Director of Public Prosecutions v McGary (No 2)
[2023] ACTSC 95
•28 April 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | DPP v McGary (No 2) | ||||
| Citation: | [2023] ACTSC 95 | ||||
| Hearing Date: | 28 April 2023 | ||||
| Decision Date: | 28 April 2023 | ||||
| Reasons Date: | 1 May 2023 | ||||
| Before: | Mossop J | ||||
Decision: |
| ||||
Catchwords: | CRIMINAL LAW – EVIDENCE – Application to appoint intermediary for complainant – application made after commencement of trial – whether complainant has a communication difficulty – evidentiary position now substantially | ||||
| different from when earlier application for appointment of | |||||
| intermediary was refused – psychological and physical difficulties | |||||
| associated with revisiting the circumstances of the incident have manifested themselves | |||||
| CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Discharge of jury – application made by prosecution – application initially opposed but later joined by accused – uncertainty as to the capacity of the complainant to complete evidence in the available time – limited time available to complete trial – potential for complainant to give evidence pre-trial | |||||
| as a vulnerable adult | |||||
| Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 4AB, 4AC, 4AF, 4AJ, 43, 60, Table 43.4 | ||||
| Cases Cited: | DPP v McGary [2023] ACTSC 14 | ||||
| Parties: | Director of Public Prosecutions | ||||
| Richard Emory McGary (Accused) | |||||
| Representation: | Counsel | ||||
| T Hickey (DPP) | |||||
| K Musgrove (Accused) | |||||
| Solicitors | |||||
| Director of Public Prosecutions J Sutton Associates (Accused) | |||||
| File Number: | SCC 122 of 2022 | ||||
| MOSSOP J: |
1. Last Friday, I indicated that I would discharge the jury in this trial and that a witness
intermediary would be appointed and a ground rules hearing conducted at a date and
time to be fixed. These are my reasons for doing so. These proceedings involved a jury
trial in which the prosecution alleges that the accused had non-consensual anal sexual
intercourse with the complainant.
2. A jury was empanelled on the first day of the trial, last Monday, and the evidence-in-chief
interview from the complainant played. That ran for approximately one hour. During the
course of the evidence-in-chief interview the complaint, who was watching it, requested
a break because she was getting upset while watching it.
3. The following day, Tuesday, was a public holiday. On the next sitting day, Wednesday,
one of the jurors was discharged as she disclosed that she had an association with the
underlying circumstances of the case which had not been earlier identified. I directed
that the trial continue with 11 jurors. Unusually, the discharge of this juror meant that the
jury was comprised of 10 men and one woman.
4. Also on that day, proceedings were adjourned when the court was informed that following
the hearing on Monday, the complainant had gone to hospital. I inferred that that was a
result of a decline in her mental health. Counsel for the prosecution made an application
for the trial to be vacated. That application was opposed by the accused. The application
for vacation of the trial was refused.
5. The proceedings were adjourned until today, Monday, with a mention on Friday
afternoon and liberty was granted to the parties to have the matter relisted at short notice.
That liberty was exercised in the matter on Friday morning. On that occasion, counsel
for the accused who previously opposed the discharge of the jury and vacation of the
trial made an application to do just that. Counsel for the prosecution repeated his earlier
application that the jury be discharged and the trial vacated.
6. Counsel for the accused applied for the vacation of the trial because of the need to deal
with an application for an appointment of an intermediary, the potential for the
prosecution to apply for the complainant’s evidence to be taken pre-trial and the potential
for the trial to take longer than currently estimated if an intermediary was appointed. The
latter point was significant because one of the remaining 11 jurors had indicated
difficulties with the trial if jury deliberation was not completed by Tuesday, 9 May.
7. Counsel for the prosecution sought the vacation of the trial on the basis that as a result
of the discharge of one female juror, the jury was now comprised of 10 men and one
woman, the gap of at least six days between the playing of the evidence-in-chief interview
and cross-examination of the complainant and the need to consider the appointment of
an intermediary, notwithstanding that an earlier pre-trial application for such an
appointment had been refused: DPP v McGary [2023] ACTSC 14.
8. It is, in my view, also a matter to be taken into account that given the delay in the taking
of the evidence of the complainant and that the trial was estimated to conclude on 3 May
2023, even if the trial was completed within seven days, that is, by 9 May 2023, that
would require interference with the composition of the Court of Appeal in matters listed
to be heard next week.
9. Against the submissions supporting the vacation of the trial was the fact that the court
and the members of the jury will have devoted time and resources to the hearing of the
matter, the very strong desirability of having the complainant’s evidence completed as
soon as possible, the expense incurred by the accused as a result of the delay in
completion of the hearing, the difficulties that the accused might face having regard to
the stated unavailability of counsel and his solicitor for a substantial period of time and
the complications that might arise in relation to his visa status.
10. In relation to these last three points, it must be noted that while these matters were put
in opposition to the prosecution’s earlier application to vacate the trial, they were no
longer put, and the current application by the accused must involve acceptance of the
consequences of any vacation of the trial.
11. At the time of the application to vacate the trial, I also heard submissions on whether the
appointment of a witness intermediary for the complainant should be made. For the
reasons that I give in a moment, I decided that the court should, of its own initiative,
appoint an intermediary.
12. My view was that the following matters taken together warranted the discharge of the
jury and the vacation of the trial:
(a) the need to appoint an intermediary; (b) uncertainty as to the capacity of the complainant to complete her evidence in the available time;
(c) the need to complete her evidence before other witnesses providing complaint evidence were called to give evidence and be cross-examined;
(d) the limited time available to complete the trial, having regard to the accumulated delay and the difficulty of one of the jurors if the matter went beyond the
presently estimated time;
(e) the interference with the other business of the court arising from the delays already incurred in the trial;
(f) the potential for the complainant to give evidence at an early stage pre-trial as a vulnerable adult pursuant to s 43, Table 43.4 and s 60 of the Evidence
(Miscellaneous Provisions) Act 1992 (ACT) (EMP Act); and
(g) the articulated position of both parties supporting the discharge of the jury and the vacation of the trial.
13. The decision to discharge the trial was made without prejudice to any attempt to take the
complainant's evidence during the week of 1 May 2023.
Appointment of an intermediary
14. As I indicated, evidence and submissions about whether or not to appoint an
intermediary occurred at the same time as submissions relating to the discharge of the
jury and vacation of the trial. These are my reasons for deciding last Friday that an
intermediary should be appointed for the complainant.
15. The prosecution applied for the appointment of a witness intermediary under the
provisions of the EMP Act well in advance of the trial, but that application was refused.
Although there was ample evidence that the complainant suffered from anxiety, stress,
post-traumatic stress disorder (PTSD) and depression, there was no direct evidence that
the complainant's conditions have ever previously had an effect on her ability to give a
thorough account of the allegations or that those conditions would affect her ability to
communicate at the trial: see McGary at [26]-[29].
16. Section 4AB permits the court on its own initiative, or upon application, to direct the
holding of a ground rules hearing. Section 4AJ permits the court to appoint an
intermediary for a witness with a communication difficulty on its own initiative or upon
application. For the purposes of s 4AJ, the court is not bound by the rules of evidence
and may inform itself as it considers appropriate. Where an intermediary is appointed,
then under s 4AB a ground rules hearing must occur.
17. I have referred earlier to the need for the complainant to have a break as a result of
becoming upset just from watching her evidence-in-chief interview. At the hearing on
Friday her mother gave evidence that following the watching of the evidence-in-chief
interview she visited her daughter in the remote witness room. She was described as having broken down, being terrified and vomiting and having difficulty breathing. She told
her mother that she had been taken right back to the time of the incident.
18. The next day, which was a public holiday for Anzac Day, she was taken to hospital
because her condition had got worse. She was dehydrated, her stomach was in knots
and she was suffering from vomiting and diarrhoea. She was released from hospital later
on Tuesday. She had not been eating in the lead up to giving evidence because of her
state of agitation. Having given evidence on Monday, she recommenced eating on
Friday. She went to the GP on Wednesday.
19. In June 2021 she had suffered from a seizure, which, as I understand it, was associated
with recollection of the incident, where she could not move or talk. Prior to giving her
evidence she had taken Valium. The evidence was not clear whether there were any
other or additional pharmacological treatment that was possible to make it easier for her
to give evidence.
20. The evidentiary position is now substantially different from that when the earlier
application for an appointment of a witness intermediary was refused. The psychological
and physical difficulties associated with revisiting the circumstances of the incident have
manifested themselves. They are more than just general possibilities that such
communication difficulties may arise: see McGary at [29].
21. In light of my observations of the complainant during the hearing and the need to have a
break during the playing of the evidence-in-chief interview and the evidence of her
mother as to the effect of revisiting the incident involving the accused, I am satisfied on
the balance of probabilities that the complainant does have a communication difficulty.
That arises from the physical and mental consequences that arise for the complainant
when being requested to revisit the circumstances of the incident.
22. Even though she has not yet been asked to give further oral evidence on the topic, the
evidence of her mother indicates that such a communication difficulty exists. In my view,
the appointment of a witness intermediary was appropriate. It may be that there is very
little that the witness intermediary can suggest in order to overcome the conditions from
which the complainant suffers and is likely to suffer during the course of giving evidence.
However, it will be able to be determined once the report of the witness intermediary has
been prepared, in light of the range of matters about which directions may be made under s 4AF. I will also make an order for the purposes of s 4AC, extending the time for the
ground rules hearing when the time and date of that hearing are known.
I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop
Associate:
Date: 12 May 2023
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