McConnachie v Director of Public Prosecutions [2019] NSWSC 318 | Case summary

McConnachie v Director of Public Prosecutions [2019] NSWSC 318 | Case summary | Zoe

[5]

The delay and progress of the substantive proceedings

The applicant has been in custody since his arrest on 23 February 2017. Limited cross-examination at committal proceedings was permitted by a Magistrate and the matter was listed for committal hearing on 28 February 2019. After the hearing of the bail application, the parties provided an update of the progress of the matter. Two documents were marked as exhibits in chambers (Ex 5 and Ex 6). These summarised what happened at the committal hearing. A number of charges were withdrawn, two further charges were laid, there were some amendments to some of the counts and the applicant was committed for trial. Cross-examination of the investigating police at the committal hearing suggested that more evidence will be served concerning extractions taken from a device (an Ipad mini) controlled by TM. There also appears to be controversy as to whether TM has other devices, it being asserted that she has four telephone numbers, a matter apparently not known to the investigators.
No trial date has been fixed and it is somewhat speculative as to when the proceedings might be listed, let alone resolved. Because of the complexity of the case and the likelihood of an application for separate trials and other pre-trial issues (such as a voir dire on the admissibility of tendency evidence), I initially accepted Mr Conditsis' estimate that the case is unlikely to be finally determined until sometime partway through the year 2020. Mr Conditsis said that this was a somewhat optimistic estimate given his understanding of the current delays being experienced in the District Court as well as the probable length of the trial (or series of back to back trials). He thought the total delay was likely to be 3, and possibly even 4, years between the charge being laid and the trial. However, since the hearing more information has been obtained from the chambers of the Chief Judge of the District Court. It appears the District Court may be in a position to offer the applicant a trial date in the relatively near future. Even so, the total delay is likely to exceed 2 ½ years. Even in the context of (perhaps exaggerated) reports of the delays currently being experienced in the Local and District Courts, this is a very long period of time for an accused person to be held in custody pending their trial. The words of Sperling J in 2001 remain true today: [1] The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights.

[6]

The position of the parties

The extent of this delay is at the forefront of the applicant's release application. He also relies on a careful analysis of the strength of the case to be presented against him.
Against that, the Prosecutor relies on the fact that, in respect of some of the charges, the applicant must show cause why his detention is not justified. [2] Further, the prosecution submits that, contrary to Mr Conditsis' submissions, the case against the applicant is very strong, bordering on overwhelming. The Prosecutor submits that the applicant has not discharged his onus to show cause why his detention is not justified. Further, because of the number and nature of the charges and the history of breaches of court orders and conditional liberty, it was submitted that the applicant poses an unacceptable risk if released on bail. [3] The prosecutor submits that the bail conditions proposed do not mitigate the risks associated with releasing the applicant.
The reasons Mr McConnachie is required to show cause is because some of the offences were allegedly committed while he was on bail for other offences. Mr Stevenson submitted that while the delay is extensive, the applicant has not shown cause and, in the circumstances of the case, his continued detention is justified. The factual and evidentiary bases for that submission are also relevant to the prosecution's second submission in opposing the release application, namely that the applicant represents an unacceptable risk of the various kinds identified in ss 17 and 19 of the Bail Act. The risks in s 19 reflect the bail concerns identified in s 17, namely - 1. A risk that he will fail to appear; 2. A risk that he will commit a serious offence; 3. A risk that he will endanger the safety of victims, individuals or the community; and 4. A risk that he will interfere with witnesses or evidence.
The Prosecutor's submission is based on material that demonstrates a history of breaching court orders including breaching bail, breaching good behaviour bonds and breaching apprehended violence orders. It is also based on certain actions of the applicant shortly after he was taken into custody. These actions involved attempting to arrange for others (including his mother and a former girlfriend) to approach witnesses and, specifically, the complainants, with a view to having them retract their evidence or otherwise do what they can to have the charges against the applicant dropped. The prosecution's position is also based on the nature and multiplicity of offences charged against the applicant.
The applicant submits that he has shown cause why his detention is not justified. He relies on a combination of circumstances in advancing that submission. At the forefront of the submission is the extensive delay between the time that he was taken into custody and the time that his charges will be resolved in the District Court. The applicant also relies on what he asserts are significant weaknesses in the prosecution case. Most of the argument and written submissions were directed to a close and helpful analysis of the prosecution case and the weaknesses inherent in it. The applicant also relies on the difficulties he faces in preparing his defence whilst in custody. The evidence establishes that the applicant has chosen, for his own safety, to instruct his lawyers not to provide him with the voluminous brief of evidence while he is in custody. When he first went in to prison the nature of his charges was somehow disclosed to other prisoners and his safety was compromised. As a result he has been placed in protective custody with limited associations. This means that he rarely gets out of his cell. He is concerned, and on my finding justifiably concerned, that if the paperwork and statements in his trial were sent to the prison there is a risk that other prisoners may find out about the nature of the charges and he will be subject to some kind of prison justice or retribution.
There are four complainants and the show cause requirement only arises in respect of some of the charges relating to one of the complainants. These are sequences 1-7 in respect of the complainant CC. Even though the show cause issue only arises in relation to one of the complainants, Mr Conditsis conceded that it presents a substantial obstacle to the applicant obtaining bail. It is a question to be considered separately from, and independently of, an assessment of whether any risks or bail concerns that arise can be mitigated by the imposition of strict bail conditions and, in accordance with established authority, I have not "conflated" the two questions. [4] Even so, the material upon which both sides rely on the release application is relevant to both the issue of whether the applicant has shown cause and also whether he represents an unacceptable risk of any or all of the kinds referred to in s 19 of the Bail Act.

[7]

The charges

It is necessary to set out the nature of the charges and allegations levelled against the applicant. It is not necessary to deal with them in great detail but, it must be said, the nature of the allegations is disturbing. They involve the sexual and/or physical abuse of four separate adult complainants spanning a period of six or seven years. In the case of three of the complainants, the abuse encompassed sexual and indecent assaults of a very demeaning kind. In the case of the fourth complainant, the allegations involve serious allegations of physical violence. Each of the complainants were in some form of a relationship with the applicant and, it seems, consented to some activity of a sexual nature which was described in submissions as "rough sex". While that description may be apt, it understates the nature of the applicant's sexuality as it is disclosed in the evidence elicited on the bail application. It is this sexuality that is the centrepiece of the proposed tendency or coincidence case that ultimately will be advanced by the prosecution at the trial.
When the bail application was heard, there were 35 separate charges before the Local Court. Following the committal hearing, the number of charges has decreased. Six of the charges were withdrawn. The applicant was committed for trial on a total of 18 charges and 9 charges were transferred to the District Court under s 166 of the Criminal Procedure Act 1986 (NSW). These either related to a more serious charge or a back up to one of those charges.
There are 13 charges of sexual intercourse without consent and four charges of aggravated sexual assault, the circumstance of aggravation being the infliction of actual bodily harm or the deprivation of liberty. There is an aggravated break and enter with intent, a kidnapping with intent, a number of counts of intentionally choking (although one of these was withdrawn at the committal hearing), [5] several stalking charges, two offences of assault occasioning actual bodily harm and two counts of common assault. There are a number of indecent assaults, mostly associated with, or alternatives to, the more serious sexual offences.

[11]

The fourth complainant is CC. She was involved in a relationship with the applicant towards the end of 2016 and into 2017. There are seven offences of sexual intercourse without consent, two "back up charges" of choking a person (recklessly), and one count of aggravated sexual assault including the infliction of actual bodily harm.
CC was the first complainant to allege that the applicant sexually assaulted her.
CC met the applicant through the dating site Plenty of Fish. They first met in July 2016. Early in the relationship the applicant showed signs of aggression in their sexual relationship. He would put his fingers into her mouth and spread her mouth. He "always asked to have anal sex". He would call her a "whore" and a "cunt". She was scared and intimidated but "went along with this because she did not want the accused to become more verbally or physically aggressive towards her." [8]
The first count (referred to as sequence 7 in H 62684120) occurred about three months into the relationship. It is an allegation of sexual intercourse without consent said to have occurred between 1 September and 1 November 2016. The couple were having (presumably consensual) anal intercourse when the applicant put his fingers in CC's mouth, pulled her mouth open and pulled her head back. This caused a lot of pain and she began to cry and said "Stop. That's enough." The applicant told her to "[f]ucking shut up", rolled her onto her back and forcefully pushed his penis into her mouth. She was gagging and struggling to breathe. Later CC complained to him about his aggressive behaviour but he said "[y]ou need to tell me when you don't want something". She said she had told him to stop but the applicant did not respond.
After this incident, CC terminated the relationship. Initially, the applicant sent CC abusive text messages but, after a time, he was nice to her and the relationship resumed. One night in January 2017, they had consensual sex three times during the evening. The following morning, the accused said "give me your cunt" and CC said "no". He then pulled her hair and inserted his penis into her anus, while putting his fingers in her mouth and pulling her head back. He spat on his hand and wiped it over CC's face. This is sequence 8. Sequence 9 followed shortly thereafter when the applicant forced CC to perform fellatio on him. He slapped her and caused her to gag while she struggled to breathe. She was scared and suffered scratches to the inside of her mouth. After the applicant left, CC went and complained to a friend (MA). A few days later she ended the relationship with the applicant. She sought advice about sexual assault from the local police but did not identify the applicant. Communications between the two continued and the relationship recommenced after a couple of weeks.
On 21 February 2017, the applicant, CC and MA took some drugs together. They went out to get food and when they returned, the applicant demanded to have sex with CC. MA was asleep in another room. There are six counts arising out of the events that followed. If accepted, it was a very violent encounter. It included digital penetration of the vagina and anus, penile/vaginal intercourse, and fellatio. The applicant was pulling CC's hair, choking her, and pulling her mouth apart with his fingers. CC was coming in and out of consciousness and when she woke up she tasted "a warm, foul tasting liquid in her mouth". The liquid was not semen. The applicant said "drink me" and CC believed Mr McConnachie had urinated in her mouth. She spat the liquid at the applicant. He continued to sexually assault her until she elbowed him in the stomach and got away. She had a shower, woke up MA, and left the house. By that stage it was around 5am on 22 February 2017.
The applicant sent a number of text messages to CC. This included him saying "you ditched me again" and "I have no doubt it was all my fault". CC made contact with TM and they exchanged messages about the incident. CC then spoke to a sexual assault counsellor. Later that day she reported the matter to the police.
The police attended the house and spoke to the applicant who provided a version of events. He was later formally interviewed and provided a similar version. In short, the applicant denied any particular interest in violent sex or anal sex, although he acknowledged that CC "liked it a bit more rough". His memory of the events was imperfect - for example, he said he had never urinated in her mouth before but, that night, he fell asleep and could not say it did not occur.
He was charged with various offences, refused bail and has been in custody ever since.

[14]

Delay in the complaints

With the exception of CC's final allegation, there was a delay - and in some instances a substantial delay, in the complainants raising the allegations. The applicant relies on the delay in making complaint. He also relies on evidence establishing that the complainants remained in, or resumed, a relationship with the accused in spite of what they allege was a non-consensual, dominating and humiliating sexual relationship. However, while this may be a matter that could legitimately be used in attempting to undermine the credibility of the complainants, the jury will be directed that a delay in complaining of matters of a sexual nature may be explicable for many reasons. In particular, a victim of sexual assault may be reluctant to speak to anybody about their experience. It can be humiliating to do so.
Embarrassment or humiliation, leading to reluctance to speak to police and others about the facts of the case, may be exacerbated where, as here, the complainants on their own accounts consented to some of the activity. There is evidence of communications including text messages that suggest consensual sexual encounters of a similar nature to those alleged to be non-consensual. The fact that there has been some delay in making complaint is not a matter that is likely to be determinative in undermining the credibility of the complainants in the circumstances of the case.
Having said that, the thrust of the applicant's submission is that his case will be based around consent. It seems that, for the most part, the acts giving rise to the charges will not be contested. Rather, it will be submitted that the complainants were willing participants in the sexual activity. The applicant submits that the delay in complaint is relevant in this respect. Of greater significance is the fact that the complainants consented to, or at least went along with, the applicant's inclination for "rough" and demeaning sexual encounters. There are a number of text messages between the offender and one or other of the complainants which bears out this submission.
Neither the Internet searches conducted by the applicant nor the text exchanges between the applicant and his sexual partners make for pleasant reading. However, the fact that sexual activity is unusual does not make it unlawful; unless it is committed without consent.

