Director of Public Prosecutions v McGary (No 6)

[2024] ACTSC 136

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v McGary (No 6)
Citation:	[2024] ACTSC 136
Hearing Date:	3 May 2024
Decision Date:	6 May 2024
Before:	McCallum CJ

Decision:	1.	Dismiss orders (1), (2) and (4) sought in the application in proceedings dated 15 April 2024.
2.	Defer the issue as to whether the complainant's evidence should be taken by Basha inquiry to the trial judge.
3.	Confirm the listing for 3 June 2024 for pre-trial hearing.

Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to vacate trial – where accused
made complaints of criminal conduct against informant and
complainant – whether trial should abide investigation of complaints – where accused of Jewish ethnicity and faith –
whether current political climate precludes possibility of a fair
trial – application for a Basha inquiry to cross-examine
complainant
Legislation Cited:	Crimes Act 1900 (ACT) s 54(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 111
Cases Cited:	DPP v Hojlund [2024] ACTSC 88 DPP v DL [2018] ACTCA 61 DPP v Mastalerz [2024] ACTSC 30 R v Basha (1989) 39 A Crim R 337
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:

EX TEMPORE REASONS (REVISED)

Introduction

1․	Richard Emory McGary is due to face trial on two counts of sexual intercourse without
consent contrary to s 54(1) of the Crimes Act 1900 (ACT). The trial is presently listed to
commence on 8 July 2024 with an estimate of 3 to 4 weeks. Pre-trial evidence is due to
be taken in the week commencing 3 June 2024.
2․	By application in proceeding dated 15 April 2024, the accused seeks to have those
listings vacated. He further seeks an order that the complainant give evidence at a
Basha inquiry (R v Basha (1989) 39 A Crim R 337); an order that a ruling given by
Mossop J to permit tendency evidence in the proceedings be revoked and a suppression
order pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)
prohibiting publication of the name of the accused, the name of the tendency witness
and the nature of the proceedings.

Application to vacate the trial

3․	The application to vacate the dates for the trial and the pre-trial evidence is based on six
grounds. Before considering those matters, it is appropriate to record the procedural
history, which informs the matters which should be taken into account in determining the
application. The offences are alleged to have been committed on 17 April 2020. The
accused was charged in December 2021. He was committed to this Court for trial on 17
May 2022. The trial was initially listed to commence on 24 April 2023, just over three
years after the offences are alleged to have been committed.
4․	An application to appoint an intermediary was heard by Baker J on 31 January 2023.
Her Honour refused that application for want of evidence. The trial then commenced as
scheduled on 24 April 2023, without an intermediary. However, during the course of her
evidence, the complainant became unfit to continue and was hospitalised. The jury was
discharged. There was then an application for the complainant to give her evidence in
advance of the trial as a vulnerable witness and that application was granted.
5․	The matter was then listed for pre-trial evidence on 23 October 2023. Meanwhile,
however, on 27 March 2023, following the publication by Baker J of her judgment on the
intermediary application, another person contacted the office of the DPP offering to
provide what she considered may be information of interest to the prosecution. It
transpired that that person alleged that she also had been sexually assaulted by the
accused. On 24 August 2023, an application was made by the prosecution for that evidence to be able to be relied upon as tendency evidence in the trial concerning the
complainant. That application was granted by Mossop J. On 28 September 2023, the
DPP agreed to vacate the scheduled pre-trial evidence of the complainant in
circumstances where the investigation of the allegations made by the tendency witness
was ongoing. On 4 December 2023, the trial was fixed for its current scheduled date, 8
July 2024.
6․	As is apparent from that chronology, the trial is now fixed to take place over four years
from the date on which the offences are alleged to have been committed. Furthermore,
there is evidence before the Court (recorded in the judgment of Mossop J concerning
the taking of the complainant’s evidence in advance of the trial on the grounds that she
is a vulnerable witness) that she has suffered from considerable anxiety in relation to
these proceedings. Those considerations also apply to the accused, who must have an
interest in having these matters finalised for his own wellbeing.
7․	Returning to the grounds for the application to vacate the hearing dates, I will deal first
with the matters raised as (b) and (c) in the list of six grounds relied upon.

