Director of Public Prosecutions v McGary (No 4)

[2023] ACTSC 212

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v McGary (No 4)

Citation: 

[2023] ACTSC 212

Hearing Date: 

31 July 2023

Decision Date: 

31 July 2023

Reasons Date:

2 August 2023

Before:

Mossop J

Decision: 

The application in proceeding dated 27 July 2023 is dismissed.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for temporary stay of proceedings – whether stay necessary to provide relief against unfair consequences – where application sought disclosure of material not in the possession of the prosecution or police – where submission on the potential for collusion between complainant and tendency witnesses lacks evidence – existence of other potential proceedings not shown to alter accused’s approach to current allegations – where there is capacity for a witness to give evidence from outside Australia – no tangible risk that the trial would be unfair – application dismissed

CRIMINAL LAW – EVIDENCE – Meaning of “similar act witness” in s 42 of Evidence (Miscellaneous Provisions) Act 1991 (ACT) – meaning of “intends to give evidence” of similar acts – applies to witness that prosecution intends to call at hearing – not limited by witness’s state of mind

Legislation Cited: 

Evidence Act 2011 (ACT), ss 94(5), 97, 101, 138, 192A

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 32, 42, 43, 74, 111, Table 43.4

Cases Cited: 

The Director of Public Prosecutions v DL [2018] ACTCA 61; 341 FLR 145

DPP v McGary (No 2) [2023] ACTSC 93

DPP v McGary (No 3) [2023] ACTSC 203

Eastman v Director of Public Prosecutions(No 13) [2016] ACTCA 65

Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; 359 ALR 142

Hearne v Street [2008] HCA 36; 235 CLR 125

Marwan v Director of Public Prosecutions [2019] NSWCCA 161

Macdonald v R; Maitland v R [2016] NSWCCA 306; 93 NSWLR 736

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:  

Introduction

1․On 31 July 2023 there were three applications before the court:

(a)an application made by the prosecution for the complainant to give pre-trial evidence;

(b)an application made by the accused for the trial to be temporarily stayed; and

(c)an application made by the prosecution to adduce tendency evidence.

2․The application seeking that the complainant give evidence at a pre-trial hearing was consented to by the accused and on 31 July 2023 I made an order permitting that to occur: see DPP v McGary (No 3) [2023] ACTSC 203.

3․On 31 July 2023, I dismissed the application to temporarily stay the proceedings and made consequential directions relating to the determination of the tendency application. These are my reasons for dismissing the application for a temporary stay.

Context

4․This matter was previously the subject of a jury trial. On the second day of the trial (26 April 2023), a juror was excused and the complainant experienced difficulty in giving evidence. Counsel for the Director of Public Prosecutions (DPP) applied for the trial to be vacated. That course was opposed by the accused. The matter was adjourned for two days to see whether the witness was in a position to continue.

5․On 28 April 2023, counsel for the DPP pressed the application for the trial to be vacated. The accused changed his position and supported the vacation of the trial. The DPP also applied for an intermediary to be appointed, which was opposed by the accused. I made orders vacating the trial and allowing an intermediary to be appointed. The reasons for that decision are recorded in DPP v McGary (No 2) [2023] ACTSC 93.

6․Shortly before the jury trial commenced, the prosecution had served some material relating to allegations made against the accused by two other women with whom he had been in intimate relationships. The prosecution did not, at that stage, serve a tendency notice or indicate an intention to rely upon the evidence from either of those two women in the impending trial. However, following the abandonment of the trial, on 28 June 2023 the prosecution served a tendency notice identifying that it would seek to rely upon that evidence for tendency purposes. It is that notice which is subject to the application for an advanced ruling under s 192A of the Evidence Act 2011 (ACT).

7․I will refer to the two women as E and R. Both allege conduct involving sexual intercourse without consent on the part of the accused.

8․The incidents involving E are alleged to have occurred between January 2013 and May 2014 in a country other than Australia. Because of where they occurred, they cannot be the subject of criminal charges in Australia. Some reference was made to the alleged conduct in a document prepared in 2020 for the purposes of family violence proceedings between the complainant in the current matter and the accused.

9․The incident involving R is alleged to have occurred in July 2016 at a residence at the Australian National University. It was the subject of a complaint to police at the time but at that stage the complainant did not want any further investigation by police to proceed.

10․Faced with these further allegations which the prosecution seeks to rely upon for tendency purposes, the accused has applied for a temporary stay of proceedings until the Australian Federal Police (AFP) have undertaken various other investigative steps and the DPP has decided whether or not the conduct alleged by R will be the subject of criminal charges. The orders sought in the application are extensive and (with some redactions and anonymisation incorporated) are as follows:

That the trial SCC122 of 2022 (Director of Public Prosecutions … v Richard Emory McGary) be stayed:

1.Until the Australian Federal Police investigate the allegations made by [E], including:

a.     Obtaining witness statements from all relevant witnesses to the allegations made by [E]; and

b.     Obtaining a witness statement or recorded interview from [the complainant] including but not limited to her involvement in the identification of [E], the commissioning and payment made for such investigation of [E] and any correspondence with [E] and/or the private investigator who initially spoke to [E]; and

c.     Obtaining a witness statement from [the complainant’s brother], including but not limited to, his involvement in the identification of [E], the commissioning of the investigation into the complaints of [E] and … in the payment made for such investigation and, including any conversations he had with [E], and [the private investigator] and any other person regarding [E]; and

d.     Obtaining a witness statement from [the private investigator], the private investigator who initially contacted [E], as to her involvement in the identification of [E], the circumstances in which she spoke to [E], the investigative steps taken to [locate] [E], the discussions she had with [E] and any and all contact she has had with [the complainant’s brother], [the complainant] or any other person named on the witness list for SCC 122 of 2022, and including the amount of money she was paid in relation to the investigation and discussion and who provided such payment; and

e.     All evidence obtained in 1(a-d) is disclosed to the legal representatives for Mr McGary; and further

f.   The Australian Capital Territory Director of Public Prosecutions undertakes to have [E] present in person in the Australian Capital Territory for any trial at which she is a witness.

2.In the alternative to condition 1:

a.     Until the Australian Capital Territory Director of Public Prosecutions withdraws the tendency application such that it relies upon the evidence of [E] in the criminal trial SCC 122 of 2022, and notifies the representatives for Mr McGary of the decision in writing.

3.Further to 1 and/or 2; until the Australian Federal Police investigates the allegations made by [R], including:

a.     Obtaining witness statements from all relevant witnesses named by [R] in regards to the allegations made;

b.     Obtaining a witness statement or recorded interview from [the complainant] as to her involvement in the identification of [R] and the investigation of her complaint; and

c.     Obtaining witness statements from all relevant Australian Federal Police officers who have spoken to [R] regarding the allegation as relates to Mr McGary and/or have been involved in the investigation of the allegations made by [R]; and

d.     Service of all such witness statements upon the legal representatives of Mr McGary; and

e.     Disclosing to the representatives for Mr McGary all records relating to all complaints made by [R] regarding Mr McGary to the Australian Federal Police and/or the Office of the Director of Public Prosecutions.

4.Until the Australian Capital Territory Director of Public Prosecutions determines whether Mr McGary will be criminally charged for the allegation of Sexual Intercourse Without Consent against [R], and notifies the representatives for Mr McGary of the decision.

5.In the alternative to conditions 3 and 4:

a.     Until the Australian Capital Territory Director of Public Prosecutions withdraws the tendency application such that it relies upon the evidence of [R] in the criminal trial SCC122 of 2022, and notifies the representatives for Mr McGary of the decision in writing.

6.Suppression order pursuant to section 111 Evidence (Miscellaneous Provisions) Act 1991 prohibiting the publication the names of the accused, [R] and [E] and the nature of these proceedings.

7.Any other order the Court deems appropriate.

11․I note that, what are identified in paragraphs six and seven appear to be additional separate orders sought, rather than circumstances which would result in the staying of the criminal proceedings.

Evidence in support

12․The evidence in support of that application is the affidavit of the solicitor for the accused, Mr Tiedt.

13․The previous trial ran from 24 April 2023 until the jury was discharged and trial vacated on 1 May 2023. Material relating to the complaints made by E and R was first served on 21 April 2023.

14․The tendency notice was served on 28 June 2023.

15․The evidence indicates that a private investigator had some involvement with obtaining the evidence of E and that the complainant’s brother had some communication with E.

