Director of Public Prosecutions v McGary (No 11)
[2025] ACTSC 246
•13 June 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v McGary (No 11) |
Citation: | [2025] ACTSC 246 |
Hearing Date: | 15 May 2025 |
Decision Date: | 13 June 2025 |
Before: | McCallum CJ |
Decision: | The application to stay the proceedings is dismissed |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Stay of proceedings – application for permanent stay of criminal proceedings on grounds of alleged unfairness and abuse of process – where accused charged with offences alleged to have been committed against a person who was a tendency witness in a previous trial – where accused gave evidence in respect of tendency allegations – whether productive of unfairness – where accused “locked into” a version and effectively “locked into” giving evidence as a result of giving evidence in previous trial |
Cases Cited: | DPP v McGary (No 5) [2023] ACTSC 242 DPP v McGary (No 6) [2024] ACTSC 136 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; 266 CLR 325 |
Parties: | Director of Public Prosecutions ( Crown) Richard Emory McGary ( Accused) |
Representation: | Counsel S McFarland with E Bayliss ( DPP) A Tiedt ( Accused) |
| Solicitors ACT Director of Public Prosecutions J Sutton Associates ( Accused) | |
File Number: | SCC 122 of 2022 SCC 53 of 2025 |
McCALLUM CJ:
Introduction
1․Richard Emory McGary is due to stand trial on an indictment containing 3 counts of sexual offences alleged to have been committed against two different women on separate occasions in 2016 and 2020. I will refer to the complainant in the 2016 charge as Ms A and the complainant in the 2020 charges as Ms B. The trial is listed for hearing on 14 July 2025 for two weeks.
2․The accused initially faced charges only in respect of the allegations made by Ms B. The trial listed in July will be the third trial in respect of those charges.
3․The first was aborted because the complainant experienced a severe psychiatric response to the process of giving evidence and had to be hospitalised. After the aborted first trial, the prosecution served a tendency notice seeking to lead the evidence of Ms A as tendency evidence in the re-trial of the allegations made by Ms B. A pre-trial ruling was given by Mossop J on 1 September 2023 admitting that evidence for that purpose: DPP v McGary (No 5) [2023] ACTSC 242.
4․Shortly before the scheduled hearing date for the second trial, the accused applied to have the trial vacated on several grounds including the fact that, while he was aware that police were considering laying charges in respect of Ms A, no decision had yet been made on that issue in circumstances where she was due to be a tendency witness in the trial. I refused that application: DPP v McGary (No 6) [2024] ACTSC 136. I was not persuaded that the prospect of a further charge afforded a reason to vacate the hearing dates.
5․The accused gave evidence in the re-trial, including an exculpatory account of the events deposed to by Ms A. In short, his account was that sexual intercourse took place, as she alleged, but that it was consensual. As to the events deposed to by Ms B, he similarly admitted that sexual intercourse took place but said that it was consensual. The jury in the second trial could not agree on a verdict and was discharged. The accused has since been charged with an offence arising from the allegations of Ms A.
6․By application dated 8 May 2025, the accused seeks the following orders:
1. That the counts relating to [Ms A] be permanently stayed.
2. That the counts relating to [Ms B] and the counts relating to [Ms A] be severed.
3. That the orders made by Mossop J on 1 September 2023 granting leave to rely on tendency evidence be set aside.
4. That, pursuant to pursuant to section 69(7) of the Evidence (Miscellaneous Provisions) Act 1991, [Ms A] be recalled for further cross-examination.
5. That, pursuant to pursuant to section 69(7) of the Evidence (Miscellaneous Provisions) Act 1991, [Ms B] be recalled for further cross-examination.
7․It was common ground that the stay application should be heard first as its determination would inform the balance of the relief sought. This judgment determines the stay application.
Evidence on the application
8․At the request of the accused, the Director of Public Prosecutions called the officer in charge of the investigation of the allegations made by Ms A, Detective Sergeant Badderham, currently attached to the Criminal Investigations, Sexual Offences and Child Abuse Unit. Her evidence may be summarised as follows.
9․Ms A first spoke to police in 2016 but decided at that stage not to proceed with charges. On 19 September 2023 (after the first trial but before the second), Detective Badderham was tasked with conducting a review of the 2016 investigation. By 18 January 2024, she had completed the process of taking civilian witness statements in relation to Ms A’s allegations. In March 2024, the accused was offered an opportunity to be interviewed in respect of the allegations. He declined. Also in March 2024, a search warrant was executed at the Australian National University, where the accused was studying and living in 2016. The search warrant was executed by cooperation with the University and was directed to obtaining documents police had been told existed recording a complaint made by Ms A. The documents seized were reviewed by Detective Badderham in April 2024.
10․The accused’s retrial in respect of the allegations of Ms B commenced on 30 July 2024. Detective Badderham was aware of the accused’s application to have that trial date vacated. She was also aware that one of the grounds for that application was the fact that a decision had not yet been made in relation to whether the accused would be charged over the allegations of Ms A. As already noted, I refused to vacate the trial. Detective Badderham gave evidence in cross-examination on the stay application that she did not sit in on any part of that trial (apart from when she gave evidence) and had not seen the transcript of the trial.
11․The jury in that trial was sent out to deliberate its verdicts on 8 August 2024 and was discharged on 14 August 2024. Detective Badderham agreed that no further steps were taken in the investigation of the allegations concerning Ms A between that date and the date on which she filed the summons against the accused in respect of Ms A’s allegations (30 October 2024). She said in cross-examination that the catalyst for coming to the view on about that date that there was enough evidence to warrant issuing the summons at that time was “nothing more than an issue of time and opportunity to revisit this investigation and submit that summons”.
12․In relation to the timing of the investigation (commencing on 19 September 2023 and culminating in the summons issued on 30 October 2024), Detective Badderham said “it was simply a case that that was when everything came together and I had opportunity to submit a summons brief”. The Detective confirmed in cross-examination that she did not have to prepare a report or obtain approval from any other person before proceeding to lay charges. However, before proceeding to file the summons, she had to form a view as to whether to charge the accused and, having formed that view, prepare a summons and a statement of facts summarising the evidence.
13․It is clear from the Detective’s evidence that she had a very considerable workload at that time. In re-examination, she referred to the fact that she is responsible for the “SAPR review project body of work”. That was a reference to the work of the Sexual Assault (Police) Review. Detective Badderham explained that, in December 2021, a report was presented to the ACT government titled the “Listen. Take Action to Prevent, Believe and Heal” report. The Sexual Assault (Police) Review was established in 2022 in response to recommendation 15 of that Report. The purpose of the review was to understand why so few matters reported to ACT Policing involving a report of a sexual offence between 1 July 2020 to 31 December 2021 had proceeded to charge. Police established Operation Foster to reinvestigate those matters. Detective Badderham is the team leader for that team.
14․Over 30 investigations were initially identified for referral to that team to consider whether charges should be laid. Detective Badderham said a further 170 matters were recommended for “re-engagement” in cases where complainants had “withdrawn for whatever reason” and police wished to explore “whether or not there is a reason for that and encourage them to continue with their complaint”.
15․The investigation of Ms A’s allegations was not part of the SAPR work. It was an additional investigation allocated to Detective Badderham. At that time, the reinvestigation team consisted of her and one other police officer. She gave evidence that, at the time she was tasked with investigating Ms A’s allegations, Operation Foster was a “competing” work priority.
16․Mr Tiedt, who appears for the accused, submitted that the Court should permanently stay the indictment insofar as it includes the charge relating to Ms A on the basis of “the unfairness and abuse of process in Dr McGary now being charged”. Mr Tiedt submitted that, as a result of the fact that the accused was not charged for sexually assaulting Ms A until after the trial in which she was called as a tendency witness, “the prosecution has obtained an advantage that is impossible to remedy, namely having heard the cross-examination of [Ms A] and heard the evidence that the accused gave in that respect”.
17․Mr Tiedt relied primarily on the decision of the High Court in Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; 266 CLR 325. That decision was concerned with the unlawful use of the compulsory interrogation powers of the Australian Crime Commission (ACC), which had the effect of defeating the appellants’ right to silence. The primary judge granted a permanent stay on that basis. Her decision was overturned by the Victorian Court of Appeal but reinstated by the High Court by majority (joint judgment of Keifel CJ, Bell and Nettle JJ at [112]; Keane J and Edelman J each agreeing for separate reasons at [169] and [254] respectively; Gageler J and Gordon J in dissent at [113] and [245] respectively).
18․The ACC had received information from an “unregistered human source” concerning allegations that a company was involved in criminal activity. It did not commence a formal investigation into the allegations but instead, as recorded in the decision of the plurality at [30], “referred the allegations to the AFP and offered to allow the AFP to utilise the ACC’s coercive powers”. The primary judge found that the ACC acted at all times “as a facility for the AFP to cross-examine under oath whoever the AFP wished, for the AFP's own purposes”.
19․The appellants were representatives of the company. Before they were compulsorily examined by the ACC, they had each been asked to participate in a cautioned record of interview by the AFP but had declined that request.
20․The joint judgment recorded at [62] that, in granting a permanent stay, the primary judge had acknowledged “the principal authorities in which it has been held that a permanent stay of prosecution is only ever to be granted in rare and exceptional circumstances”. Against that test, they described the basis for the primary judge’s decision as follows:
But her Honour considered this case to be different from previous cases in which a stay of prosecution has been refused despite illegality or impropriety in the conduct of an ACC examination or the use of examination material. Unlike any of those previous cases, this case involved the deliberate, coercive questioning of suspects for the very reason that they had exercised their right to decline a cautioned police interview, and thereby for the very purpose of achieving a forensic disadvantage for the appellants and a forensic advantage for the prosecution in foreseen future criminal prosecutions.
21․Mr Tiedt relied in particular on the joint judgment at [75], where their Honours said:
The Court of Appeal were not correct, however, in rejecting the primary judge's conclusion that the prosecution derived a forensic advantage from the examinations. If nothing else, the prosecution derived the forensic advantage, which the examinations were expressly calculated to achieve, of compelling the appellants to answer questions that they had lawfully declined to answer and thereby locking the appellants into a version of events from which they could not credibly depart at trial. For the same reason, the primary judge was right to hold that, with the exception perhaps of [one of the appellants], the appellants suffered a forensic disadvantage as the result of the examinations. They suffered the forensic disadvantage of being locked into a version of events from which they could not credibly depart at trial.
22․Mr Tiedt submitted that here, as in Strickland, the course of the investigation has had the effect of “locking [the accused] into a version” and “locking him into a decision to give evidence in relation to [Ms A’s] allegations”. He further submitted that the accused has been put in jeopardy in the forthcoming trial, in which he is to be tried for the first time in respect of the allegations of Ms A, by reason of the fact that the evidence from the first trial (when he was not facing any charge concerning her) is to be replayed in forthcoming trial. Mr Tiedt submitted that the case for a permanent stay is stronger here than it was for the appellants in Strickland because, whereas in that case the concern was that the appellants were locked into a version, the position is doubly prejudicial for the accused because “the admissions made in the evidence in the impugned circumstances … are proposed to be played to the jury in this new trial”. Finally, Mr Tiedt submitted that the effect of the foregoing is that the accused is in effect being forced into the witness box at the forthcoming trial.
23․Mr Tiedt specified three forms of prejudice to the accused resulting from the course of events described above. First, as occurred in Strickland, the accused is locked into a version of events before his trial for the offence of sexually assaulting Ms A. Secondly, that enables the prosecution to “patch holes” in the case. In particular, the prosecution has now served an expert report from a psychologist whose evidence (if allowed) I understand will go to explaining counter-intuitive responses to sexual assault. Thirdly, because the evidence he gave in the previous trial will be played at the forthcoming trial, he is effectively locked into giving evidence about Ms A’s allegations at that trial.
24․In response to those points the prosecution submitted, first, that giving evidence in the previous trial was a choice. Secondly, the prosecutor submitted that the evidence of the psychologist goes mainly to the evidence of Ms B. The report was not tendered so I am unable to judge the force of that submission. That said, having presided over the previous trial, I would accept that it was the evidence of Ms B (not Ms A) that most invoked the need for explanation of counter-intuitive responses to the events she says occurred. Thirdly, as to the delay in laying charges concerning Ms A, the prosecutor submitted that it is doubtful whether the charge concerning her would have been ready to join the previous trial in any event.
25․In my assessment, the most significant consideration in favour of granting a stay is the fact the accused has locked himself into a sworn version of events concerning Ms A before being charged with offences concerning her. It is important to consider the reason he finds himself in that position. Importantly it is not, as was the case in Strickland, due to any impropriety on the part of the executive.
26․That is not to say that it is necessary to establish impropriety to enliven the discretion to grant a permanent stay. The power of a superior court to stay its own proceedings serves to protect the integrity of the court’s processes by not suffering their abuse. The plurality in Strickland considered this issue against the measure of what brings the administration of justice into disrepute, saying at [99]:
Further, although in previous cases regarding unlawful examination and dissemination of examination product the courts’ concerns regarding the administration of justice falling into disrepute have focused on deliberate or advertent reckless disregard of legal requirements, nothing in previous authority suggests or should be taken to imply that abjectly insouciant, wide-ranging disregard of the requirements of the ACC Act of the kind that occurred in the present cases may not also bring the administration of justice into disrepute. As the majority of this Court stated in Moti v The Queen, decided cases should not be read as attempting to chart the boundaries of abuse of process. Nor should they be read as attempting to define exhaustively the circumstances that warrant exercise of the power to stay criminal proceedings or as providing some “exhaustive dictionary of words” by one or more of which executive action must be capable of description before proceedings may be stayed. As Kirby J aptly summarised the position in Truong v The Queen:
“relief is not confined to cases of deliberate and knowing misconduct, although that may be sufficient to enliven the jurisdiction. It extends to serious cases where, whatever the initial motivation or purpose of the offending party, and whether deliberate, reckless or seriously negligent, the result is one which the courts, exercising the judicial power, cannot tolerate or be part of.”
27․Those remarks concern cases in which the basis for seeking a stay is the conduct of investigating authorities (cf Gageler J in dissent at [114]). Mr Tiedt accepted, in light of the evidence of Detective Badderham, that there was no deliberate act or negligent act by police to bring about the position that the accused had given evidence about Ms A’s allegations before being charged in respect of those allegations. No such allegation was put to her. Mr Teidt submitted, however, that “whatever the reason, it absolutely should not have happened in this way” and that the Court should not allow the prosecuting authorities (the AFP and the DPP) “to conduct matters in this fashion”. As the submission was developed, the basis for seeking a stay was to address the unfairness of the outcome that, in derogation of his right to silence, the accused had already given evidence about Ms A’s allegations when he was charged with the offence concerning her.
28․The difficulty with that submission is that, in the absence of any allegation of impropriety or even negligence, the point reduces to a complaint that the decision whether to lay charges in respect of Ms A’s allegations should have been prioritised over whatever other priorities the Detective was juggling at the time. The detail of her duties was not explored in cross-examination. What was clear was that she was dealing with a very substantial workload and that the expectation that police would address the concerns identified by the SAPR report was a priority.
29․In those circumstances, as events transpired, the accused was tried on charges concerning Ms B at a time when Ms A was only a tendency witness and he now faces retrial in respect of Ms B and trial for the first time in respect of Ms A, having given evidence about her allegations (including admissions that he had sexual intercourse with her, leaving consent as the central issue). Whilst I accept that the accused was accordingly “between a rock and a hard place” (as it was put by Mr Tiedt) in deciding whether to give evidence in the last trial, the decision to give evidence was a forensic choice. The accused’s right to silence was not defeated by any improper conduct of the executive (either the AFP or the DPP).
30․While the timing is unfortunate, I do not accept that it has had the result that the use of the court’s procedures is unjustifiably oppressive and amounts to an abuse of process. In opposing the application to vacate the hearing date for the second trial, the DPP was justifiably concerned to see the charges involving Ms B finalised. As already noted, she has already experienced significant anxiety as a result the proceedings. As to the charges concerning Ms A, the course of the investigation and laying of charges by the AFP, operating as it does with constrained resources, was beyond the control of the DPP. Neither authority has control over the processes of the other.
31․In all the circumstances, I am not persuaded that the continuation of the proceedings concerning Ms A will bring the administration of justice into disrepute.
Orders
32․For those reasons I make the following order:
(1)The application to stay the proceedings is dismissed.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 13 June 2025 |
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