Director of Public Prosecutions v McGary (No 9)

[2024] ACTSC 248

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v McGary (No 9)

Citation: 

[2024] ACTSC 248

Hearing Date: 

6 August 2024

Decision Date: 

6 August 2024

Before:

McCallum CJ

Decision: 

Reject the proposed line of cross examination

Catchwords: 

CRIMINAL LAW – EVIDENCE – cross-examination – where accused’s legal representative seeks to cross-examine a witness as to a message from the complainant to the witness – where message not put to the complainant – whether leave should be granted to recall the complainant under s 46 of the Evidence Act 2011 (ACT)

Legislation Cited: 

Evidence Act 2011 (ACT) ss 46, 192(2)

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’s legal representative seeks to ask a witness currently in the witness box a question about a text message allegedly sent to her by the complainant on the evening of the alleged sexual assault.  The complainant was cross-examined over five separate days, however the period over which the cross-examination took place was longer because of breaks between the evidence which were necessary because of the state of the complainant’s mental health while she was giving her evidence.

2․Mr Teidt, who appears for the accused, accepts that the message was not put to the complainant.  He wishes to put it to the current witness based on a hypothesis about what the complainant meant by the message.

3․Plainly, it would be unfair to allow that evidence to go in without giving the complainant an opportunity to respond to the hypothesis. That, in turn, would raise the need for the Crown to recall the complainant, which would be the subject of a requirement for leave under s 46 of the Evidence Act2011 (ACT).

4․In determining whether to grant leave under the Act, the Court is required to have regard to the matters set out in s 192 of the Act. Section 192(2) sets out a non-exhaustive list of mandatory considerations as follows:

(2)Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it must take into account—

(a)the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b)the extent to which to do so would be unfair to a party or witness; and

(c)the importance of the evidence in relation to which the leave, permission or direction is sought; and

(d) the nature of the proceeding; and

(e)the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

5․Having regard to those matters, first, the process of ascertaining the complainant’s preparedness and availability to come back to court to answer a single question is likely to lengthen the hearing, which is currently at a point where the Crown is about to close its case on day 7 of the trial.  It would be unfair to the complainant and to the Crown to permit the evidence to be led now without having her recalled. Although that analysis reflects a derivative application of the section, I consider it to be relevant to the present issue.

6․The evidence is not of such importance as to warrant those steps.  Although the nature of the proceedings is that they involve a serious allegation, and I could adjourn the hearing for that purpose, I do not think the significance of the answer, particularly having regard to the measure of speculation involved in what the complainant might have meant by the message, warrant taking that course.  Accordingly, I reject the proposed line of cross-examination.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: