Medich v The Queen - [2015] NSWCCA 281

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: MEDICH v R [2015] NSWCCA 281
Hearing dates: 18 August 2015
Date of orders: 13 November 2015
Decision date: 13 November 2015
Before: Bathurst CJ at [1]; Beazley P at [188]; Hidden J at [189]
Decision:
1 Grant the applicant leave to appeal.
2 Dismiss the appeal.
3 On the grounds referred to in s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the Court, pursuant to s 7 of that Act, orders that the judgment in this appeal and the Court’s orders are suppressed, save for the disclosure of either to the parties and their legal representatives for the purposes of the proceedings.

Catchwords: CRIMINAL LAW – appeal – murder charge - interlocutory orders – permanent or temporary stay of proceedings – where applicant examined before NSW Crime Commission – where police investigators present at examination – where prosecutors and police sent examination transcript – where examination of accused used in examination of other suspect – whether fundamental aspect of fair trial had been altered such as to warrant a stay of proceedings
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crime Commission Act 2012 (NSW)
Evidence Act 1995 (NSW)
New South Wales Crime Commission Act 1985 (NSW)
Cases Cited: Dupas v The Queen [2010] HCA 20; 241 CLR 237
House v The King [1936] HCA 40; 55 CLR 499
Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23
Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196
Lee v The Queen [2014] HCA 20; 253 CLR 455
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
R v Edwards [2009] HCA 20; 83 ALJR 717
R v Medich (No 2) [2014] NSWSC 1313
R v MG [2007] NSWCCA 57; 69 NSWLR 20
R v Seller; R v McCarthy [2015] NSWCCA 76
R v X [2014] NSWCCA 168
Ridgeway v The Queen [1995] HCA 66; 184 CLR 19
The Queen v Glennon [1992] HCA 16; 173 CLR 592
TS v R [2014] NSWCCA 174
Walton v Gardiner [1993] HCA 77; 177 CLR 378
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Webb v R [2012] NSWCCA 216; 225 A Crim R 550
X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
X7 v R [2014] NSWCCA 273
Category: Principal judgment
Parties: Ronald Edward Medich (Applicant)
Crown (Respondent)
Representation:
Counsel:
N Williams SC / A Francis / B Mostafa (Applicant)
W Abraham QC / J Davidson (Respondent)
Solicitors:
Colin Daley Quinn (Applicant)
Crown Solicitor for New South Wales (Respondent)

File Number(s): 2010/356916
Publication restriction: On the grounds referred to in s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the Court, pursuant to s 7 of that Act, orders that the judgment in this appeal and the Court’s orders are suppressed, save for the disclosure of either to the parties and their legal representatives for the purposes of the proceedings. Publication restriction removed – judgment published.
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law

Citation:

[2014] NSWSC 1313

Date of Decision:

30 September 2014

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 Mr McGurk (the deceased) and the intimidation of Ms McGurk. It was the Crown case that due to disputes between the applicant and the deceased concerning joint business ventures and loans, the applicant hired his friend and business associate, Fortunato Gattellari (Gattellari), to find someone to kill the deceased.

Prior to being charged, the applicant was compulsorily examined by the NSW Crime Commission (the Commission) in relation to the murder of the deceased. Two of the police officers involved in the murder investigation were present at the Commission for the duration of the applicant’s examination and observed the proceedings via CCTV. It was accepted that the officers only used the applicant’s evidence to create two specific tasks for the purpose of the investigation. The first task was not pursued and the applicant’s evidence was not used in carrying out the second task.

The transcripts of the applicant’s evidence at the Commission were provided to the Director of Public Prosecutions (DPP). However, the officers of the DPP involved in the prosecution of the applicant and counsel briefed to appear for the Crown gave evidence, which was accepted, that they had not read or accessed the applicant’s transcript.

Gattellari was also examined by the Commission in relation to the murder. During Gattellari’s examination, the examiner referred to statements made by the applicant in his examination. Subsequently, Gattellari provided statements to the police implicating the applicant in the murder.

The applicant applied to the NSW Supreme Court for a permanent or temporary stay of proceedings on the basis that his examination by the Commission amounted to a departure from the accusatorial nature of a criminal trial in a fundamental respect. The applicant also contended that the use of the information obtained as a result of the examination by the Commission and the police, both in connection with the investigation, and, particularly, the subsequent examination of Gattellari, meant that any trial would be unfair. The primary judge dismissed the application.

The applicant appealed to the Court of Appeal relying on 12 grounds of appeal. The main issues alleged in these grounds were whether the primary judge erred by:

1 finding that no admissions were made by the applicant during his examination and not finding that the applicant made statements adverse to his interests;

2 finding that the applicant’s examination itself did not justify a stay;

3 finding that the presence of police at the applicant’s examination and the dissemination of the applicant’s transcript did not warrant a stay;

4 finding that nothing put to Gattellari during his examination warranted a stay and the applicant’s evidence was not used in taking Gattellari’s statements;

5 finding that the applicant’s capacity to defend himself at trial was not affected by his examination by the Commission.

Held (Bathurst CJ, Beazley P and Hidden J agreeing), dismissing the appeal:

Admissions and statements adverse to interests

(i) In the paragraphs complained of, the primary judge simply recorded that nothing the applicant said in the examination directly implicated him in the murder. That statement was correct and the primary judge did not err in making it: [82]-[83], [88] (Bathurst CJ); [188] (Beazley P); [189] (Hidden J).

(ii) While statements made during the applicant’s examination were potentially adverse to his interests, they did not constrain him from defending the charges against him: [86] (Bathurst CJ); [188] (Beazley P); [189] (Hidden J).

Whether the examination itself warranted a stay

(i) The mere fact of a compulsory examination, by itself, does not warrant a stay of proceedings. In considering whether a stay is warranted, it is necessary to look at the consequences of a compulsory examination: [110] (Bathurst CJ); [188] (Beazley P); [189] (Hidden J).

X7 v R [2014] NSWCCA 273; R v Seller; R v McCarthy [2015] NSWCCA 76; Walton v Gardiner [1993] HCA 77; 177 CLR 378; The Queen v Glennon [1992] HCA 16; 173 CLR 592; Dupas v The Queen [2010] HCA 20; 241 CLR 237; X7 vAustralian Crime Commission [2013] HCA 29; 248 CLR 92; Lee v The Queen [2014] HCA 20; 253 CLR 455

Whether the presence of police or the dissemination of material warranted a stay

(i) The principles concerning the review of discretionary judgments, set out in House v The King, should be applied in determining whether the primary judge erred in failing to grant a stay of proceedings. If the primary judge was in error on any finding of primary fact, his decision would be open to review. However, if his findings of fact were correct, any inferences drawn from those facts would not be open to review unless the decision was unreasonable or plainly unjust, such that an appellate court may infer that there was a failure to properly exercise the discretion: [136], [138] (Bathurst CJ); [188] (Beazley P); [189] (Hidden J).

House v The King [1936] HCA 40; 55 CLR 499; Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23; TS v R [2014] NSWCCA 174; R v MG [2007] NSWCCA 57; 69 NSWLR 20; Webb v R [2012] NSWCCA 216; 225 A Crim R 550; Walton v Gardiner [1993] HCA 77; 177 CLR 378; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

(ii) The primary judge did not act unreasonably in accepting the evidence of the police officers that the applicant’s examination transcript was not used for any investigative purpose, apart from two specific tasks, or otherwise used to pursue any line of inquiry. Thus, the primary judge did not err in making findings regarding the use of the applicant’s examination by investigators and the Crown: [142]-[143] (Bathurst CJ); [188] (Beazley P); [189] (Hidden J).

(iii) The test of whether a stay should be granted is whether “the continuation of proceedings would involve unacceptable injustice or unfairness” or “would be so unfairly and unjustifiably oppressive as to constitute an abuse of process”: R v Edwards. The disclosure of the applicant’s Commission evidence to the police did not satisfy this test: [145] (Bathurst CJ); [188] (Beazley P); [189] (Hidden J).

R v Edwards [2009] HCA 20; 83 ALJR 717

Whether anything put to Gattellari during his examination warranted a stay

(i) There was no prohibition on the Commission making use of the applicant’s examination in the course of examining another witness. On its face, none of Gattellari’s evidence, referred to by the applicant, was prejudicial to the applicant: [169], [177] (Bathurst CJ); [188] (Beazley P); [189] (Hidden J).

(ii) There was nothing to suggest that Gattellari’s knowledge that the applicant had given evidence influenced him in his subsequent confession or that Gattellari’s evidence was influenced by his knowledge of what the applicant told the Commission. The primary judge did not err in finding that nothing put to Gattellari during his examination warranted a stay and that the applicant’s evidence was not used in taking Gattellari’s statements: [177], [178] (Bathurst CJ); [188] (Beazley P); [189] (Hidden J).

Whether the applicant’s capacity to defend himself at trial was affected by his examination

(i) The applicant’s capacity to defend himself at trial, or determine the course he might take at trial, was not affected by his examination by the Commission: [184] (Bathurst CJ); [188] (Beazley P); [189] (Hidden J).

Judgment

BATHURST CJ: This is an appeal from an order of Bellew J (the primary judge), dismissing a notice of motion filed by Mr Ronald Edward Medich (the applicant) seeking an order permanently or temporarily staying proceedings commenced by indictment, charging him with the murder of Michael McGurk (the deceased) and the intimidation of Ms Kimberley McGurk (Ms McGurk), with the intention to cause her to fear physical and mental harm: R v Medich (No 2) [2014] NSWSC 1313 (primary judgment).

Background

A The Crown case

The Crown case is complex. The statement of the Crown case is set out in full in the judgment of the primary judge. In these the circumstances, it is only necessary to provide a broad summary of the Crown case statement in this judgment. This summary is provided in the subsequent paragraphs.
The Crown alleged that the applicant and the deceased were involved, either personally or through their respective companies, in a number of joint business ventures.
From about May 2008, disputes arose between the applicant and the deceased concerning these ventures. The disputes were set out in detail in the Crown case statement and it is unnecessary to set them out in this judgment. Suffice to say that each of the deceased and the applicant claimed to be owed substantial amounts of money by the other and each had instituted court proceedings against the other.
The cumulative effect of these disputes on the applicant, namely, the cost, his losses in court, the damage to his reputation and the embarrassment he felt from how he was being treated by the deceased, led to the irretrievable breakdown of their friendship and business relationship. This caused the applicant to harbour a strong desire to have the deceased permanently removed from his life.
The applicant was a friend and business associate of Fortunato (or Lucky) Gattellari (Gattellari ). The applicant and Gattellari were involved in a number of business ventures together. These included the acquisition of various struggling electrical companies which would trade as subsidiaries of a company described in the Crown case as “Riv Group”. The businesses were unsuccessful and the applicant, his company and two of his family trusts were said to have advanced significant funds to the group to enable the companies in it to continue to trade.
The applicant also used Gattellari as a debt collector. Gattellari, in turn, used Senad Kaminic (Kaminic), Haissam Safetli (Safetli) and others to approach individuals and intimidate them into making repayments on their loans. Safetli’s brother, Bassam Safetli, was also employed to collect debts for Gattellari.
By March 2009, the relationship between the applicant and the deceased had broken down completely. Around this time, the applicant requested Gattellari to arrange for surveillance of the deceased. Safetli and his brother conducted the surveillance at the request of Gattellari. They were recommended to Gattellari by Kaminic.
Towards the end of March or early April 2009, the applicant requested Gattellari to find someone to kill the deceased. Gattellari informed Kaminic that the applicant wanted the deceased killed. Kaminic organised a meeting between Safetli and Gattellari, at which meeting Safetli agreed to carry out the murder for $300,000. The applicant agreed to pay this amount and $500,000 in total for the murder and intimidation of Ms McGurk. The applicant subsequently gave Gattellari $250,000 in cash, of which, $45,000 was given to Kaminic to cover expenses.
In late July or early August 2009, Safetli discussed the murder contract with a Christopher Estephan (Estephan), who agreed to assist in carrying it out. Preparations were then commenced. A few days after this meeting, Safetli met Gattellari and told him that the “job” would be done.
The deceased was killed on 3 September 2009. The deceased was shot outside his home by either Safetli or Estephan. That evening, Gattellari was informed that the job was done. Safetli was paid $300,000.
In July 2010, Gattellari offered Safetli the job of threatening Ms McGurk if she did not pay her husband’s debts. Safetli said that he would want $100,000 for this. That amount was agreed to and on around 30 July 2010, the applicant provided Gattellari with $100,000 in cash to pay Safetli. On 27 July 2010, Safetli approached his friend, who was a registered source assisting the police, to assist with the intimidation. On 8 August 2010, the registered source approached Ms McGurk seeking payments of the debts.

(b) The involvement of the NSW Crime Commission and the arrest of the applicant

Immediately after the murder of the deceased, a Strike Force known as “Strike Force Narrunga” was established. A Detective Sheehy was appointed as the Investigating Co-ordinator and was responsible for directing the investigation and identifying persons who warranted close attention.
A Detective Fitzhenry was appointed as the officer in charge of the investigation and, throughout its course, was been responsible for its day-to-day supervision. The primary judge recorded that his role “included providing direction to other police, allocating tasks for investigation and assessing material”: primary judgment at [14]. All tasks allocated and their results were recorded in the Police Investigation Management System known as “E@glei”.
In about November 2009, the NSW Crime Commission (the Commission) was requested by Strike Force Narrunga to assist in the investigation. The determination of who would be summoned to give evidence at the Commission was made by the Commission, in conjunction with Detectives Sheehy and Fitzhenry and a Detective Howe. Detective Sheehy said that, at the time that it was determined that the applicant would be examined, he was not a suspect, but a “person of interest”. The primary judge described this distinction as one “without a difference”: primary judgment at [18]. A Detective Blanch gave evidence that the applicant was a suspect when he appeared before the Commission.
The applicant was examined by the Commission on 1 September 2010. Gattellari was examined by the Commission on 3 September 2010, 12 October 2010 and 19 October 2010. In his judgment, to which I will refer later in these reasons, the primary judge summarised the course of these examinations and the extent to which use was made of the transcripts of evidence.
Gattellari, Kaminic, Safetli and Estephan were charged with offences relating to the murder of the deceased on 13 October 2010. On 19 October 2010, Gattellari indicated that he was prepared to assist police in the investigation of the deceased’s murder. Between 19 October and 14 December 2011, Gattellari provided statements under caution implicating the applicant in the murder.
On 26 October 2010, the applicant was arrested and charged with soliciting the murder of the deceased and was later charged with murder. In June 2013, the applicant was charged with the intimidation of Ms McGurk on 8 August 2010.
Each of Gattellari and Kaminic pleaded guilty as accessories to murder and were granted substantial discounts for their pleas and past and future assistance in the investigation. Safetli pleaded guilty to murder and also received a substantial discount for his plea and past and future assistance in the investigation.

(c) The stay application

The basis of the stay application was dealt with in detail by the primary judge. In short, the applicant asserted that his examination by the Commission amounted to a departure from the accusatorial nature of a criminal trial in a fundamental respect. Relying on X7 vAustralian Crime Commission [2013] HCA 29; 248 CLR 92 (X7 (No 1)) and Lee v The Queen [2014] HCA 20; 253 CLR 455 (Lee (2014)), he contended that his examination altered the balance struck between the power of the State to prosecute and the position of an individual who stands accused, namely, that the prosecution is required to prove the guilt of an accused person without assistance from the accused. For this reason, the applicant contended that he was entitled to a stay.
The applicant also contended that the use of the information obtained as a result of the examination by the Commission and the police, both in connection with the investigation, and, particularly, the subsequent examination of Gattellari, meant that any trial would be unfair and that there was nothing a trial judge could do to relieve from its consequences. For this further reason, he claimed that a stay should be granted.

The relevant legislation

The relevant legislation at the time of the examination was the New South Wales Crime Commission Act 1985 (NSW) (the Act). The principal functions of the Commission were set out in s 6 of the Act. So far as relevant, it provided as follows:

“6(1)   The principal functions of the Commission are:
(a)   to investigate matters relating to a relevant criminal activity referred to the Commission by the Management Committee for investigation,
(b)   to assemble evidence that would be admissible in the prosecution of a person for a relevant offence arising out of any such matters and to furnish any such evidence to the Director of Public Prosecutions,”

Section 13 of the Act provided for hearings to be held by the Commission. Section 13(5) provided that hearings should be held in private and that “the Commission may give directions as to the persons who may be present during the hearing or a part of the hearing”. Section 13(9) was in the following terms:

“13(9)   The Commission may direct that:
(a)   any evidence given before it,
(b)   the contents of any document, or a description of any thing, produced to the Commission or seized pursuant to a search warrant issued under section 11,
(c)   any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or
(d)   the fact that any person has given or may be about to give evidence at a hearing,

shall not be published, or shall not be published except in such manner, and to such persons, as the Commission specifies, and the Commission shall give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.”

Section 18 made it an offence for a person who was summoned to appear as a witness at a hearing before the Commission to refuse to answer a question without reasonable excuse.
Section 18B dealt with the question of privilege against self-incrimination. So far as relevant, it provided as follows:

“18B(1) A witness summoned to attend or appearing before the Commission at a hearing is not (except as provided by section 18A) excused from answering any question or producing any document or thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.
(2) An answer made, or document or thing produced, by a witness at a hearing before the Commission is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings.”

The Act was replaced by the Crime Commission Act 2012 (NSW), which commenced on 5 October 2012. By amendments made in November 2014, that is, after the proceedings were heard by the primary judge, s 45C was inserted into that Act. That section provided as follows:

“45C(1)   This section applies when a court is considering an application for a stay of proceedings arising from the compulsory examination of a person before the Commission or from the disclosure of any evidence or a record of any evidence given before the Commission.
(2)   The court must consider whether any of the following matters (whether individually or in any combination and without limitation) have led, or have a real potential to lead, to unfair consequences for a person’s trial for an offence:
(a)   the questions asked and answers given during the hearing concerned,
(b)   whether the person was the subject of a current charge for the offence at the time of the hearing,
(c)   the role of any member of an investigative agency attending the hearing in the investigation of the offence,
(d)   the nature and results of any steps taken by members of an investigative agency in the investigation as a result of access (if any) to compulsorily obtained material,
(e)   the availability of independent sources of any evidence alleged to be derived from compulsorily obtained material,
(f)   the extent to which any prosecutor has had access to compulsorily obtained material,
(g)   the role in the investigation of the offence of any member of an investigative agency who has been given access to a transcript or other record of evidence.

(3)   None of the following matters is capable of giving rise to a presumption that there is a fundamental defect in criminal proceedings against a person for an offence in respect of which the Commission has exercised any of its powers:
(a)   the fact that the Commission examined the person about the subject matter of the offence, whether or not the person was the subject of a current charge for the offence,
(b)   the fact that a transcript or other record of proceedings before the Commission was given to an investigative agency, whether before or after the person was charged with the offence,
(c)   the fact that a transcript or other record of proceedings before the Commission was given to a prosecutor, whether before or after the person was charged with the offence,
(d)   the fact that a transcript or other record of proceedings before the Commission was given to a prosecutor of another offence,
(e)   the fact that there has been a failure to comply with section 21A (3),
(f)   the fact that another person has been examined by the Commission,
(g)   in the case of an offence against this Act or an offence relating to the falsity of evidence—the fact that a transcript or other record of proceedings before the Commission was given to an investigative agency or prosecutor at any time,
(h)   the fact that evidence has been derived from the holding of a hearing or from the dissemination of a record or other record of a hearing.”

Both parties accepted that that section, to the extent relevant, applied to an application for a stay based on an examination conducted under the Act, as well as an examination conducted under the 2012 Act.

The primary judgment

The primary judge noted that, at the outset of the examination of the applicant, the person having conduct of it, Assistant Commissioner Singleton, made a direction under s 13(9) of the Act that the evidence given not be published, except in such manner as specified by the Commission.
The primary judge referred to the fact that the applicant was informed at the commencement of his examination that the Commission was inquiring into the deceased’s murder. The primary judge recorded that thereafter, the applicant was examined on a number of matters including, “his previous dealings with the deceased; the breakdown of their relationship; his relationship with Gattellari; his financial affairs; and his movements on the date of the deceased’s death”: primary judgment at [25]. The primary judge recorded that the applicant made no admissions as to any involvement in the deceased’s murder and found that nothing that the applicant said directly implicated him in it.
The primary judge referred to the fact that Detectives Fitzhenry and Blanch were present at the Commission for the duration of the applicant’s examination and observed the proceedings via CCTV. Detective Fitzhenry gave evidence that while he remained for the entire period that the applicant gave evidence, while he was “listening or half-listening” to the applicant’s evidence, he was directing officers to do things in relation to the investigation and “co-ordinating other resources”: primary judgment at [36].
His Honour noted the evidence of Detective Fitzhenry that he was unable to understand some of the applicant’s evidence as it “involved complex commercial dealings”: primary judgment at [37]. However, he pointed out that the examination extended to matters that Detective Fitzhenry could understand, including the relationship between the applicant and the deceased and the existence of a motive on the part of Gattellari to kill the deceased.
Detective Fitzhenry stated that he only used the applicant’s evidence to create two specific tasks for the purpose of the investigation. The first task related to evidence given by the applicant that the turning point in his relationship with the deceased was on his return from Hayman Island. The task involved identifying when the applicant was at Hayman Island. Detective Fitzhenry assigned this task to Detective Howe. However, the task was not pursued. Detective Howe said that he did not read the applicant’s evidence in connection with the task, although he understood that the task arose from information obtained at the applicant’s examination about the turning point in his relationship with the deceased. Each of Detectives Howe and Fitzhenry said that from early on in the investigation, they were aware of the breakdown in the applicant’s relationship with the deceased.
The second task was entitled “Investigate defence (Medich) case theory Gattellari”. Detective Fitzhenry stated that this task was created as a result of the receipt of the defence case statement. Detective Fitzhenry assigned the task to himself and a Detective King. Detective King said that he had not read the applicant’s transcript when carrying out duties in response to the task.
Detective Fitzhenry said that the task would have arisen out of his review of the transcript, but he did not use the applicant’s transcript when obtaining products in relation to the task. He said that the transcript was used for “background information” and he did not review it when undertaking the task.
Detective Blanch gave evidence that he could not recall any matters of investigative value arising from the applicant’s evidence. The primary judge stated that “[t]he evidence of Dets. Fitzhenry and Blanch that no investigative use was made of the applicant’s evidence was generally consistent with the statement of Det. Sheehy that the examination of the applicant was not a significant development in the investigation”: primary judgment at [40].
Detective Fitzhenry agreed that it was “very likely” that he was present at a “debrief” which took place at the Commission at the conclusion of the applicant’s evidence. Detective Blanch agreed that he attended the debrief. Mr O’Connor, Counsel assisting the Commission, stated that the purpose of the debrief was to discuss and obtain the views of investigating police about the applicant’s evidence. The primary judge pointed to the evidence that Detectives Sheehy, Howe and Fitzhenry met at the Commission the day after the applicant gave his evidence. The primary judge noted that Detective Sheehy “accepted that it was likely that the fact of the applicant having given evidence was discussed”: primary judgment at [43]. He also pointed to the fact that Detective Howe accepted that, either on the day of the applicant’s examination, or the following day, Detective Fitzhenry provided him with information about what the applicant had said in the examination.
In these circumstances, the primary judge concluded that “those involved in the investigation saw no impediment to discussing the applicant’s evidence” or using it for the purpose of the investigation and that what was said in the examinations was discussed between investigating police: primary judgment at [45]. However, he also concluded that, apart from the two tasks referred to above, “nothing said by the applicant in his examination was used for any investigative purpose”: primary judgment at [47]. The primary judge also noted the evidence of Detective Fitzhenry that there remained a prohibition on discussing the applicant’s evidence before the Commission with lawyers employed by the Director of Public Prosecutions (DPP) and that he did not do so.
The primary judge noted that on 1 March 2011, Commissioner Bradley, at the request of Detective Fitzhenry, approved the release to the police of the transcripts of the evidence of all persons examined in connection with the investigation of the deceased’s murder. The transcript of the applicant’s evidence was uploaded to E@glei.
Shortly after the examination, in October 2010, Detective Howe obtained search warrants authorising the search of the applicant’s residential and business premises. The warrants authorised a search for financial records, including records relating to transactions involving others such as Gattellari, the deceased, Kaminic, Safetli and RIV Developments.
Detective Howe said that when he applied for the warrants, he was not aware of any information provided by the applicant to the Commission concerning his financial dealings. Detective Howe gave evidence that it was his decision to search for financial documents and this decision was informed by the nature of the deceased’s murder, not by anything said at the Commission. Detective Howe’s evidence was that he had not seen any documents produced at the Commission. The primary judge accepted this evidence.
The transcripts of the applicant’s evidence before the Commission were provided to the DPP. However, the officers of the DPP involved in the prosecution and counsel briefed to appear for the Crown gave evidence that they had not read or accessed the applicant’s transcript. The primary judge accepted this evidence.
The prosecutor briefed to appear for the Crown, Ms O’Rourke, stated that she considered it relevant, as Crown Prosecutor, to have regard to all of Gattellari’s previous statements in order to assess his credit. She also stated that she had reviewed the transcripts of Gattellari’s examinations. The primary judge pointed out that Ms O’Rourke’s evidence was that Gattellari had been extensively cross-examined on the content of those transcripts during the committal proceedings in respect of the charge against the applicant. The primary judge stated that it was appropriate that Ms O’Rourke reviewed the transcript.
The primary judge also referred to evidence concerning what was described as a “timeline document”, being a chronology of events compiled by the police in the course of the investigation. Detective Fitzhenry gave evidence that he had recorded certain aspects of the applicant’s evidence in the timeline. Detective Howe gave evidence that he had made extensive use of the timeline in the investigation, although he had not seen any entry which related to evidence of the applicant.
Ms O’Rourke gave evidence that she had access to the timeline from late 2012 until 23 June 2014. She said that she had accessed it up to four times and, in doing so, had read specific parts, but she had never read any portion relating to the applicant’s evidence before the Commission. She explained that her use focused on specific dates and events. When she became aware, on 23 June 2014, that the timeline contained information derived from the applicant’s examination, she directed that all copies be returned to the police and requested the Crown Solicitor to disclose to the applicant’s representatives the fact that the transcript had been made available in this fashion. The other officers of the DPP who had access to the timeline, Ms Lind, Ms Rowe, Ms Carmody and Ms Rowbotham, said that they had not read any parts of the timeline referring to the applicant’s evidence. His Honour also noted that the evidence of Ms O’Rourke, Ms Harris (her junior counsel) and Ms Derrig (their instructing solicitor) that they had not read the transcript of the applicant’s evidence was unchallenged.
The primary judge noted that the task of taking statements from Gattellari was allocated to a Detective Groves and a Detective Watson. He pointed out that Gattellari made a series of statements between 19 October 2010 and 14 December 2011. He noted that before taking Gattellari’s first statement, Detective Watson was aware that Gattellari had given evidence before the Commission. Detective Watson’s evidence was that he was not aware of the applicant’s evidence. Detective Watson said that he was instructed by Detective Fitzhenry to take Gattellari’s statements in Gattellari’s own words, although he had “some idea” of the subject matter which was to be covered.
The primary judge pointed out that Detective Watson also acknowledged that he was aware, prior to taking Gattellari’s first statement, that there was evidence to implicate Gattellari in the deceased’s murder. He was also aware that a matter of interest to the investigation was establishing a connection between the applicant and the deceased’s murder. However, the primary judge noted that Detective Watson unequivocally rejected the suggestion that he had been made aware, prior to 19 October, of the substance of part of the applicant’s evidence to the Commission.
The primary judge pointed out that Detective Groves generally corroborated the evidence of Detective Watson. He pointed out that Detective Groves agreed that prior to speaking with Gattellari for the first time, he was briefed as to the state of the evidence. However, he rejected the proposition that the briefing included any reference to the applicant’s evidence. Detective Groves agreed that during the period over which Gattellari’s statements were obtained, he had many conversations with Detectives Fitzhenry and Howe about the subject matter of the investigation.
The primary judge concluded, placing particular reliance on what was said by the High Court in R v Edwards [2009] HCA 20; 83 ALJR 717 at [23], that to obtain a stay, it was necessary for the applicant to point to a fundamental defect of such a nature that there was nothing which a trial judge could do to relieve against its unfair consequences. He relied on R v X [2014] NSWCCA 168 in concluding that the focus in a case such as that before him was on the consequences of the examination upon any proposed trial. He stated that the fact of the examination itself, even if unlawful, did not inevitably justify a permanent stay.
The primary judge accepted that the presence of Detectives Fitzhenry and Blanch at the examination provided them with an opportunity to hear what the applicant said and to use the information to advance the investigation against him if they wished to do so. However, he stated that the evidence to which I have referred above supported the conclusion that no investigative use was made of the applicant’s evidence.
In that context, the primary judge accepted that “[t]he presence of the police at the applicant’s examination, and the associated opportunity to use the applicant’s evidence in the investigation, [had] the capacity to create unacceptable injustice or unfairness”: primary judgment at [152]. However, he stated that the mere presence of the police at the applicant’s examination, without more, did not meet the relevant test.
The primary judge also considered that the fact that the police discussed the evidence, or that the police considered that there was no impediment to its use, was not sufficient to warrant a stay where the evidence was not in fact used. As I indicated, he also accepted that the application for search warrants was not informed or influenced by the examination.
His Honour also rejected the submission that unacceptable injustice or unfairness arose from the use made of the transcript of the applicant’s evidence in the examination of Gattellari by the Commission.
The primary judge noted that the first instance in which such unfairness was said to arise was in the questioning of Gattellari concerning the provision, by Riv Group, of credit. He noted that the question put on this issue was prefaced by the examiner saying that the Commission had previously had the benefit of speaking with the applicant. The primary judge accepted that this was an obvious reference to the applicant’s earlier examination. However, he stated that the investigating police were in possession of information in relation to those financial arrangements well before, and independently of, anything said by the applicant in his evidence.
In that context, the primary judge referred first to a statutory declaration made by Gattellari prior to his examination, in which he said that the applicant lent his businesses “a lot of money” and that the applicant had “taken control of the electrical business” now known as Riv Group. He also noted that the police were aware of these arrangements as early as 2009 and in 2010, as a result of recorded telephone conversations and a statutory declaration made by Gattellari on 11 September 2009.
The second instance involved questions asked by the examiner about the existence of security over a line of credit provided by interests associated with the applicant. The examiner prefaced the question with a reference to the applicant having “indicated” the existence of such security. The primary judge noted that immediately before the question was asked, Gattellari had volunteered that such security existed.
The third instance was when Gattellari did not cavil with a comment made by the examiner that the applicant had indicated that the electrical companies were eating up a substantial portion of the applicant’s wealth, to the point that there would be no further credit extended. The primary judge pointed out that the applicant had not given that evidence and that, in those circumstances, he was not prepared to accept that there was disclosure of the applicant’s evidence. Further, the primary judge pointed out that in March 2010, the police intercepted a conversation between Gattellari and a Kim Shipley, in which the funding of the electrical companies and the applicant’s frustration at the lack of return from them was discussed.

The fourth matter related to questions concerning a transaction between Gattellari and Safetli. In the transaction, monies originating from the applicant passed through Gattellari’s account and were applied to a deposit over a property which had been purchased by Safetli and a loan made by Gattellari to a Mr Jim Emiron. The making of the loan had not been disclosed to the applicant. The primary judge concluded that this was of limited significance as the Crown placed no reliance on loans made by Gattellari. Further, the fact that Gattellari stated that the loans were unauthorised benefited, rather than hindered, the applicant’s case.
The fifth instance related to the questioning of Gattellari about the deterioration of the relationship between the deceased and the applicant. In the course of the examination, the examiner made reference to the deceased’s taping of private conversations between the deceased and the applicant. Gattellari said that he knew nothing about any such tape.
The primary judge pointed out that the question made no reference to the applicant’s evidence. He noted that the information that the conversation was taped on 3 March 2009 came from an ICAC inquiry in which the applicant was involved. He also stated that the question asked of Gattellari about the deterioration in the relationship was open-ended and not premised on the applicant’s evidence.
The primary judge concluded that no material part of the applicant’s evidence at the examination was put to Gattellari, nor was it used in the obtaining of subsequent statements from him.
In these circumstances, the primary judge concluded that he was not satisfied that the examination of the applicant, or anything that had occurred in association with it, left the applicant in a position where he was unable to determine the course he might wish to take at trial. The primary judge pointed out that the applicant made the general content of his defence known both at the committal proceedings and in the defence case statement. He concluded that there was no evidence to support the proposition that the applicant’s capacity to defend himself had been altered or compromised.
In those circumstances, the primary judge declined to stay the proceedings.

Leave to appeal

The applicant submitted that the proceedings raised significant questions as to the role of the Commission in the investigation of criminal offences. He submitted that in light of the decisions of the High Court in X7 (No 1) and Lee (2014), it was not permissible for him to be forced into assisting investigators to further the investigation against him. He stated that the consequences from the investigators having done so had significant ramifications for him.
The Crown, while contending that a number of issues raised by the applicant were dealt with by this Court in X7 v R [2014] NSWCCA 273 (X7 (No 2)), did not oppose leave to the extent that the grounds challenged “findings based on legal principles”. The Crown did, however, oppose the grant of leave insofar as the applicant sought to challenge findings of fact made by the primary judge.
In my opinion, leave should be granted in respect of each ground of appeal raised by the applicant. As was pointed out by the applicant, the proceedings have significant ramifications for him. Further, the applicant has raised issues in respect of a developing area of the law. Notwithstanding the Crown’s submission, I do not think it appropriate to bifurcate leave by reference to factual and legal issues. Consideration of both will inevitably require consideration of the factual findings made by the primary judge and, in accordance with the principles I have set out below, whether these findings were appropriate. For convenience, however, I will continue to describe Mr Medich as the applicant.

The appeal

The applicant relied on 12 grounds of appeal. Senior counsel for the applicant submitted, very sensibly, that a number of the grounds could be dealt with together. That approach was taken both in the written submissions and orally. I propose to adopt the same approach.

Grounds 1 and 2

These grounds were in the following terms:

“1. Justice Bellew erred in finding, in R v Medich (No 2) [2014] NSWSC 131 (Judgment) at [26] and [184], that no admissions were made by the applicant as to any involvement in the deceased’s murder when the applicant was examined by the New South Wales Crime Commission (Commission).
2. Justice Bellew should have found that the applicant made significant statements in his examination before the Commission that were adverse to his interest, including as to his lack of knowledge of any independent motive in Mr Gattellari to murder the deceased.”

The parties’ submissions

In support of these grounds, the applicant relied on a somewhat lengthy portion of the transcript of his examination before the Commission. For convenience, I have extracted the passage relied on, and other relevant potions of the applicant’s examination transcript, in Schedule 1 to this judgment.
The applicant pointed to the fact that he was charged with murder on the basis that he requested and funded the contract killing of the deceased. He submitted that, in those circumstances, the question of whether Gattellari had an independent motive to murder the deceased was an important matter in the proceedings.
The applicant submitted that his statement to the effect that he was not aware of any dispute between Gattellari and the deceased was a statement adverse to his interest in the outcome of the proceedings and, in that sense, was an admission. He also submitted that it was adverse in a practical sense, in that the evidence before the primary judge was that following the examination, police did not investigate whether Gattellari had an independent motive to murder the deceased. He pointed to the fact that the defence case was that Gattellari had such a motive, submitting that it was adverse to him for police to fail to investigate that matter.
The applicant also submitted that the questions regarding who else, besides him, knew Gattellari and the deceased, narrowed the field as to who else might be involved in the murder. He submitted that this narrowing of the field was adverse to his interests. He submitted that, in a practical sense, this evidence would greatly constrain his capacity to mount a defence based on Gattellari having an independent motive to murder the deceased.
The applicant submitted that the decision in X7 (No 1) was not limited to self-incriminating answers. He pointed out that in that case, Hayne and Bell JJ (at [71]) stated that requiring an accused to answer questions about the subject of a pending charge prejudices the accused, whatever answer is given. He submitted that although the paragraph went on to state that, “[a]ny admission made in the examination will hinder or even prevent the accused from challenging at trial that aspect of the prosecution’s case”, the word “admission” should not be read as limited to self-incriminating answers. He submitted that, in any event, the answers were self-incriminating, pointing out that at the applicant’s trial, two versions of the events would be put to the jury, one being that the murder was carried out at the applicant’s request and the other being that Gattellari acted independently.
Senior counsel for the applicant referred to the definition of “admission” in the Evidence Act 1995 (NSW) as a statement adverse to a person’s interest, submitting that the primary judge erred by limiting admissions to confessional statements.
The Crown submitted that the primary judge was correct in concluding that no admission was made by the applicant as to any involvement in the deceased’s murder and nothing he said directly implicated him in it.
The Crown submitted that the questions and answers relied upon by the applicant in support of these grounds did not constitute inculpatory statements as to the applicant’s involvement, but only related to one aspect of the applicant’s defence. It was pointed out that the applicant’s Commission evidence was inadmissible in his trial by virtue of s 18B(2) of the Act.
The Crown submitted that the statements could not be described as “significant statements” adverse to the applicant’s interest, pointing to the fact that the investigators did not regard the evidence as significant. The Crown also referred to the statement by Hayne and Bell JJ in X7 (No 1) (at [124]) where, in discussing the impact of a post-charge examination on the accusatorial process, their Honours referred to an accused person deciding the course to be taken in answer to the charge “in light of any self-incriminatory answers which he or she had been compelled to give”.
The Crown also submitted, relying on what was said by Gageler and Keane JJ in Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196 (Lee (2013)) at [323] that a practical constraint in a court proceeding on an accused leading evidence, cross-examining, or making submissions to suggest a version of facts inconsistent with that given on oath in an examination, would not deprive the accused of a legitimate forensic choice.
The Crown also pointed to the fact that the applicant voluntarily made a statement in court following his committal that he had recently discovered the truth and extent of Gattellari’s stealing from him and that it was now apparent that Gattellari had a motive for murder. The Crown submitted that the cross-examination of Gattellari at the committal proceedings justified the conclusion of the primary judge that the applicant’s defence contended that Gattellari “was someone who was prone to violence, who knew the deceased, and who had a motive arising from his own dealings with the deceased, to kill him”. The Crown pointed to the fact that the applicant had not indicated how his defence would be greatly constrained.
The Crown also pointed to Bellew J’s finding that the police did investigate Gattellari’s independent motive after receipt of the defence case statement, including by taking statements from relevant witnesses.
Senior counsel for the Crown referred to the applicant’s statements at the committal proceedings to the effect that the truth and extent of Gattellari’s stealing from the applicant had only been discovered recently, that Gattellari had a motive to have the deceased killed and that Gattellari had fears that the deceased would prove to the applicant that “Gattellari was a crook who was stealing from me big time”.

Consideration

The relevant paragraphs of the primary judgment that are complained of are in the following terms:

“[26] No admissions were made by the applicant as to any involvement in the deceased’s murder and nothing he said directly implicated him in the murder.
…
[184] On the evidence before me I am not satisfied that any aspect of the applicant’s evidence before the Commission, or anything that has occurred in association with that appearance, has left him in a position where he is unable to determine what course he might wish to take at any trial. As I have noted at [26] above, the applicant made no admissions and nothing he said directly implicated him in the deceased’s murder. The applicant has made the general content of his defence known, both in the case statement as well as in his statement to the committing Magistrate. There is no evidence before me which supports a conclusion that the applicant’s capacity to defend himself has been altered or compromised by this appearance before the Commission, or anything related to that appearance.”

It seems to me that in these paragraphs, the primary judge was stating no more than that the applicant had said nothing in his examination which amounted to an admission of involvement in the murder or which directly implicated him in it.
An examination of the transcript, which I have appended as Schedule 1, shows that the statements made by the primary judge are correct. The applicant emphatically denied involvement in the murder and, in particular, denied that he procured Gattellari to carry it out.
I am prepared to accept, as suggested by the applicant, that the statements made were potentially adverse to his interests, insofar as they established that the applicant had no knowledge of any motive that Gattellari may have had to kill the deceased and that the applicant did not know of anyone else on whose behalf Gattellari would have carried it out. I also accept that such evidence may have been helpful to the police in narrowing their inquiries.
In that sense, it may be suggested that the effect of the examination would be to constrain the applicant in the manner in which he would conduct his defence, in the sense referred to in X7 (No 1) at [124] and Lee (2014) at [41]. At least theoretically, this was because the answers given could constrain the applicant from defending the charges against him on the basis that Gattellari had an independent motive to kill the deceased.
The fact is that the applicant has not been so constrained. His statement at the committal hearing, to which I have referred at par [78] above, demonstrates that there was no such constraint. Further, I have examined the transcript of the committal, in which Gattellari was subjected to a lengthy and hostile examination by counsel for the applicant. That cross-examination justifies the comment made by the primary judge that the applicant’s defence was that Gattellari was someone who was prone to violence, who knew the deceased and who had his own motive to kill him.
Further, although the answers given by the applicant may have diverted the police from inquiring into any separate motive that Gattellari may have had to murder the deceased, as the Crown pointed out, the police only investigated the matter after the applicant had made his statement at the committal. Detective Fitzhenry gave evidence as to inquiries he had made concerning an alleged argument between the deceased and Gattellari relating to an audit into the Boomerang Funeral Fund. It was not suggested that the inquiries would have been more productive had they been made earlier or that there were other avenues which should have been investigated and were not.
It will be necessary to consider the fact that the answers were given in a compulsory examination. It will also be necessary to consider the effect of the answers in deciding whether, notwithstanding what I have said above, these matters, in conjunction with the other matters raised by the applicant, warrant the grant of a stay. The ground of appeal in question is more limited. In the paragraphs of the judgment complained of, the primary judge was not dealing with the general proposition that the statements made by the applicant were, or may have been, adverse to his interests, but was simply recording that nothing the applicant said directly implicated him in the murder. That statement was correct and the primary judge did not fall into error in making it.
It follows that these grounds of appeal have not been made out.

Grounds 3 and 4

Grounds 3 and 4 were in the following terms:

“3.   Justice Bellew erred in finding (Judgment at [133]) that in order to obtain a permanent stay of the proceedings against him, the applicant ‘must point to a fundamental defect of such a nature such that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’.
4.   Justice Bellew erred in finding (Judgment at [144]) that:
a)   the focus of the applicant’s case needed to be upon the consequences upon any proposed trial of the applicant’s examination before the Commission; and
b)   the fact of the applicant’s examination itself, even if unlawful, did not inevitably justify an order for the permanent stay of the trial.”

The parties’ submissions

The applicant submitted that the primary judge misstated the test in Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 392 in concluding that to obtain a permanent stay, the applicant “must to point to a fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: primary judgment at [133].
The applicant submitted that the correct question was whether the trial in question “would be ‘so unfairly and unjustifiably oppressive’ as to constitute an abuse of process” or “would involve unacceptable injustice or unfairness”: Walton v Gardiner at 392.
The applicant acknowledged that although subsequently in his judgment, the primary judge set out the relevant paragraph from Walton v Gardiner in full, he limited his inquiry to an inquiry into “unfair consequences”. He submitted that the matters referred to in Grounds 5 to 9 below constituted “unacceptable injustice”.
The applicant submitted that the decision of this Court in R v X, relied upon by the primary judge in reaching his conclusion, was incorrect to the extent that it concluded that an examination of the accused before the Australian Crime Commission on the subject matter of the charges against him did not automatically entitle him to a stay of proceedings. He submitted that this was contrary to what was said in X7 (No 1) at [124] per Hayne and Bell JJ, Kiefel J agreeing at [157]. He submitted that the prejudice there identified was the prejudice that arises in being compelled to give evidence ahead of one’s trial. He submitted that because of the nature of the prejudice, there was nothing a judge could do to relieve against it as all a judge could do was to limit the use to which the material could be put, whereas the prejudice arose from the fact of the examination.
The applicant submitted that the fact that he had not been charged with the offence was immaterial. He submitted that he was a suspect and said that the principle extended to persons suspected of a crime.
The applicant submitted that the decision of this Court in X7 (No 2) was distinguishable, as in that case, no transcript of the examination was provided to the Court. Further, it was submitted that X7 (No 2) was wrongly decided, as it made unfairness the touchstone, contrary to what was said in Lee (2014) at [43], [46]-[48]. He submitted that the problem in Lee (2014) was more fundamental than unfairness, namely, the trial was not “a trial for which our system of criminal justice provides”: Lee (2014) at [46]. He submitted that, in that context, a stay was required.
Further, the applicant submitted that the Court in X7 (No 2) erred in concluding that stays of criminal proceedings may only be ordered in two categories of cases, cases in which unfair consequences of a sufficiently prejudicial nature can be identified and cases in which there is an abuse of process. Relying on Walton v Gardiner at 392 and R v Edwards at [23], he submitted that there was a third category of cases, those involving “unacceptable injustice”. He submitted that that was what had occurred in the present case as a result of the examination.
The applicant submitted that, having regard to the nature of the defect, any conviction obtained would be liable to be set aside. In those circumstances, he submitted that the continuation of the proceedings may be described as an abuse of process.
The Crown submitted that the statement of the primary judge, in respect of which complaint was made in Ground 3, was based on what was said by Mason CJ and Toohey J in The Queen v Glennon [1992] HCA 16; 173 CLR 592 at 605-606, in a passage described by the full High Court in Dupas v The Queen [2010] HCA 20; 241 CLR 237 at [18] as “an authoritative statement of principle”. It also pointed out, relying on R v Edwards at [22]-[24], that it was not sufficient to show that injustice could occur, rather, it was necessary to show that it would occur.
The Crown submitted that X7 (No 2) was correctly decided and mandated dismissal of these grounds.
The Crown also noted that in the present case, the applicant had not been charged. Accepting that in Lee (2014), one of the appellants was not charged at the time of the examination, the Crown submitted that in that case, the charge was imminent and anticipated. The Crown submitted that this could not be said of the applicant in the present case, pointing to the fact that at the time of the applicant’s examination, there was no direct evidence implicating him in the murder.

Senior counsel for the Crown submitted that none of the cases which considered a stay provided authority for the proposition that an application for a stay could be considered “absent the factual context and consequences”. It was submitted that to not take these matters into account ignored the balancing exercise required to be undertaken, having regard to the public interest in having persons accused of serious crimes brought to trial.

Consideration

The passage of the judgment in Walton v Gardiner, relied on by the applicant, is in the following terms (at 392):

“None of the members of the Court of Appeal accepted the Department's narrow view of the extent of the jurisdiction of the Supreme Court to order a stay of proceedings on abuse of process grounds. Gleeson CJ and Kirby P considered that the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be ‘so unfairly and unjustifiably oppressive’ as to constitute an abuse of process. Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case. Mahoney JA adopted a similar approach, while formulating the appropriate test in slightly different words. His Honour considered that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the Tribunal would involve unacceptable injustice or unfairness. In our view, the approach adopted by the members of the Court of Appeal was correct.” [internal citations omitted]

The passage from R v Glennon cited in Dupas v The Queen at [18] as “an authoritative statement of principle” was as follows:

“[A] permanent stay will only be ordered in an extreme case and there must be a fundamental defect ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’. And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial.” [internal citations omitted]

In the passage complained of in Ground 3 of the grounds of appeal, the primary judge cited the first sentence of that passage. The essence of the applicant’s complaint was that the primary judge failed to have regard to the matter stated to be relevant in Walton v Gardiner, namely, whether the trial in question would be “so unfairly and unjustly oppressive” as to constitute an abuse of process or “would involve unacceptable injustice or unfairness”.
The applicant’s submission focused on the expression “unacceptable injustice”, stating that the use of that expression in Walton v Gardiner and R v Edwards at [22] showed that unfairness was not necessarily the touchstone for the grant of a stay, but there was a separate category of unacceptable injustice.
It is correct that there are circumstances in which a stay will be granted which do not depend on unfairness to the accused: see, for example, Ridgeway v The Queen [1995] HCA 66; 184 CLR 19 at 40-41. The question in the present case is whether the decisions in X7 (No 1) and Lee (2014) compel the conclusion that the mere fact of an examination, by itself, constitutes unacceptable injustice such that a stay should be ordered, irrespective of any question of unfairness to the accused.
I considered this issue in X7 (No 2) and concluded at [109] that neither X7 (No 1), nor Lee (2014), compelled the conclusion that the fact of an examination, by itself, required an order for a permanent stay of proceedings. The other members of the Court agreed with my reasons. Beazley P (at [114]) emphasised that the authorities dealing with stays “make it clear that it is the consequences of the defect which dictates whether or not a permanent stay would be granted”.
Special leave was refused by the High Court in that case and, in my opinion, the decision should be followed. A similar approach was adopted by this Court in R v Seller; R v McCarthy [2015] NSWCCA 76 at [203], [208], [243]. In that case, special leave was also refused.
It follows that, in my opinion, the mere fact of an examination, by itself, does not warrant a stay and, in considering whether one is warranted, it is necessary to look at the consequences of the examination. In these circumstances, Grounds 3 and 4, insofar as they assert that the mere fact of the examination warranted a stay, have not been made out.
I would add the following comments. The primary judge made no finding, one way or the other, as to whether the examination was unlawful, but rather proceeded on the assumption that even if it was, it would not necessarily justify an order for a stay. In Lee (2014), in which the same provisions of the Act were under consideration, the focus was on the publication of the examination transcript, contrary to the prohibition in s 13(9) of the Act, or in circumstances where a direction under that section should have been made: Lee (2014) at [3]-[6]. Lee (2014) did not decide whether the examination was unlawful, but concluded that the dissemination to the prosecution altered the balance between the accused and the prosecution in a fundamental respect, such that the appellant was deprived of a trial according to law.
In the present case, a direction under s 13(9) was given at the outset of the examination. It does not appear that the transcript was released to the police until approval to do so was given by the Commission on 1 March 2011. The transcript was uploaded to E@glei on 24 October 2011.
It appears that the material was not made available to the prosecuting authorities until Magistrate Huber made orders under s 13(10) and (11) of the Act, on the application of the Commission, authorising the transcripts of evidence given before the Commission, including the evidence of the applicant and Gattellari, to be made available to the solicitors for the applicant.
Notwithstanding these matters, the Crown did not seek to argue that because the dissemination was authorised, the principles in X7 (No 1) and Lee (2014) did not apply. The conclusions which I have reached on these grounds are based on the same assumption, namely, that the fact that the dissemination may have been authorised by the statute was irrelevant to the issue.
Whether or not his Honour erred in concluding that the effect of dissemination did not result in any unfairness or injustice to the applicant is the subject of the remaining grounds of appeal.

Grounds 5 to 9

These grounds are in the following terms:

“5.   Justice Bellew erred in finding (Judgment at [149] and [156]) that:
a)   neither Detective Fitzhenry nor Detective Blanch availed themselves of the opportunity to use information obtained by observing the applicant’s examination before the Commission to advance the investigation against the applicant;
b)   nothing heard by Detective Fitzhenry or Detective Blanch in the course of the applicant’s examination before the Commission was used for any investigative purpose by either Detective;
c)   it could not be said that the Crown had been aided by the applicant’s evidence before the Commission.

6.   Justice Bellew should have found that the Crown has been aided by the applicant’s evidence before the Commission, for example on the basis that:
a)   investigators, including Detectives Fitzhenry and Blanch, had knowledge of the content of the applicant’s evidence before the Commission; and
b)   investigators, including Detectives Fitzhenry and Blanch, continued to be involved in the investigation, including by making decisions as to the conduct of the investigation, after obtaining that knowledge.

7.   Justice Bellew erred in holding (at [152]) that the mere presence of the police at the applicant’s examination, without more, was insufficient for the applicant to be entitled to a permanent stay of proceedings.
8.   Justice Bellew erred in failing to find that the applicant’s examination had the effect of upsetting the balance between the applicant and investigators, and thus the applicant and the prosecution, akin to the manner discussed in Lee v The Queen (2014) 88 ALJR 656 (cf Judgment at [158]).
9.   Justice Bellew erred in finding (at [161]) that the discussion of the applicant’s evidence by the police, and the fact that the police considered that there was no impediment to the use of the applicant’s evidence, was insufficient to warrant a stay of the applicant’s trial.”

The parties’ submissions

The applicant submitted that the facts of the present case went further than those considered in X7, namely, “mere compulsory examination, with the answers given being kept secret”.
The applicant submitted that the following facts were uncontroversial.

Detectives Fitzhenry and Blanch remotely observed the examination.

Detective Blanch considered himself to be at liberty to use information from the examination in the investigation.

Detective Fitzhenry could not say that he did not discuss the examination with the investigation team and acknowledged that he used aspects of the applicant’s evidence to make additions to the timeline.

The Director (Criminal Investigations) at the Commission, Mr O’Connor, considered that there was no impediment to discussing the contents of the examination with police.

Detectives Fitzhenry and Blanch admitted that they discussed evidence as it emerged at the Commission with other members of Strike Force Narunga.

A debriefing was held after the applicant’s examination attended by Detectives Fitzhenry and Blanch. At the debriefing, the examinations, what came out of them and what should be done, was discussed.

After the applicant’s examination, police only investigated whether Gattellari had an independent motive for the murder after the defence case statement had been received.

The same person, Mr O’Connor, examined both the applicant and Gattellari.

The applicant submitted that the approach of the primary judge erroneously accepted the proposition that police investigators can compartmentalise information obtained by them, “so as to be able to claim that certain aspects of that information were not ‘used’”. He submitted that the better view was that the information became part of the material known to the investigators and informed decisions subsequently made by them.
The applicant sought to draw support for this proposition from the evidence that no investigation into Gattellari’s independent motive to kill the deceased was pursued until after receipt of the defence case statement. He also submitted that his evidence was clearly of some forensic utility in the ongoing investigation of the murder, given that at his examination, the examiner told Gattellari that the Crown had had the benefit of speaking to the applicant.
The applicant submitted that the result was that the examination altered the balance between the Crown and the applicant “in a fundamental respect”, as was the position in Lee (2014). The applicant submitted that as in Lee (2014), the balance of power had shifted to the prosecution, contrary to what was required by the system of criminal justice. The applicant submitted that he was entitled to have the investigation proceed without being compelled to answer questions directed to his role in the murder. He submitted that there was nothing that a trial judge could do to redress the balance.
The applicant submitted that the matters relied upon by the Crown to distinguish Lee (2014) did not survive a close reading of the case. He submitted that the lawfulness of the publication was not a critical issue in Lee (2014). He pointed to what was said in Lee (2014) at [39], that the critical question was “not whether the publication was unlawful”, but rather, “whether, as a result of the prosecution being armed with the appellants’ evidence, there has been a miscarriage of justice”.
The applicant submitted that it was not of significance in Lee (2014) that the DPP had requested the examination material.
The applicant repeated his submission that the result in Lee (2014) did not depend on practical unfairness, but rather, the fact that the prosecution had the transcript shifted the balance of power to the prosecution.
The applicant submitted that the reasoning in Lee (2014) concerning the provision of material to the prosecution was analogous to the present case. He submitted that it was not possible to ascertain the extent to which the knowledge obtained by the investigators, through access to the applicant’s evidence before the Commission, permeated the course of the investigation.
Senior counsel for the applicant accepted that the investigators may already have had some information concerning the matters on which the applicant was examined, but submitted that there was a difference in getting the information from the perspective of a suspect.
Senior counsel for the applicant sought to support this submission by referring to the fact that the applicant stated, in the portion of his transcript which I have extracted as Schedule 1, that he was not aware of Gattellari having an independent motive to murder the deceased and the fact that thereafter, the investigation team did not seek to examine this question. He pointed to that fact as demonstrating that the investigation was shaped by the examination.
The Crown submitted that the applicant had not identified which aspect of his examination was used, or was of assistance, in the investigation, apart from the matters referred to in Grounds 10 and 11.
The Crown noted that in his examination, the applicant repeatedly disputed the logic of the proposition that Gattellari had killed the deceased for the applicant’s benefit. The Crown pointed to the applicant’s evidence that the worst thing for him would be to have the deceased killed and evidence of him rhetorically asking how he was going to recover his money with the deceased dead.
The Crown pointed to the fact that it was not suggested to any of the witnesses cross-examined that their evidence of the use or otherwise of the applicant’s evidence was incorrect. The Crown pointed to the following matters as demonstrating that it was open to the primary judge to conclude that no investigative use was made of the applicant’s evidence.

The primary judge’s acceptance of the evidence that only two tasks were created as a result of the applicant’s evidence before the Commission.

Only one of those tasks arose from the applicant’s examination transcript, the other being created as a result of the receipt of the defence case statement.

The first task was not undertaken and the second task was undertaken without any reference to the applicant’s evidence.

The absence of evidence of any task being allocated to any of the investigators following the debriefing session.

The limited evidence of any conversation between investigators concerning the applicant’s transcript. The Crown pointed to the fact that the only conversation between police officers concerning the evidence which had been specifically recalled was one between Detectives Fitzhenry and Howe. In respect of that conversation, Detective Howe recalled that two pieces of information were supplied, one concerning Safetli and the other concerning financial documents to be provided in the future. The Crown pointed out that no tasks were created as a result of this information.

The evidence of Detective Fitzhenry that he did not discuss the applicant’s evidence with the DPP.

The absence of evidence that the applicant’s transcript was accessed on E@glei by any officer other than Detective Fitzhenry.

The absence of evidence that the part of the applicant’s transcript referred to by Detective Fitzhenry in an entry in the timeline was accessed or used by any officer for an investigative purpose.

The finding of the primary judge that no lawyer from the DPP or the Crown Prosecutor had read the transcript.

The Crown submitted that the evidence was insufficient to infer that the applicant’s evidence was discussed or acted upon to a greater extent than that identified by the primary judge.
So far as Ground 9 was concerned, the Crown pointed to the finding by the primary judge that it could not be inferred that the transcript was used for investigative purposes. In these circumstances, the Crown submitted that there was no basis to draw an inference that the examination had unfair consequences, because it became part of the matrix of information available to the investigators. It was submitted that the inference contended for by the applicant could not be made from the fact that police considered that there was no impediment to making use of the evidence.

Consideration

It was common ground between the parties that the principles on which the decision of the primary judge was to be reviewed were those applicable to a discretionary judgment. However, there was a difference between the parties as to the manner that these principles were to be applied in the circumstances of the present case.
The applicant submitted that the question of whether the facts were sufficient to establish that the applicant faced prejudice involved no element of discretion and was a matter in which an appellate court was in as good a position as the primary judge to decide. He submitted that, in determining whether prejudice was suffered, the approach in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 should be adopted.
The Crown submitted that it was inappropriate to apply the approach in Warren v Coombes in considering a discretionary judgment of the nature of the one in question in the present case.
As I indicated, the parties accepted that the principles concerning the review of discretionary judgments, set out in House v The King [1936] HCA 40; 55 CLR 499 at 504-505, should be applied. That approach is consistent with authority in the High Court and this Court: Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23 at 31; TS v R [2014] NSWCCA 174 at [45]; R v MG [2007] NSWCCA 57; 69 NSWLR 20 at [63]; Webb v R [2012] NSWCCA 216; 225 A Crim R 550 at [56]. That that is the appropriate approach is evident from the balancing process that a court is required to undertake in determining whether or not a stay should be granted. The process was described by Mason CJ, Deane and Dawson JJ in Walton v Gardiner at 395-396 in the following terms:

“As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.” [internal citations omitted]

Although the above authorities demonstrate that the correct approach is to consider whether the exercise by the primary judge of his discretion miscarried by reference to the principles in House v The King, that does not mean that the judge’s factual findings were entirely immune from review. It is unnecessary to set out the well-known passage from House v The King in this judgment. However, it must be remembered that one of the grounds on which it was suggested that a discretion could miscarry was if the judge “mistakes the facts”: House v The King at 505.
In these circumstances, if it can be shown that the primary judge was in error on any finding of primary fact, his decision would be open to review. However, assuming his findings of fact were correct, any inference to be drawn from these facts would not be open to review unless the decision was otherwise vitiated by error, or, to adopt what was said in House v The King, his conclusion was unreasonable or plainly unjust such that an appellate court may infer that there has been a failure to properly exercise the discretion: see in an administrative law context, Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76], [124].

In support of these grounds, the applicant also submitted that the purpose of his examination at the Commission was to tie him to key aspects of the case and to inform investigating police of these matters. However, the applicant accepted that the investigation was ongoing at the time of the examination. In these circumstances, it could not be said that the examination was conducted for an improper purpose. Further, this matter was not raised before the primary judge, nor was it the subject of any ground of appeal. In any event, unless unfairness or injustice to the applicant, which could not be remedied, was demonstrated, the fact that the examination was improper would not justify a stay.
The applicant also relied on these grounds in support of its application that as an alternative to a permanent stay, a temporary stay should be granted, until the Crown undertook not to call Gattellari at the trial. For the reasons I have given, that application should be refused. Of particular importance, in that context, is the fact that Gattellari did not have any access to the transcript of the examination of the applicant.

Ground 12

This ground was in the following terms:

“12. Justice Bellew erred in finding (Judgment at [184]) neither that the applicant’s capacity to defend himself at trial, nor his ability to determine what course he might take at trial, had been affected by the applicant’s examination before the Commission or anything related to that examination.”

The parties’ submissions

The applicant submitted that he was “entitled to cross-examine Gattellari at the trial without Gattellari having been examined by an examiner who was privy to the applicant’s evidence” and without Gattellari being told that the applicant had spoken to the Commission. The applicant also submitted that he was “entitled to conduct his defence without having been previously asked, under pain of perjury, whether he was aware of any dispute between Gattellari and [the deceased]”. He submitted, in these circumstances, that his ability to defend himself and to determine what course he might take at trial was adversely affected.
The Crown submitted, relying on its earlier submissions, that the applicant had not been prejudiced in the conduct of his defence by virtue of the disclosure of his evidence before the Commission.

Consideration

The matters relied on in this ground have been dealt with in dealing with Grounds 1 and 2 and Grounds 10 and 11. For the reasons given in respect of those grounds, this ground of appeal has not been made out.

Section 45C of the Act

I have dealt with the appeal without the need to invoke the presumption in s 45C of the Act. In these circumstances, it is not necessary to say anything about the construction or effect of that section.

Conclusion

In the result, it has not been shown that the primary judge erred in the exercise of his discretion in refusing to grant a stay. In these circumstances, leave to appeal should be granted but the appeal should be dismissed.
I would make the following orders:

Grant the applicant leave to appeal.

Dismiss the appeal.

On the grounds referred to in s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the Court, pursuant to s 7 of that Act, orders that the judgment in this appeal and the Court’s orders are suppressed, save for the disclosure of either to the parties and their legal representatives for the purposes of the proceedings.

BEAZLEY P: I have had the advantage of reading in draft the reasons of the Chief Justice with which I agree. I agree with the orders his Honour has proposed.
HIDDEN J: I agree with the orders proposed by the Chief Justice and with his reasons.

**********

SCHEDULE 1

The portion of the applicant’s examination relevant to Grounds 1 and 2 of the Grounds of Appeal

Q   Thank you. Now, there's evidence to suggest that McGurk and Gattellari didn't get on. What do you say to that?
A   I've never, I don't, I'm not even sure that they even met, you know. I can't recall that he, he might've, if he ever met him it might've been once or something in Leichhardt when we were at a lunch or something when he came to see me and I might've been there with Lucky. I'm just trying to think if he ever knew him. I'm just not sure. You'd have to ask him that. Personally, if he ever met him it couldn't have been any more than once, you know, that I've ever seen it. I've just got a feeling that once in Leichhardt, in Tuscany Restaurant, when I there having lunch, McGurk came up there. I could be wrong, but I think there was an occasion like that.
Q   There is evidence to suggest that McGurk had been threatened by Gattellari because allegedly McGurk had advised you not to lend any money to Gattellari. What do you say to that?
A   I never knew about that one.
Q   Did McGurk ever advise you not to lend money to Gattellari?
A   Not really.
Q   Okay, and not really means yes.
A   No, not really. No, I can't ...
Q   Well is it a no? Is it a no that he had ...
A   No, it's a definitely no. What would that have to do with McGurk?
Q   Hopefully, in time, it will all become clear.
MR SINGLETON   Did McGurk say anything about lending money to Gattellari?
A   No. I can't recall any such incident. Who told you that?
MR O'CONNOR   A witness.
A   Not one of McGurk's friends.
Q   Not a friend, no. Now, there is evidence of a friend of McGurk to the effect that he told this friend that should anything happen to him he should notify the police, or hand to the police a document. The document contained a phone number, Lucky's name and the name Boomerang Funeral Fund, Level 1, 131-135 George Street, Liverpool
A   Hang on. Actually, I've just thought of something. I think he did meet him, I'm not sure if he did or not. Someone, either some accountants or whatever went out to the Boomerang Funeral Fund office to check on entries and whatever. I'm not sure if, it probably wasn't McGurk, I think accountants he sent out, you know. See, I'm not sure. You'll have to ask Lucky Gattellari if you ever met him, you know.
Q   I'll be meeting him very shortly. But the thing is that there is evidence from two separate and independent sources, admittedly one is a friend of McGurk, one is not, that McGurk felt threatened by Gattellari. And you were having dealings with both of them.
A   Do you really think that I wouldn't know about it? Lucky Gattellari has never ever told me he's ever had any dispute with Michael McGurk, ever.
MR SINGLETON   Has he ever spoken to you about McGurk?
A   Not really.
Q   Does that mean yes?
A   No, it doesn't. I just can't think of any time that he's ever spoken about him. I really thought he didn't know him,
MR O'CONNOR   Can I put this hypothetical to you. You understand what I mean by hypothetical?
A   Yeah.
Q   If Gattellari was responsible ...
A   For what?
Q   ... for McGurk's murder.
A   I know he wasn't responsible. He ...
Q   Please let me finish the question. Would you have known about it?
A   I don't know.
MR SINGLETON   Well you said you, you said I know he wasn't responsible.
A   I know he wasn't. He had nothing to do with it. So why would you ask me that hypothetical question?
Q   How do you know that?
MR O'CONNOR   How do you know that?
A   How do I know that?
MR SINGLETON   Yes?
A   Well, probably, I don't really.
Q   Well why did you say it?
A   I'm only saying it because you would think that he would've told me if he knew McGurk wouldn't you?
Q   He almost certainly knew of or met McGurk.
MR SINGLETON   I think we've established that he probably met him at Leichhardt and elsewhere.
A   Yeah, the only place, if he ever met him, I think he could've been, there were so many people go to that restaurant and everything. McGurk used to come there, he'd have lunch with me. And sometimes he'd come up just to get a document signed or something like that, he might've said hello. But if he had any business deal you'd think I wouldn't known about it, wouldn't you?
Q   Yes, that's the point. And you see to get something like this done, is very expensive. There's all sorts of things you've got to do. You've got to establish where the person lives, probably do a bit of surveillance, you've got to buy a gun, you might need a driver. Lots and lots of things. Purpose purchase phones, alibis, all sorts of stuff. They all cost money. You're not going to get it done for less than about 100 grand.
A   I'm inexperienced with this stuff, so.
Q   Well, take my word for it, that's what it's going to cost you. Now …
A   How much?
Q   A hundred grand. Would Lucky have access to that type of money?
A   A hundred grand. I don't think Lucky's got a lot of money.
Q   No, we don't think so either.
A   So how would he get the money to do that?
Q   Good point. Have you loaned Lucky any significant amounts of money in the lead up to the murder of Mr McGurk in September?
A   No, the only money that was ever lent to him was for the electrical companies and he has loaned some ...
Q   That's not lent to him.
A   Hey?
Q   That's not lent to him. That goes to the electrical companies.
MR SINGLETON   I think the evidence is it goes to ...
A   Lucky's company.
MR O'CONNOR   Well it goes to Riv Group or Riv Developments.
A   Well it goes, eventually he is handling the money to put into the electrical companies which he works closely with Kim, you know the CEO of the company that runs the whole organization, Kim,
Q   Does he get commission for that money on the way through?
A   Who?
Q   Lucky?
A   No, he shouldn't get any commission for that, why would he?
Q   Good point.
MR SINGLETON   Why would he be involved in this at all? You are, in effect, lending money to these electrical companies but you pass it through Riv …
A   It is my understanding that if he organised all this loan, which is what he does like as a facilitator, right, that he was hoping to get, well I've been told, him and Kim, if all this is resurrected and the company's you know come good again they'll be, were thinking of listing the company on the stock market or on selling it to another larger company. Getting businesses in Queensland, South Australia, Melbourne, which we did. He would be able to get a million bucks out of it, and also Kim would. That was their aim. If they work hard with existing people like Tony Rowe, one of the managers, and the others that are there, all friends of his which he's known for 20 years. His own brother is an electrical contractor, you know, Frank.
Q   But you lent the money to Riv.
A   Yes.
Q   And you took out security?
A   I took out security but Lucky told me, also, that he has security over some of the directors homes, that were the original ones of the company that Rivercorp that got into trouble.
Q   What security did you take out?
A   I got first mortgages.
Q   Over?
A   You know, over all the companies that have got the money.
MR O'CONNOR   But did the companies have any assets?
A   Well they had assets and they've got receivables now. See, what's actually happened and one of the reasons there's been some problems is one of the big builders are not paying their debts. They were hoping the company will go into receivership so we've had to take action against them.
Q   Right. But receivables is a fluid amount of money, if that's the best way to describe it. It could be a million dollars today and ten thousand dollars tomorrow.
A   Well, it depends on which company you're dealing with. And to give you an example we're in court now against St Hilliers Constructions who you've no doubt seen their signs around the place. But I'm in control of the receivables now because a receiver has been appointed to Rivercorp and I've got all the receivables will come to me because I've got first priority. And there's some other well known companies like Hansen and Young and whatever, well they're running the thing so I'm not involved in actually running the business. I try to help them to get jobs.
Q   When you've got first call, have you got first call over the creditors to the electrical company have you?
A   Yes,
Q   So even the building they're in they don't own, presumably there's rent there.
MR SINGLETON   Over the debtors.
MR O'CONNOR   The debtors rather.
A   Mm. And what I've been doing, I've had to get myself involved because things were not going right. So I've had to tell them they've got to get rid of staff and different things like this. Change to one premises out in the West. They were at Ultimo or somewhere over there. And now I'm in the process of this other company that we're dealing with at the moment, Nullarbor, they got into trouble as well. And I'm going to move the electrical companies over to there. But you need approval of the board of this other company. It's a long winded process.
Q   Are you aware of any dispute between Mr Gattellari and McGurk?
A   No. I don't think there was one. I've never heard of a dispute.
Q   Okay, so hypothetically, again, if Gattellari was responsible he's likely to have done that for you?
A   Beg your pardon?
Q   He's likely to have killed McGurk for you, if he did it?
A   You've got to be kidding. I've never killed anyone in my life.
Q   No, no, it's a hypothetical, it's a hypothetical question Mr Medich. If he hasn't got a dispute with McGurk himself, and he has done it, then the logic is he's done it for you. Would you agree with that proposition?
A   No, I, I don't agree with that,
Q   Why not?
A   Why do you agree with that?
Q   Well it's a hypothetical question. We're trying to work out if there is a possible reason ...
MR BAMFORD   I object to this.
THE WITNESS   You know what, I object to the question, too. That's an insult to me. I've never done any criminal thing in my life of any sort, and I'm insulted at that.
MR SINGLETON   Mr Medich, your lawyer has taken an objection. So let me rule on that. If the objection's upheld we'll go onto the next question.
A   Okay.
Q   The objection is upheld. But that doesn't mean we, don't be offended by questions that are attempting to illicit information. He hasn't accused you of anything. He's attempting to put a logical proposition, because you might be able to shed some light on why the logic breaks down because of some external factor. And the logic is this, so far as you're aware Mr Gattellari had not animosity to Mr McGurk, had nothing against him?
A   I don't know. I've, I answered that question before. I said that if, I think there was a time that he saw him once in Leichhardt. But he'll have to answer that question. I'm pretty certain he did, but it might not be right.
Q   Do you know of anybody who knew both men, apart from yourself?
A   What do you mean, knew Lucky and ...
Q   And Mr McGurk?
A   I haven't thought about it, to be honest with you.
Q   Think about it now for a moment.
A   Lucky and, that knew Lucky and McGurk. ... I think he'd met Paul Mathieson and McGurk, I think,
Q   Anyone else?
A   Lucky ... I'm not sure if Ian Lazar, that time he came over, met him or not. You know Ian Lazar, I only briefly met him, I never knew him before either. He was the feller that came to see me and told me about what I told you earlier, also tried to help his wife in, she was going to have another crack at Mathieson to get more money out of him because she got some money before but she wanted to have a second crack with the aid of Ian Lazar.
Q   But you think that Lazar may have met Lucky?
A   I'm just not sure one time we were in Leichhardt the same, you know, I'm just not sure.
Q   So that's two possibilities, Mathieson and Lazar. Anyone else that you can think of who may have known both McGurk and Gattellari?
A   And Gattellari ... no I, for the moment I can't think of anybody.
Q   Right, now, ...
A   I'd have to seriously …
Q   Of course, of course there may be ten people who know them both but they don't know you. So we understand the limits.
A   Well, funnily enough I read in the papers that I think McGurk was involved in electrical companies before. Funnily enough.
Q   Well, that may be very (ind). You said earlier that you "knew" that Gattellari wasn't involved in killing Mr McGurk. And you were questioned and you sort of backed down that you didn't really know it. But you obviously had some confidence in the proposition that Gattellari was not involved. Do you have that confidence?
A   Course I do. Why would he have an involvement in it? And why would I, or anybody, have an involvement in it?
Q   Just confining ourselves to one question and issue at a time, that you know of no reason why Gattellari would kill, or be involved in the killing of McGurk?
A   None whatsoever.
Q   You would agree that most people just don't go out and kill somebody in a professional murder without a reason. You would accept that wouldn't you?
A   I would, yep,
Q   Yes. Now if, note the word if, but if Gattellari was involved, we're now looking for some kind of a motive for why he would be involved.
A   Mm.
Q   We now have three people who knew them both, perhaps. You definitely, perhaps Mathieson, perhaps Lazar. The logic of the position is, there are many possibilities. One is that Gattellari did it at random for no reason. That seems unlikely. One is that he did it for somebody else that you don't know, or for Mathieson and Lazar whom he hardly knew, probably, if he knew them at all.
A   Mm-hm.
Q   And another is that he did it for you,
A   Well he didn't do it for me so therefore he couldn't have done it.
MR O'CONNOR   That doesn't follow.
A   And by the way ...
MR SINGLETON   No, it doesn't follow but...
A   ... I'll put this proposition to you. You look across the gamut of all the people he owed money. He never paid anyone, right? Now, to me, even if I don't get my money back now, that's not going to break me, right? But if he owes someone 200,000 and that's all they had, they might've done it. Why are you signified down to myself, Mathieson or someone like that? I don't understand this.
Q   Well, you're the only one in the witness box, for a start.

SCHEDULE 2

The portion of the applicant’s examination relied upon in support of Grounds 10 and 11 of the Grounds of Appeal

In the applicant's examination, the following exchanges occurred in relation to the applicant's business dealings with Gattellari:

Q   And how would you describe your current relationship with Lucky Gattellari?A   Well it's okay. But we’re in these electrical companies and whatever and I'm actually a little bit not happy with the invest [sic] that he got me into, that I've invested money in.
Q   Okay. How much have you invested in those companies?
A   Well it'd probably be over 16 million.
…
Q   What does Mr Lucky Gattellari bring to the business of the electrical companies?
A Well, he deals with the particular guys that run it. He knows a lot of them.
Q   So, well the people who are running it, presumably, were running it before you got into the company. What does Mr Gattellari add to the mix?
A   Well he's a guy, I think, that's friends with Kim, and got Kim into the company. And I think he's got some security from some of the directors for some of my loans and whatever.
Q   Does he work?
A   I've got mortgages for every loan that's been lent to the company.
Q   Okay. Does he work for the company, is he a paid employee?
A   Well, I'm not sure if he is or he isn't.
Q   Do you or your companies pay him?
A   No, I don't pay him. See, all the lines close through his company, you know, for RW developments [sic - Riv Developments].
Q   So, are you saying, let me get this correct. When you say all the loans, I don't want to be at cross purposes here, are you talking all loans per se to people at large that Lucky's dealing with?
A   No, no, no ... No, no, no.
Q   Or all loans in relation to the electrical company?
A   Everything to do with the electrical company goes through him because he was the organiser of the whole thing.
…
Q   ... it's been asserted in some circles that [Gattellari] was like an employee of yours, but that's not the case?
A   That's not the case.
Q   But loans from your company to the Riv Group is it I think you refer to it as?
A   Yep, yep.
Q   And those payments are for, are the mechanism or the vehicle by which you transfer money in the electrical company?

A   Yeah, everything goes through Riv Developments.
Q   Okay, why's that?
A   Well that, well originally I made all the loans to Riv and Riv was going to be taking them all over.
Q   Okay, and who takes the security for the loans, Riv or you?
A   I've got all the security on the loans.
Q   Okay, and so I just don't understand the reason for channelling it through Riv. If you've got the security and the loan's from you then what was the purpose of Riv?
A   Well because we didn't know what was going to happen with all those other companies that we, some of them might have gone into liquidation and whatever, as one of them has now.
Q   Right, but how does inserting Riv help you?
A   Well that's where the loans were made. Because I was, I actually, before I started to get involved that I'm going to totally get involved in it, I was lending money to Riv and he was the one that was dealing with the electrical companies.
Q   Who's Riv?
A   That's his company.
Q   Rocky's. Sorry, Lucky's?
A   Yeah.
…
Q   So ...
A   There is another company called Riv Group, which is my company. But his company's Riv Developments.
Q   Right. So the money for the electrical company goes through Riv Group or Riv Developments?
A   Riv Developments, I think it was. Look, I'm, yep, I'm pretty certain, yep.
…
Q   Right, now the money that moves to the electrical company through the Riv Group or Riv Developments, who would have a record of all those payments?
A   Well Lucky would have. You mean from me?
Q   Yes. Because I mean they're, essentially all those must be loans?
A   They are.
Q   Right.
A   We got the mortgage documents, they've been stamped and you would be able to, my accountant can provide all that info.

SCHEDULE 3

The portion of Gattellari’s examination relied upon in support of Grounds 10 and 11 of the Grounds of Appeal

Q   The Commission has had the benefit of having spoken with Mr Medich. He explained that his company, Riv Group has been loaning money essentially through to the lighting company and has been providing more or less a line of credit now for some time. Is that correct?
A   That is correct.
Q   That line of credit, do you know how much the credit is up to?
A   Anything between 14 and 16 million dollars.
Q   When money is advanced from the Riv Group, what entity does it normally flow to on the first occasion?
A   It goes to Riv Developments.
…
Q   The loan arrangements with Mr Medich's company, is there a loan agreement in place in relation to money that's been advanced?
A   There is.
Q   Who holds that agreement?
A   I think Mr Medich is - one of Mr Medich's companies holds the charges and fixed and floating charges and mortgages over all the companies.
Q   Mr Medich has indicated that there is a security over that line of credit. What security does he have in relation to that matter?
A   With the charges on everything. We can't dispose of anything without his permission.
…
MR O’CONNOR   Well Mr Medich has indicated that the electrical companies are soaking up a substantial portion of his wealth at present and he's indicated previously that he is not extending any further credit to the company at the moment. Is that the situation?
A   Well we 're not asking for any more credit at the moment.
Q   Do you have overdraft or lines of credit with any financial institutions?
A   No, we don't.
…
Q   Has Riv Developments ever lent money to individuals?
A   Individuals?
Q   To people.
A   No.
Q   Do you use Riv Developments for personal expenses?
A   I use Riv Developments for expenses that I incur from time to time, yes.
Q   Company expenses or personal?
A   Personal loans and I believe that Riv Developments owes me a certain amount of money and their [sic] regarded as drawings I think they're called.
…
Q   So how do you treat the money that comes to you from Riv Developments?
A   How do I treat it?
Q   Yes, directors loans, borrowings.
A   Will it depends where it comes from.
Q   If it comes out of the Riv Developments account, which originated through Mr Medich's company, how do you treat it?
A   Some of them are treated as loans to me.
Q   And how are they documented?
A   Well they're all books and records are kept by accountants [sic]. They're all documented in balance sheets and profit and loss accounts I would assume.
Much later on, the following exchange occurred:
Q   Some of the financial transactions between you and Safetli appear strange.
A   Well which one?
Q   Well there are a number, but we'll go the first one [sic].
A   Okay.
Q   In March of this year Ron Medich's company transferred $150,000 to Riv Developments. You then transferred a portion of that to your private account. From that private account you purchased a bank cheque. That bank cheque was then handed to an estate agent and it was used as a deposit for a house for Mr Haissam Safetli.
A   Mm.
Q   Can you explain that?
A   He asked - he was looking at a property that he was about to lose and he asked could we lend him some money and he still owes us the money back. So these are loans.
Q   I've covered this prior to and I asked you at great length had Riv Developments lent any money and had you lent any money and your answer was no.
A   Well okay. You see you are asking - the way you're asking the questions ...
Q   They're very simple questions.
A   Yeah they're very simple, but I personally lent hundreds of people $2000, $1000, $500, I've lend [sic] Senad [Kaminic] money. I've lent numerous people money. I lent Jim Emirian $70,000 to settle on his house. This is something if the money's available and these are all friends [sic], we lend this money. I don't know why you attach some sinister situations [sic] to the fact that I lent personally lent [sic] people money. Do I get it out of the company, I do sometimes, yes.
Q   I'm not attaching sinister thoughts to you lending money generally, it's just $40,000 in these circumstances to a man whom we are now aware shot McGurk is quite significant.
A   I don't know, I have no idea who he shot, or whether he shot anybody and you know when was that, when was the money lend to him?
Q   It was paid in March of this year.
A   March of this year, okay.
…
MR SINGLETON   Just going back to that housing loan of March this year, who was it ultimately who was lending the money to Mr Safetli, you?
A   Well it came out of Riv Developments and I don't personally, don't have that sort of money to lend.
Q   You said that he came to us.
A   Yes.
Q   We decided.
A   Well I use the term "us" as the company, myself, yes.
Q   But it was in effect you doing him a favour.
A   Correct and he still owed us money.
Q   Did you have enough to lend him the money?
A   We had $40,000 I could spare at the time so I said save your house.
Q   Well you had $40,000 because you've just got some coming in from Mr Medich and you turn to Mr Medich and say I want to do a friend a favour.
A   I didn 't need to do that.
Q   But why did Mr Medich or Mr Medich's group put money into your group's account just before?
A   But he's been doing that for two years, over.
Q   What was the purpose of that?
A   For business purposes and the guy came to me and he said can you help me out and we could spare it at the time, for a short term so we spared it.
Q   So, the money coming in to your domain and Mr Medich's domain just before you lent money to Mr Safetli the timing of that was just a co-incidence?
A   Well I don't know what we could call it, I mean if I lent him ...
Q   If one inference to draw could be that Mr Medich was sending the money to Mr Safetli and you were facilitating it. It was going via you ...
A   (indistinct)
Q   ... the other is that Mr Medich had completely independent reasons for giving you money.
A   With all due respects.
Q   I'm just asking which is it (ind overtalk)
A   Yeah I can understand where you are coming from, but with all due respects it would seem like a dumb way to do something like that to me.
Q   Maybe, but I'm just asking whether Mr Medich was involved in the loan ...
A   No, not at all. He has no idea I lent the money to anybody. I lent Jim Emirian money which Mr Medich has no knowledge of.
MR O'CONNOR   He has an idea that you've lent the money because he has been told by this Commission.
A   Well he has an idea now then.
Q   And he was adamant that he gave no authority for such a transfer to occur.
A   That is correct, that is correct.

SCHEDULE 4

Further portions of the applicant’s and Gattellari’s examination relied upon in support of Grounds 10 and 11 of the Grounds of Appeal

The applicant’s examination

Q   You, this is right isn’t it, your relationship with him, although it had problems was on balance a better than, more good than bad by March 2009. Correct? Up until that time, that’s right isn’t it?
A   I’m just not sure of the exact dates I’ve said.
Q   Don’t worry about the date. Up until the time that you heard about the tape recording?
A   Well when I first heard about the tape recording I’m pretty confident it was brought up in a solicitor’s office with Michael White and Kevin Munroe and he wanted me to wipe the debt. And then he said he’s got this tape. And I actually said, you know what you can do with that tape. Because I didn’t believe one even existed, to be honest with you.
…
Q   Just a minute. Within three weeks of your learning of that tape [a secret tape recording made of the applicant by the deceased] you’ve commenced legal proceedings against him. And I’m suggesting to you that it is in that three week period that the relationship goes from one with its troubles but, overall, a good one. To a relationship that has basically come to an end. That’s right isn’t it?
A   Well it is if I can’t get my monies back, obviously. And that’s why I went to court.
Q   That’s the way you saw it?
A   Yeah, well what I had to do was to try to find out, because if he’s not going to give me the monies back I’ve got to get into his companies. And the advice that I got was the best thing to do was to get an ex parte application. That’s what I did.
Q   And the relationship was off?
A   Well, obviously it’d be off with him once I do that.
Q   That was definitely the end of your relationship?
A   Yeah.
Gattellari’s examination
Q   Do you remember what were the events that led to the deterioration of their relationship?
A   Well I think court cases and trying to get money from one another would be a good indication that the friendship had soured.
Q   Those cases, on my instructions, didn’t commence until mid-March, which I concede is the early part of 2009. Is that the area of time you were referring to?
A   Look let me just make one thing to you [sic]. You’ve given me dates, I cannot remember dates. If I tell you that I met someone, if you said to me what day in May 2009, I wouldn’t have the faintest idea. I genuinely don’t remember. If I made the statement that either Ron might have said something to me, or I may have seen something, I don’t know. If I made that statement it’s probably – if that’s the date I said it happened, maybe that was the date.
Q   No, no, I don’t think you understood my question. I just told you that the litigation between McGurk and Medich commenced on the 18th of March 2009 and that was in response to you telling me that the event that soured their relationship was the litigation commenced early in 2009. I’m just asking you – I’m putting this to you, is that the litigation you are referring to?
A   Well it could have been, there were so many of them.

Decision last updated: 23 May 2018

Medium Neutral Citation:	MEDICH v R [2015] NSWCCA 281
Hearing dates:	18 August 2015
Date of orders:	13 November 2015
Decision date:	13 November 2015
Before:	Bathurst CJ at [1]; Beazley P at [188]; Hidden J at [189]
Decision:	1 Grant the applicant leave to appeal. 2 Dismiss the appeal. 3 On the grounds referred to in s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the Court, pursuant to s 7 of that Act, orders that the judgment in this appeal and the Court’s orders are suppressed, save for the disclosure of either to the parties and their legal representatives for the purposes of the proceedings.
Catchwords:	CRIMINAL LAW – appeal – murder charge - interlocutory orders – permanent or temporary stay of proceedings – where applicant examined before NSW Crime Commission – where police investigators present at examination – where prosecutors and police sent examination transcript – where examination of accused used in examination of other suspect – whether fundamental aspect of fair trial had been altered such as to warrant a stay of proceedings
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW) Crime Commission Act 2012 (NSW) Evidence Act 1995 (NSW) New South Wales Crime Commission Act 1985 (NSW)
Cases Cited:	Dupas v The Queen [2010] HCA 20; 241 CLR 237 House v The King [1936] HCA 40; 55 CLR 499 Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23 Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196 Lee v The Queen [2014] HCA 20; 253 CLR 455 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 R v Edwards [2009] HCA 20; 83 ALJR 717 R v Medich (No 2) [2014] NSWSC 1313 R v MG [2007] NSWCCA 57; 69 NSWLR 20 R v Seller; R v McCarthy [2015] NSWCCA 76 R v X [2014] NSWCCA 168 Ridgeway v The Queen [1995] HCA 66; 184 CLR 19 The Queen v Glennon [1992] HCA 16; 173 CLR 592 TS v R [2014] NSWCCA 174 Walton v Gardiner [1993] HCA 77; 177 CLR 378 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Webb v R [2012] NSWCCA 216; 225 A Crim R 550 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 X7 v R [2014] NSWCCA 273
Category:	Principal judgment
Parties:	Ronald Edward Medich (Applicant) Crown (Respondent)
Representation:	Counsel: N Williams SC / A Francis / B Mostafa (Applicant) W Abraham QC / J Davidson (Respondent) Solicitors: Colin Daley Quinn (Applicant) Crown Solicitor for New South Wales (Respondent)
File Number(s):	2010/356916
Publication restriction:	On the grounds referred to in s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the Court, pursuant to s 7 of that Act, orders that the judgment in this appeal and the Court’s orders are suppressed, save for the disclosure of either to the parties and their legal representatives for the purposes of the proceedings. Publication restriction removed – judgment published.
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2014] NSWSC 1313 Date of Decision: 30 September 2014 Before: Bellew J File Number(s): 2010/356916