[16]

Tendency evidence relied on by the prosecution

The prosecution's tendency case is supported not only by the evidence of the four complainants, but also by another two of the applicant's sexual partners (MW and NP).
MW and NP will acknowledge that their involvement in the sexual activity may have been consensual, although they did not like it and it made them feel uncomfortable. However, each is expected to give evidence that they were involved in similar sexual practices to that complained of by the complainants.
Also of importance, because it is objective evidence scarcely capable of dispute, are Internet searches and browsing histories found on the extraction of data from Mr McConnachie's mobile telephone. Those searches and histories are listed in the Crown Case Statement in paragraph 37 and 38 and a perusal of those paragraphs is not for the faint hearted.
Examples of searches undertaken on pornographic websites include "Spit", "piss in throat", "golden correction showers for disobedient bbw", "treated like a cunt", "treated like shit", "slap face rough", "degrading degradation", "piss drink abused used owned", "Gag Spit slap", "Fish hooked" and "fish hooks", "Piss fuck" "spit slut" and "dirty nasty gagging rim wife". The browsing history includes "Mommy drinks piss too", "Brutal teen humiliation", "My chained slave wife thoroughly humiliated", "Blonde slave throat fucked", "Deep throat and piss drinking", "[Polish] girl gets hooked", "Slut gets hooked", "Throat fucking my girlfriend", "Mature outdoor Piss Gang Bang", "Throat gaggers compilation" and "Deepthroat Forced and Piss Puking".
There is much, much more in a similar vein. It bespeaks a man with sexual fantasies reminiscent of the Marquis de Sade.
There seems little doubt that the tendency case will be strong and, while there may be some debate about its nature and extent, on my prospective assessment at this distance, a good deal of the evidence is likely to be held to be admissible. However, Mr Stephenson acknowledged its limitations. It was accepted that the tendency case is likely to go to proof of the acts giving rise to the offences and the objective nature of the sexual encounters, rather than directly to the issue of consent. [13]
On any objective review of the material, there is an overwhelming case that the applicant has (or had at relevant times) a number of sexual fantasies and urges; the common thread of which is that the male partner (which is to say, here, the applicant) plays a dominant role in the sexual activity while the female partner (in each instance here, the complainants or tendency witnesses) were submissive and subject to abuse and humiliation. The evidence available to establish these tendencies appears, at least at first blush, to be overwhelming. Based on the evidence I have reviewed, I am convinced that the prosecution will be in a very strong position to prove that the acts and sexual conduct alleged by the complainants occurred.
While the evidence may relate only to the applicant's sexual fantasies and desires, it may also speak plainly to an underlying and disturbing lack of respect for, or even hatred of, women.

[17]

The tendency evidence and the issue of consent

However, Mr Conditsis submitted that the real issue at the trial will be one of consent. Putting to one side cases where the law does not allow a person to consent to activities involving extreme violence, [14] the criminal law generally does not involve itself in proscribing unusual sexual activity, no matter how far outside of the norm, and no matter how apparently degrading and humiliating, provided that the participants are consenting adults. Citizens are permitted to engage in the full gamut of sexual activity that the human imagination can conjure, irrespective of the fact that some people would consider that activity to be depraved, perverted or bizarre.
Against that statement of the libertine nature of Australian law and society in the early 21st century, the extreme nature of some of the activity allegedly indulged in here, means that it would be open for a jury to proceed from an assumption that most people would not consent to such activity. The prosecution will have to prove an absence of consent beyond reasonable doubt, but it will be able to rely on the jury's understanding of human affairs and a submission that most people would not consent to a good deal of the activity alleged.
However, the complainants themselves accept that they were at times willing, albeit perhaps reluctant, participants in sexual activity of an unusual or similar nature, and the line between reluctant or tacit consent on the one hand and a lack of consent or recklessness as to consent is often a difficult one.
Returning to the tendency case, the Prosecutor's concession that it does not go directly to consent accords with the statements of the High Court in Phillips v The Queen: [15] 46. … Normally similar fact evidence is used to assist on issues relating only to the conduct and mental state of an accused. Did the accused do a particular thing? Or did the accused do it with a particular mental state? But where a particular count supported by one complainant's evidence raises the issue of whether she consented to certain conduct by an accused, the issue relates much more to her mental state than his. The trial judge kept referring to "the improbability of similar lies" on that issue. That is an expression used by Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen; however, as counsel for the appellant pointed out, they used it not on the question of whether the complainants in that case consented, but on whether the accused behaved towards them as he said he did. To tell the jury that the evidence went to the improbability of each complainant lying or being unreliable about consent was to say that a lack of consent by five complainants tended to establish lack of consent by the sixth. 47. Neither the courts below nor counsel for the respondent cited any case in which similar fact evidence of complainants who said that they did not consent was led to show that another complainant had not consented. Whether or not similar fact evidence could ever be used in relation to consent in sexual cases, it could not be done validly in this case. It is impossible to see how, on the question of whether one complainant consented, the other complainants' evidence that they did not consent has any probative value. It does not itself prove any disposition on the part of the accused: it proves only what mental state each of the other complainants had on a particular occasion affecting them, and that can say nothing about the mental state of the first complainant on a particular occasion affecting her.

