Director of Public Prosecutions v McGary (No 7)
[2024] ACTSC 207
•3 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v McGary (No 7) |
Citation: | [2024] ACTSC 207 |
Hearing Dates: | 1 and 3 July 2024 |
Decision Date: | 3 July 2024 |
Before: | McCallum CJ |
Decision: | 1. That a further ground rules hearing be held for the complainant. 2. I direct that the complainant’s dog, [redacted], be permitted to be present in the room adjacent to the remote witness room so that the complainant can spend time with the dog during breaks while she is giving her evidence. 3. I note that the ground rules will be supplemented by my indication that the complainant will be entitled to have breaks for such duration as she reasonably requires during the completion of her cross-examination. 4. I reject the application for her to give evidence by audiovisual link from the offsite remote witness room at the ACT Civil and Administrative Tribunal building. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Ground rules hearing – where complainant raised issues with the Court while under cross-examination – whether a new intermediary should be appointed – where complainant sought to give evidence by audiovisual link from a place other than the court remote witness room – where complainant’s treating practitioner suggests longer breaks during cross-examination – where complainant alleged counsel for the accused had a conflict of interest |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT) |
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 being tried for sexual offences alleged to have been committed against [redacted]. The proceedings were listed for pre-trial evidence during the week commencing 3 June 2024. I commenced hearing that evidence until, during the day on 6 June 2024, the complainant in effect decompensated and was unable to continue to give evidence.
2․The proceedings have since come before the Court several times to arrange for the continuation of the complainant’s evidence with the aim of completing it before the commencement of the trial, which was listed to commence next Monday, 8 July 2024. Ultimately, the Registrar fixed the completion of the pre-trial evidence on that date on the understanding that the trial would commence as soon thereafter as is practicable.
3․In the meantime, whilst she was under cross-examination, the complainant communicated the fact that she wished to ask some questions of the Court. Not knowing what those questions might be, and in circumstances where the complainant was not permitted to communicate with the DPP by reason of being under cross-examination, I arranged for her questions to be recorded in writing in open court in the presence of the parties. That document was provided to me and marked MFI 10 in the proceedings. I also heard directly from the complainant, again in open court in the presence of the parties.
4․The complainant raised a number of concerns which I considered it was appropriate to record. This judgment records the concerns raised and the rulings given.
Concern about the intermediary
5․The first issue was a concern expressed by the complainant about the intermediary who had been appointed to assist the Court in the proceedings in accordance with the provisions of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
6․Without having the transcript of the proceedings in front of me, my best recollection is that the concern raised by the complainant was twofold.
7․First, she was concerned that the intermediary was not appropriately trained in dealing with persons suffering from trauma and so did not identify the onset of the symptoms which ultimately resulted in the complainant decompensating during the earlier hearing.
8․The material provided to the Court by the complainant included a report from a psychologist, Dr Cristina Wulfhorst, and a short, confirmatory email from a psychiatrist, Dr Gaskin. That material confirms that the complainant has been diagnosed with post-traumatic stress disorder and reports experiencing trauma-caused symptoms.
9․The second concern expressed concerning the intermediary was that the intermediary had said things to the complainant which had contributed to her stress during the process of giving evidence. I heard from the parties in relation to the complainant’s desire to have a replacement intermediary. This morning, I have also heard from Ms Laura Cilesio, the head of the intermediary service.
10․Mr Tiedt, who appears for the accused, noted that the concerns expressed by the complainant as to things said to her by the intermediary suggested that there must, before those remarks were made by the intermediary, have been some remarks made by the complainant to which the intermediary’s remarks were responsive. That in turn raised a concern that, so far as anyone can tell, the intermediary may well have been conducting herself entirely in accordance with the constraints on intermediaries, noting that they are officers of the Court appointed only for the purpose of assisting the Court by facilitating communication between the witness, those appearing before the Court and the Court.
11․Based on the submissions made by Mr Tiedt, I accept that it would be inappropriate to impose on the intermediary service any requirement to appoint a new intermediary, no basis having been established for that to occur. Accordingly, I determined to take no further action in relation to the currently appointed intermediary.
12․I asked Ms Cilesio to convey to the complainant via the current intermediary a reminder about the limited role of that service and to communicate the fact that the intermediary would not be replaced.
Giving evidence by audiovisual link from the ACAT building
13․The second issue raised by the complainant was whether, rather than attending Court when her evidence resumes next Monday, she could give her evidence from audiovisual equipped rooms in the premises occupied by the Australian Capital Territory Administrative Tribunal (ACAT).
14․The difficulty with that request is that those hearing rooms are not soundproofed, as are the remote hearing rooms in the court building. That in turn raises a concern about the risk of the complainant’s evidence being heard by other persons who may be called as witnesses in the proceedings.
15․Upon reflection, while I initially thought it would be appropriate and convenient for the complainant to give her evidence from the ACAT building, I have determined that she should attend the remote witness rooms within the building of this Court. Arrangements can be made, and often are made, for witnesses attending those rooms to enter the Court by a different entrance. Indeed, the whole purpose of that facility is to ensure that complainants can give their evidence in a way that will not expose them to the risk of coming into contact with the accused person.
Complainant’s dog being present while giving evidence
16․An additional reason for continuing the evidence in the remote witness room in the court building rather than in an offsite room is related to the third issue raised by the complainant, which is whether she can have her own dog, [redacted], effectively as a support animal during the continuation of her evidence. Whilst arrangements can be made for the dog to enter the ACAT premises, the soundproofing issue raises the risk that the dog might, during the course of evidence, make noise which will interfere with the recording of the evidence.