Prospect of further charges arising from the tendency witness’s complaint

8․	Ground (b) is that a decision has not been made as to whether the accused will be
charged in respect of the allegations made by the proposed tendency witness.
9․	It may be accepted that, if evidence is to be led from the tendency witness in the trial of
the accused in respect of the allegations made by the complainant, if the accused is also
going to face criminal charges in respect of the tendency witness, it would be preferable
for there to be one trial rather than two.
10․	The accused in this context cited the decision of the Court of Appeal in Director of Public
Prosecutions v DL [2018] ACTCA 61 at [25]. In that case, the accused was charged with
eight sexual offences alleged to have been committed against his granddaughters. It
was accepted that the evidence of the offences on the indictment was cross-admissible
as tendency evidence. However, the Crown also sought leave to adduce evidence of
three incidents alleged to have occurred in Queensland as further tendency evidence in
the trial in the ACT. The accused was yet to be tried for the Queensland offences at the
time of the ACT trial. In the judgment at [25] (the passage relied upon by the accused),
the Court (Mossop and Loukas-Karlsson JJ and Robinson AJ) said:

It is clear beyond doubt that his Honour’s reasoning involved giving weight to the “prejudice”

arising from having to deal with the Queensland incidents as part of the ACT trial. As a matter of logic this prejudice could arise in two ways. It could arise in the Queensland proceedings because the complainants and witnesses would be forewarned of the areas of

cross-examination in advance of the accused’s defence case commencing, as well as

alerting the prosecuting authorities to those matters and gaps where steps could be taken to shore up the Crown case. It could arise from forensic decisions taken by the accused in the ACT trial itself to limit or minimize the information flowing from that trial to those complainants, witnesses and authorities. The decision as to whether to give sworn evidence in the ACT trial might be said, in that context, to have heightened significance. Such decisions could be said to be a rational choice in circumstances where, for example, the Queensland proceedings would likely bring a greater period of incarceration if the accused was found guilty than the counts in the ACT trial.

11․ With respect, I think it misreads the decision to understand those remarks as an

expression of the view that prejudice will necessarily or invariably accrue to the fair trial

of an accused person in the circumstances identified by the Court. In DL at [25], the

Court was explaining the question formulated for its consideration (whether, in

determining the admissibility of the Queensland incidents as tendency evidence, it was

permissible to consider the effect that its use in the ACT proceeding may have on the

defendant in other proceedings). That question was answered at [39]-[41] of the

judgment (in a passage relied upon by the prosecutor in his written submissions). The

Court said at [39]:

For the purposes of answering the question, we leave aside the separate position of incident 9 which raises another issue collateral to the question under consideration. Incidents 7 and 8 concern the same complainants and the accused, occur at about the same period in time and in similar circumstances. No submission was made that the evidence sought to be tendered could not be met at trial in an orthodox manner making necessary and unavoidable forensic decisions. The submission on prejudice was that, facing the prospect of two trials, with overlapping evidence, the accused would suffer a procedural disadvantage in making

his defence in one or both trials which he characterised as “any prejudicial effect to the

defendant” within the meaning of s 101. We do not agree that having to make such forensic

choices in the circumstances of the admission of that evidence constitutes relevant prejudice

for the purposes of s 101(2) of the Act.

12․ The Court then recorded its conclusion at [40]-[41] as follows:

40. The question posed is:

When determining in a criminal proceeding whether the probative value of tendency

evidence “substantially outweighs any prejudicial effect it may have on the defendant” under

s 101(2) of the Evidence Act 2011 (ACT), is it permissible to consider the effect that the use of the tendency evidence against the defendant in that proceeding may have on the defendant in other proceedings?