[19]

Lies

There is another issue to which the evidence of Mr McConnachie's tendency towards rough and degrading sex may be relevant. That is the issue of "lies".
In submissions on the bail application, Mr Conditsis indicated that there was not going to be much dispute at trial about the sexual activities that took place. The issue was consent rather than whether the sexual acts asserted took place. For example, Mr Conditsis submitted: [16] They are women with whom he had very substantial kinky rough sex in inverted comas, and it is never in dispute that the sex this accused has had with all of these women falls into the category of rough kinky sex, some people might say weird sex and we will get to that. But the accused said these are women that like their sex that way to varying degrees. One or more of them might have liked it more than the other, but ultimately and without getting to the subjective of what does like mean, women that ultimately consented to the sex or did not communicate to this man that they were not consenting or were not "into it".
This is contrary to some of the things Mr McConnachie said to police upon his arrest and in his recorded interviews. According to the Crown Case Statement, when he was spoken to at CC's premises on 22 February 2017: [17] [CC] gave consent for police to examine her premises. Police attended and conducted an examination. Whilst police were there, the accused arrived. The accused participated in an audio recorded interview. He admitted being with [CC] and her friend the night before. He consumed an amount of LSD. He went to bed and did not remember much more. He left at about 5.30am. He woke up in [CC's] bed. He thinks [CC] was on the lounge. He did not check that well. He thinks they tried to have sexual intercourse last night. He says he has issues and it doesn't happen that well. He hasn't felt like sex for years. He can't remember any of the sex acts last night. There was nothing abnormal about their sex life. [CC] likes it a bit more rough, whereas he is more the other way. They were never outrageous. [CC] liked to be choked but the accused didn't want to get into that. He is not about force. He cannot remember urinating. It is not standard. The accused did not hear her say stop. He would have stopped.
The electronically interview contained similar assertions. [18] Mr McConnachie said "I'm not all that sexual, I haven't been for a long time" and that CC is "the more sexual person than I am" (Q47-48). He was asked to describe his sex life and whether it was "normal" or "standard". He said that it was "normal", and "its very timid" and "pretty well the same thing over and over" (Q 54-56). He said that this involved "oral sex to start with, but you know, either way … and then we'd get into that same sort of sexual position, you know, and that's about it. … It's just pretty standard" (Q 56-58). Later, when asked about CC's specific allegations, he said: I've never really been into anal sex at all. That never really occurred to me. Christine, she's um, a bit keen on it. Um, I think she could do it most times to be honest, be honest, I think. We probably only do it, mmm, not often and because it never really works anyway.
The reference to it never really working is probably a reference to Mr McConnachie's erectile dysfunction. There is other evidence to support that he suffered from that condition. However, there is also evidence that he used medication to overcome this difficulty. More significantly, his answers that his sexual interests were "normal" or "standard", let alone that they were "very timid" is at odds with the evidence in the tendency case.
The prosecution will rely on this evidence as "lies" capable of supporting an inference that Mr McConnachie exhibited a consciousness of guilt. Such evidence, if the jury is prepared to draw the inference after receiving clear directions, will be capable of providing support for the allegations of CC.

[22]

In relation to TM, the applicant relies on a number of features of her evidence including the fact that she was a consensual sexual partner of the accused for a number of years and that the sexual contact involved what was again generally described as "rough sex". Significant and particular reliance was placed on the fact that after complaint was made to police, or perhaps more correctly after there were serious allegations of assault which, on TM's account led to the break-down of the relationship, there is evidence demonstrating that she remained interested in pursuing a relationship with the accused. This included many communications demonstrating that she still loved him as well as evidence that she was jealous when he developed relationships with other women. Whilst she said she was afraid of the accused, she sent her teenage daughter around to his house to check whether he had other women with him. Further, TM complained of the conduct referred to as "hooking" (where the applicant would put his fingers in the mouth of his sexual partner causing considerable discomfort, difficulty in breathing and sometimes injury). TM said the applicant would put his fingers into her mouth and pull her head back as far as it would go which the applicant referred to as "putting the hooks in". However, there is a photograph of the applicant and TM (who appears to be smiling) in which the accused has his fingers in her mouth pulling it to the side. It was said that this constituted similar conduct to that subsequently complained of.
There were a large number of text messages tendered as part of Ex 1 (apparently forming part of the prosecution brief). Many of these text messages appear to be inconsistent with TM's allegations. In particular, they show that she was jealous of any new relationships that the applicant formed and was attempting to renew a relationship with him. She also made contact with one of the tendency witnesses (NP) on 27 July 2016 seeking to discover if she was involved in an affair with the applicant and "sounded devastated" when she learned that she was.

[26]

Assessment of the strength of the prosecution case

What a jury makes of all of this will only be known in the fullness of time. However, it is necessary to make a prospective assessment of the strength of the case. That assessment is relevant to, although not determinative of, the question of whether the applicant has shown cause why his detention is not justified. [21] It is also relevant to a consideration of whether he represents an unacceptable risk if released on bail. [22] It is notoriously difficult to make such an assessment in advance of the trial although in this case a great deal of evidence, and a large part of the submissions, were directed to the issue.
I would assess the prosecution case as being a reasonably strong one but, in light of the issues identified by Mr Conditsis, it is far from overwhelming. The jury (or, if the trials are separated to one degree or another, the juries) will be called upon to make assessments of the individual allegations and the individual complainants. Different considerations apply in each case. Taking CC as an example, on the one hand she made immediate complaint in relation to the last incident (comprising six charges) while on the other, the text messages demonstrate consent to some of the earlier, rough, sexual activity.
In making an assessment of the strength of the prosecution case, I have taken into account the fact that, if the tendency evidence is admitted and the cases are run together, the case appears to be far stronger. Mr Conditsis acknowledges this. I have also taken into account the evidence that the applicant gave a recorded interview in which he said thing to the police that might properly be described as lies. It will be open to the prosecution to rely on those statements as evidence demonstrating a consciousness of guilt on the part of the applicant.
The case is a complex one and will present a challenge to the ultimate tribunal of fact. I cannot accept the applicant's submission that the prosecution case taken individually and absent the tendency evidence is a weak one. On the other hand, many of the points made on behalf of the applicant are valid matters to be considered by a jury. For that reason, I the prosecution case is far from overwhelming. There is at least some prospect that the applicant will be acquitted of some or all of the counts with which he is presently charged.
The strength of the prosecution case is one matter to be taken into account in assessing both whether the applicant has shown cause why his detention is not justified and also in determining whether there are unacceptable risks in releasing him to bail. Obviously, if he stood little or no chance of defending the charges, the risk that he would take flight or interfere with witnesses is greater. In terms of the show cause requirement, if the case against him was an overwhelming and impenetrable one, it is easier for the prosecution to say that, notwithstanding the extremely long period of remand and other matters upon which the applicant relies, his detention is justified.

[28]

Breaches of bail and AVOs and the applicant's criminal history.

The applicant's criminal history includes a contravention of an AVO in 2010. [24] The court papers indicate that the applicant contacted the protected person (SH) three times by text message. [25] His response to police suggests that he was not aware that sending text messages constituted a breach of the AVO. He was fined $100 for this offence.
In 2012, there was another breach of an AVO. Again, the protected person was SH. The facts show that between 4 July 2012 and 2 September 2012 the accused sent a number of text messages to SH. The AVO prevented text message contact except "for the purpose of arranging access" visits. The messages concerned the applicant's criticisms of SH's parenting of the children but not in the context of arranging access. [26] Accordingly, the messages constituted a breach of the AVO. The Local Court dealt with the matter by finding the offence proved but dismissing the charge without recording a conviction.
In 2016 the applicant was charged with offences of common assault and stalking. These offences involved the complainant TM. The criminal history suggests that the applicant failed to appear and the matter was dealt with in his absence. [27] An attempt to have the finding of guilt annulled was unsuccessful. The applicant was also charged with breaching his bail. In relation to both the common assault and the stalking charge, the applicant was convicted and placed on a bond for 18 months. A conviction without further penalty was imposed for the failure to appear. The stalking offence involved the applicant turning up at TM's house uninvited, demanding to see her 'phone and refusing to leave. She had broken off their relationship two weeks earlier and blocked his telephone calls. TM could not get him to leave and the pair ended up falling asleep on her bed. During the night the applicant woke her up, asked her if she wanted to start a fight and then pinned her down, grabbing her face and squeezing it. When she tried to get away, the applicant called her names like "cunt", "dog" and "whore" and spat at her five times. He told her he would come back whenever he liked. TM was scared and had a sore face. She reported the matter to police. When he was arrested, Mr McConnachie admitted some of the conduct (and added more in terms of his physical conduct). He said some of what he did was accidental.
The 2010 and 2012 breaches of the AVOs were not serious offences in the scheme of things and this was reflected in the minimal penalties imposed. However, the 2016 offences were serious. It was a particularly serious example of common assault. The bonds were imposed on 14 November 2016 and would be current until 13 May 2018.
However, Mr McConnachie did not comply with the terms of the bonds and in February 2018 he was called up for breaching the bonds. He was sentenced to 1 month imprisonment from 5 February 2018 until 4 March 2018.
On 13 November 2016 (the day before the bonds were imposed) Mr McConnachie breached an AVO designed to protect TM. That offence was dealt with at the same time and also resulted in a bond, followed by a breach of the bond and a 1 month gaol sentence (concurrent with the sentences referred to in the last paragraph).
In January 2017, Mr McConnachie breached the AVO protecting TM by making a large number of telephone calls and text messages to TM's mobile telephone. It is unclear from the criminal history what happened to that charge. [28]
In addition to the matters to which I have referred, Mr McConnachie also has an old assault charge from 1989 which was dismissed under (then) s 556A of the Crimes Act 1900 (NSW). That is, the offence was established but no conviction was recorded. He also had a high range PCA in 1990 and a larceny in 2017 which resulted in another 1 month gaol sentence to be served concurrently with those offences dealt with on 5 February 2018.
Mr Stevenson was correct to emphasise that Mr McConnachie has breached court orders and bail on a number of occasions. It is also the case that most of the matters on his criminal record relate to two of the complainants who have now made these most serious allegations against him. However, until the multiple breaches (and the unrelated larceny) were dealt with on 5 February 2018, he had never been sent to gaol before and the sentence then imposed was very short. Two of the breaches were of a minor nature. His criminal history is otherwise not the most serious seen by the Court.

[29]

Attempts to interfere with, or influence, witnesses

Shortly after he was taken into custody, Mr McConnachie made attempts to have others approach the complainants in an attempt to dissuade them from giving evidence. [29]
On 29 March 2017, a gaol telephone call was intercepted. While speaking to his mother (Gwenda McConnachie), the applicant spoke about his nephew visiting. He said "the other way might be a lot cheaper" than a solicitor. His mother told him he was "talking ridiculous". On 23 May 2017, another call involved discussions about approaching the complainants by telephone or via Facebook. On 25 May 2017, the applicant and his mother spoke about another person (Rhianna) making a few calls. At about that time, TM received a call from Rhianna that "caused her considerable anxiety and distress".
On 29 May 2017, SH received a letter from the applicant's mother. It asked her "not to take Marc to court". It suggested that if Marc got out of gaol, he could work at his mother's motel and pay SH $400 a week for "maintenance". This made SH "feel intimidated, shocked and degraded by the offer of money". The applicant's mother admitted she had written the letter in an attempt to get her son out of gaol and pleaded guilty in the Coffs Harbour Local Court to an offence of attempting to influence a witness. Mrs McConnachie gave evidence on the bail application and agreed she was placed on "a bond to be of good behaviour for at least two years". [30]
Another piece of evidence (admitted over objection) concerned Mr McConnachie apparently assisting another inmate (Mr Hedges) to breach orders prohibiting Mr Hedges from contacting the complainant in a serious domestic violence case. [31] This evidence was admitted over an objection based on relevance and unfairness. [32] The unfairness was said to arise because the matter had not been raised on any previous bail application. The incident involved the applicant adding Mr Hedges' victims' names to his gaol telephone contact list. Mr Hedges was prohibited from contacting those victims and was not permitted to add their names to his own contact list. Mr McConnachie's actions facilitated Mr Hedges in contacting the victims in breach of the orders. The material was clearly relevant and, in view of s 31 of the Bail Act, admissible. [33] However, Mr McConnachie has not been convicted of any offence for these actions and there was no evidence of any disciplinary proceedings in his custodial history. As discussed in argument, it is a matter that will be taken into account but, in the circumstances, I do not give it a great deal of weight.