17․I note that it is acceptable for a person to have a support dog with them during the process of giving evidence if appropriate arrangements can be made. Ordinarily, however, the dogs that participate in that process are trained support dogs who can be relied upon to remain still and quiet during the process of giving evidence. That is important because the general principle, which I would adopt, is that if a person has a support animal with them while giving evidence, that animal should remain out of sight and hearing of the jury so as not to raise the risk of invoking irrelevant or distracting sympathy or other feelings in members of the jury watching the evidence. It was accepted that [redacted] was not a trained support animal.
Length of breaks while giving evidence
18․The next issue raised by the complainant was whether the Court could allow longer breaks than I was allowing during the complainant’s previous evidence. During that evidence, I was trying to keep the breaks short so that the complainant's evidence could be completed within the time originally allowed. However, I am of course open to any indication from the complainant or the intermediary that longer breaks are required. I propose when the evidence resumes to accommodate such breaks as the complainant needs, within reason, having regard to the time available to the Court to complete her evidence and the benefit for the complainant of having the evidence completed.
Cross-examination of text messages
19․The next issue raised by the complainant concerned the content of the cross-examination at the time she decompensated. She has set out her position in relation to that issue under heading 2 in MFI 10. In summary, the issue raised is that she questions the appropriateness of the cross-examination in the following circumstances:
(a)the complainant’s telephone messages have been downloaded by police in what is known as a Cellebrite report.
(b)at the time police obtained her phone, she informed them that she had deleted some messages.
(c)it is her understanding that the Cellebrite process retrieved those deleted messages.
20․At the time the complainant decompensated, counsel for the accused had been putting to her the contents of a separate document which, so counsel contends, is a download from the accused’s phone which contains messages additional to those contained in the Cellebrite report. It may be inferred that the accused’s case will be that, contrary to what the complainant understood from police, the Cellebrite report did not retrieve the deleted messages but that those messages have been retained on the accused’s phone and comprise part of the report obtained by whatever means by him.
21․The particular concern raised by the complainant is that the printout obtained by the accused remains untested and its provenance is not clear.
22․So much may be accepted. However, it is axiomatic that the accused bears no onus of proof in the proceedings, that the prosecution bears the onus of proof and, most importantly, that the accused’s counsel is entitled and indeed obliged to put the accused’s case to the complainant. Whether the printout from the accused’s telephone will at any point be properly proved remains to be seen but, in the meantime, it is not appropriate for the Court to stop the cross-examination, for the simple reason that it is the accused’s case.
23․In short, the effect of what is being put to the complainant is that the printout obtained from the accused’s telephone shows not only that messages deleted by her were not retrieved by the Cellebrite report but also that it may be inferred from the content of those messages that she was selective in deleting certain messages. The defence case will be that the complainant’s selective deletion of some messages indicates untruthfulness in her account of the alleged sexual assault or in some other way affects her credibility as a witness.
24․It is not appropriate for the Court to stop that cross-examination. Again, it is axiomatic that, while the Court must do all it can to find an appropriate balance between the interests of the accused and the traumatic impact of the proceedings on the complainant, the fundamental and overriding obligation is for the Court to ensure that the accused has a fair trial. This concern falls squarely within that difficult balancing exercise and must plainly be determined in favour of the accused.
25․I heard this morning from Mr Tiedt as to whether he or the parties should see the content of that part of the complainant’s note. His submissions persuaded me that the parties should be given the note. It will be sent to them by my associates after Court this morning.
Conflict of interest
26․The final issue raised by the complainant was a perception on her part that Mr Tiedt may have a conflict of interest in appearing for the accused in the proceedings by reason of the possibility of his having some association with certain persons associated with the complainant.
27․Mr Tiedt is a solicitor admitted in the state of New South Wales and so is an officer of the court. Accordingly, I took the view that the appropriate course in relation to the complainant’s concern about the apprehended conflict of interest was to convey that part of the note to Mr Tiedt. Mr Tiedt has seen that part of the note and has informed the Court this morning that he does not apprehend any conflict of interest.
28․It is appropriate for the Court to accept that answer for the reason I have indicated, namely, that Mr Tiedt is an officer of the court. His assessment of the issue should be accepted without any further evidence or indication of any reason why it should not be accepted.
Additional support
29․Finally, I note that, in response to the medical event suffered by the complainant which caused the interruption of her cross-examination on the last occasion, the Victims of Crime Commission has arranged for a qualified nurse to attend on the next occasion and to be present while the complainant gives her evidence.
30․I should note that the issues that have been raised by the complainant were put before the Court in two separate forms, firstly, by her note which is MFI 10 and the additional information she gave to the Court on Monday, and secondly, by an application in proceeding filed by the DPP and supported by the affidavit of Ms Thomas affirmed 1 July 2024. The application in proceeding sought that a further ground rules hearing be held for the complainant. That has effectively occurred by the process I have indicated. Secondly, the application sought orders in relation to the dog, [redacted], and the length of breaks. Thirdly, it sought orders in relation to the request to give evidence from the witness room at the ACT Civil and Administrative Tribunal building.
Orders
31․I determine the DPP’s application and the matters raised by the complainant by making the following orders:
(1)That a further ground rules hearing be held for the complainant.
(2)I direct that the complainant’s dog, [redacted], be permitted to be present in the room adjacent to the remote witness room so that the complainant can spend time with him during breaks while she is giving her evidence.
(3)I note that the ground rules will be supplemented by my indication that the complainant will be entitled to have breaks for such duration as she reasonably requires during the completion of her cross-examination.
(4)I reject the application for her to give evidence by audiovisual link from the offsite witness room at the ACT Civil and Administrative Tribunal building.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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