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What happened

Baker J of the ACT Court of Appeal considered an application by Richard Emory McGary for leave to appeal a decision refusing a permanent stay of the prosecution concerning allegations by Ms A. The decision under appeal was McCallum CJ's ruling in DPP v McGary (No 11) [2025] ACTSC 246, delivered on 13 June 2025. The Court of Appeal dismissed the leave application on 27 June 2025, with the trial listed to begin on 14 July 2025 ([1], [3], [22]).

The indictment, filed on 27 March 2025, charged McGary with three counts of engaging in sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). The judgment says counts 1 and 2 concerned Ms A and count 3 concerned Ms B ([3]). There is an apparent inconsistency in the background: paragraph 4 describes the earlier trials concerning counts 1 and 2 as concerning Ms B, while paragraph 3 describes counts 1 and 2 as concerning Ms A. Paragraph 7 later describes the second trial as being on the indictment relating to Ms B. The judgment's broader account is that the earlier trial concerned Ms B and that Ms A gave evidence in it as a tendency witness.

The first trial relating to Ms B was aborted when she became unwell ([4]). Before the second trial, Ms A made a complaint to police. The prosecution applied to have her evidence admitted as tendency evidence in the trial concerning Ms B, and Mossop J granted that application on 1 September 2023 ([5]). McGary later sought an adjournment because the prosecution had not decided whether to lay charges concerning Ms A. The primary judge refused that application on 6 May 2024 ([6]).

The second trial began on 30 July 2024. Ms A testified as a tendency witness, and McGary gave evidence. He was cross-examined about allegations concerning both Ms A and Ms B and denied the offending. The jury could not reach a verdict and was discharged on 14 August 2024 ([7]). McGary was charged in relation to Ms A on 14 November 2024 ([8]).

In May 2025, McGary applied, among other things, for a permanent stay of the counts concerning Ms A. His central contention was that the police and prosecution had laid those charges after he had already given evidence about Ms A's allegations, thereby contravening his right to silence and making continuation of the prosecution oppressive and an abuse of process ([9]). The Court of Appeal did not decide the ultimate admissibility of his earlier evidence or determine the criminal charges. It decided only whether leave to appeal the refusal of a permanent stay should be granted.

Why the court decided this way

The Court began with the established considerations for leave in a criminal matter, drawn from R v DL and cited authorities. They include whether the decision is attended by sufficient doubt to warrant reconsideration, whether substantial injustice would result if leave were refused assuming the decision is wrong, whether granting leave would fragment the criminal trial process, and whether exceptional circumstances justify leave despite that fragmentation ([10]).

The Court also identified the applicable standard of review. An appeal from a refusal to permanently stay proceedings is reviewed for correctness. In that task, the appellate court makes the required evaluative judgments itself, and shortcomings in the primary judge's reasoning recede in importance ([12], citing GLJ at [23] and Koschier at [40]). Baker J noted that the applicant's representative accepted the respondent's description of the second proposed ground, concerning oppressive use of court procedures, as the crux of the appeal ([12]).

The Court recognised that McGary had acted properly and promptly in bringing his applications. It noted that he had tried to adjourn the earlier trial once the possibility of charges concerning Ms A arose and had promptly sought both the stay and leave to appeal ([13]). That procedural history did not, however, remove the exceptionally high threshold for a permanent stay. The Court recalled the High Court's description in Strickland of a permanent stay as an “extraordinary step which will rarely be justified”, in light of the powerful social imperative that people charged with criminal offences be brought to trial ([14]).

Baker J accepted the primary judge's view that the circumstances differed from Strickland. In the Court's account, there was no evidence that the timing of the charges resulted from deliberate misconduct by the prosecution or AFP. Nor had it been put to the relevant officer in cross-examination that the officer was negligent in not laying charges earlier ([15]). The Court expressly cautioned that gross negligence or impropriety is not a necessary precondition to a stay. Its point was narrower: on the applicant's case as presented, the asserted outcome of the alleged derogation of the right to silence had to be exceptional to justify permanently preventing a trial ([15]).

