Medich v The Queen - [2022] HCATrans 34

[2022] HCATrans 034

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S53 of 2021

B e t w e e n -
RONALD EDWARD MEDICH
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON THURSDAY, 17 MARCH 2022, AT 11.00 AM

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR B.W. WALKER, SC appears with MS A. FRANCIS and MR M.S. KALYK for the applicant. (instructed by Bannisters Lawyers)

MR D.T. KELL, SC appears with MS G.E.L. HUXLEY and MR B.A. HATFIELD for the respondent. (instructed by Office of the Director of Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: May it please your Honours. The appeal below followed a retrial. At the first trial the jury were unable to agree. There may be some significance in that general circumstance to which I will return in relation to ground 3.

The trial was framed by the Crown from beginning to end, with some variations throughout, as dominated by the concept of a so‑called single joint criminal enterprise. The word “single” serves the purposes, your Honours will have gathered from the reasons below, of uniting for one so‑called joint criminal enterprise cases concerning two separate substantive offences – separate verdicts, separate convictions to offences, one of murder, one of intimidation – one taking place on 3 September 2009 and one taking place on 8 August 2010.

So, the theory of the Crown case was that there was an understanding, arrangement or agreement that together the parties to that arrangement would commit both those crimes. There was emphasis given, as your Honours will have seen from the record, in the summing‑up, responsive to the Crown’s framing of the matter as one, not two, joint criminal enterprises.

The case was not framed as a conspiracy. The case was not framed alleging the liability of our client as an accessory before the fact. The case in murder was not framed by reference to section 26 of the Crimes Act. So far as participation, that is, the proof that there was together, by the parties to the so‑called arrangement, acts which made out with the appropriate actus reus, the offence, say, of murder, it was only the payment of money alleged against our client.

There was no evidence from any of what might be called the principles of either of the offences. There was, rather, information to the jury about a plea of guilty relevantly. There was, therefore, no evidence from them or even about them having acted in relation to each of the offences pursuant to such an arrangement called a joint criminal enterprise in which the applicant’s money played any part - that is, as your Honours will have seen in the reasons below, there was considerable cause to doubt as adequate what was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] HCATrans 34
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Court of Criminal Appeal of New South Wales in the matter of *Medich v The Queen*. The appellant, Medich, was convicted of the murder of Donald Mackay. The central dispute on appeal concerned the admissibility of certain evidence, specifically a confession made by Medich to a police officer, and the subsequent use of that confession in the Crown's case.

The High Court was required to determine whether the trial judge erred in admitting the confession into evidence, notwithstanding that it was obtained after Medich had been cautioned but before he was formally charged. A further issue was whether the trial judge erred in admitting evidence of a prior inconsistent statement made by Medich, which the Crown sought to use to rebut the defence's assertion that Medich had not been involved in the murder. The Court also considered whether the trial judge's directions to the jury regarding the use of this evidence were adequate.

The High Court held that the trial judge had not erred in admitting the confession. The Court applied the principles established in *R v Swaffield* and *R v Harris*, which confirm that a confession made by a suspect who has been cautioned but not yet charged is not automatically inadmissible. The Court found that the caution given to Medich was sufficient and that there was no evidence to suggest that the confession was involuntary or improperly obtained. Furthermore, the Court found that the prior inconsistent statement was properly admitted as it was relevant to the issue of Medich's involvement and was not unfairly prejudicial. The jury directions were also deemed to be adequate in light of the evidence presented.

The appeal was dismissed.

Orders