16․The affidavit of Mr Tiedt says that certain material has been disclosed in relation to E, namely:

(a)an affidavit she affirmed on 1 October 2020;

(b)a document containing Facebook messages which are said to have passed between E and the accused;

(c)three photographs of injuries to E, said to have been caused by the accused; and

(d)an audio recording of E taken on 19 September 2020 by the private investigator.

17․Mr Tiedt has not been informed as to whether or not authorities in the other country are investigating or intending to prosecute the allegations made by E.

18․Mr Tiedt indicates that he has not been served with:

(a)any other statements of witnesses relating to the allegations made by E;

(b)any statement from the complainant’s brother relating to his involvement in the obtaining of material from E;

(c)any statement from the complainant relating to her involvement in the obtaining of material from E; and

(d)information indicating whether or not E is able to travel to Australia to give evidence or otherwise could give evidence from outside Australia.

19․The affidavit indicates that certain material has been disclosed in relation to the allegations made by R:

(a)a statement under her hand made to Australian National University Security; and

(b)diary entries said to have been made by her.

20․A transcript of a recorded interview with R was served on 29 June 2023.

21․On 17 July 2023, the Crown prosecutor briefed in the matter indicated that the Sexual Assault and Child Abuse Team “do not have capacity to investigate” the allegations made by R, and that the informant is unlikely to complete the investigation in relation to R’s allegations until next year. R recognises that she may, in those circumstances, be required to give evidence twice and has consented to that course.

22․At the hearing of the application, the court was informed by counsel for the prosecution that an officer from the Sexual Assault and Child Abuse Team was investigating the allegations made by R and that the investigation would take a further two or three months.

23․On 20 July 2023, the informant provided a statement, describing:

(a)how he took the written statement from E;

(b)his unsuccessful attempts to contact the private investigator;

(c)the evidence-in-chief interview that he conducted with R; and

(d)that R had made a complaint to the city police on 24 November 2016 that she had been assaulted by the accused.

24․Mr Tiedt indicated that he has not been served with:

(a)any other witness statements relating to the allegations made by R;

(b)any statement from the complainant relating to their involvement in obtaining the material from R; and

(c)any material relating to R’s complaint to the AFP in 2016.

25․The affidavit of Mr Tiedt concludes:

In the face of the lack of all relevant evidence and further in the absence of knowing whether Mr McGary is to be charged regarding any of the allegations made by [E] and/or [R], I am not able to take proper instructions or appropriately or adequately prepare for the tendency application listed on 31 July 2023.

26․Such conclusory statements, not uncommon in solicitor’s affidavits, are unhelpful. They tend to disguise the factual basis for the conclusion and hence do not expose for scrutiny the merit or otherwise of the conclusion. That makes it very difficult for the court to attribute weight to them. In the present case, the statement provides little guidance as to any actual difficulties and their relationship to the tendency application currently before the court.

The test

27․Counsel for the accused identified the test to be applied in relation to an application for a temporary stay of proceedings as being that set out in three authorities: Macdonald v R; Maitland v R [2016] NSWCCA 306; 93 NSWLR 736 at [140]; Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; 359 ALR 142 at [64]; Marwan v Director of Public Prosecutions [2019] NSWCCA 161 at [22]-[26]. These authorities recognise that the court has inherent power to direct a temporary stay of proceedings to prevent injustice. A stay will only be granted to the extent that it is necessary to provide relief against unfair consequences. Necessarily, that precludes the grant of the stay where any potential unfairness may be addressed in other, less drastic, ways. There is some difference as to the threshold for the granting of such a stay, the contrasting formulations being that the trial would be “likely to be unfair” or there being “a tangible risk” that the trial would be unfair (Gould at [63]-[64]; Marwan at [24]-[26]). It is not necessary to attempt to resolve this difference in the formulations. Whichever is adopted in this case, the result would be the same.

Submissions

28․Counsel for the accused submitted that uncertainty as to whether Mr McGary will face additional criminal charges due to the allegations of R and E “infects all of his forensic decisions in the current trial”.

29․Further, the DPP have not served all police records from when R attended police to make a complaint in relation to the accused in 2016.

30․Counsel also contended that the accused was disadvantaged by not knowing whether the complainant or her brother had any involvement in procuring the evidence obtained from E and R.

31․She submitted that “clarity” was required in relation to whether evidence from E would be the subject of any mutual assistance request or any international treaty obligations.

32․Counsel also submitted that there may be a breach of “the Harman principle” arising from the use of the affidavit which appears to have been prepared for the purposes of family violence proceedings in 2020.

33․It was submitted that a “complete brief and knowledge as to how the evidence was obtained” was required in order to determine whether the tendency evidence should be excluded under s 138 of the Evidence Act. Further, the submission was made that evidence in support of the tendency application had been provided on “an ad hoc and piecemeal basis” and that this made it difficult to consider the approach that should be taken to the evidence.

Consideration

34․I considered that no temporary stay was warranted and that any difficulties faced by the accused could be appropriately managed within the framework of the proceedings. Looking at the matters raised individually and collectively, I considered that there was no tangible risk identifiable at this stage that the trial would be unfair so as to warrant the granting of a temporary stay. I considered that there was no impediment to determining the tendency application so long as the ruling under s 192A addressed only the operation of ss 97 and 101 of the Evidence Act and did not resolve all questions of admissibility.

35․There were a number of reasons for this conclusion.

Material not in possession

36․The application sought disclosure of material which was not in the possession of the prosecution or the police (conditions 1 (a), (b), (c), (d)). It sought to compel the prosecution to make certain enquiries rather than merely to disclose information in the possession of the DPP or the police. As pointed out in Marwan at [39], there is a significant difference between a duty to disclose information already possessed and a duty to take further steps to obtain information not in the possession of the prosecution. In Eastman v Director of Public Prosecutions(No 13) [2016] ACTCA 65, the Court of Appeal recognised that an aspect of the duty of fairness on the part of the prosecution dictates that it enquire into information “which may affect the credibility of potential Crown witnesses, if there is sound reason to suspect that material exists which might impinge upon credibility or reliability”: Eastman at [343]. As pointed out in Eastman and Marwan, there is a very distinct lack of authority in support of the proposition that a stay may be granted by reason of a failure on the part of the prosecution to conduct further enquiries. As the result in Marwan indicates, “sound reason to suspect” is not an insignificant threshold. No authority was pointed to in which a temporary stay has been granted to compel investigations of the breadth of those now sought to be compelled. While the lack of authority is not necessarily fatal, in the present case the accused has not demonstrated that a failure to compel the further enquiries by the prosecution would result in a trial which was unfair.

Collusion submission not available

37․A number of the matters sought by the accused appeared to relate to the possibility of contesting the tendency application on the basis of the potential for some collusion between the complainant and one or other of E and R (conditions 1(b), (c), (d), and 3(b)). That submission is affected by the recently inserted s 94(5) of the Evidence Act which provides:

(5)In determining the probative value of tendency evidence or coincidence evidence for section 97(1)(b), … 101(2), it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or contamination.

38․This subsection significantly limits the prospect that much of the material sought by the defendant as to the circumstances in which the complainant, the complainant’s brother or the private investigator, was involved in the location of E, or any other contact between E or R and the complainant, could be relevant to that application.

39․Section 94(5) leaves open the possibility that there could be some objection to the tendency evidence on the basis that it was obtained “improperly” pursuant to s 138. That possibility could be dealt with by excluding any application that might be made pursuant to s 138 from any s 192A determination in relation to the tendency evidence. In assessing the appropriateness of that course as a means of addressing the present application, I have taken into account the lack of evidence indicating that there would be a solid foundation for such an application. While there is obviously some reference in the evidence to the circumstances in which E was located outside Australia, there is nothing in the evidence to date which is indicative of any impropriety.

40․Counsel for the accused sought to raise the possibility of some breach of the Harman principle in relation to the provision by the complainant of E’s affidavit for the purposes of these proceedings. The Harman principle is the principle that a party to proceedings has impliedly undertaken not to make use of documents obtained by court processes for collateral purposes without leave of the court: see generally Hearne v Street [2008] HCA 36; 235 CLR 125 at [105]-[108]. It is difficult to see how there could be a breach of such a principle in the present case, where the affidavit in question was one apparently obtained by and for the benefit of the complainant and, as a result, any disclosure of that material by the complainant to the prosecution for the purposes of the present proceedings would not have breached any implied undertaking given by the complainant to the court in the family violence proceedings.

