Medich v R - [2021] NSWCCA 36

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Medich v R [2021] NSWCCA 36
Hearing dates: 19 May 2020; 20 May 2020
Decision date: 18 March 2021
Before: Bathurst CJ at [1];
Hoeben CJ at CL at [136];
Hamill J at [797]
Decision:
(1) Grant leave to the applicant to rely on Grounds 1 and 2 and Ground 4(b) of the Grounds of Appeal.
(2) Refuse leave under r 4 of the Criminal Appeal Rules to rely on Grounds 5, 6(b) and 7.
(3) Otherwise dismiss the appeal.

Catchwords:
CRIMINAL LAW – conviction appeals – murder – intimidation – single joint criminal enterprise - where offender directed the contract killing of a former business associate and the intimidation of his wife – history of disputes between the offender and victims – whether Crown proved beyond reasonable doubt events occurred at instigation of the applicant – leave to appeal required for all grounds - whether the jury verdict is unreasonable – whether there is a miscarriage of justice – whether the trial judge erred in admitting evidence – whether the trial judge erred in his directions to the jury in respect of the use of evidence – whether evidence cross-admissible – tendency reasoning - anti-tendency direction – appeal dismissed.

Legislation Cited:
Crimes Act1900 (NSW) – s 18(1)(a)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) – s 13(1)
Criminal Appeal Act 1912 (NSW) – ss 5(1)(b), 6(1)
Criminal Appeal Rules (NSW) – r 4
Evidence Act 1995 (NSW) – ss 38, 97, 128, 137

Cases Cited:
Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
Armstrong v R [2013] NSWCCA 113
ARS v R [2011] NSWCCA 266
Australian Securities and Investments Commission v Vines [2003] NSWSC 1237
AW v Regina [2009] NSWCCA 1
Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
Bin Sulaeman v R [2013] NSWCCA 283
BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47
Burrell v R [2007] NSWCCA 65
Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379
Crofts v R (1996) 186 CLR 427; [1996] HCA 22
Davies v The Queen [2019] VSCA 66
Decision Restricted [2020] NSWCCA 308
DJV v R [2008] NSWCCA 272
Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43
Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R (2014) 316 ALR 206; [2014] NSWCCA 303
Evans v Regina [2006] NSWCCA 277; (2006) 164 A Crim R 489
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Folbigg v R [2007] NSWCCA 371
GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037
Greenhalgh v R [2017] NSWCCA 94
Guide Dog Owners’ and Friends’ Association Inc v Guide Dog Association (NSW & ACT) (1998) 154 ALR 527
Hamide v R [2019] NSWCCA 219
Hamilton (a pseudonym) v R [2020] NSWCCA 80
Handlen v The Queen; Paddison v The Queen (2011) 245 CLR 282; [2011] HCA 51
Higgins (a pseudonym) v The Queen [2016] VSCA 47
Higgins v R [2020] NSWCCA 149
HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16
Hogg v R [2019] NSWCCA 323
House v The King (1936) 55 CLR 499; [1936] HCA 40
IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14
JWM v R [2014] NSWCCA 248
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36
Lyndon v R [2014] NSWCCA 112
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mac v R [2014] NSWCCA 24
Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1
Maric v The Queen (1978) 52 ALJR 631
Masri v R [2015] NSWCCA 243
Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486
Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12
Petch v R [2020] NSWCCA 133
Picken v Regina; Regina v Picken [2007] NSWCCA 319
Poniris v R [2014] NSWCCA 100
Qualtieri v Regina (2006) 171 A Crim R 463;
[2006] NSWCCA 95
Quartermaine v The Queen (1980) 143 CLR 595; [1980] HCA 29
R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
R v AH (1997) 42 NSWLR 702
R v Al Batat & Ors (No 9) [2020] NSWSC 1101
R v ATM [2000] NSWCCA 475
R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127
R v Leung and Wong (1999) 47 NSWLR 405; [1999] NSWCCA 287
R v Medich (No 8) [2016] NSWSC 1713
R v Medich (No 32) [2018] NSWSC 253
R v Medich (No 43) [2018] NSWSC 886
R v Scott Alan May(No 2) [2008] NSWSC 595
R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377
R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345
R v Walters [2002] NSWCCA 291
Ratten v The Queen [1972] AC 378; [1971] UKPC 23
RGM v R [2012] NSWCCA 89
Roach v R [2019] NSWCCA 160
Sanchez v R (2009) 196 A Crim R 472; [2009] NSWCCA 171
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Smale v R [2007] NSWCCA 328
Smith v R [2019] NSWCCA 162
Standen v Regina [2015] NSWCCA 211
Tekely v R; Nagle v R [2007] NSWCCA 75
Toalepai v R [2009] NSWCCA 270
Trieu v R [2012] NSWCCA 169
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22
Ulutui v The Queen (2014) 241 A Crim R 574; [2014] VSCA 110
Vickers v R (2006) 160 A Crim R 195; [2006] NSWCCA 60
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6
Wilson v The Queen (1970) 123 CLR 334;
[1970] HCA 17
Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21

Texts Cited:
Hon Frank Callaway, “Farewell Speech” (2007) 140 Vic Bar News 28
Phillip Priest QC, “The Problematic Proviso: The Vice of Weiss”, (2007) 140 Vic Bar News 32

Category: Principal judgment
Parties: Ronald Edward Medich – Applicant
Regina – Respondent Crown
Representation:
Counsel:
B Walker SC/A Francis/N Wootton – Applicant
T Smith SC/B Hatfield/G Wright – Respondent Crown
Solicitors:
Richardson Law – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2010/356916
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

R v Medich (No 43) [2018] NSWSC 886

Date of Decision:

23 April 2018

Before:

Bellew J

File Number(s):

2010/356916

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Ronald Edward Medich, was charged with the murder of Michael McGurk on 3 September 2009 (Count 1) and the intimidation of Kimberley McGurk with the intention of causing fear or harm on 8 August 2010 (Count 2). He first stood trial in the Supreme Court before Bellew J in 2017, however the jury were unable to agree on a verdict in respect of both counts. The applicant stood trial before Bellew J again in 2018 and on 23 April 2018 the jury returned verdicts of guilty for both counts. He was sentenced to an aggregate period of 39 years imprisonment with a non-parole period of 30 years. The applicant appealed his conviction but did not appeal his sentence.
At trial, there was no issue that Fortunato Gattellari (“Gattellari”) had arranged both the murder and the intimidation either directly, or indirectly through Senad Kaminic (“Kaminic”) and Haissam Safetli (“Safetli”). The primary issue at trial was whether the Crown had proved beyond reasonable doubt that Gattellari had done so at the instigation of the applicant. The applicant filed a notice containing seven grounds of appeal.

Held, dismissing the appeal (Bathurst CJ and Hoeben CJ at CL agreeing; Hamill J in dissent)

Ground 1: Whether the jury verdict in respect of Count 1 is unreasonable

Ground 2: Whether the jury verdict in respect of Count 2 is unreasonable

(i) It was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of both offences. This is not a case where the jury must have entertained a doubt as to the applicant’s guilt. The asserted factual propositions that gave rise to doubt as to the applicant’s guilt were speculative in nature when regard is had to the Crown’s strong positive case that established the applicant’s position as the originator and financier of the single joint criminal enterprise to murder the deceased and intimidate his wife. These grounds have not been made out: [134] (Bathurst CJ); [542], [626], [795] (Hoeben CJ at CL); [798] (Hamill J).
(ii) Although the evidence of Gattellari was riddled with problems, it was not the only evidence capable of implicating him in the murder of Michael McGurk. There was powerful evidence of the applicant’s motive which suggested his involvement in both offences. As to the contradictory evidence between Kaminic and Gattellari, the jury was given a warning about its potential unreliability, and having heeded that warning, it was open to reach verdicts of guilty: [798] (Hamill J).

M v The Queen (1994) 181 CLR 487; [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394; 376 ALR 478, referred to.

Ground 3: Whether a miscarriage of justice resulted from the Crown Prosecutor’s address to the jury asserting that the evidence was capable of establishing that cash currency was deposited into the accounts of the electrical companies thereby corroborating Gattellari’s account

(i) The additional material relied upon in support of this ground, that is certain financial reports relating to the electrical companies which were under the control of Gattellari, is admissible as it was not ‘fresh evidence’ and was entitled to be adduced by the applicant on the basis that it supported the assertion in this ground of appeal: [2] (Bathurst CJ); [802] (Hamill J).
Reliance on the contents of this material for the purpose of discrediting a submission made in the second trial is an attempt to rely upon this material as ‘fresh evidence.’ There has been no attempt made to satisfy the strict tests necessary to enable the material to be used as ‘fresh evidence’ for the purpose identified by senior counsel for the applicant and leave to rely on such material should be refused: [174]-[177] (Hoeben CJ at CL).

R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356, referred to.

(ii) The Crown Prosecutor’s address to the jury was not improper due its references to correct statements of questions, answers and transcript material. The Crown did not submit that the evidence of Messrs Collis and Shipley directly corroborated Gattellari’s version of events nor was it suggested that the evidence supported an inference that the cash allegedly provided by the applicant was actually deposited into the bank accounts of the electrical companies. Further, the limited and selected tendering of the report shown to Mr Collis demonstrated that there were large sums of (cash) money available to Gattellari. It was open for the Crown to adopt the position ultimately taken. Whether or not rule 4 of the Criminal Appeal Rules applied, there was no miscarriage of justice in respect to this ground. This ground of appeal has not been made out: [3]-[10] (Bathurst CJ); [178]-[208] (Hoeben CJ at CL); [799]-[801] (Hamill J).

Lyndon v R [2014] NSWCCA 112, considered.

Armstrong v R [2013] NSWCCA 113, referred to.

Ground 4a: Whether the trial judge erred in failing to discharge the jury after the admission of inadmissible assumptions on the part of Senad Kaminic elicited by the Crown Prosecutor in re-examination giving rise to a miscarriage of the kind requiring this Court to set aside the verdicts

Ground 4b: Whether a miscarriage of justice has been occasioned by the admission of evidence of assumptions of Senad Kaminic

(i) The trial judge did not apply incorrect principles in his refusal to discharge the jury and instead had regard to both complaints made by senior counsel for the applicant in the Court below. His Honour appropriately dealt with the error that led to the evidence being inadmissible, that is that the evidence was not led in chief, by granting the applicant’s counsel at trial leave to further cross-examine. Further, the trial judge was correct in concluding that these circumstances did not result in a change in the Crown case and consequently what occurred did not amount to a miscarriage of justice. This ground of appeal has not been made out: [82]-[108] (Bathurst CJ).
The questions in re-examination did arise from the cross-examination by senior counsel for the applicant and there was no error in this respect. A single question of this kind does not lay an appropriate foundation to justify the assertion that there had been a miscarriage of justice when considered in the context. Further, the Crown did not attempt, in its final address, to persuade the jury that the evidence adduced in re-examination as to the Safetli conversation was in furtherance of the joint criminal enterprise. Rule 4 of the Criminal Appeal Rules (NSW) applies in respect to ground 4b. This ground of appeal has not been made out: [209]-[253] (Hoeben CJ at CL).

Maric v R (1978) 52 ALJR 631; Crofts v R (1996) 186 CLR 427; [1996] HCA 22; Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486; Hamide v R (2019) 101 NSWLR 405; [2019] NSWCCA 219; Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, considered.

Weiss v R (2005) 224 CLR 300; [2005] HCA 81; Baiada Poultry Pty Ltd v R (2012) 246 CLR 92; [2012] HCA 14; Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, referred to.

(ii) There was a miscarriage of justice as a result of the matters raised by ground 4. The Crown Prosecutor exceeded the limits on re-examination and the evidence elicited was inadmissible as both hearsay and as opinion evidence. There is no occasion to apply rule 4 of the Criminal Appeal Rules (NSW) arising from the absence of immediate objection because of the failure of the prosecution to put the applicant and the Court on notice that it was to be adduced, and because an application to discharge the jury was made almost immediately after the evidence was adduced. This ground of appeal is upheld: [803], [811]-[862] (Hamill J in dissent).

Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379; Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, considered.

Picken v R; R v Picken [2007] NSWCCA 319; Greenhalgh v R [2017] NSWCCA 94; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Hogg v R (2019) 101 NSWLR 524; [2019] NSWCCA 323; GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037; Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, referred to.

Ground 5: Whether the trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor’s cross-examination of Peter Medich

(i) Not only did senior counsel for the applicant at trial take no objection to the two questions in cross-examination that are the subject of this ground of appeal but there was no issue subsequently raised at any point in the trial about the questions. As such, r4 of the Criminal Appeal Rules (NSW) applies to this ground. Further, in the context of a lengthy and vigorously contested trial it is difficult to see the significance of these questions and this is particularly so when regard is had to the fact that only a peripheral issue was involved. Leave to appeal to rely on this ground is refused: [109]-[117] (Bathurst CJ); [254]-[281] (Hoeben CJ at CL).

R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345; Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21; Picken v R; R v Picken [2007] NSWCCA 319, considered.

(ii) The Crown Prosecutor’s final flourish in their cross-examination of Peter Medich created unfairness. The Crown Prosecutor’s question to Peter Medich that he did not report the extortion attempt to police suggested that Peter Medich knew or suspected that his father was guilty, and that he was a part of an attempt to cover up his father’s involvement. There was no evidence upon which those implications could be properly based. This ground of appeal is upheld: [804], [863]-[881] (Hamill J in dissent).

GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037, referred to.

Ground 6a: Whether the trial judge erred in admitting evidence that the applicant engaged Gattellari to arrange debt collection and the surveillance of the applicant’s wife

Ground 6b: Whether the trial judge erred in his directions to the jury in respect of the use that was to be made of the evidence of debt collection and surveillance of the applicant’s wife

(i) The trial judge did not fail to adequately specify the relevance of the relationship evidence. To the contrary, the evidence that Gattellari collected debts and arranged surveillance of the applicant’s wife, on the applicant’s behalf, was highly probative of the nature of the relationship between the two men, that being their close bond and trust. As to the admittance of the evidence, it is not for the accused to select what evidence the Crown may lead to prove a particular fact. The prosecution was not limited to relying on only some of the evidence available to it and the availability of other evidence does not in any way reduce the probative value of the evidence. The close bond and trust between the two demonstrated that the business and personal relationship with them was far from conventional. This ground of appeal has not been made out: [118] (Bathurst CJ); [313]-[318] (Hoeben CJ at CL); [805] (Hamill J).

Burrell v R [2007] NSWCCA 65, considered.

Masri v R [2015] NSWCCA 243, referred to.

(ii) With respect to the use of the evidence, the factual matrix was not representative of a matter involving a significant risk of tendency reasoning in respect of the relationship evidence. Nevertheless, the trial judge gave a sufficient warning to guard against any misuse of the evidence in this way. This ground of appeal has not been made out: [118] (Bathurst CJ); [320]-[325], [330] (Hoeben CJ at CL); [805] (Hamill J).
(iii) As to both (a) and (b), on account of the objection taken to the evidence the subject of the ground, Hamill J granted leave under r 4 of the Criminal Appeal Rules (NSW), but nevertheless dismissed the ground: [806] (Hamill J).

Ground 7a: Whether a miscarriage of justice resulted from the failure of the trial judge properly to direct the jury regarding how a finding of guilt in respect of Count 2 might be used in respect of Count 1

Ground 7b: Whether a miscarriage of justice resulted from the failure of the trial judge to direct that certain evidence relevant to Count 2 was not admissible for use in proving Count 1

Ground 7c: Whether a miscarriage of justice resulted from the failure of the trial judge to warn the jury against impermissible tendency reasoning

(i) The evidence that the applicant was motivated to act in a certain way leading up to the intimidation offence in mid-2010 was cross-admissible, as the case was conducted on the basis that there was a single joint criminal enterprise which encompassed both the killing of Michael McGurk and the intimidation of Kimberley McGurk: [119]-[120] (Bathurst CJ); [345]-[350] (Hoeben CJ at CL); [882]-[887] (Hamill J).
(ii) The trial judge (a) indicated the use to which the evidence could be put, namely, the accused’s state of mind, (b) the relevance of the evidence and (c) identified the need to deal with each count separately, placing emphasis on the Crown’s reliance on one joint criminal enterprise. In those circumstances, a general anti-tendency direction was not necessary as there was no real risk that the jury would adopt tendency reasoning. This ground of appeal has not been made out: [123]-[133] (Bathurst CJ).

JWM v R [2014] NSWCCA 248; (2014) 245 A Crim R 538; Toalepai v R [2009] NSWCCA 270; Hamilton (a pseudonym) v R [2020] NSWCCA 80; Qualtieri v R (2006) 171 A Crim R 473; [2006] NSWCCA 95; RGM v R [2012] NSWCCA 89, referred to.

(iii) The 2010 evidence was circumstantial and capable of being relied upon as supporting the existence of a single joint criminal enterprise in respect of both counts and the associated alleged ongoing state of mind on the part of the applicant. The evidence supported an inference that the applicant in fact had a particular state of mind that was a continuous or ongoing one throughout the relevant period from 2009 to 2010 and this evidence was admissible without tendency reasoning being engaged. As there was no risk of tendency reasoning, nor was an anti-tendency direction sought, no such direction was required. Leave to appeal to rely on this ground is refused: [350]-[362] (Hoeben CJ at CL).

Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R (2014) 316 ALR 206; [2014] NSWCCA 303, considered.

Higgins (a pseudonym) v The Queen [2016] VSCA 47; Mac v R [2014] NSWCCA 24; Davies v The Queen [2019] VSCA 66, referred to.

(iv) The jury should have been directed not to reason to guilt on the murder charge by way of tendency reasoning arising from the evidence and any evidence in relation to count two. That is, the jury’s reasoning process could have, and most likely would have, involved tendency reasoning in proof of the murder charge. The jury was not directed as to the way in which a verdict of guilty on one count could be used in resolve the other count. A direction ought to have been given in relation to the evidence of the events leading up to the intimidation of Kimberley McGurk. The failure to seek a direction on the part of counsel at trial was an oversight, rather than a decision motivated by tactic. This ground of appeal is upheld: [807], [888]-[890], [895]-[897] (Hamill J in dissent).

BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47; R v Walters [2002] NSWCCA 291, considered.

JUDGMENT

BATHURST CJ: I have had the advantage of reading the judgments of Hoeben CJ at CL and Hamill J in draft. Their Honours have each made extensive reference to the Crown and the applicant’s respective cases, the evidence given at trial and the submissions of the parties on the appeal. In the circumstances, I will only refer to those matters to the extent it is necessary to understand this judgment. It is convenient to deal with the grounds in the order that they were dealt with by Hoeben CJ at CL.

Ground 3 – A miscarriage of justice resulted from the Crown Prosecutor’s address to the jury asserting that the evidence was capable of establishing that cash currency was deposited into the accounts of the electrical companies thereby corroborating Gattellari’s account

I agree with Hoeben CJ at CL, subject to the matters below, that for the reasons given by his Honour this ground has not been made out. However, I have reached that view after taking into account the additional material sought to be tendered on the appeal. Unlike Hoeben CJ at CL, I do not think that the material fell within the rubric of fresh evidence. It seems to me that the applicant was entitled to adduce evidence to support the assertion that there was a miscarriage of justice arising from the manner in which the prosecutor addressed the jury on the particular issue.
The material in question is contained in a report prepared by Mr Bryan Collis in his capacity as joint liquidator of Riv Developments Pty Limited (Riv) and certain associated companies, and in an expert report prepared by Mr Matthew Fehon, a partner of McGrathNichol, dated 6 February 2017 and commissioned on behalf of the applicant on 24 January 2017.
Mr Collis was called by the applicant at the trial and mistakenly cross-examined on Mr Fehon’s report. The cross-examination was withdrawn, and the following questions were then asked:

“Q.   Right. Could that be returned. Did you make any inquiries in relation to cash deposits that had been deposited into those electrical companies?
A.   I tried to trace everything as best I could.
…
Q.   Were you able to see or determine that there had been a number of cash deposits into the electrical companies between 2008 and 2010?
A.   Well, there was a lot of intercompany transfers going on … there were a lot of intercompany transfers between the companies that just cycled around.
Q.   But I’m talking about moneys coming from outside into the electrical companies, not being cycled within the companies. Did you make inquiries as to cash deposits that had come or been made into the electrical companies?
A.   Part of the problem here is that one of the major recipients of cash was a company called Rivercorp, of which I am not the liquidator. Another person is the liquidator of that company and they received close to $9 million dollars in cash. So I did not investigate money going into that company.
Q.   I’m sorry, you were aware that there was about $9 million worth of cash in the period I referred to, 2008–2010, that had been deposited into that company?
A.   Well, I’d have to check my numbers, but it’s actually mentioned in my report, roughly around about page 3.
HIS HONOUR
Q.   And what’s the figure?
A.   It’s 8.347 million.”

In re-examination the following questions were asked:

“Q.   That amount of money that you’ve made reference to, that actually [sic] cash payments or cheques or electronic transfers or what?
A.   That was a mixture of things. The company--
HIS HONOUR:
Q.   Sorry, this is approximately $9 million, isn’t it?
TERRACINI
Q.   Transfers to Rivercorp?
A.   Rivercorp. That was a company that was being effectively acquired and then reconstructed via a Deed of Company Arrangement and if you want me to trouble the jury, I can explain what that means, but the company was basically being sort of rescued and having money pumped into it by Mr Medich in order to get it going again. And so if you read that page of the report, on page 3, you will see that, effectively, the Riv Group paid out a number of secure creditors, including Providence Inventory Finance and the Australia New Zealand Banking Group, and then it paid out – and the ANZ, by the way, was 4.5 million. Providence was 1.17 million.
Q.   Mr Collis, can we tell--
HIS HONOUR: Perhaps we can get the witness back to the issue, Mr Terracini.
TERRACINI: Yes.
WITNESS: Sorry, I’m trying to help.
TERRACINI
Q.   How much of that amount of money was literally in cash as opposed to cheque and electronic transfers? Do we know?
HIS HONOUR:
Q.   If you’re able to say.
A.   Well I do have a reconciliation of it. Most of it was done by way of electronic funds transfer.”

In that context the Crown made the following comments in his address, of which complaint is made:

“Bryan Collis, from his examination of the electrical accounts,… gave evidence that there was $8.347 million in cash deposited into the companies between 2008 and 2010, although you will recall in re-examination he thought most of that was electronic transfer”.

On p 4 of Mr Collis’ report, which was not tendered but which Mr Collis referred to in evidence, it was stated that $8.374 million of Riv funds had been used to discharge the liabilities of Rivercorp Pty Ltd (Rivercorp). It may be that that was what Mr Collis was seeking to explain in re-examination prior to the applicant’s counsel being requested to “get the witness back to the issue”.
Hoeben CJ at CL has identified the complaint as being that the money was deposited by electronic transfer rather than by cash. However, the thrust of the applicant’s complaint seems to me to be that, contrary to the Crown address, $8.347 million was not provided in cash or by electronic funds transfer but was used to discharge certain liabilities of Rivercorp as part of a company reconstruction, and thus was not available to Gattellari. That is supported by the report of Mr Collis.
Notwithstanding, I do not think that there was a miscarriage of justice for the reasons given by Hoeben CJ at CL. First, it can readily be inferred that it was a conscious decision by senior counsel for the applicant not to tender the whole of the report. This was shown by senior counsel’s selective tender of one page, which showed advances being made to Mr Gattellari. That page (Exhibit 72), which was explained in other parts of the report, shows very substantial cash payments (approximately $1.6 million, excluding credit card payments) being made available to Gattellari, thus the thrust of the argument that substantial cash remained available to Gattellari was open. Second, as Hoeben CJ at CL has pointed out, it was not the case that the applicant was seeking to deny that Gattellari had funds available to pay the co-conspirators. To the contrary, it was suggested that he had funds available in furtherance of an enterprise to kill the deceased, but it was an enterprise to which the applicant was not a party. It is for this reason presumably that the applicant tendered Exhibit 72.
For these reasons, even taking into account the additional material, this ground has not been made out.

Ground 4(a) – The trial judge erred in failing to discharge the jury after the admission of inadmissible assumptions on the part of Senad Kaminic elicited by the Crown Prosecutor in re-examination giving rise to a miscarriage of the kind requiring this Court to set aside the verdicts

Ground 4(b) – A miscarriage of justice has been occasioned by the admission of evidence of assumptions of Senad Kaminic

Although a considerable body of the material to which I have referred below has been set out in each of the judgments of Hoeben CJ at CL and Hamill J, at the risk of repetition it is convenient to set it out in this judgment to explain the conclusion which I have ultimately reached.

The evidence of Mr Gattellari

Gattellari gave evidence that he had known the applicant for 30 years. He stated that they had a friendly relationship and socialised regularly.
Gattellari stated that Senad Kaminic (Kaminic) was his friend and driver and that he had known him for five years prior to 2008 and 2009.
Gattellari stated that he did debt collecting for the applicant.
Gattellari stated that he did not know the deceased very well. He said that the deceased was not a business associate nor a friend and that he thought he was “a bit of a conman”.
Gattellari stated that he thought he met the deceased at a coffee shop on one occasion and at his office in town a few days later with Kaminic.
Gattellari stated that other than the three or four times he met the deceased he had no other contact. He did not have any phone contact or email contact with the deceased. He said that he told the applicant about the meetings which he had with the deceased. He said that at the time of his meetings with the deceased he knew that he was involved in some dealings with the applicant.
Gattellari gave evidence that Bassam Safetli and Haissam Safetli did debt collecting work for the electrical companies in which he and the applicant were involved.
Gattellari gave evidence that towards the end of 2008 and early 2009 he noticed a change in the relationship between the applicant and the deceased. He stated that they had a pretty severe falling out over some business dealings and that the applicant was quite verbal about the problems he was having. Gattellari said that to his knowledge the applicant had given the deceased $14 million or $15 million to invest in certain ways and that he (the applicant) became aware of the fact that the deceased was using that money for his own purposes.
Gattellari gave evidence that at some time – he could not remember the date –, after the Safetlis had done one of their debt collecting jobs, Bassam Safetli said to him, “[i]n the future, if you ever need anything heavier or you want the final job done, we would be happy to do it”. Gattellari said that later on in the conversation it became clear what was meant by the final job.
Gattellari stated that on one occasion he recalled an incident where the applicant was angry and upset and asked him if he could possibly help him by finding someone to “kill the bastard”. He stated that that was at the time the court cases involving the applicant and the deceased were ongoing. Gattellari said that this took place in the applicant’s office whilst the door was closed. He stated that he thought the applicant was just blowing off steam and getting very annoyed about what was happening. He said that he turned around and said to the applicant, “[a]re you sure you know what you are saying, are you sure you really want to do that?”. He claimed that the applicant made it clear that that was exactly what he wanted done.
Gattellari stated that reference to Mrs McGurk came up some time later. He said that he could not remember whether it was days or weeks later but the applicant mentioned that if and when he did find someone to kill the deceased he wanted his wife paid a visit to convince her that it was time to pay all her debts. Gattellari said that after that conversation he told Kaminic about it, and Kaminic said, “[t]he boys said they might be interested in doing something like that. Why don’t we ask them?”.
Gattellari gave evidence that he had a conversation with the Safetlis a few days after the discussion with the applicant in his office. During the course of that conversation, Gattellari said to Bassam Safetli, “[y]ou mentioned to us last time that you would be prepared to do the final job, as you put it. Do you still think you want to do that?”. He said that Bassam gave it a thought for a moment or two, looked at his brother and said, “[w]ell we’ll certainly think about it, yes”. Gattellari said that he asked what the cost would be, and Bassam Safetli said, “[w]ell, we’ll have to talk about that”. Gattellari also said, “I don’t know whether they actually told me on that day or whether we met again the following day”. He said they discussed the matter between the two brothers and came back with a price and an agreement to do it. He said that either later in the meeting or a day or two later, Bassam said that they were “prepared to do it” and that they “wanted to charge us $300,000 to do the murder, and they wanted some cash upfront for surveillance”.
Gattellari said that he subsequently told Medich that he had found someone to carry out his wishes and that the murder would cost $300,000. He said that Medich said, “[t]hat’s fucking expensive”, and Gattellari replied, “[y]ou want him dead, so if you think it’s too expensive, let’s just forget about it”. He said that Medich said, “[n]o, no, he’s got to go. I’ll get you the money.” Gattellari said that by that stage the applicant had raised the intimidation of Mrs McGurk with him. Gattellari said that he raised it with the Safetlis, saying that “apart from the murder, … there was a second phase to be carried out, … [t]he guy who wanted this done also wants the man’s wife intimidated to pay back certain moneys that were loaned”.
Gattellari said that between the time that the applicant had asked him to find someone to kill the deceased and the deceased’s death, he was still seeing the applicant on a day-to-day basis. He recalled that the applicant made some comment that the deceased was put in charge or in control of some properties that the applicant owned, and that he (the applicant) had lost total control of those properties and was doing all he could to get back the control. Gattellari stated that that was prior to him asking to find someone to murder the deceased.

Cross-examination

In cross-examination, Gattellari gave the following evidence:

“Q. Mr Gattellari, you knew Bassam Safetli to be the brother of Hais Safetli?
A. Yes, I did.
Q. Did you have a conversation with both the Safetlis – that is, Haissam and Bassam, in the court complex across the road in the first week of February 2009?
A. In the court complex?
Q. Either in the coffee shop outside or in the court complex itself?
A. Not that I’m aware of, no.
Q. Did Hais show you an article in a newspaper in the first week of February 2009?
A. I don’t believe so.
Q. And say to you, ‘This man is causing you a lot of trouble’?
A. Can’t recall it.
Q. Beg your pardon?
A. I can’t recall that happening.
Q. And did you say, ‘What do you mean?’
A. I can’t recall the conversation happening.
Q. Did Hais Safetli say, ‘He’s causing you a lot of problems. You’ll have to kill this guy’? Did he say that to you?
A. Well, I can’t recall the conversation at all, so I don’t know what he said to me.
Q. Just have a look at this document, if you would. You will see poking out of the top a certificate. Can you just open the newspaper at that point.
A. Yes.
Q. Do you recognise a photograph of Mr McGurk?
A. I recognise the photograph, yes.
Q. Of Mr McGurk?
A. Yes.
Q. I suggest to you that in the first week of February 2009, Hais Safetli showed you that very photograph of the deceased?
A. You may suggest what you like but it didn’t happen.
…
Q. As it appears in that authenticated copy of the Daily Telegraph of 2 February 2009.
A. Never happened.
Q. 3 February, is it? Can you just look at the top of the page? I don’t have a duplicate original.
A. February 3rd, yes.
Q. I suggest to you that he showed you a copy of that photograph appearing in that newspaper.
A. This is the first and only time I have seen this photograph in this newspaper.
Q. I suggest to you that he pointed towards that photograph and said, ‘He’s causing you a lot of problems’?
A. That is a nonsense.
Q. And I suggest to you that he then said, ‘You’, meaning you, Gattellari, ‘will have to kill this guy’.
A. You can keep suggesting it all day. It never happened.
Q. I suggest to you that that was in the presence of Senad Kaminic. What do you say to that?
A. I’ve already said it. It’s a nonsense.
Q. You have not heard Mr Kaminic give any evidence over the years about anything to do with this case, have you?
A. I have not.”

Gattellari was further questioned about a meeting at his house in early February 2009 and gave the following evidence:

“Q. Mr Gattellari, you were still living at the address in Chipping Norton in 2009?
A. Yes, I was.
Q. And in early February 2009, did Bassam Safetli, Haissam Safetli and Senad Kaminic come to your property?
A. It’s quite possible that they did, yes.
Q. Did Hais Safetli show you a newspaper article at your home in early February, using words to the effect, ‘You’ve got a problem with this fellow. You need to kill him’?
A. Not that I can recollect, no.
Q. Well, it would have been a very important conversation, would it not, if it had taken place?
A. Well, I don’t recall having that conversation.
Q. I suggest to you that he indicated in a newspaper article a photograph of Mr McGurk – that’s at your premises at Chipping Norton?
A. I don’t recall it.
Q. I suggest to you that Bassam Safetli, not Hais Safetli this time – Bassam Safetli said to you, ‘If you ever need any heavy sort of work, we will be able to carry it out’?
A. No, I don’t believe that’s when that was said to me.
Q. I suggest to you at that meeting you asked the Safetlis, plural, to take part in some surveillance, that is to say, watching or following Mr McGurk?
A. Not correct.
Q. I suggest to you at that same meeting, did you ask them to get you some photographs of Mr McGurk’s movements?
A. Never happened.”

He was subsequently asked the following questions concerning discussions with the Safetlis:

“Q. Sir, this conversation that you had with Bassam Safetli about, ‘If you ever want anything heavier done’, where did that take place?
A. I’ve no idea – one of the factories. This is nine years ago now.
…
Q. Was anybody else present when he said, ‘If you guys ever need anything heavier done’, other than his brother, and you, obviously?
A. Senad Kaminic was there as well.
…
Q. How did this conversation arise where Bassam Safetli said, ‘If you guys ever need anything heavier done’?
A. Well, they’d just delivered someone a message about something and that’s when it came up.
Q. So they are doing some debt collecting. Do you recall who they were trying to collect the debt from?
A. I didn’t say they were trying to collect a debt. I said that they had a word with someone about some matters and that’s when it came up.
Q. So the conversation was, I suggest to you, ‘If you guys ever need anything heavier done or even the final job done, we would be more than happy to help you out, Lucky’, or words like that?
A. That sounds right.
…
Q. What did you think he was talking about?
A. I told you, the final job, to have someone killed, which totally surprised me at the time.
…
Q. Because the killing of Mr McGurk was financed by you, wasn’t it?
A. That’s a nonsense.
Q. And you organised it yourself, didn’t you?
A. I did not.
Q. From moneys that you’d stolen from Mr Medich over the years?
A. Stealing money from Mr Medich was almost impossible.”

He then denied that at that time he asked the Safetlis to do surveillance of Mr McGurk, and that the comment about being willing to kill someone was referring to Mr McGurk.

Kaminic’s evidence

Early in his evidence, Kaminic was asked about a time when he went to a courthouse in Sydney for a court case relating to the applicant. He said that he drove Gattellari to the city that day. He then gave the following evidence:

“Q. Before going to the courthouse, did you and Mr Gattellari meet with Mr Medich at a coffee shop?
A. INTERPRETER: Yes.
Q. Were there other people at that meeting at the coffee shop?
A. INTERPRETER: Yes.
Q. Do you remember who they were?
A. INTERPRETER: Andrew Howard, Les Samba.
…
Q. Was it your understanding that Mr Medich had a matter in court that day?
A. INTERPRETER: Yes.
Q. Did you know who his court case was against?
A. INTERPRETER: Yes.
Q. Who was that?
A. INTERPRETER: Michael McGurk.
Q. Did you know what the court case was about that day?
A. INTERPRETER: I think about the money.
Q. When you were near or in the courthouse was there a discussion about Michal McGurk?
A. INTERPRETER: Yes, they mentioned him.
Q. Did you hear Mr Medich say something about Michael McGurk?
A. INTERPRETER: Yes, he mentioned him and he was mostly concerned whether he will show up or not.
Q. What did he say about whether he would show up or not?
A. INTERPRETER: Yes, he didn’t know and he was approximately [sic] nervous, you know.
…
Q. While you were in the vicinity of the courthouse, did Lucky Gattellari ask you something concerning Mr McGurk?
A. INTERPRETER: Yes.
Q. What did he say to you?
A. INTERPRETER: He asked me to ring Bass Safetli.
Q. Did you understand that was in relation to the issue whether Michael McGurk would come to the courthouse that day?
A. INTERPRETER: Yes.
Q. Following that conversation with Mr Gattellari, did you telephone Bassam Safetli?
A. INTERPRETER: Yes.
Q. What did you ask him or tell him?
A. INTERPRETER: I just asked him whether he sure whether McGurk will come to the courtroom or not and he said he was following him in the traffic and he lost him and he’s not sure whether he will come or not.
Q. Did you ask him to go and watch or to watch whether Michael McGurk would come to the courthouse?
A. INTERPRETER: Yes, Lucky told him to ask him whether he will come or not and he just asked me to check, yes, that information.
Q. Did you and Lucky accompany Mr Medich into the courthouse that day?
A. INTERPRETER: Yes.”