[32]

The alleged victims and their families

In the case of a serious offence (such as the present), s 18(1)(o) of the Bail Act allows the Court to take into account "the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community."
SH wrote a letter to the Court dated 29 January 2019 expressing her concerns about Mr McConnachie's behaviour in the aftermath of their 13 year marriage. [35] She says that she is terrified by the applicant who would always find a way to "confront, intimidate and abuse" her. Her life has been much better since his incarceration. She says she "fears for my life" if he is released and that "no court orders or AVOs will stop him from hurting me".
I have already recounted the facts of the two offences of breaching apprehended violence orders in 2010 and 2012. They were not serious breaches. There is no other evidence that the applicant breached AVOs in relation to SH although SH's police statement and family court affidavit set out a disturbing and dysfunctional relationship, even after the marriage broke down.
CC also wrote a letter to the Court. [36] Like SH she believes that the applicant "will not abide by the bail conditions". She described the emotional damage caused by the offences and says that this has not healed.
There is also a letter from SH's parents expressing their concerns for the safety of SH. They describe the harassment they say SH has faced over the years. They express the view that if he is released, Mr McConnachie will have access to a computer and telephone and will begin his harassment of SH. They live in Forbes around an hour from the address at which it is proposed Mr McConnachie will live. They say they "are very concerned about our safety" as well as that of SH and the five children. They believe the applicant is capable of physical abuse towards any of these family members.

[34]

The applicant's evidence and proposed bail conditions

The applicant's mother provided a statement, and gave evidence, in which she set out the applicant's family and personal history and explained the possible arrangements and conditions should the applicant be granted bail. [39] A number of bail conditions were proposed in submissions and in a separate document prepared during the hearing. [40]
His mother referred to the extensive family support and direction the applicant would have in West Wyalong. This included brothers who are older and responsible. She believed there was no chance that the applicant would breach his bail because of the shame it would bring on the family in West Wyalong. Since the incident that led to her being charged, she has followed the advice (or directions) of police and has not had contact with her son for almost two years.
It is proposed that the applicant live with his 75 year-old mother in her motel in West Wyalong. He would have the opportunity to work there. It is proposed that he report to local police daily and that he generally be subject to a curfew whereby he would not leave the premises of the motel except for certain pre-determined activities such as attending legal conferences, working on his brother's farm and going to the doctors. He would also be required to attend therapy. There would be a prohibition on accessing the internet and pornographic and dating websites. He would be required to tell police his telephone details and his mother has undertaken to advise police of the details of any computer at the motel that is capable of accessing the internet. There would be prohibitions on him contacting witnesses. His mother has offered $50,000 in surety.
The applicant gave evidence acknowledging that he would abide by strict conditional bail if it was granted to him. He said that he was on protection because of the nature of his charges and that he was in a "close to non-association" form of protection. This means he has very little contact with other inmates and he described it as making gaol "so much more horrible". To avoid others discovering the details of the allegations he has requested his lawyer not to provide him with the brief of evidence. This makes preparing for trial extremely difficult. He said he is not the same person now that he has spent (at that stage) nearly two years in gaol. The experience has changed him. He said: I am straight, drug fee. I have you know realised what hurt and things you do to people, the consequences of it and how it hurts them. You know, what I have lost. I have lost my children and I have lost all of my family, I have had no contact with anybody for two years. It just changed my, how I look at things. It's changed how I affect people, how my behaviour affects people and, yeah, you know, it scared me, it scared me to think, I am terrified.
It is always difficult to assess the sincerity of evidence that is plainly self-serving. However, my assessment was that the applicant's evidence was genuine. It supports his lawyer's submission that, in spite of previous breaches of bail and court orders, the period the applicant has spent in gaol has been a salutary one. He is aware that the slightest breach of the stringent bail conditions will result in his return to gaol.

[36]

