McCarthy v Regina [2008] NSWCCA 320

McCarthy v Regina [2008] NSWCCA 320

Although the delay explanation was unsatisfactory, the appellant's unrepresented difficulties and the Crown's absence of opposition justified extending time. None of the complaints about police conduct, Crown conduct, s 128 certificates, admission of letters, jury notes, legal representation, or the jury's access to tapes and transcripts established a miscarriage of justice. The legal representatives' challenged decisions were rational forensic decisions. On the whole of the evidence, particularly CD's evidence supported by JN's evidence and by the appellant's letters, it was open to the jury to be satisfied beyond reasonable doubt of guilt on all counts.

Jurisdiction
Australia
Judgment Date
18 December 2008
Procedural Posture
Criminal Appeal Against Conviction for Seven Counts of Sexual Intercourse With a Child Under Crimes Act, 1900, S 66 C(3) / Application for Extension of Time and Appeal Against Conviction in the New South Wales Court of Criminal Appeal
Outcome
Time for appealing extended to 17 August 2006; appeal dismissed.
Legal Topics
['sexual Offences Against a Child' 'unreasonable Verdict' 'miscarriage of Justice' 'adequacy of Legal Representation' 'police and Crown Misconduct Allegations' 'evidence Act S 128 Certificates' 'jury Access to Audio Tapes and Transcripts During Deliberations']
['criminal Law' 'evidence' 'criminal Procedure'] ['sexual Offences Against a Child' 'unreasonable Verdict' 'miscarriage of Justice' 'adequacy of Legal Representation' 'police and Crown Misconduct Allegations' 'evidence Act S 128 Certificates' 'jury Access to Audio Tapes and Transcripts During Deliberations']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction for Seven Counts of Sexual Intercourse With a Child Under Crimes Act, 1900, S 66 C(3) / Application for Extension of Time and Appeal Against Conviction in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether time for appealing should be extended despite the notice of appeal being filed about seventeen months after conviction and sentence.' 'Whether alleged police misconduct, including coercion or inducement of witnesses and failure to obtain forensic or other evidence, caused a miscarriage of justice.' 'Whether alleged Crown misconduct, including withholding evidence, misleading editing, leading untrue evidence and misleading the jury about corroboration, caused a miscarriage of justice.' 'Whether the grant of certificates under s 128 of the Evidence Act 1995 to Crown witnesses was improper or tainted their evidence.' "Whether the appellant's legal representation at trial was deficient in a way that caused a miscarriage of justice." 'Whether evidence, particularly letters written by the appellant to CD while in prison, was wrongly admitted because its prejudicial effect exceeded its probative value.' "Whether the jury's verdicts were unreasonable or could not be supported having regard to the evidence." 'Whether the handling of jury notes and the jury retiring with audio tapes and transcripts caused a miscarriage of justice.']

Ratio Decidendi

Although the delay explanation was unsatisfactory, the appellant's unrepresented difficulties and the Crown's absence of opposition justified extending time. None of the complaints about police conduct, Crown conduct, s 128 certificates, admission of letters, jury notes, legal representation, or the jury's access to tapes and transcripts established a miscarriage of justice. The legal representatives' challenged decisions were rational forensic decisions. On the whole of the evidence, particularly CD's evidence supported by JN's evidence and by the appellant's letters, it was open to the jury to be satisfied beyond reasonable doubt of guilt on all counts.

Court Disposition

Time for appealing extended to 17 August 2006; appeal dismissed.

Orders

  • ['Time for appealing be extended to 17 August 2006.' 'Appeal dismissed.']