MCCARTHY v R [2023] NZCA 399

MCCARTHY v R [2023] NZCA 399 [25 August 2023]NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OFCOMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFWITNESSES UNDER 17 YEARS OF AGE PROHIBITED BY S 139A OF THECRIMINAL JUSTICE ACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA538/2022[2023] NZCA 399BETWEEN EUGENE CHARLES PATRICK DOMINICMCCARTHYApplicantAND THE KINGRespondentHearing: 18 July 2023Court: Gilbert, Lang and Woolford JJCounsel: G H Vear for ApplicantA J Ewing for RespondentJudgment: 25 August 2023 at 3 pmJUDGMENT OF THE COURTThe application for an extension of time to appeal against conviction and sentenceis dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] In December 2011, a District Court jury found Mr McCarthy guilty onsix charges relating to the sexual abuse of three young females who were related to histhen partner. The offending occurred between 1997 and 2009.[2] On 29 February 2012, Judge T R Ingram sentenced Mr McCarthy to 18 yearsimprisonment.1 On two of the charges, the Judge imposed a minimum term ofimprisonment of nine years.2[3] Mr McCarthy applies for an extension of time within which to appeal againstboth conviction and sentence.3 This judgment determines that application.Background[4] The offending against complainant A occurred between 1997 and 2002 whenA was aged between eight and 13 years. She would stay overnight withMr McCarthy's partner. Mr McCarthy would come into the bedroom at night anddigitally penetrate A's vagina. A lost count of the number of times this happened.The offending occurred at two separate addresses.[5] The bulk of the offending against complainant B occurred between 2003 and2004, when B was aged between 10 and 12 years. At the time of this offending B wasliving with Mr McCarthy's partner. Mr McCarthy would come into B's bedroom atnight and digitally penetrate her vagina. Mr McCarthy also engaged in analintercourse with B on one occasion in 2005 when she was 13 years of age.[6] When the family moved to another address, Mr McCarthy's offending againstB escalated to rape. This occurred on a regular basis for a period of approximately12 months between 2005 and 2006. During this period Mr McCarthy also made Bperform oral sex on him on one occasion.[7] The offending against complainant C occurred on one occasion in 2008, whenC was 13 years of age. On this occasion, she was staying with Mr McCarthy's family1 R v McCarthy DC Whakatāne CRI-2009-087-1105, 29 February 2012.2 At [25].3 Court of Appeal (Criminal) Rules 2001, r 11.and shared a room with B. Mr McCarthy entered B's bedroom, touched C's breastsand vagina over her clothing and then left the room.[8] All three complainants disclosed the offending to friends or persons associatedwith their family around the time that it occurred.Procedural background[9] Mr McCarthy stood trial on three occasions. The jury at the first trial acquittedhim on several charges relating to all three complainants but could not reach agreementon the remaining charges. A second trial began in October 2011 but was aborted forreasons not relevant to the present application.[10] The third trial commenced in November 2011. Mr McCarthy defended thecharges on the basis that the evidence given by all three complainants was inconsistent,implausible and unreliable. He also contended there had been very limited opportunityfor him to offend against them. The jury's verdicts confirm they rejected this defence.[11] Because Mr McCarthy was tried on indictment in 2011 any appeal falls to bedetermined under ss 383(1) and 388 of the Crimes Act 1961.4 He was required to fileany appeal within 28 days after the date of sentence.Relevant principles[12] The Court may grant an extension of time within which to appeal where it isin the interests of justice to do so.5 In determining where the interests of justice lie,several considerations may be relevant.6 These include:7(a) the length of the delay and whether it is adequately explained;(b) whether there is a compelling reason to extend time to appeal;4 Criminal Procedure Act 2011, s 397(2).5 Ellis v R [2019] NZSC 83 at [15], citing R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee[2006] 3 NZLR 42 (CA) at [95]–[99]; and Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259 at[50]–[53].6 R v Lee, above n 5, at [106].7 Ellis v R, above n 5, at [15]; and R v Lee, above n 5, at [99].(c) the need for finality in litigation;(d) where the liberty of the subject is involved;(e) prejudice to the Crown in conducting the appeal and any retrial;(f) the impact of granting leave to appeal on others, including victims; and(g) the strength of the proposed appeal.Discussion[13] There has been a delay of more than 10 years in bringing the present appeal.That is a very lengthy delay by any standard. Mr McCarthy has filed a brief affidavitin which he endeavours to explain the reasons for the delay. He says he spoke to histrial lawyer, Mr Roger Gowing, after he was sentenced on 29 February 2012.Mr Gowing told him he had no basis for an appeal.[14] After Mr McCarthy was sentenced his sister contacted Mr TonyRickard-Simms, a criminal barrister in Tauranga, and asked him to reviewMr McCarthy's trial file with a view to lodging an appeal. Mr Rickard-Simms hasprovided an affidavit in which he confirms that he reviewed the file and advisedMr McCarthy that he could not see any grounds for appeal. Mr Rickard-Simmsencouraged Mr McCarthy to provide him with any further fresh evidence that maycome to light but never received a response to that request.[15] Mr McCarthy deposes:7 I didn't realise that I could have appealed anyway. I thought that beingtold by two lawyers that I had no grounds meant that I couldn't appeal.As far as I remember, neither lawyer told me that I could proceed withan appeal even if they didn't think it would succeed.8 I didn't make any further enquiries about an appeal after that becauseof my belief that there was nothing further that could be done. I wasalso dealing with adjusting to being in prison, and coping with theviolence aimed at me by other prisoners because of my convictions.I was diagnosed with depression while I was on bail and dealing withconstant curfew checking by police. When I went into custody,I continued to be treated for depression and was on medication for thatfor a while.9 I have continued to deny the offending, even though this has meantthat I can't do any programmes that would help me get parole.10 In 2020 I heard about Te Kāhui Tātari Ture | Criminal Cases ReviewCommission being created. I made an application to them inNovember 2020. However they declined my application becauseI had never appealed my convictions. They suggested to me thatI should appeal, and advised me that I could apply for Legal Aid toget an appeal lawyer. I did that in 2021.11 My lawyer has told me there was great difficulty in tracking downcopies of the documents from my file, from my old lawyer RogerGowing, from the District Court and the Crown. All of them advisedthat the files (or most of them) were missing or destroyed. This hasbeen very discouraging and delayed me receiving advice about anappeal. In 2022, after receiving advice from my lawyer, we were ableto finalise what we wanted to argue in the appeal and file it.[16] We do not regard the explanation Mr McCarthy has given as being satisfactoryfor the delay that has occurred in this case. Mr McCarthy asked Mr Gowing aboutlodging an appeal and his sister contacted Mr Rickard-Simms to investigate that issue.The fact that Mr McCarthy contacted two lawyers for separate advice regarding apotential appeal and chose not to pursue an appeal as a result of their advice, reflectsa clear knowledge of his right of appeal.[17] The length of the delay is another factor strongly militating against anextension of time within which to appeal. As counsel for Mr McCarthy acknowledge,any retrial would pose very real difficulty for the Crown and the three complainants.They were all entitled to conclude that the litigation had come to an end more than10 years ago. The Crown and the complainants will also suffer significant practicalprejudice if a retrial was to be ordered. By way of example, the evidential interviewsgiven by one of the three complainants have now been destroyed. The impact of sucha delay on the complainant' memories will also be significant. The desirability offinality in litigation has obvious application in this case.[18] Given these factors, we would only consider that the interests of justice favourthe grant an extension of time if we were satisfied that one or more of the grounds ofappeal that Mr McCarthy wishes to advance has a realistic prospect of establishing therisk of a miscarriage of justice.The proposed appeal against conviction[19] On Mr McCarthy's behalf, Ms Vear advances several arguments on theproposed appeal against conviction. These relate to alleged deficiencies in the Judge'ssumming up, a complaint about the form of the indictment and challenges to theadmission of unfairly prejudicial evidence. We briefly examine each of these in turn.Alleged deficiencies in the Judge's summing upLack of balance[20] With one exception, Ms Vear accepts that the Judge's summing up wasbalanced and could not be said to favour either side. The exception relates to a seriesof comments that the Judge made towards the end of his summing up that Ms Vearargues unfairly favoured the Crown case. The Judge began these with the followingobservation:[203] I want now to provide you with such limited assistance as I can inrelation to your consideration of these matters. I am well aware that jurorsoften look to the judge to assist them with their task with things that the judgemight be able to point to which would help and there are a few things thatI can assist you with.[21] The Judge then referred to a variety of issues. These included the need to makeallowances for the age of the complainants at the time of the alleged offending, as wellas the dynamics and circumstances of the complainants' family at that time.In developing this theme, the Judge referred to the fear expressed by two of thecomplainants that they would not be believed if they disclosed the offending to closefamily members. The Judge then traversed in considerable detail the circumstances inwhich the complainants disclosed the offending to persons who were either not closefamily members or on the periphery of the family.[22] In this context the Judge also referred to an attempt that B had made to commitsuicide. This led the Judge to observe:[212] Another aspect of the events that we have heard about that requiresome explanation is [B's] suicide attempt. There doesn't seem to be anyargument but that she made an attempt at suicide. That might well be a strongpointer to stress in her life. She would surely have had to be highly stressedto take such a drastic step, and the question really is, what was causing thatstress on the evidence before you? What could have caused the level of stressthat would cause a girl of that age to take that step? Was it because she wastrapped in a cycle of sexual abuse as she herself has claimed? Or was itbecause she felt unsafe with her mother, because her mother was hitting heras we heard from the defence witnesses? Or indeed, was it a combination ofthe two? Those are at least possibilities for you to consider. But I suggest toyou an explanation for her suicide attempt may well be able to be foundsomewhere in the evidence.[23] Finally, the Judge stressed the value of independent evidence given bywitnesses who had no connection with the complainants and their family andcontemporaneous records. He suggested that a careful assessment of such evidencemay well provide the jury with a basis for evaluating the conflicting evidence they hadheard about who was living at the various addresses where the offending was allegedto have occurred.[24] Ms Vear contends that the jury would have viewed the Judge's observations asconstituting a series of reasons why they should accept the complainants' evidence.She therefore says they lacked balance and are likely to have contributed to amiscarriage of justice. Ms Vear takes particular issue with the manner in whichthe Judge dealt with the issue of B's suicide attempt. She points out that the Crownonly referred to this issue in passing in closing and the defence did not mention it atall.[25] We acknowledge that it was unorthodox for the Judge to provide the jury withobservations of this type at the end of his summing up after having already summarisedthe cases for the Crown and the defence. However, we do not regard anythingthe Judge said as endorsing or suggesting to the jury that they should accept thecomplainants' evidence. Rather, he was drawing the jury's attention to issues theymay wish to consider when assessing the weight they should give to the complainants'evidence.[26] The manner in which the Judge dealt with B's suicide attempt provides a usefulexample of this. In the passage set out above the Judge pointed out that they mightfind there were different possible explanations for why B may have attempted suicide.He then gave examples from the perspective of both the Crown and the defence.We see nothing objectionable in this and do not consider it lacked balance.[27] The Judge's observations also need to be viewed in context. They came at theend of a very lengthy summing up, the transcript of which extends to 224 paragraphs.Earlier in the summing up the Judge had summarised the respective cases for theCrown and the defence when he went through the question trail he had prepared foreach charge. He then gave a lengthy and detailed summary of both the Crown and thedefence cases before making his concluding remarks. As we have already observed,Ms Vear takes no issue with these aspects of the summing up. We do not consider theJudge's closing remarks detracted from or affected the earlier summaries he had givenof the Crown and defence cases.The acquittal propensity evidence[28] The second aspect of the challenge to the Judge's summing up relates toevidence given at the trial regarding the events that formed the basis of the charges onwhich Mr McCarthy had already been acquitted. The Crown relied on these aspropensity evidence at the third and final trial. We do not know whether the evidencewas admitted without objection or following pre-trial argument.[29] A factual summary relating to three of the charges on which Mr McCarthy hadbeen acquitted (Counts 2,7 and 11) was placed before the jury in an agreed statementof facts. Evidence relating to Count 11 also remained in complainant C's evidentialinterview that was played to the jury. The Judge referred briefly in his summing up tothe events giving rise to a further charge (Count 10) that was not in the agreedstatement of facts.8[30] As a preliminary argument Ms Vear contends that the evidence relating toCount 11 should have been excluded because it did not comprise admissible propensityevidence. This evidence related to an incident in which Mr McCarthy allegedlytouched C's buttocks when she sat next to him on a couch during the day. Ms Vearpoints out that this was different to the other offending, in which Mr McCarthyallegedly offended against the complainants at night after entering their bedrooms.8 This is to be found in the final sentence of paragraph [79] of the summing up set out below at [32].[31] We consider it is now too late to challenge the Crown's decision to adduce theevidence underpinning Count 11. In any event, we do not consider the evidence to beso dissimilar to the other alleged offending that it should have been excluded. Nor dowe consider it could have caused unfair prejudice to Mr McCarthy in the overallcontext of the trial given the very minor role that it played. There is no risk that theevidence may have caused a miscarriage of justice.[32] The Judge gave the jury the following direction about the acquittal propensityevidence in his summing up:[79] Now obviously, ladies and gentlemen, we have heard in evidencesome of the allegations that were made at the earlier trials including evidencerelating to charges which resulted in verdicts of not guilty. One of those wasan allegation of rape made by [B] and the accused was found not guilty.There was another allegation of sexual violation by digital penetration whichresulted in a verdict of not guilty. Evidence was not given in this trial aboutthat latter matter.[80] It is very important that you understand, you are not being asked toretry those allegations. The accused has been acquitted on those charges andthey are at an end. Your task is to decide the charges now before the Court onthe evidence that you have before you.[81] The allegations made in respect of all of those matters, including thoseon which the accused was acquitted, have been put before you for one purposeand one purpose only. That is to assist you in assessing the accuracy, thereliability, [and] the credibility, of the witnesses in this trial. That is becausethe Crown alleges that there is a pattern of behaviour in the evidence as awhole, which may help you to decide on the credibility of witnesses [33] Ms Vear contends these directions were insufficient and that they created unfairprejudice to Mr McCarthy. However, this submission overlooks the fact that the Judgeimmediately went on to provide the jury with orthodox directions regarding the usethey could make of all the propensity evidence that the Crown relied upon. Ms Veardoes not take issue with these. We therefore do not consider there is any merit in thisproposed ground of appeal.The form of the indictment[34] This ground of appeal arises out of the fact that Count 1 in the indictment wasa representative charge alleging sexual violation by unlawful sexual connectionagainst complainant A between 28 June 1997 and 31 December 2002 at Whakatāne.[35] The Crown alleged that the offending giving rise to this charge occurred atthree separate addresses, two in Whakatāne and one in Poroporo. Ms Vear says thecharge should have been divided into three separate charges, each of which allegedoffending at a particular address. She says the inclusion within a single charge ofalleged offending at three different addresses created a risk that the jury were notunanimous that offending had occurred at any of the three addresses. She says theJudge ought to have dealt with this issue in his summing up and he failed to do so.[36] We accept that the Crown should have divided Count 1 into three separatecharges for the reason Ms Vear has advanced. This would have had the advantage atsentencing of allowing the Judge to discern the precise basis of the jury's verdict.We also agree that the Judge ought to have made it clear to the jury that they neededto be unanimous that Mr McCarthy had committed an offence at least one of thethree addresses before they could find him guilty on Count 1.