Identified undisclosed documents

41․Insofar as the statements of the informant, which became Exhibit 1, disclosed at [66] some additional documents which had not been provided in the brief of evidence supplied to the accused, those were matters which the prosecutor indicated could be remedied very quickly. The failure to include those documents as part of the brief provided does not provide a basis for the grant of a temporary stay.

Charging decision

42․One of the stay conditions sought by the accused required the prosecution to identify whether or not the accused would face criminal charges as a result of the allegations made by R (condition 4). Although the allegation was originally made to police in 2016, the matter has only recently become the subject of further investigation. Those investigations are estimated to take two or three more months.

43․Whether or not they are the subject of criminal charges at the time of the trial on the present charges, the accused will need to make “unavoidable forensic choices” in the conduct of the trial. The language of “unavoidable forensic choices” comes from the decision in The Director of Public Prosecutions v DL [2018] ACTCA 61; 341 FLR 145 in which the Court of Appeal found that the fact that the acts sought to be relied upon for tendency purposes were the subject of proceedings in another jurisdiction was not a matter which gave rise to unfair prejudice. The court held: “The judge should not consider the effect that the use of tendency evidence against the defendant in that proceeding may have on the defendant in other proceedings.”

44․In light of DL, the existence of other potential proceedings would not provide a basis for declining to decide the tendency application. It would be desirable for the prosecution decision in relation to R’s allegations to be made prior to the trial concerning the complainant’s allegations. However, the fact that such a decision has not been made now provides no basis for a stay. It was not shown in any specific way how the approach taken by the accused to the current allegations would be altered by the DPP’s decision as to whether or not to charge him in relation to the allegations made by R.

Availability of E to give evidence

45․One of the stay conditions sought (condition 1(f)) was intended to compel the DPP to undertake that E would be “present in person in the Australian Capital Territory for any trial at which she is a witness”. The basis for this order was not explained. It may well be that, if she is to give evidence, then E will need to travel to Australia. However, that is not inevitable. There is capacity under the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) to take evidence from a place outside Australia if the necessary facilities for doing so are available and it is in the interests of the administration of justice to do so: ss 32(1)(c), 32(2). Further, if the witness is a “vulnerable adult” then there may be an entitlement to give evidence at a pre-trial hearing and, whether or not the witness is a “vulnerable adult”, there is an entitlement to give evidence by audio-visual link: s 43 Table 43.4 item 2. Having regard to the entitlement to give evidence by audio-visual link in any event, the case for compelling the witness to travel to Australia rather than give evidence by audio-visual link from outside Australia, is not obviously strong.

46․For present purposes, it is enough to note that if the DPP is not able to arrange for E to give evidence in one or other of the ways permitted by law, the evidence will not be admissible. It would be both premature and inconsistent with the options available for the giving of evidence in a case such as this to make an order compelling production of a witness in person at a future trial.

Non-publication order

47․Finally, it is necessary to deal with item 6 of the application for suppression orders. Counsel for the accused did not press the claim for a suppression order in relation to Mr McGary’s name. So far as R and E are concerned, it was not necessary to make an order in relation to their names. Section 74 of the EMP Act, which relates to the identity of a “complainant”, is picked up and applied to a “similar act witness” by s 43 and Table 43.4 item 2. That is because it applies Pt 4.4 which contains s 74. A “similar act witness” is defined in s 42 as follows:

similar act witness means a witness in a proceeding for an offence who gives, or intends to give, evidence in the proceeding that—

(a) relates to an act committed on, or in the presence of, the witness by the accused; and

(b) is tendency evidence or coincidence evidence under the Evidence Act 2011.

48․For a person to be a “similar act witness”, it is not essential that the evidence has been ruled to be admissible. I am satisfied that the reference to “intends to give” is sufficient to cover a witness who the prosecution intends to call at the hearing and that the expression “intends to give” is not to be narrowly confined so as to require an enquiry into the subjective state of mind of the individual concerned. As s 74 applies, no order under s 111 is necessary in relation to these witnesses.

49․Even leaving aside the application of s 74, given the pending trial of the accused, it is appropriate to administratively defer publication of these reasons on the internet until a later point, most likely after the trial of the accused.

Orders

50․It is for these reasons that on 31 July 2023 I made the following order:

1.The application in proceeding dated 27 July 2023 is dismissed.

I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 25 August 2023