Kaminic stated that this occurred at the beginning of February 2009.
Kaminic was then asked about a subsequent meeting between him, Gattellari and the Safetlis. His evidence was to the following effect:

“Q. Mr Kaminic, some time after the day you went to the courthouse for Mr Medich’s court case, was there a meeting between you and Haissam Safetli, Bassam Safetli and Lucky Gattellari?
A. INTERPRETER: Yes.
Q. Was that at Mr Gattellari’s house?
A. INTERPRETER: Yes.
Q. Was there a discussion at that meeting about Michael McGurk?
A. INTERPRETER¨ Yes.
Q. Did Mr Gattellari ask Haissam and Bassam Safetli to do something in relation to Michael McGurk?
A. INTERPRETER: Yes.
Q. What did he ask them to do?
A. INTERPRETER: To follow him and to know where he’s moving around.
Q. Did he ask them to do anything in relation to getting photos?
A. INTERPRETER: Yes.
Q. Did Mr Gattellari tell you who that following or surveillance would be for?
A. INTERPRETER: Yes.
Q. Who did he say it was for?
A. INTERPRETER: Yes, he said that he would notify Medich to let him know about his movements?
…
Q. Did Haissam Safetli arrive at that meeting at Mr Gattellari’s house carrying a newspaper?
A. INTERPRETER: Yes.
Q. What did you see in relation to that newspaper?
A. INTERPRETER: Oh, on one part it was McGurk’s photo.
Q. At the meeting when Mr Gattellari asked Haissam and Bassam Safetli to follow Mr McGurk, did Haissam Safetli say something like, ‘This man is causing you a lot of trouble, you’ll have to kill this guy’?
A. INTERPRETER: Yes.
Q. When he said ‘This guy’s causing you a lot of trouble’, who did you understand him to be referring to?
A. INTERPRETER: McGurk.
Q. When he said that, did you or Lucky Gattellari respond to him?
A. INTERPRETER: Lucky asked him, ‘What do you think like that’?”

Kaminic was then asked questions concerning reporting the surveillance of the deceased to the applicant. He gave this evidence:

“Q. Did Lucky Gattellari tell Mr Medich in your presence that Mr McGurk was going to be watched or followed?
A. INTERPRETER: Yes. I said that he will be followed and they will know where and what.
Q. Did you hear Mr Medich say anything back to Lucky Gattellari about the fact that Mr McGurk would be followed?
A. INTERPRETER: Perhaps, yes, but I can’t remember specifically anything.
Q. Did you ever hear Mr Gattellari say anything to Mr Medich about photographs of Mr McGurk?
A. INTERPRETER: Yes, I think he told him he will get photos and – just that it will be presented, that they are doing something, and he would know about his movements.
Q. Were there some meetings when Haissam and Bassam Safetli reported on the surveillance back to Lucky Gattellari?
A. INTERPRETER: Yes.
Q. Were you present at such meetings?
A. INTERPRETER: Yes.
Q. At one of the meetings did Haissam Safetli say to Lucky Gattellari words to the effect, ‘If you want to go all the way with this, we can’?
A. INTERPRETER: Yes.
Q. How did Lucky respond?
A. INTERPRETER: Lucky didn’t know what he’s talking about and he said, ‘What do you mean?’
Q. Did Haissam Safetli reply to that question?
A. INTERPRETER: Yes.
Q. What did he say?
A. INTERPRETER: He showed with his finger and he said, ‘If you want to go all the way’.
HIS HONOUR: Indicating with the index finger pointed out.
…
Q. Where was that meeting?
A. INTERPRETER: At Lucky’s house.
Q. At another meeting did you see the Safetlis give Lucky Gattellari something in relation to the surveillance of Mr McGurk?
A. INTERPRETER: Yes, I think he brought some printouts of photos and once he wrote – second meeting he wrote CDs.
Q. At a further meeting he brought a CD to Mr Gattellari?
A. INTERPRETER: Yes, second meeting, yes.
Q. Where was the meeting where he gave Mr Gattellari a CD?
A. INTERPRETER: We were at lunch at Milano Restaurant.
Q. What did you understand the CD to be?
A. INTERPRETER: They said surveillance photos.
Q. What did you understand the CD to be before?
A. INTERPRETER: Yes, that Lucky can justify to show Ron and justify his payments for Safetli brothers.
Q. How long after Lucky had first asked them to do the surveillance of Michael McGurk was that CD handed over?
A. INTERPRETER: I don’t know. Three to four weeks, I’m not one hundred per cent sure. Firstly, it was photos, 15 days later on that came, yes – 10 to 15 days, yes, that came. So approximately within that time. I don’t know exactly.”

Kaminic was then examined on a meeting in which he was partly involved some two weeks after the handing over of the CDs. He gave the following evidence:

“Q. Did they appear to be conferring privately with each other?
A. INTERPRETER: Yes. They went to Ron’s office, I was waiting in front of the reception.
Q. How long were they speaking between themselves?
A. INTERPRETER: I don’t know, but minimum 15 to 20 minutes.
Q. At the conclusion of the conversation did you leave the accused’s Leichhardt office with Mr Gattellari?
A. INTERPRETER: Yes.
Q. Did you get into a car?
A. INTERPRETER: Yes.
Q. Did Mr Gatellari say something to you about Mr Medich?
A: INTERPRETER: Yes.
Q. What did he say?
A. INTERPRETER: ‘It looks like he’s going all the way. Yeah, he wants to go all the way through’.
Q. When he said, ‘He wants to go all the way through’, who did you understand ‘he’ to be?
A. INTERPRETER: I think that Hais’s suggestion, all the way through, all the way, that was it.
Q. Who wanted to go all the way?
A. INTERPRETER: Lucky said, ‘It seems Ron wants to go all the way.’
Q. What did you understand Mr Gattellari to be saying to you about Ron wanting to go all the way?
A. INTERPRETER: Yes, they wanted to get rid of Mr McGurk, that he was indicating with his index finger. Yes, that was my understanding.
Q. Did you understand that Ron wanted to get rick of McGurk in the sense he wanted him killed?
A. INTERPRETER: Yes, that was in his head, ‘all the way’, to kill him.
Q. Did you say anything in reply to Mr Gattellari?
A. INTERPRETER: Yeah, I asked him, ‘What’s going on, what’s happening?’
Q. What did he say?
A. INTERPRETER: He mentioned that McGurk is causing too many problems and at the same time money is missing.
Q. When you say ‘money is missing’, whose money?
A. INTERPRETER: Ron’s getting money.
Q. Did Mr Gattellari say anything else about what the accused wanted him to do?
A. INTERPRETER: I can’t remember any specific words, but my understanding was that they want him – they wanted to kill him.
Q. Did Mr Gattellari ask you to do anything?
A. INTERPRETER: Yes.
Q. What did he ask you?
A. INTERPRETER: Yes, to contact Hais to come for a meeting.
Q. Did you do what Mr Gattellari asked – that is, contact Hais Safetli?
A. INTERPRETER: Yes.
…
Q. And did you meet with Hais Safetli at Lucky’s house?
A. INTERPRETER: Yes.
…
Q. Yes. At the meeting when Haissam Safetli came to Lucky’s house, what did Lucky Gattellari say to Haissam Safetli?
A. INTERPRETER: He asked him, ‘Are you still to go all the way?’ ‘Yes, is the offer still on the table?’
Q. Is it your evidence that Lucky Gattellari asked Haissam Safetli if his offer to go all the way was still on the table?
A. INTERPRETER: On the table, yes.
Q. Did Hais Safetli say that yes, it was?
A. INTERPRETER: Yes.
Q. Did Mr Gattellari ask him, that is, ask Mr Safetli, to tell him what his terms and conditions were?
A. INTERPRETER: Yes.
Q. Did Haissam Safetli get back to you after that meeting about his terms and conditions?
A. INTERPRETER: Yes.
Q. What did he say?
A. INTERPRETER: He sent me a message with – SMS message with – 50,000 upfront, 250 after finishing the job and within one to three months it will be done.
Q. When did he send you that message?
A. INTERPRETER: The same night, actually two to three hours after the meeting.”

Kaminic was subsequently asked further questions about the reasons for the surveillance. He gave this evidence:

“Q. What did Lucky Gattellari tell you about why the surveillance was being done?
A. INTERPRETER: Because the other one was not appearing at the court and was avoiding to pay his debts to Medich. That’s why they were following him. That’s why McGurk was followed or had surveillance.
Q. Did Lucky Gattellari ever tell you who the surveillance was for?
A. INTERPRETER: Yes.
Q. Who did he say it was for?
A. INTERPRETER: For Medich.”

In cross-examination Kaminic was asked questions concerning a meeting at Gattellari’s house which took place around the time of his birthday. It does not appear to be disputed that this was the same meeting about which he was asked in chief and in respect of which I have set out his evidence at [32] above. In cross-examination he gave the following evidence:

“Q. Yes. Safetli said to Gattellari, in your presence, that’s Hais Safetli, said in your presence, ‘This fellow’s causing you a lot of problems, you should kill him’, didn’t he?
A. INTERPRETER: Yes, approximately like that.
Q. Mr Medich wasn’t present at any conference like that, was he?
A. INTERPRETER: No.
Q. Your birthday is around about 3 February; is that so?
A. INTERPRETER: Yes.
Q. Precisely what is it?
A. INTERPRETER: 7th.
Q. Did you ever have a meeting at Gattellari’s premises at Chipping Norton around about the day of your birthday where a photograph was shown of Mr McGurk?
A. INTERPRETER: Yes.
Q. A photograph was shown by Hais Safetli to Gattellari pointing to Mr McGurk’s image in the newspaper; true?
A. INTERPRETER: Yes. Yes.
Q. It was during that conversation at those premises in early February 2009 that Hais Safetli said to Gattellari, ‘You should kill this guy’?
A. INTERPRETER: Yes, approximately like that.
Q. The persons present at Chipping Norton in early February, when this was discussed, are Gattellari, yourself, Hais Safetli and Bassam Safetli; is that true?
A. INTERPRETER: Yes. Yes.
Q. Do you remember Hais Safetli also saying, speaking to Gattellari, ‘This fellow’s causing you a lot of problems’?
A. INTERPRETER: Yes, no-one else was there except us.”

He was then shown an induced statement he made to the police in November 2010 and was asked the following questions:

Q. And it reads:
‘Hais showed Lucky the article in the newspaper and said something like, ‘This man is causing you a lot of trouble.’ Lucky said, ‘What do you mean?’ Hais said, ‘He is causing you a lot of problems, you’ll have to kill this guy.’ Lucky looked really surprised and said, ‘Why are you thinking that?’ And Hais said, ‘You’ll find out.’
Was that all correctly read?
A. INTERPRETER: Yes.
Q. And that was said at Gattellari’s home?
A. INTERPRETER: Yeah. Yeah.”

The photograph but no other part of the article was tendered.
Kaminic was subsequently asked in cross-examination a question to the following effect:

“Q. Sir, have you ever been in a conversation with either of the Safetlis – that is, Hais Safetli or Bassam Safetli – where one of them said he was close enough ‘and I could have finished him off’?”

Objection was taken to the question on the ground that it would require hearsay evidence. During argument on the objection, senior counsel for the applicant stated that the alleged conversation took place between 1 February and about 10 February 2009. He submitted that it was a preliminary step that led to the firming up of the final agreement to kill the deceased.
In response, the Crown Prosecutor made the following submission:

“CROWN PROSECUTOR WRIGHT: Your Honour, in my submission, it cannot be said to be in furtherance of the enterprise. There was no common purpose at that time. It’s in the same category as the Safetlis talking about killing Estephan and Krystal Weir. The fact that the Safetlis seem to be volunteering offers to kill people does not make admissible their statements in that regard.
In my submission, it pre-dates the common purpose as between the accused and Gattellari, and the Safetlis, and it’s not admissible.”

The Crown Prosecutor also submitted that other statements made by Haissam Safetli around the same time – for example, “[h]e’s causing you a lot of problems, you’ll have to kill this guy” – were led in fairness to the accused and also to put in proper context the evidence as to who Mr Gattellari turned to once the accused had made a decision that the deceased should be killed.
This is of importance because part of the complaint made under this ground is that the Crown, whilst asserting that their case was that the joint criminal enterprise with the accused was entered into subsequent to the conversations in early February, the re-examination effectively changed that case.
The re-examination of Kaminic of which complaint is made was as follows:

“Q. You agreed that Haissam Safetli pointed to Michael McGurk’s image, while saying to Mr Gattellari something like, ‘This man is causing you a lot of problems. You’ll have to kill this guy’?
A. INTERPRETER: Yes.
Q. When those questions were asked of you on Monday, the word ‘you’ was emphasised a number of times – ‘This man is causing you a lot of problems’; do you recall that?
A. INTERPRETER: Yes.
Q. When Haissam Safetli said the words, did he emphasise the word ‘you’ at all?
A. INTERPRETER: No.
Q. When you heard Haissam Safetli say, while pointing to Mr McGurk’s image, ‘This man is causing you a lot of problems’, who did you understand Safetli to be referring to when he said ‘causing you a lot of problems’?
A. INTERPRETER: To Medich.
Q. Why did you have that understanding?
A. INTERPRETER: Because they had the court case. They had the unresolved problems.
Q. That is, Mr Medich and Mr McGurk?
A. INTERPRETER: Yes.
Q. Did Lucky Gattellari ever say to you that Michael McGurk was causing him – that is, Lucky – any problems?
A. INTERPRETER: No.
Q. Did Lucky Gattellari ever say to you that he personally had any problems with Michael McGurk?
A. INTERPRETER: No.”

No objection was taken to this evidence at the time it was elicited, but at the conclusion of the re-examination, senior counsel for the applicant applied to discharge the jury. The argument in support was as follows:

“TERRACINI: The evidence given by this witness, for the very first time in seven and a half years, is that the conversation with Safetli, when he is shown the newspaper, relates to Ron Medich has never appeared in any statement, any evidence. It was never led at the committal. It was never put to the first jury. It was never led in chief and, plainly, there has been a conference between the DPP and/or the Crown where this has obviously fallen from him, or been led from him in conference.
It was never attempted to be led in chief and it is irreparable. It is a completely different case.
HIS HONOUR: Did you object to the question?
TERRACINI: Well, I didn’t know what was going to be happening. It has never been led in seven and a half years.
…
TERRACINI: The preamble is about the emphasis. There is not an issue with that.
…
TERRACINI: We have assumed, safely, that, at all times, the conversation is about Safetli talking to Gattellari. That has been their case from the beginning.
…
TERRACINI: If this was the Crown case, that should have been led in chief and we should have had some kind of disclosure that that was going to be an addendum to the Crown case for the first time since this man has been charged.
There is no reference to it in any of his statements, any of his evidence, and obviously not in chief. It is an extremely important matter, because it goes to the very heart of the submission that we have made in the past, and will be making, that this was, in fact, an arrangement that pre-dates the evidence of Gattellari where he claims that Mr Medich asked him, after these events, to arrange for the deceased to be killed.”

The prosecutor then addressed shortly to the following effect:

“CROWN PROSECUTOR WRIGHT: The way the questions on pages 1295 and 1298 were delivered by Mr Terracini gave extreme emphasis, which is not reflected in the transcript, to the word ‘you’ and it was put repeatedly that what Safetli said was directed to Lucky Gattellari whilst showing the image of Mr McGurk to Gattellari.
I mean no disrespect to my learned friend, but it was delivered in this fashion, clearly to emphasise that the problem caused by Michael McGurk was personal to Lucky Gattellari. In my submission, respectfully, it opened the door to re-examination about what this witness understood the word ‘you’ to be referring to, as well as questions about whether he had knowledge of any problems between Gattellari and Mr McGurk.
Those are my submissions, your Honour.”

Senior counsel for the applicant then made the following submissions in reply:

“HIS HONOUR: Yes, Mr Terracini?
TERRACINI: From memory, there were questions led in chief about this conversation. Page 1220.
HIS HONOUR: What line?
TERRACINI: From line 5 down to line 30. There was more than adequate --
HIS HONOUR: Just a moment. Let me read it, Mr Terracini. It goes up to about line 19, doesn’t it, on 1220?
TERRACINI: Yes. At line 30, he says:
‘I don’t know, but both of us were surprised why he’s talking like that. Maybe also I said, ‘How come you’re talking like that.’
The submission is plain, there was more than adequate opportunity for that to be led.
We have never been put on notice of this in any shape or form, and the primary submission has always been that Kaminic’s evidence does not stand with the account given by Gattellari.
HIS HONOUR: This question goes to what he says his understanding was, for whatever that may be worth.
TERRACINI: The problem is, your Honour, I’ve finished my cross-examination. The jury don’t know that this has only come out today.
HIS HONOUR: Are you going to make an application for leave to cross-examine him again?
TERRACINI: If your Honour is against me, yes. We call or any notes of whatever conference this arose out of, because it must be, in my submission, quite recent, otherwise --
HIS HONOUR: Well, it may well be recent, and the answer to that may be that the fact that it is recent arises out of the questions that he was asked in cross-examination. I don’t know.

…
TERRACINI: There is no doubt that his credit is an issue, but the problem is that this puts a completely – completely – different complexion on the fact that, by inference, he’s saying that Mr Medich was involved at that early stage, which has never been the suggestion in the past.
HIS HONOUR: In circumstances where Gattellari says it never happened anyway.”

I have set out the arguments in detail because it is important to identify the two complaints that were made. First, and perhaps most importantly, having regard to the submissions on appeal, it amounted to a change in the Crown case. Second, the evidence should have been led in chief. There was no objection taken to the evidence on the ground that Kaminic’s understanding was irrelevant, and no application was made that, in the event the discharge application was unsuccessful, the jury be directed to disregard the evidence.
The trial judge rejected the application: R v Medich (No 32) [2018] NSWSC 253. In his judgment, after recording the evidence complained of, the trial judge made the following remarks (at [10]-[15]):

“[10] I interpolate that no objection was taken to those questions when they were asked in re-examination.
[11] Following re-examination, an application was made by senior counsel for the accused to discharge the jury. The essence of that application, articulated at T1390, was that this was the first occasion on which Kaminic had said that it was his understanding that when the words were said by Safetli, they referred to the accused. Senior counsel submitted, in part:
‘We have assumed, safely, that, at all times, the conversation is about Safetli talking to Gattellari. That has been their case from the beginning.’

[12]   It was submitted that in all of the circumstances, there was prejudice to the accused as a result of (inter alia) the evidence which was elicited in re-examination not being adduced in chief.
[13]   The Crown opposed the application. The application, in my view, had little merit. The proposition that the prejudice to the accused were “irreparable", as advanced by senior counsel, overstated the significance of what occurred.
[14] The primary basis of the application was the proposition articulated by senior counsel at [11] above. That proposition advanced was, in my view, something of a fallacy. The evidence elicited in re-examination did not alter the fact that on the Crown case, the conversation remained one between Safetli and Gattellari. That has been the Crown’s position from the beginning. Even on the evidence of Kaminic, that proposition has never changed. The question put by the Crown was solely directed to Kaminic’s understanding of the conversation. The parties to the conversation, and specifically the fact that Safetli had been talking to Gattellari, had not altered. There was absolutely no basis at all for the jury to be discharged.
[15]   The real complaint of senior counsel for the accused was that the evidence should have been led by the Crown in chief. Accepting for present purposes that such complaint was properly founded, it was one which was appropriately remedied by further cross-examination, which ultimately took place pursuant to a grant of leave.”

Thereafter, pursuant to leave, senior counsel for the applicant further cross-examined Mr Kaminic. The cross-examination was to the following effect:

“Q. When did you say to any court or to any police officer before this morning that this comment was directed to Mr Medich?
A. INTERPRETER: I never remember saying that. No-one has asked me – ever asked me such direct question.”
…
Q. Can you tell us whether you ever said anything about this conversation being directed to Mr Medich before?
A. INTERPRETER: I can’t remember.
Q. Yesterday afternoon, did you have a conference with the prosecutor, a police officer and a solicitor?
A. INTERPRETER: Yes.
Q. Is that the very first time in the last seven and a half years that you’ve ever told any police officer or DPP officer about this conversation, so far as you were concerned, relating to Mr Medich?
A. INTERPRETER: As far as I remember, yes.
…
Q. I suggest to you that you are lying about this conversation, aren’t you?
HIS HONOUR: About the conversation or about his understanding?
TERRACINI
Q. You are lying about saying that you understood that this related to Mr Medich?
A. INTERPRETER: No.
Q. So far as the court problems that you spoke of this morning, a court case, what was that about?
A. INTERPRETER: Well, that Mr Medich was at court with McGurk and they knew about it – and Safetlis, they knew about it.
Q. About what?
A. INTERPRETER: They are at court and they are just – one against each other in relation to some money, and what else I don’t know.
…
Q. When Hais Safetli showed Lucky Gattellari the article in the paper, did he discuss what was in it with Gattellari?
A. INTERPRETER: I can’t remember that, there was a discussion about.
Q. There was, or there wasn’t?
A. INTERPRETER: No, just he showed with his hand and said, ‘This man is causing you a lot of troubles’.
Q. There was no conversation about a court case, was there?
A. INTERPRETER: At the moment, no, but probably he was – he read the content.
Q. Not ‘probably’. Did you hear any discussion about the court case?
A. INTERPRETER: No, no.”

The evidence elicited in re-examination was adverted to briefly in the address of both the Crown and the address on behalf of the applicant. In closing, the Crown made it clear that it contended that the enterprise was agreed upon between sometime in early March and June 2009. In that context, the Crown made the following remarks:

“Gattellari couldn’t give you an exact time this initial conversation occurred and conceded he wasn’t good with dates but told you it was about three to six months before the murder took place when the accused told him to find someone to kill Michael McGurk … .
That places it, you might think, according to Gattellari, some time in early March and early June 2009. We know court proceedings were on foot by 18 March 2009 but we know that the two men were already in conflict in relation to the Tilley proceedings a few months before that when we know the last contact, phone contact between the deceased and the accused was 19 February 2009.”

The Crown made the following reference to the evidence the subject of the re-examination:

“Kaminic says Gattellari’s response was ‘Why are you thinking like that?’, and that both he and Gattellari were surprised that Safetli said this. Kaminic said in re[-]examination that when Safetli made the comment that this guy is causing you a lot of problems, he understood that Safetli was referring to Mr McGurk causing the accused, that is, Mr Medich, a lot of problems because they were the ones with the court case and the unresolved problems. He did not understand Michael McGurk to be causing Lucky Gattellari any problems and Lucky had never said to him that he personally had any problems with Michael McGurk.
It was put to him, you’ll remember, members of the jury, it was put to Mr Kaminic that this was the first time in this trial he’d given evidence as to who he believed Safetli was referring to and you’ll recall Mr Kaminic’s evidence that he had never been asked by anyone who he believed Safetli was referring to when he said, ‘This man is causing you a lot of problems,’ and we certainly know that Mr McGurk was causing the accused a lot of problems.”

Senior counsel for the applicant dealt with it in the following way:

“Is that honest and reliable? This is the very, very, very genesis of this event and I will come to tell you about the differences between what Kaminic says is the first meeting with the Safetlis and what Gattellari says, and Gattellari’s knowledge of the fact that Safetli was surveilling Mr McGurk. And I will take you to this nonsensical evidence, you may think, and a submission that does not accord with logic or reason that when Safetli is pointing to Gattellari and says, in effect – when he’s pointing to the photograph, I should say, ‘Dated February the 3rd’, and Kaminic is able to connect it because his birthday is around about that time, this is before the accused is alleged to have asked a man to murder someone in an office that didn’t exist. ‘You ought to kill this guy.’
And at the heel of the hunt you may think that Kaminic wants to put a spin of his own on it – never given the evidence before, ever. Never in all of the statements, he says, ‘Oh, I thought I’d talk about Ron.’ Give us a break. ‘You ought to kill this bloke.’ That is in the first week of February 2009. That’s before Gattellari even claims to have had conversation or conversations in the mythical office with Mr Medich. You can’t plan or request a murder after it has already occurred, can you?”

Senior counsel for the applicant made the following additional references to the conversation:

“According to Gattellari’s account, Gattellari says that he’s first approached by the accused in the new office, which doesn’t exist, one of the accounts is in April or May, they vary a little bit, before obviously September. Kaminic, before that event, has got Hais Safetli and Bassam Safetli at guess who’s house? Gattellari’s, with the photograph of Mr McGurk in an article in the Daily Telegraph of 3 February, points to it and says, ‘You’ve got to kill this fellow’, or words to the effect. I’ll take you to it word for word, and you’ll reject out of hand that’s any reference to Mr Medich. Mr Medich hasn’t, on Gattellari’s version, eve asked him to kill anyone. It is Safetli saying to Gattellari, ‘You’ve got to kill this fellow’, and points to the photograph and you will see it. There’s no doubt who it is, there’s no doubt which newspaper it is or the date of it.
So far as Mr Kaminic is concerned, he is in no doubt that this event took place, and it is exhibit 53. When Gattellari is confronted with this, he just says, ‘Oh, that never happened. That’s nonsense. That didn’t happen.’ Well, he has to say that, doesn’t he? If he want[s] you to believe him, he has to, because if Kaminic is telling you the truth, you may think that there are moves afoot already before the alleged conversation with the accused to be discussing the death of Mr McGurk. It is put to you it’s nothing to do with Mr Medich.
…
Mr Kaminic confirmed over and over in his evidence that all of the meetings he was having with Gattellari and the Safetlis involving the identification of the date related to the photograph in the newspaper, which is 3 February 2009, was in close proximity to that date. If that’s not enough, that he talks about pointing to the photograph in the newspaper, his own birthday is in the first week of February, and that’s another reason why he’s able to remember with precision what took place.
Gattellari is the only witness that gives evidence – the only witness that gives evidence before you – that it was Ron Medich who requested the murder of Mr McGurk and the intimidation of Mrs McGurk. Gattellari is the only person.”

In his summing-up, the trial judge made no reference to Kaminic’s understanding of the conversation.
The trial judge made the following remarks in his summing-up:

“Again, I remind you it is Mr Terracini’s position that there is a great deal of inconsistency in that area of the evidence and he emphasised, in particular, that part of the evidence which involved the production of the copy of the Daily Telegraph in which the deceased’s photo appeared and about which Mr Safetli is alleged to have said something to the effect of, ‘This bloke’s causing you a lot of problems.’ Mr Terracini’s position, obviously, is that that evidence is completely inconsistent with the account which has been given to you by Gattellari.
…
Mr Terracini then took you to the evidence of Kaminic in relation to the circumstances of the meeting at Gattellari’s house with Safetli where the copy of the Daily Telegraph newspaper containing the photograph of the deceased was produced. The copy of the newspaper, to remind you, is exhibit 53, and the date of the newspaper is 3 February 2009. Mr Terracini reminded you of the evidence of Kaminic, that Safetli had said on that occasion, pointing to the deceased, ‘You’ve got to kill this fellow’, and Mr Terracini said that, on the evidence of Gattellari, the accused had not asked him at that stage to kill anybody because that was only February of 2009.
He said this was Mr Safetli telling Gattellari that the deceased should be killed. Mr Terracini said the significance of that is that Gattellari says that it didn’t happen, and he put to you ‘Well, he has to say that’, but he reminded you that Kaminic’s evidence was that he, as it were, pinpointed that incident by, amongst other things, referring to his birthday, which was at or about that time.”

The parties’ submissions

The applicant

In written submissions filed on behalf of the applicant it was contended that r 4 of the Criminal Appeal Rules (1952 SI 2) (NSW) (Criminal Appeal Rules) did not apply, although it was accepted that the re-examination of which complaint was made took place without objection. I have set out at [44] above the particular portion of which complaint was made during the course of the application to discharge the jury.
It was contended that the Crown sought to prove what the Safetlis understood to be the nature of the unresolved problem that the deceased posed, and to whom, by introducing erroneous and inadmissible assumptions of Kaminic, a course which had not been disclosed prior to the re-examination. It was submitted that Kaminic’s recollection of the state of legal affairs between the applicant and the deceased was not capable of, or admissible to prove, what motivated the Safetlis in conveying what they did.
The submissions noted that at the time of the application to discharge the jury, the Crown had disclosed that it was not part of its case that the Safetli conversation was in furtherance of any joint criminal enterprise with the applicant.
It was submitted that the Crown’s contention that the emphasis placed by the cross-examiner on the word “you” opened the door to the re-examination was wrong. It was submitted that the cross-examination did not explore Kaminic’s state of mind; rather, it explored his recollection of what was said and “how it was said”. In making reference to “how it was said”, the submissions are presumably referring to the emphasis placed by the cross-examiner on the word “you”.
The written submissions contended that Kaminic’s assumption as to the state of mind of the Safetlis was “without foundation, consequently inadmissible and ultimately prejudicial” to the applicant’s case. The submission noted that counsel contended he did not object at the time because he was caught by surprise by the question. It was also submitted that Kaminic’s knowledge of the court proceedings on foot was in fact wrong and contrary to the agreed facts.
The submissions referred to the reasons of the trial judge in dismissing the application. It was submitted that his Honour was in error in characterising the essence of the application as premised upon the fact that the evidence was new and elicited in re-examination. It was submitted that defence counsel was making the point that the undisclosed assumption was not admissible, prejudicial and went to the heart of the defence case. It was submitted in those circumstances that the trial judge failed to take into account the articulated prejudice.
It was submitted that the further cross-examination did not cure the articulated prejudice. It was submitted that the further cross-examination was a forensic position which counsel ought not to have been left to adopt. Referring to the comment by Kaminic in that further cross-examination, namely, “[h]e read the content”, it was pointed out that the newspaper article which was not in evidence made no mention of acrimony between the applicant and the deceased. It was noted that the Crown had the article in its possession. However, it was also in the possession of senior counsel for the applicant and he made no attempt to cross-examine on it or tender it.
It was submitted that a critical aspect of the defence was the doubt engendered by the unchallenged evidence of Kaminic that the Safetlis were to kill the deceased at a time antecedent to any joint enterprise between Gattellari and the applicant. It was noted that the Crown conceded “there was no common purpose” at the time the Safetlis commenced their surveillance and raised the topic of murdering the deceased. In that context, it was submitted that the unfair prejudice occasioned by the evidence was that it was capable of cementing in the minds of the jury, contrary to the proper concessions of the Crown, that the objective of the Safetli plot at the time was for the applicant’s advantage.
It was submitted that the risk of miscarriage was “put beyond doubt” in the Crown’s address when the Crown sought to persuade the jury that the evidence adduced in re-examination and the February surveillance was in furtherance of the joint enterprise. It was submitted that this was inconsistent with the Crown concession at the trial.
It was contended that, contrary to what the trial judge envisaged at the time he considered the discharge application, namely, that Kaminic’s opinion was not probative of much (see [47] above), the Crown amended its case and pressed “the Kaminic assumption” in such a way as to unfairly detract from a doubt raised in the defence case. In that context, it was submitted that the Crown recognised Kaminic’s evidence was in part unfavourable to its case, and that it was accepted by the Crown to be reliable inasmuch as the early February events were not relied upon to prove the applicant’s guilt. It was submitted that contrary to this articulated position, the Crown relied on the re-examination of Kaminic to obscure the problem his evidence presented and to support an inference that the early observations of Kaminic were in furtherance of the single enterprise. The written submissions referred in that context to that part of the Crown’s address to which I have referred to at [52] above, particularly the comments concerning the further cross-examination of Kaminic.
At the hearing, senior counsel for the applicant submitted that the case against his client had the following central features. First, that there was a joint criminal enterprise initiated by the applicant. He emphasised that it was not a joint criminal enterprise initiated by one or more of the Safetlis, or that there was any suggestion that there was a joint criminal enterprise initiated by the Safetlis to which the applicant subsequently became a party.
Senior counsel for the applicant referred to what he described as material contradicting the Crown case, including the evidence of Kaminic. He submitted that the chief contradictory element of Kaminic’s evidence concerned the timing and content of the approach by the Safetlis with respect to the killing of the deceased. He submitted that the key quality of the Safetli conversation was that it preceded the institution of the joint criminal enterprise.
In that context, senior counsel for the applicant submitted that the re-examination was an attempt to implicate the applicant before the inception of the joint criminal enterprise. He described the re-examination and “the excess by the Crown” extending beyond the re-examination as an “unsubstantiated and artificial adjustment of chronology and temporal sequence”. He referred to the applicant’s written submissions, pointing out that at the time of the re-examination the Crown’s position could not have been plainer, knowing that the Safetli conversation preceded the applicant’s involvement on the Crown case. He submitted that by the time of the closing address, without any challenge to the evidence of Kaminic, evidence was being turned to account of Safetlis’ conduct in furtherance of the enterprise in which the applicant was a participant.

In their closing address the Prosecutor submitted that the “accused had many solicitors, Kevin Munro was one of the accused solicitors” and “the evidence is unclear precisely which solicitor it was said to”. However, no solicitor was called to give evidence in support of Kaminic’s account of this conversation.
Matthew Crockett gave evidence of an implied admission to the murder made by the applicant at a lunch in 2010. He said the applicant had a heated telephone conversation with his wife (Odetta) and returned to the table:

“Q:    What did he say?
A:   That he should have ‘fucked Odetta off like McGurk’.
Q:    Odetta?
A:   Yes, something similar to - I don’t know, along those lines.
HIS HONOUR: Mr Crockett, I’m having real trouble hearing you. Could you keep your voice up please?
WITNESS: ‘I should have fucked her off like McGurk’.
CROWN PROSECUTOR HARRIS
Q:    Who did he say that to?
A:    Just everyone, really, who was at the table.”

In cross-examination, Crockett said that he was “certain” that Lucky Gattellari was at the lunch. Taken to his statement, Crockett said “Lucky told Ron to ‘Shh’” and “got up then and checked around the corner”. Gattellari gave no evidence of this conversation or of taking the actions alleged by Crockett. Crockett also said that Howard was present at the lunch. Howard denied that he heard such a comment although he conceded in cross-examination the self-evident possibility that the comment may have been made but that he did not hear it.
The evidence of these threats and implied admissions was (and is) capable of providing support to the prosecution case. However, each was disputed and none were supported by other witnesses said to be present at the time of the conversation. The witnesses who gave the evidence were subject to substantial attacks on their objectivity and credibility.
One matter upon which the applicant placed particular reliance was the absence of supporting evidence in relation to the cash payments allegedly made by the applicant to Gattellari as “enterprise money”, that is money with which to pay the killer engaged by Gattellari. This matter, and the detail of the evidence, has been dealt with by Hoeben CJ at CL in the context of grounds 1, 2 and 3. I will not repeat that analysis other than to make some brief observations.
Gattellari’s evidence on the issue was inconsistent and uncertain. For example, at one stage he said that he was given $250,000 in cash and gave part of this to Kaminic to pass on to the Safetlis and put the rest in his safe. However, in cross-examination he said that the money given to Kaminic was “money taken out of the [electrical] companies”. He gave inconsistent evidence as to the amount of money actually paid to the Safetlis and the source of that money. As the respondent submitted, the evidence of the accounting and business practices of the electrical companies allowed for the possibility that the money had passed through the accounts of the companies and that the many cash cheques drawn by or on behalf of Gattellari may have been used to pay the Safetlis and fund the murder and intimidation.
However, the applicant is correct that the voluminous evidence concerning the running of the companies and their unorthodox accounting practices did not establish the deposit of cash into the companies that was inferred by Gattellari’s account of what actually happened. To put it bluntly, while there was plenty of evidence of Gattellari taking cash out of the electrical companies’ accounts (usually in amounts of $10,000), there was no evidence of the cash allegedly provided by the applicant going into those accounts. One explanation, relied on by the respondent, is that Gattellari’s evidence was not that the cash was actually deposited but that he used it otherwise for company purposes and then withdrew the cash from the accounts. While that explanation was open on the evidence, there was no clear evidence that this is what happened.
Equally, while Kaminic provided some very general support of the meetings and occasions when the applicant allegedly provided the “enterprise money” to Gattellari, in other respects his evidence was inconsistent with Gattellari’s version of events. Gattellari said that he gave Kaminic $45,000 in cash to provide to the Safetlis while Kaminic said it was Gattellari who handed a bag to the Safetlis and told him it contained $50,000. Gattellari said the first payment of $250,000 cash by the applicant took place in front of Kaminic while Kaminic gave no evidence capable of supporting that account. Kaminic gave no evidence that he witnessed the applicant provide Gattellari with cash at any relevant time. Similar inconsistencies between the witnesses arose with respect to the second payment of $250,000. For example, Gattellari gave evidence that the amount was received in “exactly the same way as the first [payment]”, that is, in cash, whereas Kaminic’s recollection was that he collected a cheque for $250,000 from the applicant’s office and deposited the amount at a nearby Commonwealth Bank branch.
Gattellari gave evidence that there was “a full page of payments made to the Safetlis in my diary and I have no idea what happened to it”. He said the diary was seized by police and that he had “not seen that full page since I was arrested.” He said the police showed him “that paper” later but “it was not a whole piece of paper” and “appeared to have been cut”. Police officers denied that they tampered with the evidence.
These and other inconsistencies in the evidence about the cash payments must be considered in conjunction with the failure of the prosecution to call the Safetlis at the trial. Similarly, the company secretary (Halena Kmita) who was one of the people to whom Gattellari said he gave the cash was not called to give evidence.
There was no direct evidence that the applicant had access to cash in the sum of $500,000 and $600,000 at the time Gattellari claimed to have obtained the “enterprise money” from him. However, there was a great deal of evidence of the unusual business practices of the company and witnesses, including the accountant Kim Shipley, gave evidence of large sums of cash money being accessed by Gattellari through the electrical companies. A search of the applicant’s office secured evidence of transactions in the sum of transfers of $200,000 and $100,000 from “Ron Medich Properties” to “Elite Cranes” in May 2010. There were telephone intercepts between the applicant and a Matt Thomas in May and September 2010. In those recordings the applicant talked about those (and/or other) transfers, however this evidence post-dated the relevant cash payments, did not implicate the applicant in the murder plot and did not support Gattellari’s account of the cash payments.
The applicant also relied on the contradictory accounts concerning when and where the applicant solicited Gattellari to organise the murder. Gattellari’s evidence was vague as to when the solicitation took place, saying at one point that it “would have been three to six months [before the murder]”. That placed the solicitation at some time between March and June of 2009. However, Sundip Ghedia, Gattellari’s former solicitor, gave evidence based on a file note he made in the course of a conference with Gattellari on 18 October 2010. That file note suggested that the solicitation took place in the applicant’s “office new down the road” in Leichhardt. Gattellari was recalled after Ghedia gave evidence. He denied parts of the contents of the file note and, at times, seemed not to remember the conference saying, “I don’t remember any of it” and “I don’t know what you’re talking about”. Later he gave the following evidence:

“Q: Mr Gattellari, I suggest to you that at no time did Mr Medich ever request you to kill Mr McGurk or harm Mr McGurk in any way in the new office at Leichhardt.
A: That is not correct.”

Bruno Nesci and Ciro Romano were the landlords of the “new offices”. By reference to the tenancy agreement, they said the lease commenced on 1 September 2009. This evidence was not disputed. The prosecution’s position was that Gattellari must have been mistaken about the location of the solicitation and confused the critical meeting with the applicant with subsequent meetings held at the new offices.
Ghedia’s file note also suggested that Gattellari told him that Kaminic was present at the meeting. Kaminic gave no evidence to suggest he was present and no evidence that he ever heard the applicant solicit Gattellari to carry out the murder. He said that Gattellari told him things after some of the meetings that he took to be a reference to the applicant wanting McGurk to be killed.
Kaminic gave a deal of hearsay evidence (presumably admitted under the co-conspirator’s rule and s 87 of the Evidence Act) capable of providing support for Gattellari’s allegation that the applicant was behind the murder. To take one example, Kaminic gave evidence that after one meeting between Gattellari and the applicant, during which Kaminic waited outside, he had a conversation with Gattellari:

“Q.    What did he say?
A. INTERPRETER: ‘It looks like he’s going all the way. Yeah, he wants to go all the way through’.
Q.    When he said ‘He wants to go all the way through’, who did you understand ‘he’ to be?
A. INTERPRETER: I think that Hais’s [Safetli’s] suggestion, all the way through, all the way, that was it.
Q.    Who wanted to go all the way?
A. INTERPRETER: Lucky said ‘It seems Ron wants to go all the way.’
Q.   What did you understand Mr Gattellari to be saying to you about Ron wanting to go all the way?
A. INTERPRETER: Yes, they wanted to get rid of McGurk that he was indicating with his index finger. Yes that was my understanding.
Q. Did you understand that Ron wanted to get rid of McGurk in the sense he wanted him killed?
A. INTERPRETER: Yes, that was in his head, ‘all the way’ to kill him.”

This kind of evidence given by Kaminic was the strongest evidence capable of supporting Gattellari’s account on the key components of the prosecution case against the applicant. It was provided by an indemnified witness, was hearsay evidence and its source was Gattellari himself.
In its written submission, the prosecution provided a catalogue of 19 matters whereby it was said “Kaminic’s evidence provided significant support for Gattellari’s evidence”.^[47] For the most part, those matters corroborated the actions of Gattellari - such as proving the contact he had with the Safetlis and the payments of money to those men. However, insofar as they implicated the applicant, they constituted evidence of things Gattellari told Kaminic or evidence establishing the close relationship between the men. In other respects, the evidence of the two men was inconsistent, particularly in relation to detail, and Kaminic failed to provide support for Gattellari’s evidence on matters that one might expect him to remember.
47. RWS at [520].
The respondent also relied on evidence of Gattellari’s approach to Ronald Mason in an attempt to find somebody other than the Safetli brothers to carry out the murder. Gattellari said Mason introduced him to a Danny Landini and there was a meeting between Landini, Kaminic and Haissam Safetli. Gattellari said “[Kaminic] reported back to me as to what happened” and that Landini was asking for “$200,000 upfront”. Gattellari said he told “Senad” to “forget about Mr Landini”. Kaminic was cross-examined about the meeting with Landini. He agreed that he went to a club in Malabar “because Gattellari told [him] to go there”. However, he denied that he met with Landini. He did not give evidence of reporting back to Gattellari or of any further conversation about whether Landini would be engaged.
Ronald Mason gave evidence of his dealings with Gattellari. He said that Gattellari asked him at a lunch whether he knew anybody who would be prepared to kill someone. He said that the applicant was present, then agreed he may have been mistaken about that and, in re-examination, said “I assumed he was there”. He understood that Gattellari was “working for Ron” and said that Gattellari told him the target “was costing Ron $100,000 a week”. Gattellari subsequently asked Mason a number of times if he had found anybody and that “it got to the stage where I was threatened with my own life, I thought, so I knew somebody that’d probably maybe do the job”. That led to the introduction of Gattellari to Landini. Mason agreed he later found out that “Mr Landini himself was not interested in doing the job”. In cross-examination, Mason said Landini was married to his (Mason’s) daughter and that his “reputation” was as a “hit man”. He agreed that he feared Gattellari and thought Gattellari may “knock” (that is, kill) him. Mason told nobody about these things until he was called to the NSW Crime Commission and made an induced statement. He said he remained silent because of his fear of Gattellari.
There was a deal of other evidence at the trial of Gattellari’s dishonest and intimidating disposition. For example, Shipley said “Gattellari wasn’t someone you complained to” and that “I don’t believe there was any alternative but for me to remain a director of the company”. Shipley also gave evidence that Gattellari said “You’ll be here as long as we determine you’re going to be here and you might leave in your coffin”. He said he heard Gattellari threatening other people over the telephone and gave evidence:

“Q. Were you scared of Gattellari?
A. I had certain - Gattellari was very intimidating and you could have some fear of him, yes.”

Other witnesses, including Mason, gave evidence to a similar effect. Specifically, Howard gave evidence that Gattellari had said something to him about having “a list of people” and told him to “keep out of his business”. Gattellari allegedly said to Howard that he “had a list of people that he would be dealing with if he ever found out he had a terminal disease and I was on that list”.
There was also a body of evidence concerning two attempts by Gattellari to extort money from the applicant by offering to refuse to give evidence. This resulted in a number of people being charged with conspiracy to defraud the applicant.
The respondent, at trial and on appeal, relied on evidence that Gattellari had no independent motive to murder McGurk. However, this evidence came largely from Gattellari himself who said he hardly knew the deceased and had only dealt with him a few times. Other witnesses, like Shipley and Crockett, said they were unaware of any problems between Gattellari and the deceased, but this did not positively establish that there was no such problem. The evidence established that Gattellari’s interests were closely aligned with those of the applicant; in fact the applicant appeared to have been something of a meal ticket to Gattellari and other members of Gattellari’s family over a number of years. It is correct, as the respondent asserts, that it was not put to Gattellari at the trial that he had some independent motive. Similarly, there was no evidence of any other person having a motive for murder. However, it was not for the applicant to establish a motive in somebody else and proof of the negative (that nobody else was shown to have a motive) does not establish the positive (that the applicant was the only person with a motive to murder McGurk).
The strong evidence of motive and animosity, and the absence of evidence of a motive in others, was an important part of the prosecution case, but it could only go so far in providing support for the evidence of Gattellari that the applicant instructed him to organise the murder.
The respondent also relied on evidence of Juan Daniel Costa Neyra, who was approached by Gattellari to carry out the intimidation of Mrs McGurk. He said Gattellari told him to tell the victim to “pay or return the money back your fucking husband stole”. Neyra said he never intended to do what Gattellari told him to do. He said that Gattellari told him there was lots of money involved and when reminded of what he said in his police statement he agreed Gattellari said he wanted the message to be delivered while he was in China and that “the message was for someone with a lot of money” (AB 2715). The applicant was never identified as the person behind Gattellari’s approach to Neyra but the prosecution relied on inferences to be drawn from the reference to what “your husband stole” and the person behind the threat being a person “with a lot of money”.
Similarly, the prosecution relied on the words used by Witness A (who was a registered informer and did not give evidence at the trial) to Mrs McGurk on the day of intimidation; for example “Don’t be a conman like your husband.” and “pay your husband’s debts”. Those words were recorded by a listening device with the cooperation of Witness A. The conversations between Witness A and Haissam Safetli surrounding the intimidation offence were recorded by the same listening device. The inference the prosecution sought to draw was that the debt referred to was the debt owed by McGurk to the applicant.
There was also a body of electronically recorded evidence including telephone intercepts in which the applicant was a participant. These involved conversations leading up to and shortly after the intimidation of Mrs McGurk. None of these conversations contained any direct admissions on the part of the applicant. They showed that the applicant held Mrs McGurk equally responsible for the large debt that he believed was owed by her husband’s estate. The applicant said she was “complicit” and would be “implicated in [the] fraud herself”. He complained about the legal fees he was incurring and discussed strategies to place pressure on Mrs McGurk to pay the money back. A number of other telephone conversations, some initiated by Safetli when he was co-operating with the police, positively implicated Gattellari in the offences but did not inculpate the applicant. They were capable of sinister inferences, but other inferences were available.
The most incriminating aspect of this evidence concerned a telephone conversation on 13 August 2010 between the applicant and Howard when considered against the timing of the intimidation and a trip that the applicant and Gattellari took to China. Gattellari gave evidence that the trip to China was intended to provide some kind of alibi, or cover up, to distance him and the applicant from the intimidation offence. Immigration records showed that both men travelled to Hong Kong between 6 and 12 August 2010. The day after their return the applicant instructed Howard to contact Mrs McGurk’s solicitor to arrange a meeting “to know where she stands.” This conversation followed the trip to China, was only days after the intimidation and must be considered in the context of various intercepted telephone calls in the weeks earlier. As the respondent submitted one available inference was that the applicant was seeking “to gauge the effects of the intimidation which had been perpetrated upon Mrs McGurk a few days earlier” (RWS at [372]).

Conclusion as to the prosecution case and the important of credibility issues

Considering the evidence as a whole, the prosecution case against the applicant was a strong one. However, as the trial Judge directed the jury, it relied largely on an acceptance of Gattellari’s evidence. His Honour told the jury:

“It will be apparent to you, I am sure, that in the present case, the Crown seeks to establish the guilt of the accused largely on the basis of the evidence of a single witness, Mr Gattellari. The Crown has called, obviously, other witnesses, but to a large extent the Crown relies on the evidence of Lucky Gattellari to prove its case against the accused in relation to each count in the indictment.
In a case such as that, the law requires me to give you a direction that you should exercise caution. This is an additional direction over and above those that I have already given you, even though it takes into account some of the subject matter that I have already dealt with. It is an additional direction that you must apply in the course of your deliberations.

You must exercise caution, members of the jury, before you can convict the accused because the Crown case depends largely on accepting the reliability of a single witness, namely, Lucky Gattellari. That being so, unless you are satisfied beyond reasonable doubt that Lucky Gattellari is both an honest and an accurate witness in the account he has given to you, you cannot find the accused guilty.”^[48]
48. SU at p 45.

Earlier in the summing up, the trial Judge warned the jury about the potential unreliability of the evidence of both Gattellari and Kaminic, each of whom received a considerable benefit by co-operating with the authorities and giving evidence against the applicant. Gattellari received a substantial reduction in his sentence, including a 5% discount for co-operating with the police and a 30% discount for his undertaking to give evidence. His total discount, including the plea of guilty, was 60% and resulted in a sentence for murder of 10 years with a non-parole period of 7 years and 6 months. Kaminic received an indemnity from prosecution for (accessory before the fact to) murder and a total discount of 50% from his sentence for his plea of guilty to accessory after and his assistance. He was sentenced to 4 years and 6 months with a non-parole period of 2 years and 6 months.
There were substantial issues at the trial about the credibility of these and other witnesses. Those other witnesses included Paul Mathieson, Matthew Crockett, Bryan Collis and Andrew Howard.

Conclusion as to the proviso to section 6(1)

The relevance of these matters to the appropriateness of applying the proviso is obvious. Even allowing for the substantial body of undisputed and documentary evidence, the case was to a very large degree dependent on an assessment of the credibility of the witnesses called on both sides. As explained above, the proviso will less readily be invoked in such cases.^[49] The combination of errors in the trial proceedings must be considered as a whole.
49. See, for example, Kalbasi v Western Australia at [15] citing Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46.
In relation to ground 4, I am unable to accept that affording the applicant the opportunity to undertake further cross-examination had any impact on remedying the problem created by the introduction of inadmissible and prejudicial evidence in the re-examination of Kaminic. Putting aside the discretion to discharge the jury, the only viable solution at that point was to direct the jury that it must disregard the evidence and explain that Kaminic could not see inside the mind of Safetli or provide an opinion of what he meant. I also accept that the evidence and the submissions made by the Prosecutor had the capacity to prejudice the applicant by extending the period of his involvement to a time when neither Gattellari nor anybody else suggested he had solicited the murder or discussed the possibility of killing McGurk. The evidence and submissions constituted a subtle but important shift in the prosecution case. Gattellari denied the relevant conversation but his evidence was that, at the time the Safetlis raised with him the possibility of doing something “heavier” including “the final job”, “the McGurk matter hadn’t even come up” (AB 2175).
If ground 5 stood alone, it may be appropriate to find that the impermissible questioning was unlikely to have impact on the overall fairness of the trial. That is because there were no submissions to the jury on the evidence and because the ground focusses attention on two questions in the context of a trial that was conducted over many weeks. However, it does not stand alone and the inappropriate questioning came at the very conclusion of the cross-examination of Peter Medich. It was likely to have stuck in the mind of the tribunal of fact.
Ground 7 involved a failure to direct the jury on an issue that may have had a significant impact the outcome of the case. It had a capacity to impact on an overall assessment of Gattellari’s credibility and the case as a whole in a significant way.
Taking into account this combination of errors and the fact that, in spite of the strength of the prosecution case, it was ultimately a case that came down to an assessment of the credibility of a number of witnesses, and in particular two witnesses whose evidence the law recognises may be unreliable. In these circumstances, I am unable to conclude that no substantial miscarriage of justice actually occurred.
In view of the relevant authorities, there may appear to be some tension between my conclusion that the verdict is not unreasonable or unable to be supported and my conclusion that the proviso should not be applied.^[50] In both instances, the appellate court is required to make an independent assessment of the evidence to decide whether the admissible evidence establishes guilt beyond a reasonable doubt. In reality, there is no such tension for three fundamental reasons. First, in each instance, the conclusion is guided by the entrenched constitutional role of the jury in determining guilt in criminal cases and the advantages enjoyed by the tribunal of fact which sees and hears the witnesses giving evidence. This involves, but is not limited to, the fact that the case was to a very large degree to be determined by reference to the reliability of Gattellari and the credibility of a number of witnesses called by the prosecution and on behalf of the applicant. Second, in relation to grounds 1 and 2 (the unreasonable verdict grounds) the appellate onus is on the applicant, whereas the onus is on the respondent to establish that the proviso should apply once error is established under grounds 4, 5 and 7. Third, as the High Court emphasised in Weiss v The Queen at [44] “the permissive language of the proviso (‘the Court ... may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal ...’) is important”.
50. Cf, for example M v The Queen at 492-494, SKA v The Queen 441 [22] and Pell v The Queen at [39] with Weiss v The Queen at [41]-[43].

Should there be an acquittal or a re-trial?

I accept the respondent’s submissions that this is not an appropriate case to enter a verdict of acquittal. The reasons for that conclusion are essentially twofold. First, the offences are extremely serious and there is a strong public interest in such cases being determined and adjudicated at trial. Second, the prosecution case, in spite of the weaknesses in Gattellari’s evidence, is a strong one. I do not accept the applicant’s submission that the subjective circumstances of the case, such as the applicant’s age, justify this Court entering verdicts of not guilty. Subject to the discretion of the Director of Public Prosecutions, there should be a re-trial.
For those reasons, I would make the following orders:

Where necessary, grant the applicant leave to appeal.

Appeal against conviction allowed.

Quash the convictions on both counts.

Order a re-trial.

**********

Endnotes

Decision last updated: 18 March 2021

Medium Neutral Citation:	Medich v R [2021] NSWCCA 36
Hearing dates:	19 May 2020; 20 May 2020
Decision date:	18 March 2021
Before:	Bathurst CJ at [1]; Hoeben CJ at CL at [136]; Hamill J at [797]
Decision:	(1) Grant leave to the applicant to rely on Grounds 1 and 2 and Ground 4(b) of the Grounds of Appeal. (2) Refuse leave under r 4 of the Criminal Appeal Rules to rely on Grounds 5, 6(b) and 7. (3) Otherwise dismiss the appeal.
Catchwords:	CRIMINAL LAW – conviction appeals – murder – intimidation – single joint criminal enterprise - where offender directed the contract killing of a former business associate and the intimidation of his wife – history of disputes between the offender and victims – whether Crown proved beyond reasonable doubt events occurred at instigation of the applicant – leave to appeal required for all grounds - whether the jury verdict is unreasonable – whether there is a miscarriage of justice – whether the trial judge erred in admitting evidence – whether the trial judge erred in his directions to the jury in respect of the use of evidence – whether evidence cross-admissible – tendency reasoning - anti-tendency direction – appeal dismissed.
Legislation Cited:	Crimes Act1900 (NSW) – s 18(1)(a) Crimes (Domestic and Personal Violence) Act 2007 (NSW) – s 13(1) Criminal Appeal Act 1912 (NSW) – ss 5(1)(b), 6(1) Criminal Appeal Rules (NSW) – r 4 Evidence Act 1995 (NSW) – ss 38, 97, 128, 137
Cases Cited:	Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 Armstrong v R [2013] NSWCCA 113 ARS v R [2011] NSWCCA 266 Australian Securities and Investments Commission v Vines [2003] NSWSC 1237 AW v Regina [2009] NSWCCA 1 Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 Bin Sulaeman v R [2013] NSWCCA 283 BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47 Burrell v R [2007] NSWCCA 65 Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 Crofts v R (1996) 186 CLR 427; [1996] HCA 22 Davies v The Queen [2019] VSCA 66 Decision Restricted [2020] NSWCCA 308 DJV v R [2008] NSWCCA 272 Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43 Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R (2014) 316 ALR 206; [2014] NSWCCA 303 Evans v Regina [2006] NSWCCA 277; (2006) 164 A Crim R 489 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Folbigg v R [2007] NSWCCA 371 GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037 Greenhalgh v R [2017] NSWCCA 94 Guide Dog Owners’ and Friends’ Association Inc v Guide Dog Association (NSW & ACT) (1998) 154 ALR 527 Hamide v R [2019] NSWCCA 219 Hamilton (a pseudonym) v R [2020] NSWCCA 80 Handlen v The Queen; Paddison v The Queen (2011) 245 CLR 282; [2011] HCA 51 Higgins (a pseudonym) v The Queen [2016] VSCA 47 Higgins v R [2020] NSWCCA 149 HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16 Hogg v R [2019] NSWCCA 323 House v The King (1936) 55 CLR 499; [1936] HCA 40 IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 JWM v R [2014] NSWCCA 248 Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Lyndon v R [2014] NSWCCA 112 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mac v R [2014] NSWCCA 24 Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 Maric v The Queen (1978) 52 ALJR 631 Masri v R [2015] NSWCCA 243 Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486 Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 Petch v R [2020] NSWCCA 133 Picken v Regina; Regina v Picken [2007] NSWCCA 319 Poniris v R [2014] NSWCCA 100 Qualtieri v Regina (2006) 171 A Crim R 463; [2006] NSWCCA 95 Quartermaine v The Queen (1980) 143 CLR 595; [1980] HCA 29 R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 R v AH (1997) 42 NSWLR 702 R v Al Batat & Ors (No 9) [2020] NSWSC 1101 R v ATM [2000] NSWCCA 475 R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 R v Leung and Wong (1999) 47 NSWLR 405; [1999] NSWCCA 287 R v Medich (No 8) [2016] NSWSC 1713 R v Medich (No 32) [2018] NSWSC 253 R v Medich (No 43) [2018] NSWSC 886 R v Scott Alan May(No 2) [2008] NSWSC 595 R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377 R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345 R v Walters [2002] NSWCCA 291 Ratten v The Queen [1972] AC 378; [1971] UKPC 23 RGM v R [2012] NSWCCA 89 Roach v R [2019] NSWCCA 160 Sanchez v R (2009) 196 A Crim R 472; [2009] NSWCCA 171 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Smale v R [2007] NSWCCA 328 Smith v R [2019] NSWCCA 162 Standen v Regina [2015] NSWCCA 211 Tekely v R; Nagle v R [2007] NSWCCA 75 Toalepai v R [2009] NSWCCA 270 Trieu v R [2012] NSWCCA 169 Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 Ulutui v The Queen (2014) 241 A Crim R 574; [2014] VSCA 110 Vickers v R (2006) 160 A Crim R 195; [2006] NSWCCA 60 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6 Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17 Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21
Texts Cited:	Hon Frank Callaway, “Farewell Speech” (2007) 140 Vic Bar News 28 Phillip Priest QC, “The Problematic Proviso: The Vice of Weiss”, (2007) 140 Vic Bar News 32
Category:	Principal judgment
Parties:	Ronald Edward Medich – Applicant Regina – Respondent Crown
Representation:	Counsel: B Walker SC/A Francis/N Wootton – Applicant T Smith SC/B Hatfield/G Wright – Respondent Crown Solicitors: Richardson Law – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2010/356916
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Medich (No 43) [2018] NSWSC 886 Date of Decision: 23 April 2018 Before: Bellew J File Number(s): 2010/356916