[37] On the Crown's behalf Ms Ewing points out, however, that the prosecutormade it clear that the jury needed to be unanimous that offending had occurred at oneof the addresses in the following passage of his closing address:So in respect of count 1, which is [complainant A], it covers [the Whakatāneaddress] and Poroporo and it included one occasion at [A]'s mother's. It is arepresentative charge which means that you have to be satisfied that thishappened at least once in order to find guilt and you could decide it justhappened at [the Whakatāne address]. Because the charge just says "atWhakatāne". So you could decide, yes, it happened at [the Whakatāneaddress], we are not sure about Poroporo, we are not sure about [A]'s mother'sbut the fact that you found it happened at [the Whakatāne address] means it isguilty. You could decide it happened at two you could decide it happened atthree, guilty. So if you decide you are not sure that it happened at all theanswer is not guilty.[38] Given the manner in which the Crown addressed the jury on this charge wethink it unlikely that any miscarriage of justice has occurred as a result of the mannerin which Count 1 was framed. Further, A gave evidence that the digital penetrationoccurred in the same way at each of the three addresses. We think it likely that thejury accepted her evidence on this point. There is no discernible logical basis for anargument that offending occurred at one address but not at the others.Prejudicial evidence wrongly admitted[39] Ms Vear contends that the Judge erred by permitting the Crown to adduceevidence that was irrelevant and unfairly prejudicial to Mr McCarthy.Evidence given by Mr McCarthy's former partner[40] Ms Vear contends that Mr McCarthy's former partner made several commentsin her evidence that were both irrelevant and unfairly prejudicial. The most serious ofthese related to an incident that occurred one night in 2005 when they were living atPoroporo. She said she woke up when she heard the roller door to the children'sbedroom being opened. She thought this was unusual and went into the bedroom toinvestigate a few minutes later. She found Mr McCarthy naked in the bedroom.He was holding a cushion over his private parts. When she asked him what he wasdoing there he told her he was getting a cushion. She said that she and Mr McCarthynormally slept with no clothes on.[41] We accept that this evidence was not directly relevant to any charge thatMr McCarthy faced. However, it was relevant to the extent that it showedMr McCarthy had a tendency to enter the children's bedroom at night, and the Crownalleged that offending occurred when he did so. We therefore consider it had probativevalue that outweighed any unfairly prejudicial effect. In any event the evidenceformed a miniscule proportion of the overall evidence. It occupied less than a page ofthe lengthy trial transcript.[42] Ms Vear contends that Mr McCarthy's former partner was also permitted togive evidence about other irrelevant and unfairly prejudicial matters. These includedallegations that Mr McCarthy had rammed her car, that he had been unfaithful to herand had used drugs. She also said that he had driven the vehicle whilst intoxicated onseveral occasions whilst the children were in it. Ms Vear argues that the Judge did notintervene on any of these occasions to prevent this evidence being given.[43] It is difficult to see the direct relevance to the charges of the evidence aboutwhich Ms Vear complains. However, Mr Gowing is a very experienced criminaladvocate and would have been well aware of the key issues the jury were required toconsider. We have no doubt he would have objected to evidence being given if he hadbelieved it would unfairly prejudice Mr McCarthy. The incidents that form the basisof this proposed ground of appeal may also be regarded as peripheral to the centralissues the jury was required to consider at trial. We see nothing in them to suggest amiscarriage of justice may have occurred.Incremental disclosure of opinion evidence[44] Ms Vear points out that one of the central aspects of Mr McCarthy's defencewas that B's evidence was undermined by the fact that she denied in her evidentialinterview that anal intercourse had occurred. She did not disclose that form ofoffending until she subsequently provided the police with a further written statement.The detective who arrested Mr McCarthy told the jury that incremental disclosure wasnot uncommon with complainants in sexual cases. He said in re-examination that hewould be told all relevant information during the initial interview in "[v]ery, very few"cases. When asked to expand on this he said this would occur in just 30 to 40 per centof cases. Ms Vear contends that opinion evidence led from a witness who was not anexpert was clearly inadmissible. It also created the risk that the jury would use it tosupport B's credibility.