

29. [66]

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

30. [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.

31. [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.

32. [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.

33. [70]

    He gave this evidence:

34. [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.

35. [72]

    In my opinion, this ground should be rejected.

36. [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.

37. [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.

38. [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.

39. [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.

40. [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:

41. [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”.

42. [79]

    The solicitor advocate then asked Senior Constable Hernández:

43. [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.

44. [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.

45. [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.

46. [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

47. [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.

48. [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.

49. [86]

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

50. [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.

51. [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:

52. [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.

53. [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.

54. [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

1. [92]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [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.