41. We answer the question as follows:

No. Provided the evidence substantially outweighs any prejudicial effect it may have on the defendant, as explained in [34] above, it is admissible. The judge should not consider the effect that the use of the tendency evidence against the defendant in that proceeding may have on the defendant in other proceedings.

13․	Leaving aside the allegation of procedural prejudice, which I note was not argued when
the tendency application was heard by Mossop J (that argument being confined to
separate allegations made by the accused’s ex-wife), the primary argument put on behalf
of the accused relates to considerations of convenience (I do not use that term in any
derogatory way), that is, that it is more convenient for the accused and the Court, and
indeed the prosecution, for there to be a single trial rather than two. I do not think those
considerations should result in the present trial being vacated.
14․	It may be accepted that, at this point, some two months shy of the trial date, the Crown
could not seek to have both trials run together even if a decision to charge were made
today in respect of the tendency witness’s allegations. Conversely, however, as noted
by the prosecutor during oral submissions, it may be that a decision will be made not to
lay charges, in which case the vacation of the current relisted trial date would have been
a mistake. I am not persuaded that the prospect of further charge affords a reason to
vacate the hearing dates.

Incompleteness of the brief in the tendency matter

15․	Ground (c) relied upon to support vacating the hearing dates is a complaint that the brief
of evidence in respect of the tendency allegations is still only partially served and that
the investigation is ongoing. Since the accused’s submissions making that complaint
were prepared, further material has been served. Some material remains outstanding,
being the statement of the informant as to her investigations, the possibility of statements
from employees of ANU who would be complaint witnesses in respect of the allegations
initially made by the tendency witness in 2016 and Facebook material.
16․	The Facebook material was meant to have been served by last Friday and needs to be
served promptly if the accused is not to suffer prejudice in respect of the pre-trial
evidence in a month’s time. However, in my assessment, the primary material that the
accused will need in respect of the tendency allegations has been served. I am not
persuaded that the outstanding material affords a basis for vacating the date at this
stage.

Accused’s allegation of criminal conduct on the part of the complainant

17․ Ground (a) in the written submissions is that the trial cannot proceed because the

complainant is presently under investigation for alleged witness interference. As with

ground (c), there has been a further development since the submissions setting out that

complaint were written. The accused has now been served with an affidavit affirmed by

Ms Thomas on 3 May 2024 setting out the material that has been obtained in relation to

the investigation of the complaint.

18․	It may be noted that the complaint was made by the accused himself. It had a number
of elements. The principal point was a complaint (as far as I can tell, based largely on
suspicion) that the emergence of the tendency witness indicated that the complainant
must have been in conversation with that witness in a way that contaminated her
evidence. The first answer to that point is that the suspicion appears to be unfounded.
As I have indicated, the tendency witness made her first complaint shortly after she
alleges the sexual assault occurred, in 2016, years before the complainant had even
encountered the accused.
19․	More importantly, however, the correspondence annexed to Ms Thomas’s affidavit sets
out the investigations undertaken in response to the concerns expressed by the accused.
One of the matters the accused made plain in his complaint about the complainant was
that he considered it absolutely essential for police, if they were to investigate the matter,
to seize the telephones of the two women before informing them of the content of the
complaint. He suspected, again based on speculation, that if the two were on notice of
the fact that his complaint had been made, they might delete relevant communications.
20․	There is no evidence before me to suggest that they did anything of the kind or that they
were likely to. In any event, it seems to me that the investigation that has been
undertaken is sufficient to put that concern to rest.
21․	I note in that context that the written submissions provided by the solicitor for the accused
were supplemented after he received the material served by the prosecution to which I
have referred. In those submissions, he submitted that the materials served would tend
to suggest that the investigation of witness interference on the part of the complainant
was “at best, amateurish and perfunctory, and at worst, a deliberate and calculated
attempt to ensure that no witness interference was identified”. That is a serious
allegation. The basis on which it was thought to be properly made is not clear. It certainly
does not emerge from any of the material before me.
22․	In a separate part of the submissions, the solicitor referred to the investigation as “ham-
fisted” and speculated whether it had had the effect of providing the tendency witness
and the complainant with the opportunity to sanitise the record. Again, that is a serious
allegation, the basis for which is not clear on the material I have seen.
23․	The accused notes that there were separate allegations of tampering with witnesses or
interfering with witnesses which were not the subject of the investigation. The material
on the strength of which those suspicions are held is included in the material annexed to
the accused’s solicitor’s affidavit. It can be seen there that the complainant appears to
have engaged in communications with witnesses about the content of their statements. The statements in question, however, were not statements taken by police in respect of
the present allegations but were statements obtained before the accused was charged
and in the context of an application by the complainant for a protection order against him.
24․	Still, the prospect that the complainant may have sought to influence the content of any
statement for the purpose of those proceedings is concerning. It is, however, a matter
which, in my view, can adequately be explored in cross-examination of the complainant
at the trial. It is not a matter that warrants the vacation of the hearing dates.