Interaction of the show cause test with an assessment of risk

While the Court of Appeal in DPP v Tikomaimalaya stressed at [25] that the show cause test and the unacceptable risk test were separate and must not be conflated, it also held at [24]: [41] … in many cases it may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test and that, if there is nothing else that appears to the bail authority to be relevant to either test, the consideration of the show cause requirement will, if resolved in favour of the accused person, necessarily resolve the unacceptable risk test in his or her favour as well.
DPP v Mawad provides an example of a case where a majority of the Court of Criminal Appeal held that the respondent (to a prosecution application to revoke bail granted by a single Judge) had shown cause because of a particular circumstance, but was refused bail because he was held to present an unacceptable risk of committing further offences and presenting a danger to the community. [42]
In Barr (a pseudonym) v Director of Public Prosecutions (NSW), the Court of Appeal (Leeming JA, McCallum J (as her Honour then was) and N Adams J) made further observations concerning the interaction of the two tests. Leeming JA said at [86]: [43] Courts may be expected to give great weight to the absence of any bail concerns in determining whether an accused person discharges the onus of showing that his or her detention is not justified. It may well be that very little would be required in such a case to conclude that the accused person's detention is not justified.
McCallum J, who dissented in the outcome, said: [44] The Act expressly contemplates that the court might refuse bail for failure to show cause without first complying with the obligation that otherwise arises to assess any bail concerns in accordance with division 2 of Part 3 of the Act: s 17(4). However, for my part, I find it difficult to conceive how a person's detention could be "justified" (prior to the imposition of sentence) if he or she posed none of the risks identified in the Act. While s 17(4) authorises the bail authority to take a different approach in the case of show cause offences (because it removes the mandatory assessment of bail concerns), in my view an accused person would show cause why his or her detention was not justified if he or she persuaded the bail authority that there was no unacceptable risk. I expressed these views shortly after the introduction of the show cause requirement, in M v R [2015] NSWSC 138 at [8]. That decision was considered soon afterwards by this Court in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 (Beazley P, R A Hulme and Adamson JJ). In that case, the offender had been found guilty by a jury of a show cause offence. A sentence of imprisonment was considered inevitable but the trial judge granted bail pending sentence to allow the offender to "get his affairs in order" (Court of Appeal judgment at [32]). The prosecutor made a detention application which came before Button J sitting in the Bail List of the Common Law Division. For reasons not disclosed in the judgment of the Court of Appeal, his Honour referred the application to this Court. The Court accepted the referral, while holding (at [13]) that the practice of referring bail applications from the Supreme Court to the Court of Appeal should have ceased and has "no place" under the Bail Act 2013. After considering my judgment in M v R (in which I expressed the views set out above), the Court said at [24]: "We accept that in many cases it may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test and that, if there is nothing else that appears to the bail authority to be relevant to either test, the consideration of the show cause requirement will, if resolved in favour of the accused person, necessarily resolve the unacceptable risk test in his or her favour as well." With respect, the second proposition may state the matter in reverse. The resolution of the show cause requirement in favour of the accused person cannot resolve the unacceptable risk test in his or her favour as well; s 19(3) expressly provides otherwise. However, for the reasons already explained, I consider that the exclusion of any unacceptable risk would satisfy the show cause requirement.
Having set out the provisions and undertaken a helpful analysis of a number of earlier decisions, N Adams J concluded: [45] I have been unable to find any decisions of the Court of Criminal Appeal in which the show cause onus had been discharged on the basis that the court was satisfied there were no unacceptable risks associated with the release of the applicant. … Although it is to be accepted, as this Court held in DPP v Tikomaimaleya, that the same factors can be relevant to both tests, that does not mean that those factors are relevant to the same issue at the two separate stages of the application. For example, a weak Crown case might be relevant to the show cause test as it might not be justified to detain a person for a lengthy period of time if they may not be convicted. That same factor may again be relevant to the question of the risk of flight: a person facing a strong crown case would, as a general rule, be a greater flight risk than a person facing a weak case. Similarly, if a person has a poor record of failing to attend court or committing offences on bail that will no doubt mean that it will be difficult for him or her to establish that their detention is unjustified but, in the event that, in combination with other factors, they could discharge the onus, that same factor would give rise to bail concerns of committing serious offences and failing to appear that might amount to unacceptable risks should he or she be released. Section 16A confers a wide discretion on a bail authority with regard to the show cause test and the width of that discretion has been confirmed in the cases I have referred to above. To observe that the discretion is wide is not to accept that it is uncertain. What is clear, it seems to me, is that the show cause test cannot be met solely by an accused person persuading the bail authority, on the balance of probabilities, that there are no unacceptable risks associated with release. I am respectfully unable to agree with McCallum J's observations to the contrary.
These statements of principle do not sit together with absolute comfort. However, it is clear that part of an assessment of whether an applicant has shown cause includes an assessment of risk. The consideration of risk within the question of whether the applicant has shown cause is not limited to a consideration of the criteria set out in s 18 or by reference to the specific categories of risk identified in ss 17 and 19.

[38]

Conclusion as to show cause

Depending on the extent of the delay from this point, the applicant presents a strong case that he has shown cause why his detention is not justified in respect of the charges relating to CC. The conclusion is founded on a combination of factors. [49]
The first of these is the lengthy delay faced by the applicant who has been in custody since 23 February 2017. The matter has now been subject of a committal hearing and it is expected that a trial date will soon be set. However, at the hearing of the bail application, I was told that the complexity of this matter means that the trial date was likely to be some time off. At the bail hearing (which was conducted prior to the committal hearing) Mr Conditsis submitted the delay may be as long as 3 ½ or 4 years. Now that the matter is in the District Court, it should be expected that the trial date will be set for later this year or early next year. This would mean a total delay of something approaching three years between the charge and the trial. This is unacceptable and, while some may take the view that the delay is not (of itself) sufficient to show cause, it goes a long way towards establishing that the applicant's further detention is not justified. As will be seen, my ultimate conclusion turns to a substantial degree on the extent of delay.
The second factor is the weaknesses in the prosecution case identified by Mr Conditsis. Without attempting to be comprehensive this includes:

In relation to CC, to whose charges the show cause requirement specifically attaches, the text messages suggest that she was, at least to a degree, a consenting adult who voluntarily engaged in the kind of rough sex the applicant enjoyed. Having said that, she was entitled to draw a line or withdraw her consent. Her evidence, if accepted, is that the applicant did not respect her limits and continued the sexual activity after she indicated her lack of consent.
In relation to SH, there is an extensive delay in complaint, as well as the fact that she remained in the relationship for many years after the sexual activities tended towards the perverted and the violent. The jury may find it significant that the complaint was first made in the context of disputed family law proceedings and the circumstances in which the complaint to police was made.
In relation to TM, there is also a substantial delay in complaint and the fact that after the couple broke up, the evidence suggests that she made attempts to renew the relationship and was checking on whether the applicant had formed a new relationship. TM's complaint grew over time to include the allegations of sexual assault.
As I have explained, the tendency case may also operate in Mr McConnachie's favour if the jury accepts that MD's evidence in the form of a text message that he respected a safe word suggests that while his sexual appetites tended to the violent and bizarre, he sought out partners who willingly indulged those appetites. There will also be forensic opportunities in the fact that both of the tendency witnesses do not in plain terms assert a lack of consent to activity which some people might find unusual.