The right-to-silence argument did not persuade the Court that such an exceptional outcome had been shown. Baker J stated that the applicant's privilege against self-incrimination had not been abrogated by the conduct of the prosecution or AFP. He had made a forensic choice to give evidence, although the Court acknowledged that the presence of Ms A as a tendency witness affected that choice ([16]). The Court did not treat that effect as irrelevant; it found it insufficient, on the information before it, to establish that a later trial concerning Ms A would necessarily be unfair.

Two related fairness arguments also failed to establish a sufficient basis for immediate appellate intervention. First, McGary argued that the prosecution had received a “dry run” with Ms A's evidence at the earlier trial. The Court was not satisfied that this established unfairness of a degree that justified deciding there should never be a trial on the Ms A charges ([17]). Second, the prosecution intended to adduce McGary's evidence from the previous trial, presumably as admissions. But McGary accepted that he could challenge its admissibility, and had not yet made such a challenge ([18]). The Court therefore treated admissibility as an unresolved issue, not as an established unfairness requiring a permanent stay.

Finally, the practical effect of granting leave was important. The trial was due to start in a little over two weeks, and the Court of Appeal could not convene before that date. Leave would therefore necessarily delay the trial. Although the complainants' evidence had been prerecorded, a delay was likely to cause them distress ([19]). McGary would retain a right to appeal if convicted of one or both Ms A counts ([20]). Taken together, those considerations supported the conclusion that the primary decision was not attended by sufficient doubt to warrant delaying the trial ([21]).

Before and after state of the law

The judgment does not announce a new general test for permanent stays. It applies established leave considerations and the existing exceptional threshold for a permanent stay to the particular procedural history before it. The leave framework is attributed to R v DL, with McBride v R and Hicks (a pseudonym) v DPP also cited as authorities ([10]). The judgment does not set out those cases' full reasoning, so its account of their contribution is confined to the listed leave considerations.

For appeals from a refusal to permanently stay proceedings, Baker J applied the correctness standard described in GLJ and Koschier ([12]). The Court thus approached the matter as an evaluative appellate task, rather than limiting itself to whether the primary judge's reasoning contained an error of a particular kind.

On permanent stays, the judgment reiterates the high threshold stated in Strickland: a permanent stay is extraordinary and rarely justified because of the public interest in bringing charged persons to trial ([14]). It distinguishes Strickland on the facts, particularly the absence here of evidence of deliberate misconduct or negligence in the timing of the charges ([15]). Importantly, the judgment does not convert misconduct into a formal legal precondition. It expressly says that gross negligence or impropriety is not required in every case. Its reasoning is that the asserted consequences must be exceptional where the complaint is about the outcome of an alleged derogation of the right to silence ([15]).

The decision's practical contribution is therefore fact-sensitive. It illustrates that an earlier trial at which a complainant later charged in a separate prosecution gave tendency evidence, and at which the accused testified about that complainant, does not automatically make a later trial necessarily unfair. The Court considered the particular safeguards and unresolved questions, including the possibility of challenging admission of the earlier testimony ([16]–[18]). It also treated the availability of a later appeal following conviction as relevant to whether immediate leave was warranted ([20]).

The judgment does not purport to determine the admissibility issue, define all circumstances in which a “dry run” could produce unfairness, or alter the legal test for abuse of process. Its holding is limited to dismissing this application for leave on the record and procedural circumstances before it.

Key passages with plain-English translation

At [14], the Court calls a permanent stay an “extraordinary step which will rarely be justified”. In plain English, permanently stopping a prosecution is not an ordinary response to a difficult or potentially unfair feature of a case. The Court connected this to the public interest in criminal charges being tried.

At [15], the Court says that it is “not to say that gross negligence or impropriety is required before a criminal trial will be stayed”. This qualifies the comparison with Strickland. The Court did not impose a misconduct requirement. Instead, it concluded that the particular asserted consequences in McGary's case did not show the exceptional unfairness needed to justify a permanent stay.

At [16], Baker J says, “The applicant made a forensic choice to give evidence.” The Court recognised that Ms A's inclusion as a tendency witness affected that choice, but did not consider that this alone made a future trial necessarily unfair. The passage is tied to the circumstances of the earlier trial; it should not be read as a general rule that an accused person's decision to testify resolves every later fairness concern.

At [17], the Court addresses the claimed “dry run”. It found it unclear that this circumstance amounted to unfairness of a degree sufficient to ensure there would never be a trial on the Ms A charges. In plain English, the prosecution's prior opportunity to hear Ms A's evidence did not, on the facts presented, establish the exceptional case required for a permanent stay.

At [18], the Court notes that McGary could challenge the admissibility of evidence from his previous trial, and had not yet done so. The Court was not deciding whether that evidence was admissible. The point was that a potentially important trial-fairness issue remained open and could not then be treated as settled in McGary's favour.

At [20], the Court says McGary would retain his right to appeal if convicted of one or both Ms A counts. That was part of the Court's assessment of whether leave had to be granted before trial, rather than a determination of what any later appeal would decide.

What fact patterns trigger this precedent

The decision is most relevant to applications for leave to appeal an interlocutory refusal to permanently stay criminal proceedings where the proposed appeal would delay a trial already close to commencing. Here, the trial was listed for 14 July 2025, and the Court could not hear the leave matter before that date ([3], [19]).

It is also relevant where an accused person says that a later prosecution is unfair because they previously testified about the same allegations in another trial. The specific sequence here involved a complainant first testifying as a tendency witness in a trial concerning another complainant, the accused giving evidence and being cross-examined about both sets of allegations, and charges concerning the first complainant being laid later ([5]–[8]).

The decision may be useful where the alleged unfairness includes the prosecution having had an earlier opportunity to hear a complainant's evidence, or intending to rely on the accused's earlier testimony. But the Court did not establish that either circumstance is always harmless. It said only that the “dry run” argument did not establish the exceptional degree of unfairness required on this record, and that admissibility of the earlier testimony remained open to challenge ([17]–[18]).

The judgment also bears on cases where an applicant asserts that delayed charging affected the right to silence, but the evidence does not establish deliberate misconduct or negligence by investigators or prosecutors. The Court treated the absence of such evidence as relevant to distinguishing Strickland, while making clear that misconduct is not a universal prerequisite to a stay ([15]).

Its reach is limited. The Court was deciding leave, not a final appeal after trial. It did not rule on whether McGary's previous evidence would be admissible, whether any particular evidence would cause unfairness at trial, or what the outcome of the criminal proceedings should be.

How later courts have treated it

The supplied judgment contains no later judicial decisions discussing or applying McGary v DPP [2025] ACTCA 22. It therefore does not provide a basis to describe subsequent treatment, such as whether later courts followed, distinguished, or limited the decision.

The judgment itself identifies authorities it relied on or discussed. It refers to R v DL, McBride v R and Hicks (a pseudonym) v DPP as sources for the leave principles ([10]). It invokes GLJ for the correctness standard of review and Koschier for the appellate court's evaluative role ([12]). It distinguishes the facts from Strickland, particularly by reference to the absence of evidence of deliberate misconduct or negligence in the charging delay ([15]). These are relationships within this judgment, not evidence of later treatment of McGary by other courts.

Still-open questions

The judgment leaves the admissibility of McGary's evidence from the earlier trial unresolved. It notes that the prosecution intended to adduce it, presumably as admissions, and that the applicant could challenge its admissibility, but that no such challenge had yet been made ([18]). The Court did not decide what evidence could be used at trial or what consequences would follow from any ruling on admissibility.

It also leaves open how the fairness analysis might change if evidence established deliberate misconduct, negligence, or other exceptional circumstances affecting the charging decision. The Court found no such evidence in this case and stressed that misconduct is not invariably required for a stay ([15]). It did not specify a complete test for other circumstances that might justify a permanent stay.

Nor did the Court determine when a prosecution's earlier opportunity to hear a complainant's testimony would amount to unfairness serious enough to prevent a trial. It considered McGary's “dry run” submission but found it insufficient on the facts before it ([17]). The judgment does not say that such a submission could never succeed.

Finally, the decision does not resolve the merits of any appeal following conviction. It notes only that a right of appeal would remain if McGary were convicted of one or both counts concerning Ms A ([20]). Whether any later appeal would succeed would depend on matters not decided in this leave judgment.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.