R v Medich (No 6)

[2016] NSWSC 1001

Supreme Court

New South Wales

Medium Neutral Citation:

R v Medich (No 6) [2016] NSWSC 1001

Hearing dates:

11 July 2016; 20 July 2016

Date of orders:

25 July 2016

Decision date:

25 July 2016

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) The jury is discharged.

(2) The trial date is vacated.

(3) The solicitor for the accused is to file with my Associate, no later than 5:00 pm on 25 July 2016, subpoenas directed to the following:

(a) The Australian Criminal Intelligence Commission (formerly the Australian Crime Commission);

(b) The New South Wales Police;

(c) The New South Wales Crime Commission; and

(d) The Department of Justice (Corrective Services New South Wales).

(4) The subpoenas in (3) above are to be made returnable before me on Monday 8 August, 2016 at 9:15am.

(5) The matter is listed for further directions before me on Monday 8 August at 9:15am.

(6) The non-publication order previously made in these proceedings is varied so as to allow the publication of:

(i) this judgment;

(ii) the proceedings before the Court on 25 July 2016.

Catchwords:

CRIMINAL LAW – Practice and Procedure – Application to vacate trial - Obligations of disclosure – Deceased killed in 2009 – Accused charged with murder and intimidation in 2010 – Where certain events came to the attention of police in 2013 – Where those events were material to significant issues in the accused’s trial – Where events were investigated by a designated task force in 2013 and 2014 – Where members of that task force did not include officers engaged in the investigation of the deceased’s murder - Voluminous material obtained by the end of 2014 – Where police investigating the deceased’s murder and the Crown sought the material between 2014 and 2016 – Where some of the material was disclosed to the police investigating the deceased’s murder in about mid June 2016 – Entirety of material provided to those police after that time - Where the entirety of the material was not provided to the Crown until early July 2016 - Where material was disclosed to the accused on the morning of the first day of his trial in July 2016 – Where the disclosure of the material necessitated an adjournment of the trial to allow the material to be analysed – Where the nature of the material gave rise to the need to issue a number of subpoenas and make further pre-trial applications – No evidence was placed before the Court to attempt to explain the reasons behind the delay in the material being disclosed - Where the trial was not in a position to proceed as a result of late disclosure – Trial vacated – Jury discharged – Orders made to facilitate the immediate progress of the matter with a view to setting a new trial date – Observations as to the importance of adherence to disclosure obligations and the consequences of the late vacation of trials

Legislation Cited:

Director of Public Prosecutions Act 1986 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:

R v Lipton [2011] NSWCCA 247; (2012) 82 NSWLR 123
R v Solomon [2005] SASC 265; (2005) 92 SASR 331

Category:

Procedural and other rulings

Parties:

Regina – Crown
Ronald Edward Medich – Accused

Representation:

Counsel:
Crown: Ms G O’Rourke SC and Ms S Harris (on 11 July 2016)
Ms S Harris (on 20 and 21 July 2016)

 

Accused: Mr S Lawrence (on 11 July 2016)
Ms A Francis and Mr S Lawrence (on 20 July 2016)

  Solicitors:
Director of Public Prosecutions (NSW) – Crown
Robyn Richardson Law (on 20 and 21 July 2016) – Accused

File Number(s):

2010/356916

Publication restriction:

Nil

Judgment

INTRODUCTION

1. On 3 September 2009 Michael Loch McGuirk (“the deceased”) was shot and killed outside his home in Cremorne. On 27 October 2010 Ronald Edward Medich (“the accused”) was charged with soliciting to murder the deceased. On 4 November 2010 the accused was charged with murdering the deceased. On 7 June 2013 the accused was further charged with intimidating Kimberley McGuirk, the wife of the deceased.

2. I do not propose to recount the lengthy procedural history of the matter. It is sufficient for present purposes to note that in November 2015 the accused’s trial was listed to commence on 11 July 2016, with an estimate of 3 to 4 months. Between November 2015 and June 2016, a number of directions hearings were held before me with a view to ensuring that the trial would be in a position to proceed on the date on which it was listed.

3. At about 9.55 am on the morning of 11 July 2016, that being the date on which the accused’s trial was to commence, the Crown provided the accused, by way of disclosure, with two large lever arch folders of documents. The accused having been arraigned, and a jury having been empaneled, I adjourned the proceedings until 25 July 2016 so as to allow the accused to read and analyse the material which had been disclosed.

4. Such analysis having been undertaken, the accused has now filed two notices of motion. The principal orders sought by the accused are that:

1. the jury be discharged;

2. the trial be vacated; and

3. the matter be adjourned for further directions, with associated orders being made to facilitate the issue, on behalf of the accused, of a number of Subpoenas.

5. The orders were opposed by the Crown.

6. In support of the orders sought, the accused filed an affidavit of his present solicitor, Robyn Richardson, of 20 July 2016. He also tendered the material disclosed by the Crown on 11 July 2016 which was marked Exh. A. Further, to the extent that it is not otherwise contained in Exhibit “A”, I have had regard to material provided to me on 11 July 2016 when the issue of late disclosure was first raised.

7. The Crown chose not to place any affidavit evidence before the Court in relation to the circumstances which give rise to this application. I must say that I would have been assisted by some direct evidence which established (inter alia) the relevant chronology of events. As a consequence of the absence of any evidence being adduced by the Crown, I have been left to draw such inferences as are available to me from the evidence tendered on behalf of the accused, as to when, and in what circumstances, particular events occurred.

THE FACTS

8. In June 2013 officers of the NSW Police were notified of what I will refer to as “the 2013 incident”. Because of the fact that the accused is yet to come to trial, and mindful of the necessity to take every step to ensure a fair trial for the accused as well as for the Crown, it is not appropriate, nor is it necessary, to set out any detail of that incident. Its significance is probably best gauged by the fact that a specific task force was created to investigate it, independent of that which was set up to investigate the deceased’s murder.

9. It is the accused’s position that the circumstances surrounding the 2013 incident have a bearing on at least one of the principal issues in his trial. The Crown did not appear to dissent from that proposition.

10. Having been made aware of the 2013 incident, officers from the task force commenced to investigate it. That investigation involved (inter alia) interviewing a number of witnesses, and taking a number of statements. Material obtained by the police as a result of that investigation bears dates between July 2013 and December 2014.

11. It was not until about 7 June 2016 that Det. Sheehy (the officer in charge of the investigation of the deceased’s murder) sought legal advice from a Police Prosecutor as to the necessity to disclose material obtained from the investigation of the 2013 incident. Although there is no direct evidence, I infer that the catalyst for seeking advice was the provision to Det. Sheehy, in about early June 2016, of material emanating from the investigation of the 2013 incident. Importantly, Det. Sheehy’s briefing note to the Prosecutor indicates that he was provided with only 3 documents at that time. They were in the nature of log entries and were dated 16 July 2013, 19 December 2013 and 17 March 2014 respectively. Those documents provided what might be described as a very broad overview of the nature of the 2013 incident, and the investigation conducted in relation to it. They formed a small fraction of the entirety of the material which was held by police as a result of the investigation.

12. In the course of the hearing of the present application the Crown Prosecutor informed me:

“I am instructed that since 2014 the officers involved in this matter made contact with those officers, indicating to them the importance of finalising the investigation and the advising. In particular they have documented contact … impressing that upon them”.

13. I accept, based upon what I was told by the Crown Prosecutor, that Det. Sheehy, perhaps along with other officers involved in the investigation of the deceased’s murder, took some steps between 2014 and 2016 to obtain, from members of the other task force, material which had been obtained in the investigation of the 2013 incident.

14. Det. Sheehy’s briefing note makes reference to the fact that “in 2013 investigators became aware of (the 2013 incident)”. The reference to “investigators” is to be interpreted as a reference to those (including Det. Sheehy) who were engaged in the investigation of the deceased’s murder. Given that those investigators were aware of the 2013 incident, they must have been aware of its potential impact upon issues which would arise in the accused’s trial. However I accept, on the basis of what I have been told from the Bar table by the Crown, that Det Sheehy and other officers involved in the investigation of the deceased’s murder had no direct involvement in the investigation of the 2013 incident.

15. Consistent with that, Det. Sheehy’s briefing note makes reference to the fact that those involved in the investigation of the deceased’s murder were “unaware” (as at June 2016) of the “current status” of the investigation into the 2013 incident. Being unaware of the status of an investigation is quite a different thing from being unaware of the nature and extent of evidence obtained in the course of such investigation. The precise extent of Det. Sheehy’s knowledge as at June 2014 (or for that matter, the knowledge of any other officer(s) involved in the investigation of the deceased’s murder) of the nature and extent of the material obtained as a result of the investigation of the 2013 incident is not clear on the evidence.

16. On 9 June 2016, Det. Sheehy was advised that a “legal obligation exists to disclose the material … to the Crown and to the accused Medich”. By letter of 23 June 2016, the Director of Public Prosecutions wrote to the accused and enclosed the three log entries referred to in [11] above, along with a copy of the opinion obtained from the Police Prosecutor as to disclosure, and a further investigator’s note of 6 March 2014. Clearly, the Crown had been provided with this material by the police at some time between 9 June and 23 June.

17. It is evident that at some time after the advice was provided to Det. Sheehy on 9 June 2016, those police involved in the investigation of the deceased’s murder were provided with the entirety of the material obtained in the course of the investigation of the 2013 incident. I am not able to determine exactly when this occurred. The Director’s letter to the accused of 23 June 2016 suggests that the Crown may not have had the entirety of the material in its possession when the letter was written although once again, that is not entirely clear. The Crown suggested from the Bar table that it was not until sometime after 5 July that the Director’s office received the material from the police.

18. In this regard, the Crown Prosecutor informed me in the course of the hearing:

“I cannot tell your Honour how many times we have sought that information. We have records of our seeking it. The police in relation to our investigation have been seeking it. We then discovered effectively on Tuesday 5 July that material had been sent to a Police Prosecutor for advice and then coming to us for advice but going to be given to us next week. We sought it to come in immediately. We could not see the material”.

19. In these circumstances, I enquired of the Crown as to whether what was said to have occurred between 2014 and 2016 (in terms of efforts to obtain the material) was going to be addressed by calling evidence. The following exchange then took place:

CROWN PROSECUTOR: … The officer‑in‑charge we sought to have here today to give evidence. The officer‑in‑charge is in the Philippines. His offsider is here if your Honour wishes me to call him.

HIS HONOUR: I am not seeking to run your application, it is not my role, but this is very troubling.

CROWN PROSECUTOR: Yes, it is. I would normally seek to call him but I don't think there is an adequate explanation for it. We have been saying that all along, so that we're basically as upset with it as your Honour.

20. The Crown’s references to the “officer in charge” and his “offsider” were references to officers engaged in the investigation of the 2013 incident. It is inconceivable to think that those officers would not have had some knowledge of the case against the accused, as well as some knowledge of the evidence relied upon to support it. By the end of 2014 they had gathered a significant body of evidentiary material, the nature of which was such that they must have had some appreciation of its impact upon the issues in the accused’s trial.

21. Even in the absence of evidence from the Crown, four conclusions are clear. Firstly, steps were taken by police and the Crown between 2014 and 2016 to get access to the material obtained from the investigation of the 2013 incident. Secondly, the entirety of that material was provided to the police investigating the deceased’s murder a matter of weeks prior to the accused’s trial. Thirdly, the material was provided to the Crown sometime in early July 2016. Fourthly, it was not until about 9:55 am on the morning of 11 July 2016, that being the morning on which the accused’s expected 3 to 4 month trial was listed to commence, that the Crown disclosed the material to the accused for the first time. Precisely why all of this occurred as it did is not explained on the evidence.

22. When I was informed that disclosure had been made to the accused shortly before the commencement of his trial, and for reasons that I expressed at the time, I adjourned the trial for a period of two weeks. In the intervening period counsel for the accused undertook an analysis of the material in Exh. A. Having done so, counsel formed the view that it would now be necessary to undertake further investigations and enquiries in order to properly prepare the accused’s case. Counsel explained that those investigations and enquiries will include the immediate issue of a series of subpoenas. Counsel has also foreshadowed the necessity to make one or more further pre-trial applications as a result of the late disclosure of the material. There is also a possibility that the accused will seek to rely upon notices issued pursuant to the Evidence Act 1995 (NSW).

23. Those steps do not necessarily represent the limit of the investigations and enquiries which have been rendered necessary as a consequence of the late disclosure of the material to the accused. Counsel has informed me that she will not be in a position to define the limits of any further steps which might be necessary until at least there is initial production of material under subpoena. The production of that material may lead to the necessity to issue further subpoenas. It is also conceivable that there will be claims for public interest immunity by some of the organisations to which it is proposed that subpoenas be directed. It is in all of these circumstances, that an application has been made to vacate the trial.

CONSIDERATION

24. Section 15A of the Director of Public Prosecutions Act 1986 (NSW) imposes a duty of disclosure upon law enforcement officers. A duty of disclosure is also imposed upon the Crown, independent of that Act. The interests of justice, and the public interest in the efficient disposition of cases before the court, necessitate careful attention being paid to the duty of disclosure: R v Solomon [2005] SASC 265; (2005) 92 SASR 331 at [116] per Doyle CJ (with whom Duggan and Sulan JJ agreed) cited in R v Lipton [2011] NSWCCA 247; (2012) 82 NSWLR 123 at [92].

25. The material which was obtained in relation to the 2013 incident, and which was finally disclosed to the accused 2016, was available, and apparently in the possession of the police investigating the 2013 incident, on and from December 2014. I am satisfied that it was not provided to the police responsible for investigating the deceased’s murder until sometime in June 2016. It was not provided to the Crown until July 2016. Why that is so is not something I am able to answer on the evidence. However on the basis of what I have been told by the Crown, there is no adequate answer. That, as I observed in an exchange with the Crown, is obviously troubling.

26. On the basis of what I have been told by the Crown from the Bar table, I am satisfied that between 2014 and 2016 there were requests made by the Crown, and by police involved in the investigation of the deceased’s murder, to obtain the material. In the absence of any evidence being adduced by the Crown, I am not able to determine the frequency with which those requests were made, the persons by whom they were made, the terms in which they were made, or the terms of any response to them. Accepting that such requests were made, they were obviously directed towards having the material passed over, either to the police involved in the investigation of the deceased’s murder, or to the Crown. Whilst those efforts were laudable in one sense, it follows from the lengthy period over which they were apparently made that it must have been apparent, a very long time ago, that they were not achieving the desired result. What other steps were taken, for example by escalating those efforts so that they were undertaken at an appropriately senior level, is not established. Moreover, any requests made since November 2015 must necessarily have been made with an increasing realisation that the trial date was fast approaching. What, if anything, was done in the face of that increasing realisation to bring the matter to a head is not established on the evidence.

27. What is also troubling, is that these proceedings have come before me for (inter alia) directions on no less than eight occasions since the trial date was set in November 2015. Obviously, the object of case managing the matter in that way was to ensure that the trial would be ready to proceed. Indeed, on several of those occasions I emphasised the need to ensure that there was nothing in the way of any pre-trial issues which would prevent the trial from commencing on the scheduled date. Between November 2015 and June 2016, as the trial judge, I was not given the slightest indication of the existence of some ongoing (but unresolved) issue which had the capacity to impact on the commencement of the trial.

28. Against all of that background, it was not until the morning of the very first day of the accused’s trial, and indeed only a matter of a few minutes before the proceedings commenced on that day, that the material was disclosed to the accused. He had not previously been provided with any of it.

29. The accused’s representatives have now had the opportunity to analyse the material and obtain instructions. The further investigations which counsel has submitted are rendered necessary as a consequence of the late disclosure of the material are set out at [22]-[23] above. I have read the material. Given the nature and extent of it, I am certainly not in a position to conclude that the steps that counsel has submitted are now rendered necessary are unwarranted or lacking a proper foundation. On the contrary, they seem to me to be perfectly reasonable and legitimate forensic steps, of a kind which would be expected to be required in the circumstances I have outlined.

24. The unfairness visited upon the accused as a consequence of the late disclosure of the material will be obvious. He cannot be forced to go to trial in these circumstances. As a result of what has occurred, the trial cannot commence in the immediate future. I am left with no alternative but to vacate it, and discharge the jury. In doing so, I should make it clear that for my part the accused’s trial would have proceeded but for the Crown’s late disclosure of relevant material. It is solely as a result of that, and the consequent unfairness to the accused, that the trial date must be vacated.

25. The adverse effects of any criminal trial being vacated at a late stage, let alone at the time of its scheduled commencement, are many and varied. The efficient management of the Court’s considerable workload requires that trials proceed on time, and that they proceed efficiently. When that does not occur, the Court’s planning is thrown into disarray, the burden of its workload is increased, and its available resources are subjected to additional strain.

26. There are other adverse effects as well. The listing of this trial for a period of 3 to 4 months has necessarily had the effect of “shutting out” other accused persons from obtaining an earlier date for their trials. Moreover, there is an obvious public interest in having trials completed within a reasonable time of the commission of an alleged offence, and the charging of an accused. In the present case, the deceased was killed almost 7 years ago. The accused was charged almost 6 years ago.

27. It is also not without significance that 15 members of the public, by virtue of their empanelment as members of the jury, had expressed a preparedness to give up a not insignificant part of their lives in service to the community. Doubtless, all of them have arranged their personal affairs so as to enable them to serve as jurors in this trial. They have been put to significant and completely unwarranted inconvenience as a consequence of the trial being vacated.

28. Finally, quite apart from the public interest, and irrespective of what might be the ultimate outcome of this trial, the deceased’s family would no doubt wish to have some closure after such a long period. That is something which they will now be denied for a further period of time.

29. Any further observations regarding the completely unacceptable circumstances which have resulted in the vacation of this trial would be superfluous.

30. For the reasons I have expressed, I make the following orders:

1. The jury is discharged.

2. The trial date is vacated.

3. The solicitor for the accused is to file with my Associate, no later than 5:00 pm on 25 July 2016, subpoenas directed to the following:

1. The Australian Criminal Intelligence Commission (formerly the Australian Crime Commission);

2. The New South Wales Police;

3. The New South Wales Crime Commission; and

4. The Department of Justice (Corrective Services New South Wales).

4. The subpoenas in (3) above are to be made returnable before me on Monday 8 August, 2016 at 9:15am.

5. The matter is listed for further directions before me on Monday 8 August at 9:15am.

6. The non-publication order previously made in these proceedings is varied so as to allow the publication of:

1. this judgment;

2. the proceedings before the Court on 25 July 2016.

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Decision last updated: 25 July 2016