Accused’s allegation of criminal conduct on the part of the investigating officer

25․	The fourth ground is that the officer in charge of the investigation is presently under
investigation for offences allegedly committed in the United States of America. As with
the allegations against the complainant, which were “under investigation” in the manner
I have explained, this investigation of the officer in charge is again something that has
been initiated by a complaint recently made by the accused. The basis for the
investigation is said to be the fact that, in his statement in the proceedings, Detective
Constable Shaun Cunningham “confessed” (in a sworn statement) to using AFP
computer systems:

“to electronically enter the United States (Texas); to investigate a US allegation between US

citizens over which he had no jurisdiction; to falsely hold himself out as having legal authority

that he lacked; and without permission from (or informing) local authorities.

26․	The statement of Detective Constable Cunningham referred to was not included in the
material relied upon in the application before me. Accordingly, it is not possible for me
to determine whether, as the wording of the complaint suggests, the Detective confessed
in a sworn statement that he had falsely held himself out as having legal authority that
he lacked. It seems unlikely that he worded his statement in those terms. Rather, I infer
that is an assertion made by the accused against the officer.
27․	In any event, without knowing the factual premises on which the complaint was made, it
is difficult to assess its significance. During the hearing of the application, I noted that
the laws allegedly breached had not been identified with any specificity. At the
conclusion of the hearing, I granted leave to the accused to put on supplementary
submissions addressing that issue.
28․	The supplementary submissions were received at the end of the day on Saturday, 4 May
2024 under cover of a memorandum noting that they had been prepared with the
assistance of attorneys from the United States. One of the matters identified is the AFP
guidelines for professional conduct. A breach of those guidelines is unlikely, of itself, to
amount to unlawful conduct. However, the submissions also identified United States legislation. It may be accepted (or at least assumed for present purposes) that breaches
of that legislation, if established, may amount to unlawful conduct. The difficulty is that,
as I have indicated, without any understanding or evidence before me of the factual basis
on which it is alleged that those breaches have been committed, I am simply unable to
assess their significance.
29․	Even if I assume, for the purposes of the application, that an officer in charge of the
investigation of the charges before the Court is under investigation himself for offences
alleged to have been committed in the United States of America, it does not follow that
the evidence of that officer is inevitably so tainted that no fair trial can proceed or can
proceed until the investigation is concluded. The evidence of the complainant, which is
plainly the most significant evidence in the proceedings, was taken by question and
answer and that material will be before the jury. If, as I apprehend, the investigating
officer was attempting to investigate the possibility of adducing evidence from another
tendency witness (in addition to the witness to whom I have already referred), whether
he did so in a manner that may have breached provisions of the law in the United States
does not seem to me to afford any basis for doubting the integrity of the evidence of the
complainant that will be presented at the trial.