[45] We do not accept this submission. First, we do not accept that the detectivewas giving opinion evidence. Rather, he was telling the jury about his own experiencein dealing with complainants. Secondly, the detective gave the evidence duringre-examination. Mr Gowing had suggested during cross-examination that in thethree and a half years the detective had been working in the area of sexual abuse hehad never previously encountered a case in which incremental disclosure hadoccurred. The detective denied this and told Mr Gowing it had happened on multipleoccasions. The prosecutor was clearly entitled to explore the issue further inre-examination. We see no merit in this proposed ground of appeal.Evidence about B's suicide attempt[46] As will already be apparent, B gave evidence that she had attempted to takeher own life. This was also referred to by another Crown witness. The Judge thenreferred to the issue on two occasions in his summing up, one of which we havealready set out.9 Ms Vear contends that this was highly emotive evidence withmarginal probative value. She therefore argues the Judge should have ruled theevidence inadmissible because of its unfairly prejudicial effect.[47] This submission needs to be considered in light of the reason the evidence wasled. B said that whilst she was in year 9 or 10 at school, while living with hergrandmother, she nearly committed suicide because of what was happening. An olderrelative had visited her to find out why she had attempted to take her life. B told thisperson that she had tried to commit suicide because of Mr McCarthy raping andsodomising her. Ms Ewing submits it would have been artificial for the relative tohave told the jury about B's disclosure without also setting out the context in which itoccurred. We accept this submission.[48] It follows that we are satisfied none of the proposed grounds of appeal againstconviction establishes a risk that a miscarriage of justice may have occurred.The proposed appeal against sentence[49] As we have already observed, the Judge sentenced Mr McCarthy to 18 years'imprisonment and, on two of the charges, imposed a minimum term of imprisonmentof nine years. The Judge reached the sentence by taking a starting point of 17 years'imprisonment for the offending against B. He added an uplift of one year to reflectthe balance of the offending, noting that the uplift would have been 18 months but forrestrictive bail conditions to which Mr McCarthy had been subject prior to trial andhis good employment record.10 In selecting the starting point the Judge noted thatoffending involving the features of that against B would normally fall within rapeband 4 identified in R v AM (CA27/2009).11 This calls for a starting point of 16 to20 years' imprisonment.12[50] Ms Vear contends that Mr McCarthy's offending was less serious than thatgenerally found in cases falling within band 4 in R v AM. She points out that only one9 See above at [22].10 R v McCarthy, above n 1, at [18].11 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.12 At [108]–[109].of the complainants allege that Mr McCarthy had raped her and the offending occurredover a matter of months rather than years. Ms Vear contends that the overall offendingwarranted a starting point of around 15 to 16 years.[51] The Judge was clearly correct to take the offending against B as the lead, ormost serious, offending. The aggravating features of that offending included the factthat it involved numerous instances of digital penetration and one instance of analintercourse over a two-year period. The offending then escalated to regular instancesof rape and one involving oral sex over a period of approximately one year. B wasaged between 10 and 13 years at the time of the offending and was living withMr McCarthy when it occurred. The regularity of the offending meant there must havebeen a degree of premeditation on Mr McCarthy's part. It also involved vulnerabilityon B's part given her age and the fact that she was living with Mr McCarthy at thetime. This fact meant that the offending involved a considerable breach of trust on thepart of Mr McCarthy. It also meant that B found it difficult to disclose the offendingto members of her family. Finally, the offending resulted in B suffering considerableemotional and psychological harm.[52] We consider these factors placed the offending towards the bottom of rapeband 4 identified in R v AM.13 As this Court noted in that case, the paradigm case ofoffending at the lower end of band 4 will involve repeated rapes of one or more familymembers over a period of years.14 It follows that a starting point of 17 years'imprisonment was not outside the available range. The uplift of 12 months to reflectthe offending against the other two complainants is likewise well within range havingregard to totality principles.[53] We therefore see no merit in the proposed appeal against sentence.Result[54] The application for an extension of time within which to appeal againstconviction and sentence is dismissed.13 At [108].14 At [109].Solicitors:Public Defence Service | Ratonga Wawao ā-Ture Tūmatanui, Hamilton for ApplicantCrown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent