Director of Public Prosecutions v McGary (No 8)

[2024] ACTSC 246

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v McGary (No 8)

Citation: 

[2024] ACTSC 246

Hearing Date: 

31 July 2024

Decision Date: 

1 August 2024

Before:

McCallum CJ

Decision: 

Grant leave to the prosecutor to present MFI 4 as evidence of prior statements of the witness that were consistent with her evidence in the proceedings.

Catchwords: 

CRIMINAL LAW – EVIDENCE – Application to tender document to re-establish credibility – whether it was suggested to the witness that her evidence was fabricated or reconstructed – whether leave should be granted to admit evidence of prior consistent statements in accordance with s 192(2) of the Evidence Act 2011 (ACT)

Legislation Cited: 

Evidence Act 2011 (ACT) ss 76, 108, 192(2)

Cases Cited: 

DPP v Austin (No 3) [2023] ACTSC 204

DPP v McGary (No 5) [2023] ACTSC 242

Graham v The Queen [1998] HCA 61; 195 CLR 606

Papakosmas v R [1999] HCA 37; 196 CLR 297

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)

1․The accused is being tried by a jury on an indictment containing two counts of sexual intercourse without consent.  The Crown case is that the accused anally penetrated a woman with whom he was in some species of intimate relationship, the precise nature of which is in dispute in the proceedings. 

2․In accordance with a pre-trial ruling given by Mossop J in DPP v McGary (No 5) [2023] ACTSC 242, the Crown case includes tendency evidence from another woman who also claims that the accused had sexual intercourse with her without her consent when she was in an intimate relationship of uncertain parameters with the accused.

3․The tendency witness was the first witness in the trial because the Crown prosecutor is endeavouring to lead the evidence in chronological order.  During the cross-examination of that witness, she was asked questions based on a document she had prepared as a kind of statement to provide to the institution at which both she and the accused were then students, the Australian National University.  That statement was marked MFI 4.  The questions were limited to expanding the scope of her evidence about certain text messages about which she had been asked in her evidence-in-chief.  The additional text messages were set out at the end of the statement.

4․Yesterday, at the conclusion of the cross-examination, the prosecutor sought to tender other parts of the statement.  Mr Tiedt, who appears for the accused, opposed the tender but submitted alternatively that, if part of the statement was to be admitted, the whole statement should go into evidence.

5․This morning, I ruled that the whole statement should be admitted.  These are my reasons for that ruling. 

6․The Crown relied on two grounds for the tender; first, that the statement was additional evidence of complaint and, secondly, to re-establish the witness’s credibility.  As correctly submitted by Mr Tiedt, if the evidence was to be relied upon as complaint evidence, it ought to have been adduced in the witness’s evidence-in-chief.  However, I formed the view that the second ground relied upon the prosecutor was made good, that is, that the evidence was properly admissible to re-establish the witness’s credit.

7․That aspect of the application invoked s 108 of the Evidence Act 2011 (ACT). That section provides:

Exception—re‑establishing credibility

(1)The credibility rule does not apply to evidence given by a witness in re‑examination.

(2) The credibility rule does not apply to evidence of a prior consistent statement of a witness if—

(a)      evidence of a prior inconsistent statement of the witness has been admitted; or

(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion;

and the court gives leave to present the evidence of the prior consistent statement.

8․The threshold for the application of the section, so far as it was relied on in the present case, is that it had been suggested to the witness, at least by implication, that evidence given by her had been fabricated or reconstructed.  That aspect of the rule concerns what used to be called “recent invention”.  However, as explained by the High Court in the decision in Papakosmas v R [1999] HCA 37; 196 CLR 297 (by reference to the Evidence Act 1995 (NSW), of which the Evidence Act 2011 (ACT) is an example), under the uniform evidence legislation, while the legislation does not affect the operation of the common law except as provided expressly or by necessary intendment, it is “the language of the statute” that now determines the manner in which certain kinds of evidence are to be treated: at [10] (Gleeson CJ and Hayne J; and see Gaudron and Kirby JJ at [46]). Many provisions of the uniform legislation effected a significant change in the landscape of the admissibility of evidence.

9․The question accordingly is not whether the tendency witness was accused of recent invention (“you’re making this up as you go along”) but whether it was suggested to her that her evidence had been “fabricated or reconstructed (whether deliberately or otherwise)”.

10․The assault of which the tendency witness complains is alleged to have been committed in mid-2016.  Her statement to police was not made until mid-2023.  In cross-examination, Mr Tiedt noted the passage of time between those events (some seven years) and put to her that she did not recall certain matters clearly.  He reminded her that she had told police her memory was “patchy”.   

11․Against that introduction, Mr Tiedt put to the witness (tcpt 84, line 15):

You've done the best you can to put together the precise words or the precise things that occurred on the day in question.  Do you agree with that? 

That's right.

12․In his application to re-establish the witness’s credit, the prosecutor was called upon by me to specify what he contended were the prior consistent statements the substance of which was challenged during the cross-examination.  I considered it appropriate in the circumstances of the present application to take that course: cf DPP v Austin (No 3) [2023] ACTSC 204 at [4]-[5], a recent decision of Baker J. At the time he was called upon to do so, the prosecutor did not have the transcript of the witness’s evidence and was required to answer my question by reference only to his notes. By reference to the transcript, the matters specified may be summarised as follows:

(1)it was put to the witness that, shortly after she entered the accused’s room at the ANU on the day in question, she lay on the bed and invited him to join her.  She had given evidence that it was the other way around in that the accused sat on the bed first and invited her to join him.  MFI 4 contains a prior statement consistent with her version;

(2)it was put to the witness that she was involved in or participated in removing their clothes.  She had given evidence that he removed their clothes.  MFI 4 contains a prior statement consistent with her version; 

(3)the witness gave evidence that, while they were on the bed, music the accused was playing stopped and that he got up to put more music on.  It was put to her that the accused did not get up off the bed to change the music as he was able to reach his laptop from the bed.  MFI 4 contains a prior statement consistent with her version;

(4)it was put to the witness that, after the accused changed the music, there was further physical affection between them including his nuzzling into her neck and spooning her.  That had not been part of her account.  MFI 4 contains a prior statement consistent with her account.

(5)the witness gave evidence that she told the accused she did not want to have sex.  It was put to her that she did not say that but only said that she didn’t think it was a good idea.  MFI 4 contains a prior statement consistent with her account.

13․Section 108 imposes a requirement for leave to adduce the evidence of the prior consistent statement. That invokes the need to consider the factors specified in s 192(2) of the Evidence Act.

14․Addressing those matters, first, the success of the application would not add unduly to the length of the hearing: s 192(2)(a). In effect, the only additional time is the time it has taken to hear and determine the present application.

15․I am not persuaded that there is any unfairness in permitting the evidence to be adduced: s 192(2)(b). 

16․The evidence is of considerable importance: s 192(2)(c).  The position in the present case may be contrasted with the analysis undertaken by Baker J in Austin (No 3); see also Graham v The Queen [1998] HCA 61; 195 CLR 606 at 609. Unlike those cases, in the present case, the position was one where the prior consistent statements have significant probative value. There was a lengthy delay between the alleged incident and the first statement made to police, a period of some seven years. However, the witness had, within six months after the alleged incident, recorded a version of the incident in the document the subject of the application. The availability of evidence to go before the jury that, in an earlier statement, the witness had made prior statements consistent with her evidence in court was of considerable importance to her credit. It will, of course, be a matter for the jury's assessment as to whether they accept the tendency evidence, which is a predicate to their being able to draw any inference based on that evidence.

17․The nature of the proceedings is, of course, that they are proceedings for serious criminal offences: s 192(2)(d).  Accordingly, that is a factor which, in my assessment, weighs in favour of admitting the evidence if it is relevant.

18․The matter identified in section 192(2)(e) does not arise in the present circumstances.

19․For those reasons, I was persuaded that the evidence should be admitted as evidence capable of re-establishing the credibility of the witness in circumstances where it had been put to her in cross examination that her recollection was patchy and that she was, in effect, doing her best to reconstruct what had happened.

20․As already noted, Mr Tiedt submitted that, if the evidence was admitted, the whole statement should go in. I agree. To the extent that this requires leave under s 76 of the Evidence Act because there is a reference in the statement to a prior sexual assault committed against the witness, leave should be granted, for substantially the reasons I have given in respect of the grant of leave to admit the document.

21․The prosecutor objected to the admission of a part of the document which discusses the witness’s mental health.  In my assessment, it is appropriate for the jury to see the whole document.  There is a real risk, when trial judges rule on disputes as to admissibility by redacting statements of witnesses, that they will redact not only the statement but the truth.  The whole of the statement sheds light on the relevant exchanges.   

22․For those reasons, I granted leave to the prosecutor to present the statement as evidence of prior statements of the witness that were consistent with her evidence in the proceedings.  MFI 4 was accordingly admitted as Exhibit E in the trial.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

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