The third factor is the legitimate (as I find it to be) fear that the applicant has for his physical safety while in custody which has meant that he has not received the brief of evidence from his legal representatives for fear of other inmates discovering his charges. This places the applicant at a significant disadvantage in preparing himself to defend these most serious charges at trial.
Putting aside an assessment of the risks associated with releasing the applicant to conditional bail, I would be satisfied on balance that the applicant has shown cause why his detention is not justified. However, an assessment of those risks leads me to the contrary view. I have set out the occasions when Mr McConnachie has either breached court orders or attempted to contact the witnesses. Those matters give rise to some concern. However, of greater concern is the nature of Mr McConnachie's sexual fantasies and some of the dangerous ways in which those fantasies have played out.
The internet searches and browsing histories suggest that the applicant has a deep seated hatred of women. This misogyny manifested itself in the sexual conduct described by the complainants and tendency witnesses, much of which I take now to be admitted. While the applicant told the police his sexual preferences were "timid", submissions on the bail application made it clear that the real issue at the trial will be consent (and also belief in consent). In other words, many or most of the sexual acts are not contested but it will be Mr McConnachie's case that the complainants were willing participants in those acts. However, even accepting that, there are several allegations of choking and causing the complainants to "gag" violently during oral sex. These acts, done with or without consent, are potentially dangerous. There are other acts of violence described by the complainants. In assessing whether the applicant has shown cause, I have given considerable weight to this matter.
The factors militating for and against the applicant's submission that he has shown cause are delicately poised. It is difficult to balance the extent of delay against the risks associated with Mr McConnachie's release on conditional bail. As discussed in the context of s 137 of the Evidence Act by Spigelman CJ in Regina v Linard Shamouil, the balancing exercise requires the comparison of "essentially incommensurable considerations." [50] Justice Scalia once phrased the issue as "like asking 'whether a particular line is longer than a particular rock is heavy'." [51]
In the days leading up to delivery of this judgment, my Associate ascertained (through JusticeLink) that the case is for mention on Wednesday 27 March 2019. Contact was made with the chambers of the Chief Judge of the District Court. We were advised that there are dates available in Coffs Harbour from about the middle of the year and that, even if the matter is a special fixture of six weeks or so, a trial date in September or October is likely to be offered to the parties. My chambers were advised that the parties in the trial have been notified that the District Court can accommodate a special fixture at Coffs Harbour from 23 September 2019 onwards and that the parties have been asked to provide their available dates so that the Chief Judge can list the matter for trial.

[41]

Endnotes

R v Cain (No 1) (2001) 121 A Crim R 365.
Bail Act 2013, ss 16A and 16B.
Bail Act 2013, ss 17 and 19.
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
It is not clear whether the allegation of choking remains but is now charged as an assault.
Ex A, Crown Case Statement, p 3.
Ex A, p 11.
Ex A, p 14.
Ex A; Ex 1, pp 435-440.
See Ex A, Crown submissions, p 2 and Facts sheet, p 63; Ex 1 pp 3-4; Transcript (T) p 46.
See Ex 1, p 3.
It is unclear why this does not also apply to sequences 8 and 9 (which occurred in January 2017), when Mr McConnachie was presumably still on bail for the assault and intimidation but that appeared to be the joint position of the parties.
T 77.
R v Brown [1992] 2 All ER 552. See also Raabe v R (1985) 14 A Crim R 381; R v Lee [2006] 3 NZLR 42.
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4 (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) at [46] - [47].
T 48.
Ex A, Crown Case Statement, p 17.
Ex 1, pp 481-535.
Ex 1, p 160.
See also the online Urban Dictionary definition of "safety word": . See also: .
JM v R [2015] NSWSC 978 at [41]; Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 at [13] and [19]; Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47 at [147].
Bail Act, s 18(1)(c).
Ex A.
Ex A, p 24.
Ex A, p 44.
Ex A, pp 48-52.
Ex A, pp 24-25.
Ex A, pp 26-27.
See Ex A, pp 39-41 (charges sheets relating to an offence committed by the applicant's mother of attempting to influence a witness) and pp 68-73 (a letter from investigating police, partially admitted over objections: see T pp 3-6, 32-34.)
T 12.
Ex A, Police views, pp 69-70.
T 4.
Section 31(1) provides that "[a] bail authority may, for the purpose of exercising any of its functions in relation to bail, take into account any evidence or information that the bail authority considers credible or trustworthy in the circumstances and is not bound by the principles or rules of law regarding the admission of evidence."
Generally and pursuant to s 17 of the Bail Act 2013.
Ex A, p 37.
Ex A, p 67.
Ex A, pp 68-73.
Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 at [31]-[39]. See also the observations of Garling J in JM v R [2015] NSWSC 978 at [48].
Ex 1 pp 548-561.
Ex 1 pp 8-9; Ex 3.
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25].
Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 (Beech-Jones J at [44]-[48]). Adams J, dissenting, agreed with the decision and reasoning of the primary judge at [3]-[6] and see R v Mawad [2015] NSWSC 1237.
Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47.
Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47 at [98]-[101].
Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47 at [145] and [147]-[148].
See, for example, R v Marcus [2016] NSWCCA 237, Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 and DPP v Hing [2017] NSWCCA 325.
Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [33].
Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312 at [35] cited with approval in Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47 by N Adams J in at [146].
Cf R v Young [2006] NSWSC 1499 at [20], a case concerning the Bail Act 1978 where the applicant was required to establish "exceptional circumstances" because they were charged with murder. The same reasoning was applied by the Court of Criminal Appeal in El-Hilli and Melville v R [2015] NSWCCA 146 at [29] (Hamill J, Simpson and Davies JJ agreeing).
Regina v Linard Shamouil [2006] NSWCCA 112 at [71].
Regina v Linard Shamouil [2006] NSWCCA 112 at [71] citing Bendix Autolite Corp v Midwesco Enterprises Inc, 486 US 888 (1988) at 897.

McConnachie v Director of Public Prosecutions

At a glance

Court

Decision date

Before

Source

Judgment (42 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (15)

Cited By (2)