Director of Public Prosecutions v McGary (No 3)

[2023] ACTSC 203

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v McGary (No 3)

Citation: 

[2023] ACTSC 203

Hearing Date: 

31 July 2023

Decision Date: 

31 July 2023

Before:

Mossop J

Decision: 

[The complainant] give evidence at a pre-trial hearing.

Catchwords: 

CRIMINAL LAW – EVIDENCE – Application for complainant to give evidence at a pre-trial hearing – application made by prosecution with consent from the accused – whether complainant is a “vulnerable adult” – where complainant’s PTSD affects their ability to give evidence – complainant permitted to give evidence at a pre-trial hearing

Legislation Cited: 

Crimes Act 1900 (ACT), Pt 3

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 41, 42, 46, 60, Div 4.3.4, Table 43.4

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․The application seeks that the complainant be able to give her evidence at a pre‑trial hearing. The application was consented to by the accused. Dates for the taking of the evidence have in fact been set aside from 23-25 October 2023.

2․Section 60(1) of the Evidence (Miscellaneous Provisions)Act 1991 (ACT) (EMP Act) permits a witness in a relevant proceeding to give evidence at a pre-trial hearing. “Relevant proceeding” is defined in s 46 as a proceeding to which s 60 applies. That is determined by s 43. Section 60 appears in Div 4.3.4. “Sexual offence proceedings” is defined in s 41 of the EMP Act as including offences against Pt 3 of the Crimes Act 1900 (ACT). The offences charged in this case, which involve charges of sexual intercourse without consent, fall within Pt 3 of the Crimes Act. Table 43.4 identifies that the provisions of Div 4.3.4 apply to a complainant who is a “vulnerable adult”.

3․“Vulnerable adult” is defined in s 42 of the EMP Act, and means a person who the court considers:

(a)has a vulnerability that is likely to affect the complainant’s or witness’s ability to give evidence because of the circumstances of the proceeding or the complainant’s or witness’s circumstances; or

(b)is likely to suffer severe emotional trauma, or be intimidated or distressed, by giving evidence in the proceeding otherwise than in accordance with this part; or

(c)needs to give evidence as soon as practicable because the complainant or witness is likely to suffer severe emotional trauma, or be intimidated or distressed.

4․There is evidence from a psychologist that the complainant has severe PTSD, which affects her ability to give evidence and that this is compounded by the circumstances of the proceeding, including nightmares, flashbacks, fight or flight reactions, fears related to safety, avoidance, hypervigilance and extreme fear of having to recount the traumatic events again. The report indicates that the delay in giving that evidence will be more likely to continue the impacts on the witness. She has already given evidence once and there was evidence previously before the court of the consequences for her of having given that evidence.

5․There is already a listing for the complainant to give pre-recorded evidence from 23‑25 October 2023.

6․It is clear in the circumstances that an order should be made permitting the complainant to give evidence at a pre-trial hearing as she clearly fits within the definition of a “vulnerable adult”.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 11 August 2023