Alleged failure to disclose an earlier statement by the complainant

30․	The fifth ground for vacating the hearing dates is that there has not been a disclosure of
the “first version” of the complainant’s complaint. That concern arises from the terms of
correspondence from the complainant to police in which she complained about delays in
the investigation and listed the evidence available against the accused (which she
evidently regarded to be enough for the matter to proceed). The accused has not seen
the original of that correspondence, but the relevant part has been cut and pasted into a
police record that has been disclosed to him. In that record, the complainant refers to
having done a formal statement with police “twice already”. The accused has only been
served with one formal statement, hence the apprehension that there has been a failure
to disclose.
31․	In response to that concern, police have identified an occasion on which the complainant
made her initial complaint to police but did not proceed to make a formal statement and
then a second occasion on which she made her formal statement. The accused’s
concern is that, if there is a formal first statement, as suggested by the content of the
complainant’s letter, insufficient steps have been taken to locate it.
32․	The likely explanation is that the complainant was using her words loosely when she
referred to her first complaint to police, which did not in fact result in a formal statement, as a formal statement. The prosecutor informed me at the hearing of the application last
Friday that further steps have been taken to locate any other formal statement made and
that the details of those enquiries will be provided to the accused. Be that as it may, the
proposition that there is a further formal statement that has not yet been uncovered is
speculative. At this point, I am not persuaded that this affords a basis for vacating the
trial dates.

Jewish ethnicity

33․	Finally, the accused relied on the fact that he is a practicing orthodox Jew. He submitted
that, in the current political climate, his Jewish ethnicity and faith precludes the possibility
of a fair trial.
34․	I accept, as submitted on the accused’s behalf, that it is well known that there is currently
armed conflict in the Middle East between the nation of Israel and Hamas. I accept that
I should determine this issue on the basis that this war has inflamed tensions in Australia
and that many Australians are taking a keen in interest in the conflict, some resorting to
protest. It is further submitted that many of the persons protesting have been protesting
Australia’s perceived support of Israel and that the protests have been violent. All of
these are matters of public knowledge. What I do not accept is that, as a result, the
accused cannot have a fair trial at this time.

35․ Mr Tiedt submitted on behalf of the accused that the difficulty arises because the

accused’s Jewishness is woven through the brief of evidence. For example, the

prosecution case includes references to the complainant having been menstruating at

the time of the alleged assault and the existence of a Jewish tradition that a husband

does not sleep in the same bed as his wife when she is menstruating. The latter point

relates to an observation by the complainant that the accused was “sleeping on the

couch” at a point in time, suggesting that there was trouble in his relationship with his

wife when the answer, according to Jewish tradition, would be that it said no more than

that he was not sleeping in the same bedroom as his wife while she was menstruating.

In any event, I am prepared to proceed on the assumption that the topic of menstruation

and the Jewish tradition in respect of men and menstruating women will be an issue at

the trial.

36․	I do not think it follows that the accused cannot have a fair trial. As I indicated during
argument, the history of criminal proceedings in this country includes many examples of
prosecutions conducted in circumstances where there was considerable antipathy in the
community towards people charged with serious criminal offences. Criminal trials have
been run against persons accused of horrendous acts of terrorism and against all manner of isolated minority groups who might be thought to be unpopular. In saying so,
I do not mean to suggest for a minute that orthodox Jews fall within that classification
but, against the context of the accused’s apprehension to that effect, I disagree that a
jury trial in the current climate cannot be fair. It is axiomatic that the criminal justice
system proceeds on the assumption that juries comply with the directions given to them
by trial judges. That is a matter that can be addressed in this trial. For those reasons, I
am not persuaded that there is any reason to vacate either the pre-trial evidence or the
trial.

Application for a Basha inquiry

37․	The next aspect of the application is the accused’s request that the complainant give
evidence at a Basha enquiry. The accused’s solicitor acknowledged that the application
is an unusual or even extraordinary application but submitted that there were aspects of
the present proceedings that warranted such an order. He relied on the fact that the
complainant appears to have undertaken what he referred to as a “shadow investigation”
with what he submitted was obvious prejudice to the accused if he cannot explore those
matters. In particular, it has not been disclosed to the accused who the complainant
spoke to, how she approached any particular person or what documents she may have
obtained or created. Furthermore, there is a suggestion in the correspondence that a
private investigator was retained by her at some point and none of that material has been
disclosed to the accused.
38․	The Crown responded that the principle established in the decision of the New South
Wales Court of Criminal Appeal in R v Basha [1989] 39 A Crim R 337 has less relevance
in current times having regard to the fact that it was decided before the right of an
accused person to cross-examine a complainant in a sexual assault trial was curtailed.
He noted that s 90AB of the Magistrates Court Act 1930 (ACT) prohibits any cross-
examination at a committal hearing of a complainant in proceedings for a sexual offence.
Separately, the Crown submitted that the chronology of events, including the fact that
the complainant made a domestic violence order application, reveals that there was
nothing extraordinary about anything she has done such as to warrant further cross-
examination other than the cross-examination that will be conducted within the trial.
39․	Whatever steps may have been taken by parliament to curtail the right of an accused to
cross-examine a complainant, I think the law still holds that, in an appropriate case, a
Basha enquiry can still be held if that is necessary to obviate unfairness to an accused
person. However, that is a decision ordinarily made during the course of a trial based
on the information that emerges during the trial. The commencement of the pre-trial
evidence in early June will mark the commencement of the trial in the present case. It is enough at this point to indicate that I would not rule out the possibility that a Basha
enquiry may be appropriate during the course of that evidence. However, that is an issue
better left to the judge hearing that evidence based on the information then available.
40․	For example, it may be that evidence would have to be taken from the complainant on
the basis that it may or may not form part of her evidence in the trial, effectively on the
voir dire, as it were, so that a determination could be made whether that evidence should
be accepted by way of evidence in the trial or only on the Basha inquiry. What is
important, in my view, is that this process should not hold up the process of taking the
pre-trial evidence in the five days set aside in early June. The order I propose to make
in respect of that aspect of the application is to defer the issue for consideration by the
trial judge.

Application to have the tendency ruling revoked

41․	Next, the accused sought to have the decision of Mossop J to permit the Crown to lead
tendency evidence revoked. As the argument was developed in oral submissions, it
became clear that this was in effect an aspect of the complaint that the police
investigation in respect of the tendency witness is not yet complete.
42․	As I have rejected that proposition, it follows that I am not persuaded that the decision to
permit the tendency evidence to be led should be revoked. I would note, however, that,
as explained by Baker J in DPP v Mastalerz [2024] ACTSC 30 in a decision I applied in
the matter of [Decision restricted] [2024] ACTSC 88, the formulation of the directions that
would be given to the jury about the tendency evidence should be a matter for the trial
judge. Mossop J does not purport to have determined that issue in his interlocutory
judgment and that remains a question that is open.

Application for a suppression order

43․	The final matter to be determined is the application for a suppression order. I understood
the accused’s solicitor to accept during argument that that was an issue appropriately
dealt with in the manner in which it ordinarily is in proceedings in this Court, namely, that
a suppression order is not ordinarily made under s 111 of the Evidence (Miscellaneous
Provisions) Act 1991 (ACT) but an interlocutory judgment is not ordinarily published on
the Court’s website pending the conclusion of the trial. I indicate that the judgment I
have just given will not be published until after the conclusion of the trial and any appeal.
44․	A further aspect of the application was to have the name of the accused suppressed
(pending the trial). That is not something that ordinarily happens in this Court but in any
event the effect will be achieved in the manner I have indicated.

Orders

45․ For those reasons, I make the following orders:

(1)	Dismiss orders (1), (2) and (4) sought in the application in proceeding dated
15 April 2024.
(2)	Defer the issue as to whether the complainant’s evidence should be taken by
Basha inquiry to the trial judge.
(3)	Confirm the listing for 3 June 2024 for pre-trial hearing.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: