Director of Public Prosecutions v McGary (No 10)

[2024] ACTSC 355

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v McGary (No 10)

Citation: 

[2024] ACTSC 355

Hearing Date: 

8 August 2024

Decision Date: 

8 August 2024

Reasons Date:

8 November 2024

Before:

McCallum CJ

Decision: 

Jurors allowed access to counselling during the trial.

Catchwords: 

CRIMINAL LAW – JURIES – sexual assault trial – where evidence included graphic messages concerning sexual fantasies involving BDSM themes – where jury sought permission at point of commencement of their deliberations to access counselling available to jurors in the ACT

Cases Cited: 

Moore v The State of Western Australia [2023] WASCA 156

Parties: 

Director of Public Prosecutions ( Crown)

Richard Emory McGary ( Accused)

Representation: 

Counsel

T Hickey ( DPP)

A Tiedt ( Accused)

Solicitors

ACT Director of Public Prosecutions

J Sutton Associates ( Accused)

File Number:

SCC 122 of 2022

McCALLUM CJ:       

1․The accused, Richard Emory McGary, was tried for two counts of sexual intercourse without consent.  In the result, the jury could not agree upon their verdicts and was discharged.  This judgment concerns my response to a request from the jury to be permitted to access counselling whilst on verdict. 

2․The trial included evidence about “BDSM”, an acronym used to refer to sexual activity that might variously involve themes of bondage, discipline, dominance and submission or sadomasochism.  The accused gave evidence in the trial that he was “into BDSM” at the time of the alleged assaults, adding “and I still am”.  The prosecution case included numerous text exchanges between the accused and the complainant on that subject, including graphic descriptions of fantasies or suggested activities falling broadly within those themes.

3․Persons summoned for jury duty in the Territory are advised during the induction process that a confidential counselling and debriefing service is available to them.  The details for this service are included in a video shown to all members of the jury panel on the morning of empanelment and provided in writing in the jury pack given to jurors upon empanelment.  The information provided in the jury pack is that jurors can access 6 free one-hour sessions.  This information is also set out in the Jury Handbook available on the Court’s website.  The Sheriff further advises jurors that, if they need more than 6 sessions, they will be able to access further counselling. 

4․At the conclusion of my summing up and before the jury had commenced its deliberations, I received a message via the Sheriff that some of the jurors had asked if they could access the counselling service at that point in the trial.  The reason given was that some of the jurors were finding their task distressing.  One juror was distressed to the extent that they were having considerable difficulty sleeping and felt that they needed immediate support.

5․I raised the jury’s request with the parties and referred them to the decision of the Court of Appeal of the Supreme Court of Western Australia in Moore v The State of Western Australia [2023] WASCA 156. The issue in that case was described at [4] of the judgment as follows:

Part of the way through the trial, the jury requested counselling because some of the jurors were having difficulty coping with the evidence.  In making that request the jury note referred to the images as ‘extremely graphic, explicit, sickening and confronting’.  The trial judge permitted the jurors to seek counselling with the proviso that they were not to discuss the details of the evidence with a counsellor.  Counsel for the appellant did not oppose counselling being made available to jurors but later made an application to discharge the jury on the basis that the wording of the note created a perception of bias and that the request for counselling showed that the jury were incapable of performing their task. The trial judge refused that application.

6․The appellant submitted that the jury’s description of the evidence (“extremely graphic, explicit, sickening and confronting”) was “such as to engender a reasonable apprehension on the part of a fair-minded member of the public that the jury would not discharge its task impartially”.  It was further submitted that the request for counselling itself demonstrated that the jury were incapable of performing their task.

7․The Court rejected that submission, explaining at [7]:

The nature of the evidence was such that an emotional or moral response to it by the jury, in the terms reflected in the note, was to be expected and, indeed, was anticipated. The description of the images used by the jury was accurate and was plainly included in the note to explain the need for counselling. The fact that jurors may have an emotional response to evidence does not mean that they are incapable of complying with directions to put such emotions to one side when they come to determine the legal issues in the case. The description did not suggest or imply that the jury had reached any concluded view regarding the issue of consent, or that they were unable to determine that issue having regard to the nature of the evidence.

8․The Court continued at [8]:

Jurors perform an essential public service and are often called upon to deal with shocking and confronting evidence that is well outside their personal experience. That this task may put jurors at risk of vicarious trauma is unsurprising. Counselling is an appropriate and well-recognised method of addressing and managing such risk.

9․The evidence in Moore was considerably more graphic than the evidence in the present trial, not least because it included video footage. Mr Moore was convicted of 87 sex offences committed against 13 women over a period of 12 years. The complainants had been drugged. The offences included “multiple acts of sexual penetration without consent, the use of bondage, domination, urination, acts intended to demean the complainants and bestiality”: at [1].

10․What is significant about the decision is the recognition of the risk of vicarious trauma when people drawn from their ordinary lives to serve as jurors are exposed to evidence of a kind they may find traumatising. 

11․When the issue arose in the present trial, neither party opposed my permitting jurors to access the counselling service available to them in the Territory.  I determined that it was appropriate to permit that course.  In reaching that conclusion, I did not consider it necessary to engage in a process of comparison between the nature of the evidence in Moore and the evidence in the present trial.  It is well understood that different people react differently to evidence of a confronting nature.  The test I applied was based on the information I received from the Sheriff, which indicated that at least one juror required immediate support to deal with the nature of the issues in the trial.  In the circumstances of this trial, I was satisfied that the provision of such support would not threaten the integrity of the jury’s deliberations and indeed would fortify them in discharging their duty to remain impartial.              

12․Having made that determination, I brought the jury back into court and directed them, in accordance with the decision in Moore, that any juror who did choose to access the counselling service must not discuss the evidence in the trial with the counsellor and that the discussions must be confined to methods of coping with any trauma to which they felt they were being exposed by reason of the nature of the evidence.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: