R v Medich (No 2)

[2014] NSWSC 1842

Supreme Court

New South Wales

Medium Neutral Citation:

R v Medich (No 2) [2014] NSWSC 1842

Hearing dates:

15, 16, 17, 22 July 2014Written submissions: 11 September, 18 September 2014

Date of orders:

30 September 2014

Decision date:

30 September 2014

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

1) The applicant’s notice of motion dated 18 June 2014 is dismissed.

Catchwords:

CRIMINAL LAW – application for permanent stay of proceedings - applicant charged with murder – where applicant appeared before NSW Crime Commission for compulsory examination prior to being charged – whether police presence at compulsory examination and associated events warranted a permanent stay

Legislation Cited:

Australian Crime Commission Act 2002 (Cth)
Criminal Procedure Act 1986
New South Wales Crime Commission Act 1985

Cases Cited:

Barton v R [1980] HCA 48; (1980) 147 CLR 75
Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256
Boulos v R [2008] NSWCCA 119
Dupas v R [2010] HCA 20; (2010) 241 CLR 237
Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23
Lee and anor. v New South Wales Crime Commission [2013] HCA 39; (2013) 302 ALR 363
Lee v The Queen [2014] HCA 20; (2014) 308 ALR 252
QAAB v Australian Crime Commission [2014] FCA 747
R v CB; MP v R [2011] NSWCCA 264;
R v Edwards [2009] HCA 20; (2009) 83 ALJR 717
R v Gattellari; R v Kaminic [2013] NSWSC 1097
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v Medich (No. 1) [2014] NSWSC 1013
R v Seller; R v McCarthy [2013] NSWCCA 42; (2013) 273 FLR 155
R v Seller; R v McCarthy [2012] NSWSC 934; (2012) 269 FLR 125
R v X [2014] NSWCCA 168
X7 v Australian Crime Commission & Anor [2013] HCA 29; (2013) 248 CLR 92
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

Category:

Procedural and other rulings

Parties:

Ronald Edward Medich – Applicant/Accused
Crown - Respondent

Representation:

Counsel:
Mr N Williams SC, Ms A Francis and Mr B Mostafa - Applicant/Accused

 

Ms W Abraham QC and Ms J Davidson – Respondent/Crown

  Solicitors:
Colin Daley Quinn – Applicant/Accused Crown Solicitor for New South Wales – Crown/Respondent

File Number(s):

2010/356916

Publication restriction:

Nil

INDEX

INTRODUCTION	[1]
The Crown case	[9]
The Defence case	[11]
THE EVIDENCE IN THE PRESENT APPLICATION
The establishment of Strike Force Narrunga	[12]
Reference of the investigation to the NSW Crime Commission	[16]
The Summons issued to the applicant to attend the Commission	[17]
The applicant’s appearance before the Commission	[21]
The presence of the police at the applicant’s examination	[35]
The debrief following the applicant’s evidence	[41]
Subsequent discussions about the applicant’s evidence	[43]
The release of the transcript of the applicant’s evidence	[48]
The tasks created by Det. Fitzhenry	[50]
Access to the transcript of the applicant’s evidence by police	[59]
The search warrants obtained by Det. Howe	[60]
The knowledge of DPP lawyers of the applicant’s evidence	[65]
The Timeline document	[76]
Gattellari’s evidence before the Commission	[83]
The taking of Gattellari’s statements	[92]
The charging of the applicant	[104]
SUBMISSIONS OF THE PARTIES
Submissions of the applicant	[107]
Submissions of the Crown	[115]
Submissions of the applicant in reply	[123]
CONSIDERATION
The general principles and the applicable test	[126]
The presence of the police at the applicant’s examination	[135]
Discussions between Police	[160]
The application for Search Warrants	[162]
Gattellari’s evidence	[163]
The roles of Dets. Groves and Watson in obtaining Gattellari’s statements	[180]
Knowledge of DPP lawyers of Gattellari’s evidence and statements	[182]
The applicant’s position at trial	[184]
A temporary stay of proceedings	[185]
ORDERS	[186]

Judgment

INTRODUCTION

1. On 1 November 2013 Ronald Edward Medich (“the applicant”) pleaded not guilty to an indictment alleging the following:

1. on 3 September 2009, at Cremorne in the State of New South Wales, he did murder Michael McGurk (“the deceased”); and

2. on 8 August 2010, at Cremorne in the State of New South Wales, he did intimidate Kimberley McGurk, with the intention of causing the said Kimberley McGurk to fear physical or mental harm.

2. The applicant was due to stand trial on 25 August 2014. However, that date was vacated on 25 July 2014: R v Medich (No. 1) [2014] NSWSC 1013.

3. By notice of motion dated 18 June 2014 the applicant seeks a permanent stay of each of the counts contained in the indictment. That order is opposed by the Crown.

4. The following affidavits were read in support of the applicant’s motion:

1. Timothy William Daley sworn 18 June 2014;

2. Timothy William Daley sworn 26 June 2014; and

3. Timothy William Daley sworn 10 July 2014.

5. Mr Daley, who is the applicant’s solicitor, was not cross-examined.

6. The following affidavits were read by the Crown:

1. Gina Maree O’Rourke sworn 3 July 2014;

2. Erin Mary Derrig sworn 10 July 2014;

3. Stephanie Louise Lind affirmed 10 July 2014,

4. Georgia Campbell Rowe sworn 10 July 2014;

5. Kathleen Mary Carmody affirmed 10 July 2014;

6. Sharon Lisa Harris sworn 8 July 2014;

7. Richard Michael Howe sworn 10 July 2014;

8. Michael Raymond Sheehy sworn 10 July 2014;

9. Paul Anthony Blanch sworn 10 July 2014;

10. Stephen George King sworn 10 July 2014;

11. Mark Stephen Fitzhenry sworn 9 July 2014;

12. Timothy James O’Connor affirmed 10 July 2014;

13. Fiona Rowbotham sworn 11 July 2014

14. Christopher Francis Groves sworn 15 July 2014; and

15. Bryce Nicholas Watson sworn 15 July 2014.

7. Of those persons, the following were cross-examined:

1. Ms O’Rourke;

2. Ms Harris;

3. Ms Lind;

4. Det. Howe;

5. Det. Sheehy;

6. Det. Blanch;

7. Det. Fitzhenry;

8. Mr O’Connor;

9. Det. Groves; and

10. Det. Watson.

8. In addition Mr Pickering SC, the Deputy Director of Public Prosecutions (NSW), gave oral evidence but was not cross-examined.

The Crown case

9. Because of the bases on which the present application is brought, it is necessary to set out, in full, the Crown case statement which has been filed in the proceedings:

Death of Michael McGurk

1. At about 6.25 pm on 3 September 2009 the deceased, Michael Loch McGurk, born 26 January 1964, was shot outside his home address at 11 Cranbrook Avenue, Cremorne.

2. At the time he was shot, the deceased had just pulled up outside his home in his vehicle after picking up his 9 year old son (who was seated in the front passenger seat) from a friend’s house and collecting a takeaway meal for the family.

3. After turning the car off, leaning back to retrieve the takeaway meal from the backseat and opening the car door he was shot at close range and received a single gunshot wound to the right side of his head which was the direct cause of his death. During the autopsy a .22 projectile was removed from the deceased’s skull.

4. The deceased’s son ran into the home screaming and alerted family members who performed CPR upon the deceased and this was continued by uniformed police at 6.39 pm who had arrived at the scene. A few minutes later, at 6.43 pm, ambulance personnel arrive and also attempted to revive the deceased but it became apparent he had died.

The Parties to the Murder

5. The deceased was a 44 year old married man who was the father of four children. He was the Director of a company, Bentley Smythe Pty Ltd which was a finance company which operated from Level 9, 95-99 York Street, Sydney. He was involved in property development, short term finance lending and debt-collection. Indeed, he was the director of well over twenty other companies which were mainly linked to short term money lending or development projects.

6. Ronald Medich (‘the accused’) is a prominent property developer and businessman. During 2006/07 he developed a business relationship with the deceased and they jointly became involved in many business ventures. During late 2008 this relationship soured until early 2009 when the relationship was completely acrimonious and each instigated a number of civil actions in the Federal and Supreme Court against each other claiming they had been respectively wronged. Each party claimed the other owed him a significant amount of money. At the time of the murder most of these matters were still unresolved, ongoing and were costing each party a significant amount of money.

7. Fortunato or ‘Lucky’ Gattellari (‘Gattellari) has known the accused for many years and had a very close business relationship with him. For several years the accused invested significant amounts of money into Gattellari’s business ideas or ventures, for example the Boomerang Funeral Fund.

8. Gattellari acquired a number of companies in the electrical business trade on behalf of the accused, for example IC Light. These companies all had financial difficulties and the aim was to acquire them, build them up, activate them and then to publicly list them. All the company shares were transferred into the Riv Group owned by the accused who was the sole director and share holder of this company. Gattellari’s role was to oversee the running of these businesses on behalf of the Riv Group. Gattellari was also involved in collecting debts owed to the accused.

9. Senad Kaminic (‘Kaminic’) met Gattellari in around 2000 when Gattellari was running the Macquarie Function Centre owned by the accused. He became an associate and employee of Gattellari and from September 2008 worked fulltime for Gattellari on wages as his driver and general assistant. He also assisted Gattellari in collecting money owed to the accused.

10. Haissam Safetli (‘Safetli’) worked at a national accounting firm until May 2009. In around 2001 Kaminic met Safetli in his (Kaminic’s) capacity as a debt collector. They stayed in irregular (sic) contact and became friends. Kaminic introduced Safetli to Gattellari. He was a friend and associate of Kaminic and when initially introduced to Gattellari commenced doing surveillance and debt collecting work for him to obtain some extra money.

11. Christopher Estephan (‘Estephan’) was a nineteen year old man who met Safetli through his friendship with Safetli’s nephew, Adam Chahine in late 2008 or early 2009. During 2009 Estephan started visiting Safetli and would regularly socialise with him.

The Relationship between the deceased and the accused and the motives for the Murder:

Overview:

12. The accused met the deceased in approximately 2005 through mutual acquaintances Bob Ell and Richard Vereker.

13. Between June 2007 and June 2008, the accused and the deceased enjoyed a close business relationship. In June 2007 the accused approached the deceased to assist him in relation to a financial agreement he had entered into with Amazing Loans (“Amazing Loans”) and in October 2007, the accused and the deceased agreed to both enter into a development opportunity regarding two properties at Mowbray and Gerroa (“Mowbray/Gerroa”). In Christmas 2007, the accused recruited the deceased to assist him in finalizing a loan agreement the accused had entered into with Sally-Ann Tilley and to organise the refinance of her mortgage (“Wolseley Road”). The accused made the deceased his power of attorney in order to create all the necessary documentation required to formalize the agreement in December 2007. The accused trusted the deceased and thought highly of him.

14. By May 2008, the relationship between the accused and the deceased was beginning to sour. In a meeting between the deceased and Paul Mathieson on 29 May 2008 in Honolulu the deceased complained that he was sick of the accused. Around this time the deceased came up with the plan to make a profit (at the accused’s expense) out of (a) share deal with Paul Mathieson.

15. Between 28 May 2008 and 17 June 2008, the accused had requested that the deceased return $4.4 million he had transferred to him on 27 May 2008. On 17 June 2008, the deceased transferred $1 million back. The remaining money was not repaid. It is the Crown case that around this time, the accused became suspicious of the deceased. On 14 July 2008, the accused revoked the deceased’s Power of Attorney and on 6 August 2008, Odetta Medich also revoked the deceased’s Power of Attorney.

16. Around September/October 2008, the deceased met with Tim Alford. The deceased said he was getting annoyed with the accused and there was going to be a fight between him and the accused over outstanding matters. Between September and December 2008 the deceased’s secretary Tiffany Boys recorded a number of messages in which she stated that the accused wanted to see the deceased urgently.

17. By 16 December 2008, the accused’s solicitors sent a letter to the deceased’s solicitors requesting the reassignment of the mortgages secured over 42A Wolsely Road and on 22 December 2008, the accused’s accountants sent an email to the accused responding to a request for details of all money paid to the deceased and received from the deceased.

18.On 19 January 2009, the deceased was charged with numerous criminal offences relating to the firebombing of the Tilley residence. The accused provided $100,000 surety on bail. It is the Crown case that the accused provided the surety as a method of keeping tabs on the deceased’s movements (and protecting his interests as the mortgages were still in the deceased’s name). On 18 February 2009, when the deceased sought to find a substitute for the surety, the accused wrote to the ODPP stating that he did not agree with the replacement of the surety as he had “serious matters with McGurk which need to be dealt with” and did not agree with the deceased leaving the country.[On 20 August 2009 the ODPP following a no bill submission, withdrew these charges and the deceased was discharged.]

19. In February 2009, the relationship between the deceased and the accused had soured significantly. The deceased had demanded money owed to him under the Amazing Loans dispute and on 5 February 2009, the accused told Paul Mathieson that the deceased had conned him in relation to the Amazing Loans Deal.

20. On 6 February 2009, the deceased covertly recorded the accused during a meeting with him at Rob Hugh’s Office. The deceased maintained, quite publicly, that he possessed a recording between himself and the accused which would grossly implicate the Government in corrupt deals with the accused over the proposed development at Badgerys Creek.

21. By late February/early March the deceased met with Graham Richardson and Richard Vereker and played the tape and told them that the accused would need to sit down with his lawyers and try and settle matters otherwise the tape would be played to a court.

22. By March 2009, the relationship between the accused and the deceased was hostile. On 10 March 2009, the accused had received numerous letters of demand from the deceased’s solicitors relating to the Amazing Loans Deal/ Mowbray and Gerroa Deal and Wolsely Road Deal. On 12 March 2009, the accused gave a statement to police regarding the firebombing of the Tilley residence in which he stated that the deceased had defrauded him over multiple property transactions and he would be seeking recompense in the court. The accused gave further statements to the police attacking the credit of the deceased on 9 April 2009 and 22 April 2009. On 8 April 2009, Justice Graham dismissed an application for a freezing order filed by the accused against the deceased and ordered the accused to pay the deceased’s costs ($100,000).

23. Between March and September 2009, the relationship between the accused and the deceased continued to deteriorate. Throughout this period, the accused and the deceased were involved in a protracted litigation with each other in both the Federal Court and Supreme Court regarding the recovery of millions of dollars the accused believed was extorted from him by the deceased. By August 2009, the deceased was refusing to repay any of the money sought by the accused (approximately $7.5 million and setting aside of the Declarations of Trust dated 20 June 2008) and was seeking that the accused repay him approximately a further $12 million (and 1/3 of the accused’s Amazing Loan shares).

The major disputes between the deceased and the accused:

Amazing Loans

24. The accused met Paul Mathieson after he purchased his house at Denham Court. In February 2005, Paul Mathieson started a company called Amazing Loans Pty Ltd, which was subsequently listed on the ASX.

25. On 2 August 2006, the accused agreed to provide a loan facility of $5 million to Amazing Loans (AL) at an interest rate of 14.5%. The accused was also granted options over shares in AL. On 4 August 2006, the accused entered into a further loan facility with AL for $15 million and granted further options over shares in AL. On 20 April 2007, the accused entered into a further loan facility with AL for $5 million.

26. As at 30 June 2007, AL had drawn down $7.5 million of the total loan facility ($25 million) and later becoming $11.5 million by September 2007. Around this time, the relationship between Paul Mathieson and the accused began to sour as the accused did not agree with the way Paul Mathieson was running Amazing Loans and wanted a greater say in the company.

27. In approximately July 2007, the accused had a meeting with the deceased in his Leichhardt office to help him with the “Amazing Loans situation”. The accused complained about the way the company was being run, explained the loan facilities he had provided to Amazing Loans and showed the deceased the documentation he had signed securing the loans. Shortly after this in either July or August 2007, the deceased met with the accused in his office in Leichhardt with Tim Alford and David Gurney. The deceased told the accused that the documentation securing the $25 million facility was either not registered or out of date and only $5 million was secured.

28. In September 2007, the deceased attended the accused’s office in Leichhardt. The accused told the deceased that he wanted to get the money that he had paid to Amazing Loans to be returned. The deceased offered to assist the accused in recovering the money he had paid to Paul Mathieson and remove him from the guarantee, shares and options in Amazing Loans in exchange for “one third of all the money that is recovered”. The accused agreed on the condition that the deceased obtain a benefit for the accused of at least $14 million. The accused said he would pay the deceased from his super fund.

29. Between 19 September 2007 and 25 September 2007, the deceased pressured Paul Mathieson for the purposes of getting the accused out of the $25 million loan facility and the return of his options and shares. On 28 September 2007, AL repaid the accused $11.5 million.

30. On 8 October 2007, the accused assigned the deceased two Fixed and Floating Charges (which secured $5 million and $15 million loan facility respectively) and one Deed of Charge (which secured the final $5 million loan facility). The accused also assigned the deceased all options deeds in AL shares. Following execution of these documents, the deceased instructed Swaab Attorneys to commence legal proceedings in the Supreme Court against AL.

31. On 1 November 2007 Supreme Court Proceedings were instigated against AL by the deceased (on behalf of the accused) (File 5198/2007). On 2 November 2007, an agreement was reached between the accused and AL. This agreement was contained in a document titled “Heads of Agreement” and was signed on 6 November 2007. The significant terms of the agreement were as follows:

a. The accused would loan $15 million to Amazing Loans (Interest 10% and due in 12 months);

b. No further draw downs on the previous $25 million loan facility;

c. Options held by the accused in Amazing Loan (sic) (90 million) were cancelled upon payment to the accused of $2.7 million and a further (25.5, million options) were cancelled upon payment to the accused of $127,000. If shareholder approval for the cancellation of the accused (sic) options was not obtained by AL within 60 days, Mathieson Enterprises would acquire the options for $2.7 million and $127,000 respectively;

d. AL will purchase 28,125,000 shares currently held by the accused in AL via an on-market buy-back for $7,171,875. If an on-market buy-back cannot occur then Mathieson Enterprises would acquire the shares at 25.5 cents per shares;

e. Mathieson Enterprises will transfer 200 million shares in IEG to the accused and the deceased in whatever proportion they notify Mathieson Enterprises;

f. The accused would discontinue the SC Proceedings 5198/2007 on the basis AL pay the accused’s costs;

32. After the deceased had brokered the oral agreement with Paul Mathieson on 2 November 2007 he met with the accused in his office in Leichhardt. The deceased told the accused that his 1/3 share of the deal was $15 million ($10 million buy-back, $25 million back from the loan facility and 1/3 of the 200 million shares). According to the deceased, the accused stated that he was happy for the accused (sic) superannuation fund to advance the money.

33. On 25 February 2008, the accused transferred $3.8 million to Control Risks Pty Ltd (a company controlled by the deceased) as partial commission for the deceased’s involvement in Amazing Loans.

34. On 27 May 2008 the deceased utilized these monies and discharged two mortgages owed to Bank West by the deceased being $3,205,479 (over 11 Cranbrook Avenue, Cremorne), $362,353 (over 62-64 Edgecliff Road) and $60 000 in the bank’s legal costs that he was obligated to pay.

35. On 13 March 2008, Amazing Loans acquired all shares in IEG by issuing shares in AL to all persons holding shares in IEG. As a result, the accused acquired 300 million shares in AL.

36. In May 2008, Paul Mathieson secured a $100 million loan facility through Fortress Investments in New York. On 6 May 2008, AL had repaid the $15 million loan owed to the accused with interest.

37. On 26 May 2008, the deceased flew to Honolulu where Paul Mathieson resided. On 28 May 2008, Paul Mathieson met with the deceased in the foyer of the Moana Surfrider Hotel. During the meeting, the deceased demanded that Paul Mathieson pay $11.5 million to the accused to purchase his shares in AL. During this meeting, the deceased also told Mathieson that he was sick of the accused who was bossing him around and demanding his attendance at meetings on weekends. The relationship with the accused and the deceased was beginning to sour.

38. Over the next few weeks, Paul Mathieson remained in email contact with the deceased regarding the sale of the shares owned by the accused. Between 14 June 2008 and 17 June 2008, Paul Mathieson and the deceased formulated a scheme in which the accused would sell 310 million shares to the deceased for $3.5 million. A “new syndicate” would then purchase 210 million of those shares from the deceased for $3.5 million. The deceased would continue to hold 100 m shares in AL and enter into a pull/call (sic) agreement with the “new syndicate” to sell the shares on 31 December 2008 for approximately $8 million.

39. This deal was kept from the accused and was designed to profit the deceased $8 million. The deceased told Paul Mathieson that if he partook in this deal he would not have to pay any further amounts to the deceased and there would be no further threats directed to him. The deal never eventuated due to the failure of Odetta Medich to execute the share transfer.

40. On 20 June 2008, the deceased and the accused entered into Deed of Agreement regarding the transfer of the shares in AL from the accused to the deceased and the accused executed a share transfer. In July/August 2008, the deceased was informed that Odetta Medich had refused to sign the share transfer. The deceased arranged to meet with the accused in his office in Leichhardt and told him that Mrs Medich’s refusal to sign the document had caused $11.5 million damage (as the share price of AL had dropped significantly between 20 June 2008 and August 2008 and Paul Mathieson was refusing to enter into the deal).

41. In February 2009, the deceased met the accused at the offices of Eakin McCaffrey Cox. The deceased told the accused that it was his wife’s fault that they had lost $11.5 million and that 1/3 of the money was his. The deceased put the accused on notice that he wanted his money. On 5 February 2009, Paul Mathieson received a phone call from the accused in which he stated that he had been conned by the deceased in relation to the AL Deal. A few hours later, Paul Mathieson rang the deceased and told him about the conversation he had with the accused. This infuriated the deceased . The deceased said he was going to meet with the accused the next day and record his conversation in order “to bring him down”.

42. On 10 March 2009, solicitors representing the deceased sent a letter to solicitors representing the accused stating that as a result of the accused’s failure to execute the share transfer the deceased had suffered loss and damage. The deceased solicitor’s demanded a written undertaking that the accused would not dispose of its assets pending resolution of the dispute, pay stamp duty on the Deed of Agreement and Deed of Trust and transfer the shares.

43. On 9 May 2009, the deceased emailed Paul Mathieson requesting a copy of all correspondence between the accused and himself regarding the sale of AL shares. The deceased told Paul Mathieson to be very careful in terms of what he has and writes (sic) “unless he is getting $11.5 million from you he is in trouble”.

44. Paul Mathieson responded on 9 May 2008 stating that he had no direct correspondence with the accused except one phone call where he stated “McGurk will be fixed up!”. Paul Mathieson stated that the accused had said he had been conned by the deceased and would be seeking revenge. Paul Mathieson asks (sic) the deceased if he should go to ASIC or the Police “with everything I have on him”.

45. On 15 May 2009, Paul Mathieson flew to Auckland to attend a meeting with the accused, Tim Alford and Andrew Howard. During the meeting the accused was quite friendly and stated that he wanted to rectify the Amazing Loans dispute and assist by lending more money on the condition that Paul Mathieson supply a statement against the deceased to police in relation to his criminal charge. Throughout the meeting the accused made a number of comments about the deceased including “I’m going to fix him. Don’t worry, he won’t be a problem for much longer” and “It doesn’t matter when he gets locked up for the firebombing, either way he won’t be a problem

46. As at the date of the deceased (sic) murder the deceased was still seeking the payment of his commission for his involvement in the Amazing Loans deal (he claimed $4 million was still owing and 1/3 of the accused’s shares in Amazing Loans).

Covert Recording

47. On 6 February 2009, the deceased and the accused meet (sic) at Robert Hugh’s Office at the request of the deceased in (sic) the pretense (sic) of a desire to see if they could sort out their differences. The deceased asked the accused if he could record the conversation. The accused believed that this meant writing it down. The deceased taped the conversation without the accused’s knowledge.

48. In late February/early March the deceased played the tape to Graham Richardson and David Vereker at a meeting at a Bowling Club. Graham Richardson listened to the tape for several minutes and found it to be inaudible. The deceased told Richardson that the accused would have to sit down with his lawyers and try to settle the matters because if there was no settlement then the tape would have to be played in court and there would be tremendous embarrassment to the State Government. Richardson said "the tape is inaudible and if you want me to recommend to Medich a particular course of action then you will have to get the tape tidied up to the point where it is audible and I can discern what was being said". The deceased undertook to get the tape cleaned up.

Wolseley Road

49. The accused and Odetta Medich purchased 42A Wolseley Road, Point Piper in 2003 for $7,750,000.

50. On 13 October 2004, Ron Medich Properties entered into a Deed with Sally-Ann Tilley regarding the sale and development of 42A Wolseley Rod, Point Piper.

51. The accused sold the land for $12.5 million and provided $7.5 million in vendor finance.

52. On 8 November 2006, Sally Tilley refinanced a $6.5 million loan previously given by NAB by entering into a mortgage with Bank West for $7.5 million. The mortgage was secured over 42A Wolseley Rd, Point Piper. In December 2007 (before the accused went to Hawaii), Adam Tilley approached the accused and told him that he needed money urgently as the banks were threatening to foreclose on the mortgage he had over 42A Wolseley Rd, Point Piper. The accused agreed to provide another $8.7 million.

53. As the accused was going overseas and found dealing with the Tilleys difficult, the deceased offered to organise the transfer of funds and the mortgages. On 14 December 2007, the accused appointed the deceased Power of Attorney over matters revolving around the Tilley development agreements.

54. Between 14 December 2007 and 21 December 2007, the deceased organised the refinance of the Bank West mortgage and tidied up the previously largely undocumented arrangement between the Tilleys and the Medichs (by requiring the Tilleys to enter into two Loan Deeds, a Deed of Acknowledgment and two Deeds of Guarantee). The due date for the loans was 21 June 2008. The deceased registered two mortgages (AD663450P to secure the $7.5 million vendor finance) and (AD663451P to secure the $8,650,000).

55. On 15 May 2008, the accused assigned the Loan Deeds, Deeds of Acknowledgments, Deeds of Guarantee and mortgages over 42A Wolseley Road, Point Piper to the deceased.

56. On 21 June 2008, the Tilley Loan was due. Adam Tilley offered the “first mortgage monies to pay the original debt” to the deceased and he did not accept it. On 24 June 2008, the deceased sent a letter of demand to Sally-Ann Tilley regarding the $8,650,000 due. On the same date, the deceased registered three caveats over properties owned by the Tilleys. The loan was not repaid.

57. On 25 June 2008, the deceased signed two declarations of trust. The deceased declared that he holds (sic) the two mortgages over the Point Piper (and other security documents) on trust for the accused.

Supreme Court Proceedings

58.On 13 August 2008, the deceased (on behalf of RMP) instituted proceedings in the Supreme Court (File 51060/2008) seeking possession and sale of 42A Wolseley Road following non-repayment of the loan. On 9 October 2008, the Tilley’s (sic) filed a cross-claim and cross-summons naming the accused and the deceased as the cross-defendants maintaining that the Tilleys entered into an oral agreement with Ron Medich in June 2004 regarding the development of Wolseley Road and that the Deed entered into on 13.10.2004 was to be read subject to this agreement. The deceased told his solicitor Mark Johnson that there was a document in existence which corroborated this defence and that he could give evidence of this communication between the Tilleys and the accused.

59. On 16 December 2008, a letter was sent from the accused’s solicitor to the deceased’s solicitors requesting the re-assignment of mortgages secured over 42A Wolseley Road back to the accused. On 17 March 2009, RMP filed a cross-summons against the deceased seeking a declaration that he holds the mortgages AD663450P and AD663451P on trust for the accused and Odetta Medich, orders that the trust property be conveyed and orders that equitable compensation and interest be paid. The deceased did not transfer the property.

60. On 8 April 2009, solicitors for the deceased sent a letter to solicitors for the accused requesting that RMP pay all of the deceased’s costs incurred to date in the Tilley/Linkshore Proceedings, to pay stamp duty on the Declarations of Trust and to pay the deceased’s costs of taking advice in relation to the procedural steps of being removed as a plaintiff from the Tilley proceedings. On 8 May 2009, the deceased filed a Second Cross-Claim against RMP seeking costs for acting in the proceedings and stamp duty on the first and second trust deed.

61. On 13 July 2009, a letter was sent from solicitors for the deceased (to) solicitors for the accused demanding payment of $153,487.63 as money owed to the deceased for “Indemnities under Declarations of Trust”. On 16 July 2009, a letter was sent from Clayton Utz to Holman Webb enclosing the cheques as requested.

62. On 22 July 2009, Consent Orders were signed by the accused and the deceased. The accused agreed to indemnify the deceased for any costs, stamp duty etc which had arisen by reason of the proper conduct of the deceased in relation to the “First Trust” ($7.5 million loan) and “Second Trust” ($8.65 million loan) and remove the deceased as a plaintiff in the proceedings. The deceased agreed to transfer the mortgages back.

63. On 10 August 2009, solicitors for the deceased sent the accused’s solicitors a bill for $70,228.45 in costs. This figure was disputed between the parties. On 10 December 2009, the accused compromised and paid $68,370 in costs (to the then estate of the deceased).

Mowbray/Gerroa

64. In early October 2007, the deceased approached the accused in relation to two properties which he believed could be purchased cheaply and developed for a substantial profit. The first property was located at Lot 25, Captain Cook Highway, Mowbray (herein after called the “Mowbray Property”) and the second property was located at 16 Crooker River Road, Gerroa (herein after called the “Gerroa Property”).

65. The deceased and the accused entered into an oral agreement for RMP to purchase both the Mowbray Property and the Gerroa Property. It was agreed that the deceased would arrange for the purchases and receive a benefit for assisting in the purchase.

66. Between 4 October 2007 and 19 December 2007 the deceased requested that the accused transfer $6,030,000 to companies controlled by him for the purpose of purchasing the Mowbray and Gerroa Properties. On 4 October 2007, the accused transferred $138,000; on 11 October 2007 the accused transferred $1,842,000 and on 13 December 2007 the accused transferred $4,050,000.

67. On 30 November 2007, the HSBC mortgage and Freestyle Lending Mortgage secured over the Mowbray Property was transferred to Acett Pty Ltd (a company controlled by the deceased) for $1,678,717. On 21 December 2007, RMP purchased the Mowbray Property from Acett Pty Ltd (a company controlled by the deceased) for $1,420,000. On 20 December 2007, the Gerroa Property was purchased for $2,190,000.

68. On 25 June 2008, the deceased met with the accused and Odetta Medich and asked them to sign two documents relating to the Gerroa and Mowbray Properties. As a result, RMP entered into two Deeds of Trust with Kimberly McGurk. The agreement stated that the accused would hold 50% of both the Gerroa Property and Mowbray Property on trust for Kimberley McGurk. A term of the trust was that the agreement was confidential.

69. The accused states that the deceased showed him the last page of the two documents he was holding and the accused signed the final page. The accused maintains he did not read the remaining pages. The accused states that the deceased misrepresented the Deed of Trust to state that the deceased is entitled to 50% of net profits arising from the development of the properties after all monies outlined have been returned and interest deducted and that if there is a loss, he would be liable to 50% of the loss. The accused said he executed the document as he still trusted the deceased at this stage.

70. On 10 March 2009 Clarke Kann Lawyers (representing Kimberley McGurk) sent a letter of demand seeking that the accused transfer her half-share of the interest in both the Mowbray and Gerroa Properties to Kimberley McGurk by 13 March 2009 and pay stamp duty on the Deeds of Trust. The accused did not transfer the property. On 16 March 2009, Kimberley McGurk lodged a caveat over the Mowbray Property.

Transfer of $4.4 million

71. On 22 May 2008, the accused transferred $4.4 million to Bentley Smythe (a company controlled by the deceased) at the request of the deceased for a supposed financial deal with security over a property in Manly.

72. The accused requested that the money be returned and on 17 June 2008, $1 million was transferred back to the accused from the Bentley Smythe. The remaining $3.4 million has never been returned to the accused as the deceased maintained the monies comprised part of what the accused owed him pursuant to the Amazing Loan deal.

Federal Court Proceedings (NSD 224/2009)

73. On 18 March 2009, RMP instigated Federal Court proceedings against the deceased, Kimberley McGurk and companies controlled by the deceased. RMP sought (and was granted) a Freezing Order over the deceased (and his companies) assets in the sum of $5,631,255.32. RMP sought orders that:

1) Bentley Smythe pay RMP $3.4 million (to account for the difference between the $4.4 million transferred on 22/5/2008 and $1 million returned on 17/6/2008);

2) Control Risks or Acett Pty Ltd pay $2,231,255 to RMP (to account for the difference between what the accused transferred over for the Mowbray and Gerroa Properties and what they actually cost);

3) In the alternative, the deceased personally pay $5,631,255 ($3.4 million plus $2,231,255);

4) Declaration that 11 Cranbrook Avenue be charged in favour of RMP;

5) Damages, Interest and Costs.

74. On 27 March 2009, RMP v Bentley Smythe (NSD 224/2009) was listed before Justice Graham at the Federal Court and leave was granted to file the Affidavit of the deceased (sworn 25/3/2009). The affidavit states that RMP is indebted to him for $8.3 million for the Amazing Loans deal ($7.2 million has already been repaid); that RMP is liable to pay costs incurred by the deceased as trustee in relation to the Point Piper Property and claiming costs in relation to the Supreme Court Proceedings (relating to the Wolseley Road dispute).

75. On 8 April 2009, RMP v Bentley Smythe 2009 FCA 335 was listed before Justice Graham at the Federal Court. Justice Graham dismissed the interlocutory process filed by RMP and ordered RMP to pay the deceased’s costs. Costs were assessed at $100,640.05. In his judgement, Justice Graham stated that when the initial freezing order was granted by Jacobson J on 18.3.09 there was material non-disclosure by the accused ‘notwithstanding that in an affidavit sworn by Ronald Medich, a director of each of the plaintiffs, on 25 March 2009 he denied that he failed to disclose anything that was materially relevant to the matter.’

76. On 21 June 2009, Kimberely McGurk filed a First Cross-Claim against the accused seeking a declaration that RMP holds 50% of the Gerroa Property and Mowbray Property on trust for her.

77. On 25 August 2009, the deceased filed a Second Cross-Claim against RMP seeking $1,420,000 (Mowbray) ; Damages, costs and interest; Declaration that RMP is liable to indemnify the deceased against any amounts the deceased is obliged to pay in tax. The deceased asserted that he was due $11,666,292 pursuant to the AL deal plus 1/3 of the 300 million AL shares held by the accused. The deceased stated that RMP had already repaid $7.55 million ($3.4 million transferred to Bentley Smythe and $3.8 million transferred on 25 February 2008 and $350,000 50% interest in a boat owned by RMP).

78. As at the date of the murder, the accused was seeking the repayment of at least $7.6 million from the deceased and companies controlled by the deceased ($3.4m from Bentley Smythe, $2.231m by Control Risks Pty Ltd, $1,420 000 by Acett Pty Ltd) and an order setting aside the Declarations of Trust dated 20 June 2008 in which 50% of both Gerroa and Mowbray properties were held by the accused in trust for Kimberley McGurk, equitable compensation for breach of fiduciary duty by the deceased; damages, interest and costs. The accused was incurring substantial legal costs in pursuit of these matters and was required to pay the costs of the deceased in Federal and Supreme Court proceedings.

79. The accused also faced the two cross-claims filed by the deceased and Kimberley McGurk seeking payment by the accused of at least $12 million (with a claim that any money sought by the accused be set-off against this.)

Chronology of all disputes:

Date	Event	Reference
26/3/03	OM and the accused purchase 42A Wolseley Rd, Point Piper	Commercial List Cross-Claim Statement Paragraph [10] (55 Volume 5E)
June 04	Oral agreement entered into between Tilleys and the accused re Wolseley Road. $12.5 million purchase price and the accused provides $7.5 million vendor finance.	Commercial List Cross-Claim Statement Paragraph [14] (55 Volume 5E)
13.4.04	Deed entered into between Sally-Ann Tilley and RMP re: Wolsely Road and settlement occurs	Deed (88)
02.05	Paul Mathieson founded Amazing Loans	Statement of Paul Mathieson 26/2/2010 Paragraph [4]
31/3/06	The accused, Adam Tilley and Damien Reed enter into a Wolsely Rd Partnership for future development.	Deed
8/11/06	Sally-Ann Tilley refinances NAB loan to Bankwest for $7.5m	Commercial List Cross-Claim Statement Paragraph [43]
2/8/06	The accused provides Amazing Loans with $5 million loan facility. AL grants the accused options over shares in AL	Statement of Paul Mathieson dated 26/2/2010 Paragraph [6]
31/8/06	The accused provides Amazing Loans with $15 million loan facility. AL grants the accused further options over AL	Statement of Paul Mathieson dated 26/2/2010 Paragraph [7]
20/4/07	The accused provides Amazing Loans with $5 million loan facility. AL grants the accused further options over AL	Statement of Paul Mathieson dated 26/2/2010 Paragraph [7].
07/07	The accused enlists the deceased to assist him deal with AL.	Affidavit of Michael McGurk dated 25/3/2010 Paragraph [10]
09/07	The deceased agrees to assist the accused get out of the loan facility, remove him for the shares, options and guarantee in exchange for 1/3 of all money obtained over $14 million	Affidavit of Michael McGurk dated 25/3/2010 Paragraph [18]
19/9/07	The deceased sends letter to the accused titled “Terms of Engagement” confirming his services.
25/9/07	Paul Mathieson sends email to the accused stating that he cannot believe he would send Mike around to threaten him.	Email from PM to the accused(Email File “Amazing Deal”)
28/9/07	AL repays RMP $11.5 million.	Defence to Second Cross-Claim Paragraph [54]
10/07	The deceased approached the accused in relation to two development opportunities in Mowbray and Gerroa. The accused and the deceased reach an oral agreement.	Affidavit of Ron Medich 18/3/2009 Paragraph [8]; Letter from Clayton Utz to Clarke Kann Laywers (sic)
4/10/07	The deceased sent a letter to the accused referring to a “discussion yesterday” and confirming he would acquire the mortgages over Mowbray.	Letter from the deceased to the accused
4/10/07	The accused transfers $138,000 to the deceased at his request for Mowbray/Gerroa Development	Affidavit of the accused dated 18/3/2009 Paragraph [11]; Cheque Account Statement Captain Cook Trust Account.
11/10/07	The accused transfers $1,842,000 to Krugdem Pty Ltd at the deceased request for Mowbray/Gerroa Development	Affidavit of the accused dated 18/3/2009 Paragraph [13]; Cheque Account Captain Cook Trust Account.
8/10/07	The accused assigns to the deceased all loan documents (for the $25 million loan facility to Amazing Loans)	Deed of Assignment
11/10/07	The accused assigns to the deceased all options over shares in AL	Call Option Deed
12/10/07	The accused grants the deceased a further call option to purchase 100m shares in AL for $8.8 million with consideration for exercising the call option as $1.	Call Option Deed
1/11/07	Supreme Court Proceedings for AL Dispute first mention date. Adjourned to 6/11/07 on basis AL provided undertaking pay all money,	Email from Terry Sperber to the accused and the deceased.
2/11/07	Agreement reached between Paul Mathieson and the deceased re AL dispute. The deceased tells the accused entitled to 1/3 being $15 million.	Email from the deceased to Paul Mathieson ; Affidavit of the deceased dated 25/3/2009 Paragraph [32]
6/11/07	Mathieson Heads of Agreement entered into.	Heads of Agreement
16/11/07	Mathieson Heads of Agreement varied	Deed of Variation to Heads of Agreement (1); Deed of Variation to Heads of Agreement (2).
30/11/07	HSCB Mortgage and Freestyle Mortgage secured over Mowbray Property transferred to Acett Pty Ltd	Transfer
13/12/07	The accused transfers $4,050,000 to Control Risks Pty Ltd at the request of the deceased re Mowbray/Gerroa development.	Affidavit of the accused dated 18/3/2009 Paragraph [18]; Citi Smith Barney Statement from RMP Superannuation Fund
12/07	The accused agrees to loan Adam Tilley $8.7 million	Affidavit of the accused dated 18/3/2009 Paragraph [10];
14/12/07	The deceased offers to organise the mortgages and tidy up financial documents. The accuseds (sic) appoints the deceased Power of Attorney (operative until 13/12/07)	Commercial Cross-Claim Statement Paragraph [56]-[58]
20/12/07	Purchase of Gerroa Property completed. Purchase price is $2,190,000.	Contract for Sale for Gerroa
20/12/07	The accused deposits $713,810.49 into CRI Suncorp Account with note “Part Payment of Tilley Loan”	Email from Adam Phillips to the accused dated 22/12/2008
21/12/07	Purchase for Mowbray completed. Purchase price is $1,420,000. The vendor is Acett Pty Ltd.	Letter from Hickey Lawyers to the accused dated 3/01/2008 (1906)
21/12/07	The accused deposits $7,936,188.89 into CRI Suncorp Account with note “Part Payment of Tilley Loan”	Email from Adam Phillips to the accused dated 22/12/2008
21/12/07	Mortgage AD663450P executed between Sally-Ann Tilley and the accused/OM as mortgagor to secure $7.5 million vendor finance	Copy of mortgage (
21/12/07	Mortgage AD663451P executed between Sally-Ann Tilley and the accused/OM as mortgagor to secure $8,650,000 loan.	Statement of Mark Johnson (attaching letter dated 7/12/2009) Paragraph [8]
21/12/07	The accused /OM (signed by the deceased as Power of Attorney) and Sally-Ann Tilley enter into a Loan Deed, two Deeds of Guarantee, Deed of Acknowledgment re: loans over 42A Wolseley Rd	Statement of Mark Johnson (attaching letter dated 7/12/2009) Paragraph [8]
25/2/08	RMP transfers $3.8 million to Control Risks Pty Ltd	Funds Transfer Application ; RMP Cheque Account Statement; Control Risks International Ltd Statement
19/3/08	The accused gives Power of Attorney to the deceased.
31/3/08	Amazing Loans acquired all shares in IEG by issuing shares in AL to all persons in IEG. RMP acquires 300m shares in AL	Second Cross-Claim filed on behalf of the deceased Paragraph [22]
6/5/08	Paul Mathieson repays $15 million loan to RMP with interest.	Second Cross-Claim filed on behalf of the deceased Paragraph [27]
15/5/08	The accused assigned the deceased (1) Deed of Loan, Mortgage and Guarantee relating to $7.5 million vendor finance (2) Deed of Loan, Mortgage and guarantee relating to $8,650,000 (3) Deed of Acknowledgment.	Amended Commercial List Statement Paragraph [10]; Deed of Assignment Commercial List Cross-Claim Statement Paragraph [76]
21/5/08	The accused transferred $4.4 million to the deceased.	CBA Funds Transfer Application; Cheque Account Statement RMP.
25/5/08	The accused has conversation with the deceased requesting return of the $4.4 million.	Affidavit of the accused dated 18/3/2009 Paragraph [34]
27/5/08	The deceased discharges two mortgages with Bank West ($3,204,479.81; $362,563.35; $60,000”)	Control Risks Suncorp Bank Statement
29/5/08	Paul Mathieson and the deceased meet in Honolulu. The deceased demands Paul Mathieson pay $11.5 m to the accused for the AL shares.	Statement of Paul Mathieson dated 26/2/2010 Paragraph [21]
14/6/08	Paul Mathieson emails the deceased regarding a “deal” of how to sell the shares and make a profit to the deceased .	Email from Paul Mathieson to the deceased
17/6/08	Paul Mathieson emails the deceased telling him to keep the deal confidential and not to tell the accused	Email from Paul Mathieson to the deceased
17/6/08	The deceased transfers back $1million to RMP	Cheuqe (sic) Account Statement RMP (Captain Cook Trust Account
20/6/08	The deceased and the accused enter into a Deed of Agreement regarding the transfer of shares held by the accused in AL to the deceased.	Deed of Agreement
20/6/08	RMP executes the share transfer	Second Cross-Claim filed by RMP Paragraph [48]
20/6/08	Tilley Loan is due and not repaid. Adam Tilley offered the deceased the first mortgage money to pay the original debt but the deceased does not accept.	Statement of Adam Tilley dated 20/11/2008 Paragraph [8]
24/6/08	The deceased sends written letter of demand to Sally-Ann Tilley for $8,650,000	Notice of Demand; Amended Commercial List Statement Paragraph [19]
25/6/08	RMP enters into two Deeds of Trust with Kimberely McGurk re the Mowbray and Gerroa Properties (RMP holds 50% both properties on trust for Kimberely McGurk)	Deed of Trust Gerroa Deed of Trust Mowbray
Approx 27/6/08	The deceased lodges caveats over any real property in which the Tilley’s have an interest.	Affidavit of the deceased dated 25/8/2008 Paragraph [22]
Around 7/7/2008	Odetta Medich refuses to sign the transfer of shares from RMP to the deceased.	Affidavit of the deceased dated 25/3/2009 Paragraph [58]
14/7/08	RMP revokes the deceased’s Power of Attorney	Revocation of Power of Attorney
July/Aug 2008	The deceased has meeting in the accused’s office and tells him that the refusal of his wife to sign transfer has caused $11.5 million in damages.	Affidavit of the deceased dated 25/3/2009 Paragraph [61]
August 2008	The deceased and RMP that agree that the deceased would acquire 50% interest in a boat owned by RMP called the Flying Pegasus	Second Cross-Claim filed by the deceased Paragraph [33]
6/8/2008	Odetta Medich revokes the deceaed’s (sic) Power of Attorney	Revocation of Power of Attorney
8/8/2008	The deceased sent a letter of demand to Tilley for $9 million. The money was not received.	Amended Commercial List Statement Paragraph [23]; Affidavit of the deceased 25/8/2009 Paragraph [20]
13/08/08	The deceased (on behalf of RMP) institutes proceedings in the Supreme Court regarding the Tilley Loan	Commercial List Cross-Claim Statement Paragraph [85]
9/10/08	The Tilley’s file a cross-claim and cross-summons naming the accused and the deceased as cross-accuseds (sic).	Cross-Claim Statement (55) Cross-Summons
7/11/08	The Supreme Court matter is listed before Bergin J, Bergin J orders the caveat over the Tilley properties be extended until further order of the court.
Nov-Dec	The deceased meets with Tim Alford at York Street café. Tim Alford tells the deceased that the accused is not going to pay him a fee for pursuing the Tilley debts. The deceased says “we’ll see about that”	Statement of Tim Alford dated 2/4/2009 Paragraph [15]
20/11/08	Tilley residence is firebombed	Statement of Adam Tilley dated 20/11/2008
16/12/08	Letter is sent from the accused’s solicitors to the deceased requesting re-assignment of Wolesely (sic) Road mortgages
22/12/08	Email sent from Adam Phillips of PF Fisher & Co to the accused regarding his inquiry about all money given to, and received from the deceased.	Email from Adam Philips to the accused
19/01/09	The deceased is charged with the Tilley firebombing (3 counts of damage property by fire, 2 counts of common assault and one account of AOABH)	Statement of Detective Senior Constable Heatherington
20/1/09	The accused provided the deceased with $100,000 surety on bail	Bail undertaking by the accused for surety
Late January 2009	Linkshore, Fernsha and Adam Tilley commenced urgent proceedings in the Supreme Court for the removal of a caveat lodged over property at 62-64 NSW Head Road, Edgecliff.	Letter from Mark Johnson to Clayton Utz dated 13/7/2009
Early February 09	The deceased meets the accused at offices of Eakin McCaffrey Cox. The deceased says it is his (the accused’s) fault his wife lost $11.5. The deceased makes demand for his share of that money.	Affidavit of the deceased dated 25/3/2009 Paragraph [65]
3/02/09	Justice Bergin made orders (in respect of Linkshore Proceedings) making orders in accordance with short minutes of orders.	Letter from Mark Johnson to Clayton Utz dated 13/7/2009
5/02/09	Paul Mathieson receives phone call from the accused re: being conned by the deceased in regards to AL. Paul Mathieson rings the deceased. The deceased is furious.	Statement of Paul Mathieson dated 26/2/2010 Paragraph [30]
6/02/09	Covert recording of conversation between the deceased and the accused in Rob Hugh’s Office
6/02/09	Justice Bergin (Linkshore Proceedings) made orders that plaintiffs pay costs of the deceased.	Letter from Mark Johnson to Clayton Utz dated 13/7/2009
18/2/09	The accused writes to DPP stating he does not agree with the deceased finding a substitute surety	Letter from the accused to ODPP
18/02/09	The accused and the deceased file separate defences to the Cross-Claim filed by the Tilleys in the Supreme Court.	Defence to Cross-Claim (158 Volume 5E); Cross-Claim Response by the deceased.
3-6 March 2009	The deceased meets with Graham Richardson and Richie Vereker and plays them the covert recording	Statement of Graham Richardson dated 3/5/2009 Paragraph [5]
10/03/09	Letter of demand sent from the deceased’s solicitors to the accused’s solicitors re: demanding transfer of shares in AL, payment of stamp duty	Letter of Demand
10/03/09	Letter of demand sent from Kimberely McGurk solicitors to the accused’s solicitors demanding transfer of her 50% interest in both Mowbray and Gerroa (and payment stamp duty)	Letter of Demand
12/03/09	The accused gives a statement to Police about Tilley firebombing implicating the deceased and stating the 3.8million was his commission for his involvement in AL.	Statement of the accused dated 12/3/2009.
16/3/09	Kimberely McGurk lodges a caveat over Mowbray Property	Historical Title Search for Mowbray ; First Cross-Claim Paragraph [6]
16/03/09	Letter of demand sent from the deceased’s solicitors to the accused’s solicitors requesting indemnity payments for costs incurred during Tilley proceedings. Request $1.5 million. Also demands Stamp Duty be paid ($3 million)	Letter of Demand
17/3/09	RMP lodges a cross-summons against the deceased in the Supreme Court Proceedings seeking re-transfer of the mortgages/loan documents relating to Wolseley Road.	Cross- Summons
18/3/09	RMP commences proceedings in the Federal Court (NSD 224/2009) against (1) Bentley Smythe (2) Control Risks (3) Acett Pty Ltd (4) the deceased (5) Kimberly McGurk. RMP seeks interlocutory freezing orders over the deceased assets (up to $5 million) and commences an Originating Process.	Interlocutory Process; Originating Process filed in the Federal Court
18/03/09	Justice Jacobson makes an ex parte “Freezing Order”	Freezing Order
24/3/09	RMP v Bentley Smythe (NSD 224/2009) listed before Justice Graham at Federal Court.	Transcript of Federal Court Proceedings
26/03/09	RMP v Bentley Smythe (NSD 224/2009) listed before Justice Graham at Federal Court. By consent the freezing order is set aside.	Federal Court Orders
8/04/09	RMP v Bentley Smythe (NSD 224/2009) listed before Justice Graham at Federal Court. Graham dismisses the interlocutory process filed by RMP and orders that RMP pay costs.	RMP v Bentley Smythe [2009] FCA 335
8/4/2009	A letter of demand is sent from the deceased’s solicitors to the accused’s solicitors re: indemnity costs for Tilley/Linkshore Supreme Court Proceedings and removal of caveat as ordered by court (over Edgecliffe Property)	Letter of Demand
9/4/2009	The accused makes a second police statement about the deceased and the Tilley firebombing	Statement of the accused 9/4/2009
22/4/09	The accused makes a third police statement about the deceased and the Tilley firebombing	Statement of the accused dated 22/4/2009
8/5/2009	The deceased files a Second Cross-Claim response in the Supreme Court	Second Cross-Claim Response of Cross-Defendant
9/5/2009	The deceased emails PM asking for copy of all correspondence between him and the accused regarding sale of AL shares.	Email from PM to the deceased
9/5/2008	PM emails the deceased telling him there has been no correspondence except one phone call where the accused said “McGurk will be fixed up” and that he had been conned by the deceased and was seeking revenge.	Email from PM to the deceased
15/5/09	PM travels to Auckland and meets with the accused, Tim Alford and Andrew Howard. The accused asks about PM supplying a statement against the deceased.	Statement of Paul Mathieson dated 26/2/2010 Paragraph [43] DIAC records
21/5/09	The deceased files a Notice of Motion in Federal Court seeking security for the costs of Bentley Smythe, Control Risks, Acett, the deceased and Kimberly McGurk	Notice of Motion
21/6/09	Kimberly McGurk files first Cross-Claim against RMP seeking a declaration of a 50% interest in the Mowbray and Gerroa Properties.	First Cross Claim
22/6/09	The deceased lodges a Bill of Costs in relation to the 8/4/2009 judgment of $100,000.	Bill of Costs
13/7/09	Letter sent from solicitors for the deceased to solicitors the accused regarding amount owed by the deceased for indemnities under Tilley Trust. Requests $153,487.63	Letter from Holmann (sic) Webb to Clayton Utz
16/7/09	A letter is sent from the accused solicitors to the deceased’s solicitors enclosing a cheque for $153,487.96	Letter from Clayton Utz to Holmann (sic) Webb
22/7/09	Consent orders are signed by the accused and the deceased in relation to Tilley dispute.	Consent Orders
10/08/09	Solicitors for the deceased send the accused’s solicitors a bill for the deceased’s legal costs amounting to $70,228.45 and requesting immediate payment	Letter from Mark Johnson to Clayton Utz
20/08/09	ODPP withdrew criminal charges against the deceased and he was discharged.
25/8/09	A Second Cross-Claim is filed in the Federal Court Proceedings by the deceased (First Cross-Claimant) and Kimberly McGurk (Second-Cross-Claimant) demanding money owed under AL deal.	Cross-Claim by the deceased and Kimberly McGurk
1/09/09	Solicitors for the accused send email to solicitor for the deceased stating ‘I do not expect Tilley will turn up on Friday although I have been informed that the Tilley’s are now being assisted by the deceased”.	Email from Clayton Utz to Holmann (sic) Webb
2/09/09	Email sent from solicitors for the deceased to the accused’s solicitors stating they have been misinformed about the deceased assisting the Tilleys	Email from Mark Johnson to Clayton Utz
3/09/09	File note taken by Summer Dow re: conversation with Adam Tilley in which he said he didn’t want to consent to the notice of discontinuance as the deceased told him not to. Wants to put the accused to further trouble and difficulty”.	File note Mark Johnson 30.11.10 at 43 re telephone call with the deceased.
4/09/09	File note taken by Summer Down re conversation with Adam Tilley in which he asked if the deceased ‘ever did that statement’. Summer Dow states ‘I don’t think so’ and Tilley replied ‘Fuck’.	File note:

80. It is the Crown case that the accumulative effect of these disputes, the cost, his losses in court, the damage to his reputation and embarrassment the accused felt from how he was being treated by the deceased led to the irretrievable breakdown of their friendship and business relationship and a strong desire within the accused to have the deceased permanently removed from his life. The accused increasingly began to express this desire to Gattellari for the deceased to be killed during the early part of 2009.

The Relationship between the accused and Lucky Gattellari

81. The accused has known Gattellari for many years and over those years they developed a close business and personal relationship. Both men were raised in the same area of Sydney and their families were socially involved with each other.

82. In the early 1990’s Gattellari leased the Macquarie Function Centre in Liverpool from the accused and his brother Roy who had acquired it some time earlier. Gattellari leased the Centre for about 5 years and during that time became closer to the accused who was quite financially supportive to Gattellari in the running of the business.

83. Gattellari, then operated the Ealing Forest Winery for a period of 3-4 years. The accused provided Gattellari approximately $300 000 during this period to assist in the operation and expansion of the winery. The money loaned to Gattellari was never documented and was never repaid.

84. In about 2005 Gattellari approached the accused with a business idea relating to the purchase and development of Aboriginal owned land. The proposal was to jointly deal with the Aboriginal Land Councils who would supply the land and the accused would then provide the funds for property development on the said land. The accused was keen to be involved and together they approached several Aboriginal Land Councils with their proposal to develop prime land either as a joint venture or to buy it outright. The accused provided several hundred thousands of dollars as ‘incentives’ or hand outs to members of the respective Councils but no land was ever purchased nor developed.

85. During this time Gattellari also approached the accused with another business proposal involving Aboriginal people, that is, a funeral fund specifically designed for Aboriginal people. The concept involved signed ‘members’ paying $5 per week and when they died the funeral fund would pay up to $5000 for their funeral expenses. The accused was receptive to the proposal and they set up a registered company called the ‘Boomerang Funeral Fund’. Gattellari held approximately 10-20% of the shares in the company whereas the accused and Paul Mathieson held the remaining shares. Gattellari operated the business (and was assisted by Ron Mason selling the idea to different land councils, whom he had met in approximately 2005 when dealing with the Wagonga Aboriginal Land Council) the business, however, was not successful despite the accused investing approximately $800 000 into the business.

86. In 2008 Gattellari was approached by business associates to become involved with an electrical company called Rivercorp which was in financial stress. Gattellari then injected $400 000 into the company.

87. During July 2008 Kim Shipley, an accountant, was requested to conduct an assessment of the company’s financial position as the accused, via Gattellari, had provided further funding and was seeking a financial direction. Shipley recommended the company be placed into administration. Soon after the accused advanced a further $5 million into Rivercorp to seek to place the business on a sound financial footing and allow it to move forward and expand. As at September 2008 the company was placed into administration and a deed of company arrangement was entered into.

88. As part of the arrangement, Gattellari’s family company, ‘Riv Developments’ became the parent company to Rivercorp and then later to a number of other companies which were loaned money and then acquired when the loan was not repaid. These companies included Global Power, trading as IC Light [previously owned by Jim Emirian, Sancho Kalcev and Tony Hott] who borrowed $600 000 off Gattellari in March 2009 but were unable to repay and Gattellari took over control and the shares of the company in May 2009 into Riv Developments and subsequently to Riv Group. Shipley then became the CEO of the company but under the Riv Group and reported to both the accused and Gattellari. Other companies that were loaned money and then taken over when they could not repay the loan included Interpole (sic) (in Brisbane), ANS Electrical and others.

89. The accused’s, Shipley’s and Gattellari’s aim was to take over various electrical companies to form a conglomerate with the view to set up a back door or public float. All the companies were in financial stress but had considerable receivables and required a loan of monies to keep afloat. The goal was to lend them money and if they defaulted on the flat rate (generally, $50 000 to borrow $300 000 within 1-2 months) they were taken over and absorbed into the Riv Group company in which the accused was the sole director and share holder.

90. The accused solely funded the venture using his accounts from the Captain Cook Trust and Ron Medich Properties. When the accused advanced funding to these companies he would do so through his own family trust company, Riv Group, (which came to be the parent company of the electrical companies) however, the money would be transferred first into Riv Developments and then distributed to the various subsidiary companies. Shipley would regularly advise the accused as to the status of the companies.

91.The companies were constantly in financial difficulties. During 2009 and 2010 the companies were not obtaining the contracts that they expected to obtain [even when they were the lowest tender], their reputation was poor and they repeatedly had problems in meeting payroll obligations. On many occasions they turned to the accused to provide the funds necessary to meet their obligations and considerable expenses, for example on 14 December 2009 Gattellari and Shipley were seeking $500 000 cash from the accused to pay for stock and materials.

92. At one time the accused provided Gattellari with a large amount of cash money [approximately $200 000] to cover payroll and other expenses At around the time of their arrests the accused and Gattellari were attempting to ‘take over’ a company ‘AAK’ in Hong Kong which was already publically listed and then ‘get all the others in through the back door’. Upon being publicly listed the accused and Gattellari expected to receive a substantial financial reward.

93. The take-over of AAK never eventuated and upon their arrests in October 2010 the accused had invested well over $14 million into this venture.

94. The accused also used Gattellari to organize and at times personally participate in collecting debts owed to the accused. Gattellari requested Mathew Crockett , Senad Kaminic, Haissam Safetli and others to approach individuals (including Will Manning, Tim Alford) who had not repaid their loans to the accused and intimidate them into making their repayments.

95. The accused did not pay Gattellari directly for the debt collection jobs but rather it was understood that Gattellari would use money either received from the accused generally or draw money from the electrical companies to pay the people who completed the ‘jobs’.

96. It was also understood between Gattellari and the accused that Gattellari would provide the accused cash or ‘slush fund’ payments when requested (near weekly) for the accused to spend on ‘his personal habits including girls, restaurants and horse racing’. This allowed the accused to avoid detection of these expenses from for example, his wife.

97. These payments were not regarded as interest or capital repayments on the vast amount of monies the accused was injecting into the electrical companies [LG 21.7.11 at 21] but were recorded in ledgers created by Gattellari and initially created to appear as if the monies were repayments.]One ledger commences on 28 March 2009 with a recorded cash payment of $6000 and the last recorded entry is 10 November 2009 with a recorded cash payment of $5000 [small 2009 diary] and another [in 2010 diary] refers to cash payments from 22.12.09 until 7 February 2010.

The Genesis of the Contract to kill Michael McGurk:

Surveillance commenced on the deceased:

98. Sometime around March 2009 Safetli and his brother Bassam were employed at various times to conduct debt collection ‘duties’ for Gattellari.

99. At some point whilst debt collecting for Gattellari on behalf of the accused (Tim Alford), Bassam Safetli indicated to Gattellari that they were prepared to go further than just intimidate a person and stated ‘ if you want anyone taken care of it won’t (sic) be a problem’.

100. At around this time the accused and the deceased’s relationship had completely broken down and he constantly reiterated to Gattellari his hatred of the deceased and how he was ruining his life. On one occasion around this time, the accused told Gattellari that he wanted the deceased followed to find out everything they could about him.

101. Consequently, Gattellari spoke to Kaminic who suggested Haissam and Bassam Safetli conduct the surveillance. Kaminic arranged for Gattellari to meet Haissam Safetli and his brother. At the meeting Gattellari asked them to carry out some surveillance on the deceased and supplied them with information relating to the deceased’s name, home address and business address. Gattellari told Safetli he wanted him to follow the deceased and find out everything he could about him.

102. Safetli then attended the deceased’s home address and his business address in the city. Safetli also recruited several other associates, for example, his brother Bassam Safetli and Krystal Weir to also conduct surveillance upon the deceased.

103. Safetli’s brother, during the course of the surveillance, also took photographs of the deceased (and downloaded them onto a CD) and provided them to Kaminic to pass onto Gattellari stating there are photographs on here ‘that Ron will be happy with this’. Information obtained during the surveillance was continually relayed from Safetli, to Kaminic to Gattellari to Medich who printed them out.

The Contract to kill the deceased:

104. About two weeks later (towards the end of March/early April) Gattellari had a meeting with the accused at his office where they discussed the deceased and the ongoing disputes between them. Kaminic attended Leichhardt with Gattellari but was seated outside the office reception area.[para 53 Kaminic 30.11.10] Medich informed Gattellari: ‘I need to put an end to this. I need some help from you, I need you to find someone to kill him for me.’ Gattellari replied, ‘are you sure about this, because there is no going back’ and the accused stated, ‘yes, I am absolutely sure, if you can find someone I want him dead.’

105. At the conclusion of the meeting, and once they were in the car leaving Leichhardt, Gattellari told Kaminic to send a message to Safetli to come to a meeting and stated that ‘it looks like Ron wants to go all the way.’ Kaminic asked him what was going on and Gattellari replied ‘I don’t know but it looks (like) he wants him finished off.’

106. The accused repeated this request to Gattellari a couple of days later, in fact asking him whether he had found anyone to ‘do that job?’ Gattellari then discussed with Kaminic about approaching Safetli to ascertain if he would do it.

107. These occasions were not the first times that the accused had expressed to Gattellari that he wanted the deceased murdered. Indeed from late 2008 the accused, whenever he spoke about the deceased, did so aggressively and constantly made comments that ‘I wish I had never met the man’, ‘he is ruining my life.’

108. During 2009 Gattellari had daily contact with the accused. The accused constantly complained to Gattellari about the exorbitant costs and embarrassment involved in his litigation against the deceased and was becoming increasing concerned that he would not recoup the money invested in the deceased. The accused was also very embarrassed and humiliated by the way the deceased treated him and believed he made a fool of him.

109. At the same time the accused told Gattellari that once the deceased had been killed he wanted pressure applied to the deceased’s wife, Kimberley McGurk, to intimidate her into resolving her husband’s outstanding legal disputes with him. The accused believed this would lead to these matters being resolved in his favour.

110. Kaminic then organised a meeting between Safetli and Gattellari and prior to the meeting informed Safetli why the meeting was called. Gattellari told Safetli, in the presence of Kaminic, that he was not happy with the surveillance work performed so far and that it had cost the accused a lot of money and headaches. He then stated to Safetli that he (the accused) wants him (the deceased) gone and asked him if he wanted to do it and how much money he wanted to do it.

111. Safetli agreed to do it and Gattellari negotiated the price with Safetli to carry out the murder. It was agreed that Safetli would be paid $300 000 to murder the deceased. It was further agreed that Gattellari would organise for money to be provided to Safetli for expenses and organising the murder and upon the completion of the contract Gattellari would pay him the amount outstanding.

112. During this meeting Gattellari also informed Safetli that after the murder of the deceased Medich wanted the deceased’s wife to receive a threatening message that she had to repay her husband’s debts.

113. Shortly after this meeting Gattellari informed the accused that he had found someone to kill the deceased (and the accused confirmed he wanted it done) but that it would cost $300,000 and $500 000 in total for the murder and intimidation of Mrs McGurk. The accused complained about the amount but agreed to paying that amount. Gattellari told him Safetli needed some cash for expenses to start and the accused stated he would organise some cash through his friend and associate, Les Samba.

114. A couple of days later Gattellari drove to the accused’s home on Wolseley Road, Point Piper with Kaminic. Upon their arrival at his home the accused left the room and returned with a packet of cry-vac sealed cash and stated ‘here’s 250 to take care of McGurk.’ Gattellari put the money into his carry bag and left to drive back to Chipping Norton. After taking out $45 000 from the cry-vac bag he placed the remaining money into a safe located in his bedroom.

115. Gattellari placed the $45,000 into a brown paper bag and gave it to Kaminic, telling him ‘tell the guys that this is their expense money. Tell them they have to start doing what they need to do.’ This money was the first payment to Safetli for the murder of the deceased.

116. Some of this remaining cash was handed to Shipley to inject into the electrical companies under the Riv Group and then Gattellari would then drawer from the company accounts to pay Safelti (sic) for the murder.

April 2009 – July 2009

117. Initially the plan to murder the deceased involved a desire to make the murder look like a cocaine overdose gone wrong. However, as the weeks went by, the accused became increasingly frustrated at the time it was taking for the deceased to be killed. He regularly stated to Gattellari ‘ Why is it taking so long?’ and ‘why hasn’t it finished?’. Consequently, Gattellari and Kaminic, regularly spoke or met with Safetli to seek an update as to the progress of the planning and to pass on the accused’s frustration and desire for the murder to be committed as soon as possible.

118. At one meeting, at his home, Gattellari stated to Safetli, ‘this is costing Ron a lot of money, it is causing him headaches, he just wants it done…just get it done anyway you can.’

119. On 15 May 2009, Paul Mathieson flew to Auckland to attend a meeting with the accused, Tim Alford and Andrew Howard. During the meeting the accused was quite friendly to Mathieson and stated that he wanted to rectify the Amazing Loans dispute and assist by lending more money on the condition that Paul Mathieson supply a statement against the deceased to police in relation to his criminal charge. Throughout the meeting the accused made a number of comments about the deceased including “I’m going to fix him. Don’t worry, he won’t be a problem for much longer” and “It doesn’t matter when he gets locked up for the firebombing, either way he won’t be a problem.”

120. On 16 May 2009 (until 21 May 2009) Gattellari and the accused flew to China for business. During this trip Gattellari sent Kaminic a text message stating words similar to: ‘if they’re ever gonna do it, this would be the time.’ This followed repeated complaints and questioning from the accused to Gattellari as to why it was taking so long.

121. During these few months Safetli attempted to find and engage someone willing to carry out the murder with him. A person known to him for many years appeared to be interested in committing the murder for a significant amount of money but whilst regularly taking significant amounts of the cash constantly delayed and prevaricated about committing the actual act. It became apparent that Safetli was being swindled to feed his friend’s drug habit. Gattellari nor the accused had any knowledge of this (sic).

122. These delays caused greater pressure to be exerted on Gattellari from the accused who was being increasingly concerned and annoyed at the time it was taking for the deceased to be murdered. In turn Gattellari and Kaminic were constantly enquiring as to when it would take place. During any mobile phone communication the parties would refer to the contract to murder the deceased as ‘rims, or wheels, or tyres’ for example ‘are they tyres ready?’ or ‘when do you think you will have this quote done?’

Car Accident 3 July 2009

123. In around June 2009 the deceased approached Radwan Zrieka (Zrieka) whom he had previously used to collect bad debts, and asked him to stage a car accident by running his car into the accused’s car after the accused had been at lunch. The deceased impressed upon Zrieka the importance of calling the police with the hope the accused would be arrested for drink driving which would have a negative effect upon their current litigation. The deceased also questioned whether Zrieka was prepared to kill someone. Zrieka believed the deceased to have been drinking at the time.

124. It was agreed that Zrieka would be paid $3000. On 3 July 2009 Zrieka followed the accused from Tuscany’s restaurant and deliberately ran into his car at the corner of Sussex and King Streets in the city. Zrieka, over objection from the accused, called the police who arrived shortly after. The accused was breathalysed and then taken away by police. Zrieka telephoned the deceased and informed him of what had occurred and later that day collected $5000 in an envelope from a female assistant of the deceased.

125. After the incident the accused met Gattellari and told him that ‘some asshole had (just) run into me. I almost swear it was deliberate and not an accident…it wouldn’t surprise me if it was that cunt McGurk trying to get me off his back, sending me a message.’

126. The accused was very agitated and angry and asked Gattellari ‘ What the fuck is going on? How long is this going to take? Are you sure these guys know what they are doing?’ Gattellari replied that he had done all that he could and was out of his hands.

Further Recruitment

127. During July 2009 Gattellari was still receiving constant pressure from the accused as to when the murder was going to take place. Consequently, Gattellari re-laid (sic) this to Kaminic who called Safetli into a meeting at the factory in Chipping Norton. Gattellari passed on the accused’s concern about the inaction and delay and asked if Safetli ‘needed a hand’. Safetli stated that he did.

128. Gattellari had a discussion with an associate of his, Ronald Mason from the Wagonga Aboriginal Land Council and told him that the accused had asked him to find someone to kill the deceased, that he thought he had but the deceased was still alive. Gattellari stated that the deceased was costing the accused a hundred thousand dollars per week. Mason said he knew someone who might be interested. A meeting was then arranged between Safetli and this potential other recruit at Malabar RSL.

140. In R v X [2014] NSWCCA 168 the respondent had been charged with offences of drug manufacture. After being charged, he was issued with a summons pursuant the ACC Act and subsequently took part in an examination in which he was questioned about the subject matter of those charges. The primary judge ordered a permanent stay of the respondent’s trial. The Court of Criminal Appeal set aside that order.

141. Hidden J (with whom Simpson and Hamill JJ agreed) considered the decisions in X7, Lee v NSWCC and Lee. Having done so, and bearing in mind that the issue before the primary judge was whether a permanent stay of the trial should be ordered, his Honour said (at [53]):

“In X7 and Lee v NSWCC the differences of opinion between the members of the High Court are clear enough. Nevertheless, X7 constitutes binding authority for the proposition that the examination under the ACC Act of a person who has been charged with an offence about the subject matter of the charge is not authorised by the Act, and is, accordingly, unlawful. It is the consequences for the pursuit of the prosecution of a person who has been subjected to such an unlawful examination which is the crucial question in the present case” (my emphasis)”.

142. His Honour expressly acknowledged (at [56]) the importance of the principles governing the trial process as expressed by the majority in X7. However, he accepted the submission advanced by the Crown that in determining whether a permanent stay of proceedings is warranted, it is necessary to determine whether prejudice has been occasioned and, if so, whether it can be remedied in such a way as to ensure a fair trial. In doing so, his Honour referred to the observations of Hayne J in Lee v NSWCC (at [79]-[81]):

“The asking of questions and the compelling of answers about the pending charge inevitably interfere with the conduct of an accusatorial trial and embarrass the defence of the accused. The answers the accused has been compelled to give to the questions asked deprive the accused of forensic choices that otherwise would be legitimately open at trial to test the case which the prosecution advances. That is, the asking of questions about the pending charge and the compelling of answers to those questions work a fundamental alteration to the accusatorial process of criminal justice.

It is theoretically possible that, at the end of a trial, it may be said that the deprivation of those choices was anodyne in its practical effect. But that is not to the point. The issue is presented when it is sought to conduct the examination. The examination occurs before the trial has begun.

No doubt, it is important to notice that an examination order under s 31D(1) was to be conducted before the Supreme Court or an officer of the Court prescribed by the rules of court. It is to be assumed that the Court or its officer would act to prevent oppression of the person being examined and would act to prevent misuse or abuse of the process of examination, whether by limiting or precluding publication of what transpires at the examination or otherwise. But, if the trial of the person being examined is pending, the Court (or the officer of the Court) cannot know, or cannot predict, what might harm the defence of that person at trial. Those matters are unknown to, and unknowable by, the Court (or its officer) for the simple reason that the Court (or its officer) does not know, and cannot be told, what are or will be the accused’s instructions to his or her lawyers at trial”.

143. In respect of these passages, Hidden J observed (at [57]):

“What his Honour said at [80] recognises that, where such an examination has occurred, its effect on that person’s trial will depend upon the circumstances of the case at hand” (emphasis added).

144. As with the present case (but unlike the situations in each of X7, Lee v NSWCC and Lee) the issue in X was whether a permanent stay of proceedings should be granted following the respondent’s examination. In these circumstances, I accept the Crown’s submission that the observations of Hidden J serve to confirm that the focus in a case such as the present case concerns the consequences, upon any proposed trial, of the examination. The fact of the examination itself, even if unlawful, does not inevitably justify an order for the permanent stay of the trial.

145. In the present case, there is obviously no doubt that Dets. Fitzhenry and Blanch were present when the applicant gave evidence. Neither took notes. Det. Fitzhenry’s focus was not entirely directed to the applicant’s evidence. There were some aspects of the applicant’s questioning which he did not fully understand although, as I have pointed out, the subject matter of the questioning was not restricted to complex financial dealings. Clearly, there were matters about which the applicant was questioned which Det. Fitzhenry understood.

146. It is equally clear that Det. Fitzhenry (and, I infer, Det. Blanch) both remained at the Commission for the duration of the applicant’s evidence. Further, and although the evidence is not precise, I am satisfied that the applicant’s evidence was the subject of some discussion following his examination. At the very least, it was discussed at the debrief on 1 September.

147. Further, the matters about which the applicant was questioned by Mr O’Connor were obviously relevant to the investigation of the deceased’s murder. The applicant was a suspect in that investigation.

148. In all of these circumstances, the presence of Dets. Fitzhenry and Blanch at the applicant’s examination provided each of them with the opportunity to hear what the applicant said, and to use that information to advance the investigation against him if they wished to do so.

149. However, I am satisfied that neither Det. Fitzhenry nor Det. Blanch availed themselves of that opportunity. The evidence of both officers, which I accept, establishes that apart from the creation of the two specific tasks by Det. Fitzhenry, nothing that they heard in the course of the applicant’s evidence was used for any investigative purpose by either of them. In these circumstances, and where the evidence does not establish that any other officer used anything said by the applicant for such a purpose, it cannot, in my view, be said that the Crown has been aided by the applicant’s evidence.

150. Det. Fitzhenry did review the transcript of the applicant’s evidence before creating each task. The first task was not pursued at all. The second was created, not as a consequence of the applicant’s examination but as a consequence of the receipt of the Defence case statement. Importantly, Det. Fitzhenry did not use the applicant’s evidence when undertaking the task and obtaining products in relation to it.

151. Det. Fitzhenry also uploaded the transcript of the applicant’s evidence onto E@glei, and added aspects of it to the timeline. As a consequence, it was open to any officer who may have had access to that system to access the transcript and/or the timeline and make use of either. However the fact that this was possible is not evidence of the fact that it occurred. There is no evidence any officer accessed this material and then used it for some investigative purpose. For the reasons I have already stated, the evidence tends wholly in support of the conclusion that no investigative use was made of the applicant’s evidence at all.

152. The presence of the police at the applicant’s examination, and the associated opportunity to use the applicant’s evidence in the investigation, has the capability to create unacceptable injustice or unfairness. However, what the applicant must establish in order for a permanent stay to be granted is that the continuation of the proceedings would involve unacceptable injustice or unfairness, or would be so unfairly prejudicial as to constitute an abuse of process. The mere presence of the police at the applicant’s examination, without more, does not meet that test, particularly in circumstances where the applicant’s examination was not regarded by those conducting the investigation as being particularly significant.

153. In advancing his primary submission, senior counsel for the applicant referred me to the recent decision of Logan J in QAAB v Australian Crime Commission [2014] FCA 747. The applicant in that case had been present at premises when a large drum of chemical was found in the course of the execution of a search warrant. He was charged with some relatively minor offences in respect of drug paraphernalia but was not charged in relation to the drum of chemical. He was then issued with a summons pursuant to s. 28 of the ACC Act requiring his attendance for a compulsory examination. One of the circumstances surrounding that examination concerned the presence, at the examination, of the person in charge of the investigation.

154. His Honour ultimately dismissed the application. However in doing so he said, in a passage relied upon by the applicant (at [39]):

“In Lee v R, at [29], the High Court contemplated that a power akin to s 25A(5) of the ACC Act might in a particular case be exercised so as to exclude from being present during an examination “persons associated with the possible prosecution of the person giving evidence”. In my view, the class of persons thus described is not limited to persons in the office of a Director of Public Prosecutions but extends to police officers and others investigating the possible commission of offences. Even though a non-publication order of the kind foreshadowed by the examiner may be made, it is by no means impossible to see how a police or other investigating officer who is present might be inspired to pursue other lines of inquiry directed to the gathering of evidence for the prosecution of an examinee just by hearing that person’s evidence under examination. The pursuit of such lines of inquiry might not necessarily violate a non-publication order but might well nonetheless prejudice the examinee’s fair trial were he to be charged.”

155. It was submitted on behalf of the applicant that the prejudice to which his Honour referred reflected precisely what had occurred in the present case. Leaving aside the fact that his Honour was not dealing with an application for a permanent stay, I am unable to accept that submission.

156. His Honour concluded that the pursuit of lines of enquiry following the attendance of an investigator at an examination might prejudice a fair trial. To begin with, pursuing a line of enquiry arising from an examination is a step beyond mere attendance at such examination. Moreover, as I have already noted, the evidence of Det. Fitzhenry and Det. Blanch was that nothing said by the applicant was used by either of them to pursue any line of enquiry. There is no evidence of any other officer having used anything the applicant may have said.

157. Further, even if were established that a line of enquiry arising from the applicant’s evidence was pursued, it would remain necessary for the applicant to establish that as a consequence of that having occurred, the continuation of the proceedings would result in unacceptable injustice or unfairness. All of these considerations simply highlight the fact that, as Hidden J observed in X, it is the effect of an examination upon a person’s trial which the important consideration. Such effect will depend upon the circumstances of the case at hand.

158. I am also unable to accept the submission that the presence of the police at the applicant’s examination had the effect of upsetting the balance between the applicant and the prosecution in the manner referred to by the High Court in Lee. In Lee the Court was not called upon to consider whether the trial should be permanently stayed. Moreover, the factual circumstances in that case were markedly different. Part of what upset the balance in that case was the fact that the Crown Prosecutor had had access to, and had used in preparing the trial, the transcripts of the evidence given by the appellants before the Commission. The evidence in the present case establishes that the lawyers involved in the prosecution of the applicant have not even accessed the transcript of his evidence before the Commission, much less used it for any purpose.

159. For all of these reasons, I do not accept the applicant’s primary submission that the presence of the police at the applicant’s examination warrants an order for a permanent stay of the trial. I now turn to consider the remaining matters relied upon.

Discussions between Police

160. The majority, if not all, of the police involved in the investigation believed that there was no impediment to discussing the applicant’s evidence. Although the evidence of the police on this subject is not completely clear, I am satisfied that some discussions took place, at the very least, at the debrief.

161. The mere fact that evidence was discussed is not sufficient to warrant a stay of the applicant’s trial, nor is the fact that the police considered that there was no impediment to the use of the applicant’s evidence. The more important consideration is the use, if any, to which that evidence was put. For the reasons I have already given, it was put to no use by Dets. Fitzhenry and Blanch, and there is no evidence of it being put to use by any other officer.

The application for Search Warrants

162. Det. Howe gave evidence that he had not read a transcript of the applicant’s evidence. He said that his application for Search Warrants was not influenced by anything said by the applicant in that evidence. He also said that his application was not influenced by any document(s) which may have been produced to the Commission by the applicant’s then Solicitor. I accept Det. Howe’s evidence in those respects. As he pointed out, he was investigating an alleged contract killing. It is unsurprising, in those circumstances, that the production of financial documentation (in respect of both the payment for the murder and the relationship between the applicant and the deceased) would be sought.

Gattellari’s evidence

163. The applicant relied upon a number of passages of the questioning put to Gattellari in his examination before the Commission which, it was submitted, indicated that important aspects of the applicant’s evidence had been disclosed.

164. The first instance is the passage at [84] above concerning the provision, by Riv Group, of credit. The question put by Mr O’Connor made reference to the fact that the Commission had previously had “the benefit of having spoken” with the applicant. That was an obvious reference to the applicant’s earlier examination. However as the Crown pointed out, the investigating police were in possession of information in relation to these financial arrangements long before, and independently of, anything said by the applicant in his evidence.

165. Firstly, in a Statutory Declaration made on 11 September 2009, Gattellari himself had said (inter alia):

“I have immense financial dealings with Ron Medich, he’s lent my businesses a lot of money. He’s now taken control of the electrical business. He owns the business, and I don’t own the business anymore. The electrical business was known as Rivercorp, which is now Riv Group”.

166. Secondly, there were references to these financial arrangements in telephone conversations between Gattellari and the applicant which were recorded by the police in 2009 and 2010 prior to the applicant giving evidence (see paras. [136]-[137] and [797]-[798] of Gattellari’s statement signed on 28 November 2011). Although in the course of that statement Gattellari provided further information in relation to such financial dealings by reference to those conversations, the dealings themselves were clearly known to the police as early as 2009. I am not satisfied in these circumstances that anything said by the applicant about that subject when examined resulted in Gattellari’s evidence being forthcoming.

167. It is also significant that in the statement obtained between 21 July 2011 and 25 November 2011 (at [93](vii) above) Gattellari made reference to these same financial arrangements. As Det. Watson explained (at [94](d) above) this statement was made as a consequence of Gattellari being provided with material by the police and being asked to comment on it. That material did not include anything said by the applicant.

168. The second instance is the passage at [85] above. Gattellari was asked about the existence of security over the line of credit. The terms of the question put by Mr O’Connor included a reference to the applicant having “indicated” the existence of such security. That was obviously a reference to the applicant’s earlier evidence before the Commission. In his response, Gattellari explained that “with the charges … we can’t dispose of anything without his permission”.

169. As the Crown pointed out, immediately before this the following questions and answers were recorded:

“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 the companies”.

170. These questions made no reference to the applicant’s evidence at all. Significantly, in response to the second, Gattellari volunteered the existence of the security. It was immediately following that answer that Mr O’Connor asked the question in [85] above. In these circumstances, any disclosure of the applicant’s evidence (such as it was) did not result in Gattellari’s disclosure of the existence of the security. Its existence had already been volunteered.

171. Moreover, as the Crown also pointed out, it is not incumbent upon the presentation to establish these various financial dealings as a fact in its case. They are relied upon by way of background only.

172. The third instance is the passage at [86] above. In his question, Mr O’Connor made reference to the applicant having “indicated that the electrical companies are soaking up a substantial proportion of (the applicant’s) wealth” to the point where he had indicated that there would not be any further credit extended. Gattellari did not expressly cavil with that proposition, but said that no further credit was being sought in any event.

173. Although the terms of Mr O’Connor’s question might infer some reference to the applicant’s evidence, such terms did not accurately reflect what the applicant had in fact said in response to being asked about his relationship with Gattellari (see [31] above).

174. The applicant in fact said nothing about the investments soaking up a substantial proportion of his wealth, nor did he assert that he was not prepared to make any further investment, or extend any credit.

175. The gravamen of the applicant’s complaint in this respect is that important parts of his evidence were disclosed to Gattellari. I am not able to accept that such disclosure occurred in circumstances where the question that was asked did not, in fact, reflect the applicant’s evidence. In any event, the fact that the applicant had invested heavily in businesses with Gattellari was known to the police well before he gave evidence. In March 2010, police intercepted a conversation between Gattellari and Kim Shipley in which the funding of the electrical companies, and the applicant’s frustration at the lack of return as expressed to Shipley, were discussed (see statement of Gattellari at [93](vi) above at [725]-[726]).

176. The fourth instance is the passage at [87] above. When the transcript of Gattellari’s examination is read as a whole, it would appear that the monies advanced to Safetli, and the loan that Gattellari asserted he had made to Jim Emirian, were two separate amounts. Although Mr O’Connor’s questions made reference to what the applicant had been “told by this Commission”, that is of limited significance in circumstances where no reliance is placed by the Crown on loans made by Gattellari. In particular, the Crown does not rely upon any loan to Safetli as evidence of payment (or part payment) for the deceased’s murder. Accordingly, even if there was some disclosure of what the applicant had said, the Crown does not rely upon it. Moreover, Gattellari’s evidence that such loans were made without authorisation would appear to assist the applicant’s case as it is outlined in the defence case statement.

170. The fifth instance is the evidence at [87]-[89] above. Gattellari was asked about the deterioration of the relationship between the applicant and the deceased. In the course of that questioning, Mr O’Connor made reference to the deceased’s taping of private conversations between himself and the applicant (referred to in the Crown case statement at paras. 47 and 48) and the date on which the applicant became aware of that fact. Gattellari said he knew nothing about any tape.

171. There are a number of observations to be made concerning this aspect of Gattellari’s examination. Firstly, as the Crown submitted, Mr O’Connor’s questions to Gattellari on this subject made no reference to the applicant’s evidence. In particular, they did not suggest that such evidence formed the basis of the questions which were asked. Secondly, Gattellari was asked an open-ended question (without reference to anything the applicant may have said) about the events which led to the deterioration of the relationship between the applicant and the deceased. He responded simply to the effect that “court cases” were an indication that the relationship had soured. Thirdly, and to the extent that Gattellari was asked about the date of 3 March 2009, Mr O’Connor had made it clear when questioning the applicant that the Commission’s source of this information was “what came out of the ICAC enquiry” (at [28]) above. None of this involved the disclosure of what the applicant had told the Commission.

172. For all of these reasons, I am not satisfied that anything put to Gattellari in the course of his examination supports the making of an order sought.

The roles of Dets. Groves and Watson in obtaining Gattellari’s statements

180. Neither Det. Groves nor Det. Watson were present at the applicant’s examination. Because of their involvement in the investigation they had some appreciation of the subject matter which was to be covered in any statement(s) obtained from Gattellari. However, that does not support a conclusion that the applicant’s evidence before the Commission was used, in any way, in the task of obtaining such statements. Both officers rejected the suggestion that the briefing prior to taking Gattellari’s first statement included any reference to the applicant’s evidence. There is no reason not to accept the evidence of each officer in that respect. There is no other evidence which establishes that the applicant’s evidence was used, in any way, in the process of obtaining Gattellari’s statements. I am satisfied that it was not.

181. Moreover, the manner in which Gattellari’s statements were taken, and in some cases the reason(s) for which they were taken, tend completely against a conclusion that the applicant’s evidence was used in that process. As set out in the respective affidavits of Dets. Groves and Watson, some of the statements were generally taken as a free form narrative in which Gattellari simply recounted his involvement, and that of others, in the deceased’s murder. Others were taken that form, and came about as a consequence of the police seeking clarification, either of audio/visual material obtained in the investigation or of something that Gattellari had previously said. There is no indication at all that the applicant’s evidence was used in the course of that process.

Knowledge of DPP lawyers of Gattellari’s evidence and statements

182. Ms. O’Rourke, as well as Ms Harris and Ms Lind, have had access to Gattellari’s evidence, or at least aspects of it. That is to be expected, given the reliance placed upon Gattellari’s evidence in the Crown case. As Ms O’Rourke properly pointed out, it is necessarily part of her trial preparation to familiarise herself with any statement, in whatever form, previously made by Gattellari. That is so in the case of any witness. It is all the more so when the evidence of that witness is significant.

183. For the reasons I have already expressed, I am satisfied that no material part of the applicant’s evidence before the Commission was put to Gattellari when he gave evidence, and that nothing said by the applicant in his evidence was used for the purposes in obtaining Gattellari’s various statements. In those circumstances, and bearing in mind the unchallenged evidence of Ms O’Rourke, Ms Harris and Ms Derrig that they have not read the transcript of the applicant’s evidence, there is no warrant to restrict their access to the statements and evidence of Gattellari. The fact that they have had such access provides no basis for the orders sought by the applicant, particularly as that material will obviously form a significant part of the basis of the cross-examination of Gattellari at any trial, as it did at the committal proceedings.

The applicant’s position at trial

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 his appearance before the Commission, or anything relating to that appearance.

A temporary stay of proceedings

185. It was submitted on behalf of the applicant that in the event that I rejected the application for a permanent stay of proceedings, I should order a temporary stay on the terms set out in [114] above. In light of the views I have reached in relation to Gattellari’s evidence, the provision of his statements, and the knowledge of this material on the part of the Crown Prosecutors and their instructing solicitors, there is no warrant for the making of an order for a temporary stay. To the extent that the applicant’s submission relied upon the proposition that any DPP lawyer(s) had accessed the applicant’s evidence, the evidence is completely to the contrary. I am satisfied that no DPP lawyer has read any part of that evidence.

ORDERS

186. For the foregoing reasons I make the following orders:

1. The applicant’s notice of motion dated 18 June 2014 is dismissed.

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Decision last updated: 23 April 2018